Terms of Sale

Last updated: 30 August 2023

 

1 Definitions

 

"Matoha" means Matoha Instrumentation Ltd., a company registered in England. 
"Conditions" means these terms and conditions. 
"Contract" means any contract between Matoha and the Customer for the sale and purchase of any of the Supplies. 
“Customer" means the person(s) or company whose Order for any of the Supplies is accepted by Matoha. 
"Goods" means any goods (including any Software) supplied or to be supplied by Matoha to the Customer. 
"Order" means the Customer’s order for the purchase of any of the Supplies by Matoha as set out in the Customer’s written acceptance of Matoha’s quotation, or placed via Matoha’s online ordering facility. 
"Services" means any services supplied or to be supplied by Matoha to the Customer. 
"Supplies" means any Goods and/or Services. 
"Tangible Goods" means any physical Goods supplied or to be supplied by Matoha to the Customer. 
"VAT" means United Kingdom value added tax or any similar sales tax imposed in any other jurisdiction. 
“Quote” means the quotation provided to the Customer before an Order is placed 

Any reference within these Conditions to: "in writing" includes electronic communications; and "despatch" or "despatching" means in the case of any Tangible Goods, the time that such Tangible Goods are sent by Matoha for delivery to the Customer by any form of carriage. 
 

2 Business customers

 

2.1 Matoha is a business to business supplier. Matoha's products are intended for use by business customers and not consumers. By ordering, the Customer confirms that he, she or it wishes to obtain the Supplies for the purposes of his, her, or its business and not as a consumer. 

 

3 Orders

 

3.1 All Orders are accepted by Matoha subject to and in accordance with these Conditions.

3.2 Matoha reserves the right to decline to trade with any company or person.

 

4 Delivery

 

4.1 The delivery of Tangible Goods is by a courier service unless agreed otherwise. The cost of delivery is £0 (free) within the mainland GB, £25 within the EU and the Channel Islands, £35 to North America and £50 for the rest of the world.

 

4.2 Matoha will use all reasonable endeavours to despatch Tangible Goods within the Lead time shown on the Quote or in the online ordering facility, respectively.

 

4.3 Matoha in no circumstances shall be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance except as set in section 5 below.

 

4.4 Matoha reserves the right to delay the despatch of Goods to ensure that payment in full has been received in cleared funds.

 

4.5 The Incoterms for all deliveries are CIP (Carriage and Insurance Paid To). This means that Matoha will organise the delivery to the address of the Customer but any and all import customs clearance and any import taxes / duties / VAT are the Customer's sole responsibility.

 

5 Inspection, defects and non-delivery

 

5.1 The Customer must inspect any Goods as soon as is reasonably practicable after delivery or, in the case of Services, performance and, except as set out in Condition 13 below, Matoha shall not be liable for any defect in any of the Supplies unless written notice is given to Matoha within 10 calendar days of the date of inspection.

 

 

5.2 Matoha will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to Matoha within 10 calendar days of the date when Goods should have been delivered or the Services performed in the ordinary course of events.

 

 

5.3 Subject to Condition 14.1 below, the liability of Matoha for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with Condition 5 will be limited to replacing the defective Goods or re-performing the defective Services within a reasonable time or to refunding the price paid in respect of such defective Goods and/or defective Services. 

 

 

6 Prices

 

6.1 Prices for Supplies are in £ sterling and are exclusive of VAT.

 

6.2 Where Matoha agrees to trade in Euro or US Dollar, it will specify an exchange rate for each Order.

 

6.3 Where any Supplies are provided by Matoha to the Customer that are subject to VAT, the Customer shall pay an amount equal to such VAT (in addition to any other consideration payable by the Customer) to Matoha and Matoha shall (where required by applicable laws) issue an appropriate VAT invoice to the Customer. 

 

 

7 Payment

 

7.1 The payment for Goods and Services is in advance. Time for payment is of the essence.

 

7.2 If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, Matoha shall be entitled to:

 

7.2.1 cancel the Order or suspend any further deliveries or performance;

7.2.2 appropriate any payment made by the Customer to such of the Supplies (or any of the Supplies made under any other contract) as Matoha may think fit;

7.2.3 and charge interest (both before and after any judgment) on the amount unpaid at the rate of 5% per annum above the base rate from time to time of Barclays Bank plc from the due date of payment until payment is made. 

 

7.3 Invoices will be sent electronically to the email address provided during the Order placement process. This can be changed or a printed invoice requested by contacting Matoha. 

 

7.4 If legal action is taken to recover monies due to Matoha then Matoha reserves the right to charge the Customer an administration fee to cover all and any costs incurred.

 

8 Returns

 

8.1 Matoha operates a 21 calendar day return policy. To be accepted for return on this basis, Goods should be returned for receipt by Matoha within 21 calendar days of despatch.

 

8.2 Prior to returning any Goods to Matoha for any reason, the Customer must contact Matoha to obtain the return address.

 

8.3 All Goods are returned at the Customer’s risk and expense and should be undamaged and in their original packaging (if applicable). The Customer is responsible for returning Goods to Matoha and shall pay for any shipping fees associated with th return of the machine.

 

8.4 Any Goods returned after 21 calendar days of despatch as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of Matoha, but will be subject to a minimum restocking fee of 20% of the invoice value of the Goods.

8.5 Any shipping fees paid to Matoha are non-refundable.

 

9 Consumer contracts regulations

9.1 If, notwithstanding the terms of Condition 2, the Customer demonstrates conclusively that he or she purchased Supplies as a consumer, as defined in the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the Customer may, provided he or she has taken reasonable care of the Goods, return the Goods and be repaid the price paid in respect of them within 21 calendar days of their delivery.

 

9.2 Goods should be returned within the return policy time period set out in Condition 10 with proof of posting and with postage tracking enabled and the Customer is responsible for payment of all postage costs. The Customer is responsible for the care and custody of the Goods pending their return or collection. Following receipt of Goods which comply with this Condition 9, Matoha will refund to the Customer the price paid in respect of the Goods.

 

10 Description

10.1 The Goods are as described in the Supplier's published literature and Matoha may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation. Customers are recommended to check Matoha’s website for the latest Descriptions of the Goods.

 

11 Risk and ownership

 

11.1 The risk of damage to or loss of Goods will pass to the Customer in respect of Tangible Goods, when the Tangible Goods are unloaded from Matoha’s carriers at the Customer’s premises; and in respect of any Software provided electronically for download by the Customer, the time that such Software is made available to the Customer.

 

11.2 The ownership of the Goods shall not pass to the Customer until Matoha has received in full (in cleared funds) all sums due from the Customer to Matoha on any account whatsoever. Until ownership passes to the Customer, the Customer must hold such Goods on a fiduciary basis as Matoha’s bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an Order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, Matoha shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer. Title in any Software, including any software program forming all or any part of the Goods, is reserved to Matoha and/or its suppliers and shall not pass to the Customer. 

 

12 Performance and fitness for purpose

 

12.1 Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of Matoha in writing, Matoha accepts no liability for any failure of any of the Supplies to comply with such criteria, whether attributable to Matoha’s negligence or otherwise. The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of Matoha. Except as set out in Condition 14.1, the liability of Matoha to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with Condition 12 prove to be incorrect, inaccurate or misleading (the “Inaccurate Statement”), will be limited to the refund of the price paid for any part of the Supplies about which the Inaccurate Statement was made or, at Matoha’s option, the supply of replacement Supplies which are sufficient and suitable. 

12.2 Near-infrared spectroscopy is not 100% accurate and we never advertise our instruments as such. Matoha cannot be held liable from any damages arising from incorrect identification of sample(s) by our instruments.

 

13 Warranty/Guarantee

 

13.1 Subject to Condition 13.2 below, Matoha will, free of charge, repair or, at Matoha’s option, replace Tangible Goods or, in the case of Services, re-perform Services which are proved to the reasonable satisfaction of Matoha to be damaged or defective due to faulty materials, workmanship or design. However, this obligation will not apply:

 

13.1.1 if the defect arises because the Customer has altered or repaired such Goods without the written consent of Matoha;

13.1.2 because the Customer did not follow Matoha’s instructions for storage, usage, installation or maintenance of the Goods;

13.1.3 if the Customer has failed to notify Matoha of any defect in accordance with Condition 5 where the defect should have been reasonably apparent on reasonable inspection; or if the Customer fails to notify Matoha of the defect within 12 months (or such other period as Matoha shall specify at the time of acceptance of the Order for the Supplies) of the date of despatch of the Goods or performance of the Services even if the claimed date of inspection occurs after this period. 

13.1.4 if the customer has disassembled the instrument, the Warranty sticker is missing or void, or if the serial number is missing

 

13.2 Any replacement Supplies provided or Goods repaired under Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to Matoha.

 

13.3 The standard Guarantee period for all Matoha instruments is one calendar year.

 

13.4 The Customer grants to Matoha and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under Condition 13. The Customer shall ensure that Matoha’s employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making backup copies of any information on such computers or processors before the arrival of Matoha’s employees, agents or representatives on the Customer’s premises.

 

13.5 Except as set out in Condition 14.1 below and Condition 5 above, Condition 13 is Matoha’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded. 

 

14 Exclusion of Liability

 

14.1 Matoha does not exclude its liability to the Customer:

14.1.1 for breach of Matoha’s obligations under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

14.1.2 for personal injury or death arising as a result of Matoha’s negligence;

14.1.3 under section 2(3) of the Consumer Protection Act 1987;

14.1.4 for any matter which it would be illegal for Matoha to exclude or to attempt to exclude its liability;

14.1.5 or for fraud or fraudulent misrepresentation.

 

14.2 Except as provided in Conditions 5 (Inspection, defects and non delivery), 12 (Performance and fitness for purpose), and 13 (Warranty/Guarantee) and Condition 14.1, Matoha will be under no liability to the Customer whatsoever (whether in contract, tort, negligence, breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct loss or pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss or for any loss or damage which is not a reasonably foreseeable result of any breach of these Conditions howsoever caused or arising out of or in connection with:

 

14.2.1 any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by Matoha or on the part of Matoha’s employees, agents or sub-contractors;

14.2.2 any breach by Matoha of any of the express or implied terms of the Contract;

14.2.3 any acts or omissions of Matoha at the Customer’s premises;

14.2.4 any statement made or not made or advice given or not given by or on behalf of Matoha, including as to compliance with legislation or regulation;

14.2.5 or otherwise under the Contract.

 

14.3 Matoha hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions or given in accordance with Condition 13) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer. Save as set out in Condition 14.1 Matoha’s total liability in contract, tort, negligence, breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at Matoha’s option, refunding monies already paid in respect of the Supplies

 

15 Intellectual property rights

 

15.1 No intellectual property right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. Matoha shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. The Customer is responsible for informing itself of the terms of its licence or use and paying any royalty payable.

 

15.2 Any data saved by the Customer in Matoha's systems, for instance, but not limited to, infrared spectra, may be used by Matoha for product improvement, algorithm development, providing customer support and creating aggregate statistics. In all cases, Matoha may not disclose or share the Customer's data with a third party without the Customer's explicit permission. If Matoha uses the data, the data shall be used in an anonymised form where the customer is not identifiable.

15.3 Our devices contain software, materials identification algorithms and spectra database (together the "Firmware") that is pre-installed or embedded in object code and is necessary for the functioning of our devices.  The Firmware is licensed to Customer, not sold. All Firmware is protected by copyright laws and international treaties. With each device purchased, Matoha grants to Customer a non-exclusive, perpetual license to use the Firmware, in executable form, solely as embedded in the our devices. The customer acknowledges that the Firmware contains proprietary rights of Matoha, and, in order to protect such proprietary rights, Customer agrees not to disassemble, decompile or reverse engineer the Firmware nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Matoha reserves all rights and licenses in and to the Firmware not expressly granted to Customer.

15.4 Our devices come with free access to our Data API (application programming interface) which allows the Customer to query our Cloud and retrieve data. The access to this is not guaranteed and Matoha is under no obligation to keep this available. Matoha reserves the right to make the Data API a paid service, upon which the free access to the Data API will be disabled. Matoha has the right to restrict the access to the Data API service for a particular IP address if significant traffic is observed. 

 

16 General

 

16.1 Matoha processes personal data in accordance with the applicable personal data laws, the terms of its privacy policy and the consents it has received from each personal data owner. Matoha’s privacy policy outlines how and the purposes for which Matoha manages, collects, use and transfers personal data. Our privacy policy is here.

 

16.2 The Goods are not designed, authorised or warranted to be suitable for use in space or aircraft or air traffic applications, life support or life-sustaining equipment or for any other purpose where the failure or malfunction of the Goods could reasonably be expected to result in personal injury, death, severe property or environmental damage. Use or inclusion of the Goods in any such equipment, system, or applications is strictly prohibited (unless Matoha agrees in writing that such prohibition does not apply to a particular product) and any such use will be at the Customer’s own risk. The Customer will indemnify Matoha and its suppliers against any and all liability and expense (including costs) resulting from any such inclusion or use.

 

16.3 Matoha shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of Matoha’s obligations under a Contract if the delay or failure was due to any cause beyond Matoha’s reasonable control (which shall include, but not be limited to government actions, global pandemics, war, fire, explosion, terrorist attack, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). Matoha may, at its option, delay the performance of, or cancel the whole or any part of a Contract.

 

16.4 All Contracts and non-contractual disputes shall be governed by and interpreted in accordance with English law and the Customer submits to the jurisdiction of the English Courts, but Matoha may enforce such Contract in any court of competent jurisdiction.

 

 

16.5 Any provision of these Conditions which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions of Supply and the remainder of such provision shall not be affected.

 

 

16.6 Failure by Matoha to enforce or partially enforce any provision of these Conditions will not be constrained as a waiver of any rights under these Conditions of Supply. 

 

 

16.7 Except as set out in Condition 14, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.