The Customer's attention is drawn in particular to the provisions of clause 9.
1. INTERPRETATION
1.1 Definitions
In these Conditions, the following definitions apply:
Additional Services: any additional Supplier products, applications, services, software, networks, or other systems or information sources that can be made available via the Goods.
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 11.6.
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 6.7.
Force Majeure Event: has the meaning given in clause 10.
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 (including where provided by email), as placed over the telephone or online via the Supplier’s website, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, which has been verified by the Supplier, or which has otherwise been specifically agreed in writing between the Supplier and the Customer provided that the Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event..
Supplier: Europa Components & Equipment Plc (registered in England and Wales with company number 02646133).
Third Party Services: third-party products, applications, services, software, networks, or other systems or information sources that can be made available via the Goods.
1.2 Construction
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 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 the Goods are dispatched. 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 via its website or otherwise 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. DELIVERY
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 in writing.
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 dispatch 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 agreed in the Order. 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 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 and 4.3(a), the Customer waives any claim it may have under a Contract relating to an error with an Order save where the Customer raises a query with the Supplier within 10 Business Days of delivery of the Goods.
4. QUALITY
4.1 The Goods are described in the applicable Specification. Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures (whether online or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force..
4.2 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 any applicable Specification (including any description therein); and
(b) be free from material defects in design, material and workmanship.
4.3 Subject to clause 4.6, 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 4.2, 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 4.2; and
(b) the Supplier is given a reasonable opportunity of examining such Goods (including by the Customer supplying photographic evidence of any defects promptly on request); 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 4.2, 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.
4.4 Subject to clause 4.3, if any Goods are returned to the Supplier without the Supplier’s prior authority, the Supplier has no obligation to refund any of the price of the Order and the Supplier may charge the Customer a reasonable and proportionate handling charge to process the returned Goods.
4.5 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 to the Supplier’s collection, storage, and, waste electrical and electronic equipment disposal of the Goods.
4.6 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 4.2 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 4.3(a);
(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;
(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;
(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;
(f) the Customer alters or repairs such Goods without the written consent of the Supplier or in contravention of an manufacturer or Supplier guidance; or
(g) the defect arises as a result of fair wear and tear, misuse, wilful damage, negligence, or abnormal storage or working conditions.
4.7 Notwithstanding clause 9.2, to the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 4.7 shall survive termination of the Contract.
4.8 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 4.2.
4.9 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.
4.10 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 earlier of:
(a) the Supplier receives payment in full for the Goods and all other sums which are or which become due to the Supplier for sales of the Goods or any other products to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.4.
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 8.2; and
(f) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
5.4 Subject to clause 5.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5.5 At any time before title to the Goods passes to the Customer, the Supplier may:
(a) by notice in writing, terminate the Customer's right under clause 5.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product 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:
(a) the price set out in the Supplier's published price list(s) in force at the date the Order is placed; or
(b) to the extent applicable, in any relevant price arrangement specifically agreed between the Supplier and the Customer.
6.2 The Supplier may change the prices in its published price list(s) 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.
6.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be agreed by the parties in an Order.
6.4 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.
6.5 The Supplier may invoice the Customer for the Goods on or at any time after dispatch of the Goods. The Customer waives any claim it may have under a Contract relating to an error on an invoice unless the Customer raises a query with the Supplier within 10 Business Days of the invoice date.
6.6 Unless otherwise specified by the Supplier in writing, the Customer shall pay each invoice submitted by the Supplier:
(a) in full and in cleared funds to a bank account nominated in writing by the Supplier; and
(b) within 30 days of the date of the invoice or otherwise in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer.
6.7 Time for payment shall be of the essence of the Contract.
6.8 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.
6.9 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, 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.
6.10 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.
6.11 If payment is not made by the due date the Supplier may assign the overdue amount.
6.12 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 11.1 and in connection with the recovery of the Debt subject to the provisions of clause 6.6.
7. ADDITIONAL SERVICES AND THIRD PARTY SERVICES
7.1 The Customer acknowledges and agrees that the Goods may allow for the Customer to enable the provision of Additional Services and/or Third Party Services as set out in the then current corresponding Specification.
7.2 Where the Customer elects to engage with any such Third Party Services, the Supplier gives no warranties regarding those Third Party Services.
7.3 The Customer is responsible for ensuring that the Additional Services and/or Third Party Services are appropriate for its intended use of the Goods and it has the rights necessary to use the Additional Services and/or Third Party Services, as applicable.
7.4 The Customer’s access to and use of such Additional Services and/or Third Party Services is governed by the terms applicable to such.
7.5 The Supplier does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle data or any interaction between the Customer and the provider of such Third Party Services, or any damage or loss caused or alleged to be caused by or in connection with the Customer’s enablement, access, or use of any such Third Party Services.
8. TERMINATION
8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract or suspend all further deliveries under the Contract with immediate effect by giving written notice to the Customer if the Customer:
(a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of the Customer being notified in writing to do so;
(b) becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly.
8.2 For the purposes of clause 8.1, 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 8.2(a) to clause 8.2(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.
8.3 Without limiting its other rights or remedies, the Supplier may:
(a) suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment;
(b) terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
8.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
9. LIMITATION OF LIABILITY
9.1 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 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
(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.
9.3 Subject to clause 9.2, the Supplier's total liability to the Customer, including losses caused by a deliberate breach of the Contract by the Supplier’s employees, agents, suppliers or subcontractors, shall not exceed £5,000,000.
9.4 Subject to clause 9.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.5 This clause 9 shall survive termination of the Contract.
10. FORCE MAJEURE
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 but not limited to 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.
11. GENERAL
11.1 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.
11.2 Notices
(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, 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 11.2(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 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.
11.3 Severance
(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.
11.4 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.
11.5 Third party rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 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.
11.7 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.
