The customer's attention is drawn in particular to the provisions of clause 8 1. INTERPRETATION
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for ordinary business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier. Debt: the sums outstanding in accordance with clause 6.6.
Force Majeure Event: has the meaning given in clause 9.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order or as placed over the telephone, as the case may be.
Specification: any specification for the Goods, which has been verified by the Supplier, or which has otherwise been specifically agreed in writing between the Supplier and the Customer, as referred to in clause 2.4.
Supplier: Europa Components & Equipment Plc (registered in England and Wales with company number 02646133).
In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification which has been specifically agreed in writing between the Supplier and the Customer are complete and accurate.
2.3 Unless the Order has been previously rejected by the Supplier, the Contract shall come into existence at, 0900 hours GMT on the second Business Day after the date the Supplier receives the Order (the first such Business Day, being the Business Day after the date of receipt), or, if earlier, at the time that delivery of the Goods is deemed to take place as referred to in clause 3.2. After the Contract has come into existence, the Order cannot be cancelled without the Supplier’s written consent.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, specification, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods. All product information relating to the Goods’ description, specification or otherwise, must be verified with the Supplier’s sales department before placing the Order, or specifically agreed in writing between the Supplier and the Customer, and specifically set out, or referred to, in the Order. The Supplier may discontinue or replace at any time without notice any Goods which appear in its catalogues or brochures.
2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
3.1 Where they are to be delivered by the Supplier’s carrier, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree.
3.2 Delivery of the Goods shall be deemed to take place when, a representative of the Customer (or someone purporting to be the same) signs the Supplier’s carrier’s receipt or the Supplier’s despatch note or, the Goods are delivered to the Customer’s carrier, as the case may be.
3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event, or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods and any costs or expenses incurred by the Supplier in respect thereof will be charged to the Customer.
3.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.5 Unless the Customer clearly specifies otherwise in the Order, the Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.6 Subject to clause 4.2(a), any query relating to an Order must be raised with the Supplier within 10 Business Days of delivery of the Goods.
4.1 The Supplier warrants that on delivery and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification; and
(b) be free from material defects in design, material and workmanship.
4.2 Subject to clause 4.5, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full provided that:
(a) the Customer gives notice in writing to the Supplier, within 10 days from the date of delivery where it would be apparent on a reasonable inspection of the Goods that some or all of them do not comply with the warranty set out in clause 4.1, and otherwise within a reasonable period (which in any event must be during the warranty period) after it becomes apparent that some or all of the Goods do not comply with the warranty set out in clause 4.1; and
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer, as required by the Supplier, either, returns such Goods to the Supplier's place of business at the Customer’s cost or, where agreed in advance, the Supplier’s carrier collects the same at the Supplier’s expense. If the Supplier agrees to collect the Goods and the Customer fails to make the same available to the Supplier’s carrier for collection, the charge for subsequently collecting the same will be borne by the Customer. If the Goods are collected, and the Supplier subsequently determines that they do not breach the warranty set out in clause 4.1, the Customer will reimburse the Supplier on demand the cost of collecting them. Any Goods that are returned or offered for collection must be accompanied by a return number, to be obtained from the Supplier before they are returned or collected, as the case may be.
4.3 If any Goods are returned to the Supplier without the Supplier’s prior authority, the Supplier will be entitled to charge the Customer a handling charge of 25% of the invoice value of the Goods that have been returned.
4.4 If any Good or product is returned to or collected by the Supplier, which has not been supplied by the Supplier, then the Customer shall indemnify the Supplier on demand, and keep the Supplier so indemnified, against all costs, expenses, charges, fees, liabilities, claims or otherwise, relating thereto, including those relating to its collection, storage and/or W.E.E disposal.
4.5 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 4.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2; or
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions (including any manufacturer’s instructions) as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
(c) the defect arises as a result of the use of the Goods in any particular design, installation or configuration, unless the Specification clearly states that they are suitable for such use; or
(d) the Goods are used with incompatible goods or products or outside the permitted tolerances stated in the Specification;
(e) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(f) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(g) the defect arises as a result of fair wear and tear, misuse, wilful damage, negligence, or abnormal storage or working conditions.
4.6 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
4.7 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) all other sums which are or which become due to the Supplier for sales of the Goods or any other products to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force at the date the Order is placed, or to the extent applicable, in any relevant price arrangement specifically agreed between the Supplier and the Customer. The Supplier may change the prices in its published catalogues and brochures at any time without notice. The current price for the Goods must be checked with the Supplier before placing the Order. Unless specified, all prices quoted are in Pounds Sterling. For the avoidance of any doubt, any relevant settlement discount that has been agreed between the Supplier and the Customer will only apply to the extent that settlement is made by the Customer within the agreed period.
6.2 The price of the Goods is exclusive of the costs of transport [delivery].
6.3 The price of the Goods is exclusive of amounts in respect of value added tax which will be chargeable at the then prevailing rate (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. Any queries relating to invoices must be raised with the Supplier within 10 Business Days of the invoice date.
6.5 Unless alternative payment arrangements are agreed in writing in advance by the Supplier and the Customer, the Customer shall pay the invoice in full and in cleared funds within 30 days of the end of the calendar month in which the invoice is issued. Time of payment is of the essence.
6.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.8 If payment is not made by the Due Date the Supplier may assign the overdue amount.
6.9 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred in connection with the assignment of the Contract (including the preparation of papers, information, and effecting the assignment) to any third party debt collection person pursuant to clause 10.1 and in connection with the recovery of the Debt subject to the provisions of clause 6.5.
7. CUSTOMER'S INSOLVENCY OR INCAPACITY
7.1 If the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
7.2 For the purposes of clause 7.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so
doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(c) (being an individual) the Customer is the subject of a bankruptcy petition or order; or
(d) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(e) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
(f) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
(h) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a) to clause 7.2(g) (inclusive); or
(i) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
(j) the financial position of the Customer deteriorates to such an extent that in the opinion of the Supplier the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy.
(k) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation; or 8
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract including any losses that may result from a deliberate breach of the Contract by the Supplier’s employees, agents or subcontractors); and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier’s employees, agents or subcontractors shall not exceed £5,000,000.
The Supplier shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond the Supplier’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war or threat of war, terrorism, sabotage, riot, civil commotion, insurrection, interference by civil or military authorities, requisition, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any government or authority, import or export regulations or embargoes, national or international calamity, armed conflict, accident, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, difficulties in obtaining raw materials, labour, fuel or parts of machinery, material breach of contract or other default of suppliers or subcontractors.
10.1 Assignment and subcontracting
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
10.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
10.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.6 Variation. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Customer and by an authorised representative of the Supplier.
10.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.