Terms and Conditions of Sale of Sega Amusements International Limited
1.1 In these Conditions the following expressions shall have the follow meanings
“SAI” Sega Amusements International Limited
“Customer” the person, firm or company with whom SAI makes the Contract and which expression shall include (jointly and severally) any principal on whose behalf the Customer orders the Goods
“Contract” any Contact or Order formed on acceptance by SAI of the Order from the Customer for the Sale and Purchase of the Goods.
“Goods” the Goods (including any instalment of the goods or any part of them) which are to be supplied by SAI pursuant to the Contract.
“Delivery” the delivery (by whatever means) of the Goods by SAI as agreed with the Customer.
“Price” the price of the Goods quoted by SAI.
“Property” the title to the Goods.
In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.2 All Contracts will only be accepted by SAI and concluded upon the basis of these Conditions together with any special conditions issued by SAI to the Customer at any time prior to or with SAI’s acceptance of any order of the Customer.
1.3 These Conditions supersede any other terms appearing in any previous catalogue or elsewhere and unless otherwise specifically agreed in writing by SAI constitute the entire understanding by SAI to the Customer.
1.4 All descriptions, illustrations and prices in any catalogue, price list or otherwise issued by SAI are intended to merely present a general idea of the Goods and/or price and nothing contained in any of them shall form any part of any Contract nor constitute a representation between SAI and the Customer.
1.5 No Terms or Conditions of the Customer, irrespective of their date, shall apply or prevail over these Conditions.
1.6 SAI may perform any of its obligations or exercise any of its rights by itself or through any other member of the same group of companies of which SAI is the holding company or is also a member.
1.7 Any notice given by either of the parties pursuant to these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the party giving the notice.
1.8 No waiver by SAI of any breach of contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
1.9 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
1.10 No variation of these Conditions shall be binding unless agreed in writing between any Director of SAI and the Customer.
1.11 The employees and agents of SAI are not authorised to make any representations concerning the Goods unless confirmed by any Director of SAI in writing. In entering into any Contract the Customer acknowledges that it does not rely on and waives any claims for breach of any such representations which are not so confirmed.
1.12 Any advice or recommendations given by SAI or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the goods which is not confirmed in writing by any Director of SAI is followed or acted upon entirely at the Customer’s own risk and accordingly SAI shall not be liable for any such advice or recommendation which is not so confirmed.
1.13 The headings in these Conditions are convenience only and have no legal effect.
2.1 The Price of the Goods shall be the price quoted by SAI. The Price may be quoted in Sterling, US dollars or Euros and the Customer will pay for the Goods in the currency quoted.
2.2 SAI reserves the right to effect changes in the Price of the Goods (or any of them) without prior notice at any time before despatch.
2.3 The Price is quoted on an ex-works basis with packing, carriage, delivery and associated costs chargeable extra, VAT will be added at the rate applying at the date of despatch or invoice as allowed by the relevant VAT Regulations for the time being.
3.1 Unless written cancellation is received at least 5 working days prior to despatch all Goods ordered will be despatched as soon as the Goods are available. If Goods are refused and returned they will be subject to a handling charge as detailed in Condition 9.2.
3.2 SAI shall not be responsible nor liable for supplying Goods which are not available when ordered irrespective of any representation made by SAI or any of its officers or employees.
3.3 The Customer shall be responsible to SAI for ensuring the accuracy of the terms of an order (including but not exclusively any relevant specification) and for providing to SAI any necessary information concerning the Goods within a sufficient time to enable SAI to perform the Contract in accordance with its terms.
4.1 If any special delivery service is required this must be specified by the Customer at the time of order.
4.2 SAI will use all reasonable endeavours to despatch Goods on the first available transport unless the Customer instructs otherwise subject to the Goods being available. If any special delivery is required or if the Customer instructs SAI to despatch Goods other than on the first available transport this must be specified at the time of order and SAI will use reasonable endeavours to comply with the same. The Customer will be responsible for any costs of whatever nature incurred in providing any special delivery service.
4.3 Delivery shall be made to the Customer’s address, or if the Goods are to be collected by the Customer upon such collection from SAI’s address or SAI’s agent’s address at any time after SAI has notified the Customer that the Goods are ready for collection.
4.4 Any dates quoted for Delivery are approximate only and SAI shall not be liable for any loss or damage whatsoever due to delay in Delivery howsoever caused. Time for Delivery shall not be of the essence of the Contract. The Goods may be delivered by SAI in advance of the quoted Delivery Date upon giving reasonable notice to the Customer.
4.5 SAI may effect Delivery by instalments in which case these Conditions shall apply to each instalment as though a separate Contract and any failure or defect in one instalment of Delivery will not entitle the Customer to repudiate the Contract as a whole.
4.6 If the Customer fails to take Delivery or fails to give SAI adequate Delivery instructions prior to the time stated for Delivery then without prejudice to any other right or remedy available to SAI, SAI may:-
(a) store the Goods until actual delivery or sale (as provided in paragraph (b) hereof) and charge the Customer for the reasonable costs (including insurance) of storage of the Goods; and/or
(b) sell the Goods at the best price readily obtainable for a forced sale and (after deducting all reasonable storage and selling expenses) charge the Customer for any shortfall below the price under the Contract.
4.7 If SAI fails to deliver the Goods (or any instalment) for any reason other than any cause beyond SAI’s reasonable control (which shall include the inability of SAI to obtain from it’s supplier(s) on commercially acceptable terms the Goods which are to be supplied pursuant to the Contract) or the fault of the Customer then SAI is accordingly liable to the Customer for losses which shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
5.1 SAI warrants to the Customer that the Goods will function and shall be free from defects for the following respective periods :
(i) new machines – 90 days from Delivery;
(ii) PC Boards and Cartridges – 30 days from Delivery;
(iii) Tokio merchandise-12 months from Delivery.
5.2 If the Customer shall bring a valid claim under the terms of this Condition 5 SAI will at its option either replace or repair the non-complying or defective Goods as soon as reasonably practicable. All claims must be made in writing within the relevant warranty period. All telephone claims must be confirmed in writing no later than 7 days after the date of the telephone claim and, in any event, within the relevant warranty period. The foregoing is the Customer’s sole and exclusive remedy as against SAI and either the repair or replacement of the non-complying or defective Goods shall constitute an absolute discharge of SAI’s entire liability under the warranty given in Condition 5.1.
5.3 In the event of Goods being returned to SAI as a result of any claim under the warranty given in Condition 5.1, the Customer shall be liable for and shall pay all costs of carriage to return the Goods.
5.4 During the warranty period SAI may send the Customer a replacement for a non-complying or defective part on condition that the non-complying or defective part is returned to SAI as soon as the part is replaced. If the Customer fails to send back the non-complying or defective part to SAI within 14 days of delivery of the replacement the Customer will be liable for the cost of the part at full list price.
5.5 Where the Goods are no longer subject to the warranty in clause 5.1 SAI may send a replacement part for a non-complying or defective part to the Customer subject to the Customer paying in advance for the part and the cost of the carriage. Provided that the Customer returns the defective or non-complying part and SAI is able to repair it, SAI will credit the Customer the value of the repaired part once sold.
5.6 The Customer shall have no right to reject and may not refuse to take delivery of any Goods the subject of any Contract on any grounds whatsoever (including, without limitation, any alleged breach of any warranty given by SAI to the Customer in relation to the Goods) and SAI shall not be required to satisfy any burden of proof that any alleged breach was so slight that it would be unreasonable for the Customer to reject the Goods.
5.7 Except as expressly provided in these Conditions or except where the Goods are sold to a person dealing as a consumer (within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 ), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
5.8 Where the Goods are sold to a consumer as defined by Consumer Protection from Unfair Trading Regulations 2008 the statutory rights of the consumer are not affected by these Conditions.
5.9 Liability for death or personal injury caused by the negligence of either party is not limited or excluded. SAI shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of SAI, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods except as expressly provided in the Conditions. In any event the entire liability of SAI under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions.
5.10 The Customer shall:
5.10.1 comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption (Relevant Requirements);
5.10.2 have and shall maintain in place throughout the term of this agreement its own policies and procedures to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
5.10.3 promptly report to the SAI any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this agreement;
5.10.4 Annually certify to SAI in writing signed by an officer of the Customer, compliance with this clause 5.10 by the Customer and all persons referred to under clause 5.10.5. The Customer shall provide such supporting evidence of compliance as SAI may reasonably request.
5.10.5 The Customer shall ensure that all of its agents and subcontractors who perform services or provide goods in connection with this agreement do so only on the basis of a written contract which imposes on and secures from such persons terms equivalent to those imposed on the Customer in this clause 5.10 (Relevant Terms). The Customer shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to SAI for any breach by such persons of any of the Relevant Terms.
5.10.6 Breach of this clause 5.10 shall be deemed a breach under clause 11.1(a).
5.11 The Customer will observe all applicable laws and regulations in the territory in which the Goods are located in respect of the exploitation of the Goods and obtain and pay for and maintain in force all necessary licences, consents, permissions and approvals of any government or quasi-governmental or other regulatory authority as may be required in connection with the sale, storage and use of the Goods in that territory.
6 INSPECTION, TRANSIT DELAYS AND NON-DELIVERY
6.1 The Customer must inspect the Goods as soon as is reasonably practicable after Delivery and in any event shall within 48 hours of Delivery give written notice to SAI in detail of any defect in the Goods or of any other complaint which the Customer may have in relation to the Goods. If the Customer fails to give such notice the Goods shall be conclusively presumed to be in all respects in accordance with the Contract and free from any defect which would be apparent on reasonable examination and the Customer shall be deemed to have accepted the Goods accordingly.
6.2 If SAI delivers to the Customer less than the quantity of Goods specified on the Order then the Customer shall notify SAI in writing or by email 48 hours of Delivery quoting the invoice number. SAI may in its absolute discretion credit to the Customer the Price of the shortfall or re-deliver Goods in the quantity of the shortfall.
6.3 If SAI delivers Goods which differ from those specified in the Order the Customer will return the Goods to SAI obtaining Proof of Delivery (POD). On receipt of the Goods in saleable condition and verification of the POD SAI will arrange credit for the Price for Goods returned.
6.4 The Customer should contact SAI if neither the Goods nor an invoice in respect of the Goods are received within 7 days of the proposed Delivery.
7 PASSING OF RISK AND PROPERTY
7.1 Risk of loss of or damage to the Goods (or any of them) shall pass to the Customer at the time of Delivery. Where the Customer collects the Goods he must quote the shipping instructions number when notifying SAI of his intention to collect the Goods.
7.2 Where the delivery is outside the UK the Customer shall be responsible for obtaining any necessary import licences or permits necessary for the entry of the Goods into the country for delivery requested by the Customer, or their delivery to the Customer. The Customer shall be responsible for any customs duties, clearance charges, taxes, brokers' fees and other amounts payable in connection with the importation and delivery of the Goods.
7.3 Property in the Goods shall not pass to the Customer until all sums due or owing to SAI by the Customer on any account (whether under these Conditions, any Contract or otherwise) have been paid, and until payment the following provisions of this Condition 7 shall apply.
7.4 Except where full payment is made in cash, the whole of the price in respect of any Contact shall not be treated as paid until any cheque or other instrument of payment given by the Customer has been met on presentation or otherwise honoured in accordance with its terms.
7.5 Until such time as Property in the Goods passes to the Customer, the Customer shall hold the Goods as the fiduciary agent and bailee of SAI and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the property of SAI.
7.6 Until such time as Property in the Goods passes to the Customer, the Customer shall be entitled to use, or resell the Goods in the ordinary course of its business but shall account to SAI for the proceeds of sale or otherwise of the Goods (whether tangible or intangible and including insurance proceeds) and shall hold such proceeds on trust for SAI and (in the case of goods received in exchange) properly stored, protected and insured in such way that they are identifiable as the property of SAI and are separate from all other goods of the Customer.
7.7 The right to use or resell the Goods granted to the Customer under the terms of Clause 7.5:-
(a) may be terminated by SAI forthwith upon oral or written notice to the Customer if the Customer defaults in payment any sum after such sum falls due: and/or
(b) shall automatically cease if any distress or execution is levied on the Customer’s assets or if the Customer shall make or offer to make any arrangement or composition with creditors or commit an act of bankruptcy or if any Petition or Receiving Order in bankruptcy or Administration Order shall be presented or made against the Customer or if the Customer is a Limited Company and any Resolution or Petition to wind up the same (other than for the purpose of solvent reconstruction or amalgamation) shall be passed or served on an Administration Order be made or if the Customer is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a Receiver or Administrator be appointed over the Customer’s assets and undertaking or any part thereof or suffers any similar or analogous action in consequence of debt.
7.8 If the Customer defaults in the punctual payment of any sum owing to SAI or on the occurrence of any of the matters referred to in Conditions 7.6 (b) hereof SAI shall be entitled to the immediate return to SAI of all Goods in which the Property has not passed to the Customer, and the Customer hereby irrevocably authorises SAI and its employees and agents to recover the Goods and to enter any premises in which the Goods are held for the purpose of recovering the Goods. Demand for or recovery of the Goods by SAI shall not in itself discharge either the Customer’s liability to pay the whole of the Price and take delivery of the Goods or SAI’s right to sue for the whole of the Price
7.9 As all or any of the Goods or some part or constituent of them may have been purchased by SAI under a contract containing a provision reserving title or other Property right therein to the vendor thereof SAI shall be liable to transfer to the Customer only such title as SAI may have in the Goods.
7.10 In the event that the Customer has resold the Goods in the ordinary course of business subject to any retention of title in favour of the Customer and the Customer ceases to have any right to resell or use the Goods as referred to in Condition 7.6 above SAI shall have the right to require the Customer to enforce its rights pursuant to or under such retention of title and all monies and/or goods recovered thereby by the Customer shall, to the extent of any liability of the Customer to SAI, be held by the Customer on trust for SAI, in the case of proceeds in a separate bank account and in the case of goods separate and distinct, properly stored, protected and insured.
8.1 SAI may in its absolute discretion grant the Customer agreed credit terms (subject to satisfactory references). The agreed credit terms granted to the Customer by SAI will be in writing. Payment by the Customer is due as required and specified by SAI from time to time. In the event that payment is not made by such date as may be specified by SAI (without prejudice to SAI rights and remedies herein or otherwise) SAI may take all or any actions set out in clause 8.6. Where credit terms are not made available payment must be made with order in cleared funds. Goods will not be despatched until SAI has received payment in full in cleared funds. VAT will be added at the rate applying at the date of ordering and Customers outside the UK will be responsible for collecting VAT refunds.
8.2 The Customer will pay by bank transfer, credit or debit card or cheque. The Customer will ensure that cheques are made out to Sega Amusements International Limited and are crossed. All payments must be made without any set-off, deduction or counterclaim.
8.3 For export orders Customers are advised to ask for a quotation before sending monies so that carriage can be calculated. The Customer indemnifies SAI for all bank charges incurred by SAI in the transfer of funds from the Customer to SAI. No Goods will be despatched to Customers outside the UK until payment in full is received. Payment must be made in the currency in which the order was quoted by SAI. Failure to do so will result in additional charges to the Customer including but not limited to SAI’s administration charges, costs incurred by SAI as a result of fluctuations in currency exchange rates and any bank charges.
8.4 Where SAI agrees to deliver the Goods elsewhere than at the address stipulated in the Contract and/or by express or other special method of Delivery all additional packaging, transport, insurance and other costs thereby incurred shall (in accordance with Condition 2.3) be added to the price of the Goods and paid by the Customer.
8.5 SAI reserves the right to invoice the Customer on an interim basis to cover any instalment(s) of Goods delivered.
8.6 In the event of any payment becoming overdue or terms of a credit agreement being breached, or a cheque or card payment being refused then, without prejudice to any other right or remedy available to it (therein or otherwise), SAI may:-
(a) terminate the Contract immediately on notice;
(b) withdraw the credit terms and require the Customer to provide such security for the Price as SAI deems appropriate;
(c) Charge the Customer any administration and/or bank charges arising from late payment or breach of credit terms;
(d) cancel any discounts and/or allowances which will then be recharged to the Customer who will thereupon be liable to pay the full purchase price as shown on the invoice;
(e) suspend performance of the Contract until payment is received in full and any times and/or dates stipulated for performance of the Contract shall be extended/postponed accordingly;
(f) charge interest from the due date for payment on the unpaid amount at the rate of 4% over the current base lending rate of Barclays Bank plc or the rate of interest pursuant to Late Payment of Commercial Debts (Interest) Act 1998 which ever shall be the higher rate after as well as before commencement of proceedings for recovery of the same and such compensation as SAI may be entitled to pursuant to Late Payment of Commercial Debts (Interest) Act 1998.
8.7 Each contract shall be subject to SAI being satisfied as to the Customer’s credit status (where credit terms are made available) both prior to and during the period of the Contract. If SAI becomes dissatisfied with the Customer’s credit status, it may suspend performance of the Contract until it is satisfied as to the Customer’s credit worthiness or is given such security for the Price as SAI shall deem appropriate.
9 RETURN & HANDLING
9.1 No returns of Goods are permitted nor shall they be accepted by SAI without SAI’s prior consent. Subject to SAI’s prior consent having been obtained, Goods must be returned carriage paid to SAI in an unused condition.
9.2 A handling charge of not less than 10% of the invoice price of the Goods will be levied for each month or part of a month from the date of despatch to date of return. Products accepted for return will be credited at invoice value and the appropriate handling charge applied. If invoice details are not quoted the credit will be based upon the lowest sales price.
10 FORCE MAJEURE
10.1 If SAI is unable to supply the Goods by reason of event beyond its control including (but without limitation) Act of God, war, hostilities, riot civil commotion or any governmental restriction, order or regulation or statutory prohibition the specified Delivery Date(s) shown shall be extended for a period equal to the delay caused by such event(s).
10.2 If the period of delay extends beyond a reasonable period being not less than 60 days then either party may terminate the Contract as regards any Goods undelivered provided that if the Customer cancels the Contract SAI may require the Customer to pay a the proper proportion of the Contract Price for any work already undertaken by SAI for the purpose of the Contract and for any Goods manufactured and/or purchased for the purpose of the Contract and for which there is no other ready market available to SAI.
11.1 Save as provided in Condition 9 the Customer cannot terminate the Contract although SAI
11.2 shall be entitled to terminate the Contract and/or any other Contract with the Customer forthwith by notice without prejudice to any of its other rights:-
(a) if the Customer (whether under this or any other Contract between the Customer and SAI) is overdue (without the need for notice of non-payment from SAI) with any payment or commits any breach of Contract which is incapable of remedy or for which if the same was capable or remedy it fails to remedy the same within 7 days of SAI’s written notice so to do; or
(b) if any distress or execution is levied on the Customer’s assets or if the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any Petition or Receiving Order in bankruptcy or Administration Order shall be presented or made against the Customer or if the Customer is a Limited Company and any Resolution or Petition to wind up the same (other than for the purposes of solvent reconstruction or amalgamation) shall be passed or served or and Administration Order be made or if the Customer is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or if a Receiver of Administrator be appointed over the Customer’s assets and undertaking or any part thereof; or
(c) if SAI believes that the Customer may not be able to meet its debts as they fall due.
12. CHOICE OF LAW
12.1 These Conditions and each and every Contract between SAI and the Customer shall be governed and interpreted in accordance with English Law and the Customer submits to the jurisdiction of the Courts of England but SAI may enforce any such Contracts in any court of competent jurisdiction.