RES ELECTRONICS LIMITED
TERMS AND CONDITIONS
The customer’s attention is drawn in particular to the provisions of clause 10 which explains how RES limits its liability.
- General
1.1 RES is a supplier of electronic components to its customers who are unable or unwilling to buy those components from the component manufacturer. RES is not a component manufacturer and is not a franchisee, authorised distributor or agent of any manufacturer. RES will supply Goods matching the Specification requested by the Customer but does not advise about or know the intended use or application of those parts by the Customer.
1.2 The product liability insurance cover of RES is £2,000,000.
- Interpretation
2.1 Definitions:
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.
- Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
- Customer or you: the person or firm who purchases the Goods from the Supplier.
- Delivery Location: the place where the Goods are to be delivered or collected.
- Force Majeure Event: an event or circumstance beyond a party’s reasonable control including (without limitation) any import or export restrictions.
- Goods: the goods (or any part of them) set out in an Order.
- Manufacturer’s Information: the information about the Goods including the use, packaging, storage, handling and use of the Goods supplied by the manufacturer of the Goods.
- Order: the Customer’s order for Goods, as set out in the Customer’s purchase order form or in the Customer’s written acceptance of the Supplier’s quotation as the case may be.
Order Confirmation Form: the RES order confirmation form describing the Customer, the Goods the Delivery Location and the Price.
Price: the price to be paid by the Customer to the Supplier for the Goods as such price is set out in an Order Confirmation Form or pro forma invoice or invoice.
- Specification: any specification for the Goods supplied by the manufacturer of the Goods.
- Supplier: RES Electronics Limited (registered in England and Wales with company number 11052613).
- VAT: value added tax or any tax which may replace VAT.
2.2. Interpretation:
(1) 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.
(2) 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.
(3) a reference to writing or written includes faxes and emails.
(4) references to clauses are to the clauses in these Conditions.
(5) the headings are for ease of reference only and do not affect the construction of these terms.
- Basis of contract
3.1 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.
3.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
3.3 The Order shall only be deemed to be accepted:
(1) when the Supplier issues a written acceptance in an Order Confirmation Form; or
(2) (if applicable) when the Supplier issues to the Customer a pro forma invoice or invoice
at which point the Contract shall come into existence.
3.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures 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.
3.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 3 Business Days from its date of issue.
- Goods
4.1 The Goods are described in the Order Confirmation Form or pro forma invoice or invoice.
4.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.3 RES does not carry out any testing of any Goods unless requested to do so by the Customer at the Customer’s expense and cannot always ensure the traceability of any Goods.
4.4 The Customer acknowledges that it is the responsibility of the Customer to ensure that at all times the Goods are handled, stored, used or otherwise dealt with by the Customer in accordance with the Manufacturer’s Instructions.
4.5 The Customer acknowledges that in the case of parts which the Customer may order which are obsolete or which do not have recent data codes it is the responsibility of the Customer to test those parts if the shelf life of those parts has expired and to consider the suitability of those parts for the intended use or application.
4.6 The Customer shall execute its own investigation as to whether the Goods comply with the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Regulations 2008 (SI 2008/37) and the Supplier shall have no liability to the Customer for any failure of the Goods to comply.
4.7 If the Customer shall request that some component shall be programmed with dedicated software specified by the Customer then the cost of such work shall be described in an Order Confirmation Form or pro forma invoice or or invoice.
- Delivery
5.1 If agreed by the Supplier, the Supplier shall deliver the Goods to the Delivery Location or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready. Delivery is completed on the completion of unloading of the Goods at the Delivery Location
5.2 If the Supplier is not responsible for the delivery of the Goods the Customer shall collect the Goods from the Delivery Location within 5 Business Days of the Supplier notifying the Customer that the Goods are ready. Delivery is completed on the completion of loading of the Goods at the Delivery Location.
5.3 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.
5.4 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.
5.5 Any claim for shortages of Goods, damage of incorrect shipment must be made in writing by the Customer within 5 Working Days from the date delivery of the Goods.
5.6 If the Customer fails to take accept (as applicable) delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract:
(1) delivery of the Goods shall be deemed to have been completed at the close of business on the fifth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(2) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.7 If 20 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted (as applicable) delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
5.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.10 The Customer shall be responsible for complying with any legislation and/or regulations in any jurisdiction governing the exportation and/or importation of the Goods into the destination jurisdiction and for the payment of any duties, taxes or tariffs relating to the same.
- Quality
6.1.1 If it is able to do so, the Supplier shall assign to the Customer any unexpired manufacturer’s warranty.
6.1.2 If clause 6.1.1 shall not apply the Supplier warrants that on delivery, and for 30 days after the date of delivery (or for such longer period as the Supplier shall agree in writing) (warranty period), the Goods shall be free from material defects in design, material and workmanship and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to clause 6.3, if:
(1) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1; and
(2) the Supplier is provided with a report from a qualified independent engineer or technician describing the defects in the quality of condition of the Goods or their failure to correspond with their specification;
(3) the Supplier is given a reasonable opportunity of examining such Goods; and
(4) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
(1) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(2) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(3) the defect arises as a result of the Specification of the Goods requested by the Customer not performing the function anticipated by the Customer or not being appropriate for the use or application required by the Customer;
(4) the Customer alters or repairs such Goods without the written consent of the Supplier;
(5) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(6) the Goods differ from their description or any specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(7) the Customer fails to comply with the Manufacturer’s Instructions; or
(8) the Customer fails to comply with clause 4.6; or
(9) any programming specified by the Customer (as described in clause 4.7) shall not be appropriate or shall prejudice or adversely affect the use or performance of that or any other component; or
(10) the Goods being used with other goods which impair or prevent the performance of the Goods.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
- Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
(1) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums ; and
(2) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(1) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(2) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(3) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(4) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1; and
(5) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to clause 7.5, 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:
(1) it does so as principal and not as the Supplier’s agent; and
(2) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy the Supplier may have:
(1) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(2) the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) 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.
- Price and payment
8.1 The price of the Goods shall be the Price.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(1) any factor beyond the Supplier’s control (including foreign exchange fluctuations, the imposition of tariffs, any increases in taxes and duties, and increases in labour, materials and other manufacturing and sourcing costs);
(2) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(3) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.2 The price of the Goods:
(1) excludes amounts in respect of VAT which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(2) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.3 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.4 The Customer shall pay the invoice in full and in cleared funds no later than 30 days (or such other period as the Supplier and the Customer agree in writing) after the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
8.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base lending rate from time to time of Barclays Bank PLC. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 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.
- Termination
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
(1) the Customer commits a material breach of any term of the Contract or any other contract made between the Supplier and the Customer and (if such a breach is remediable) fails to remedy that breach within 20 days of that party being notified in writing to do so;
(2) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(3) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(4) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may 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 9.1(1) to clause 9.1(4), 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.
9.3 Without limiting its other rights or remedies, the Supplier may 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract 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 this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(2) fraud or fraudulent misrepresentation;
(3) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(4) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
(1) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit; or
(b) any indirect or consequential loss arising under or in connection with the Contract suffered by the Customer; and
(2) the Supplier shall under no circumstances whatsoever be liable to any third party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit; or
(b) any indirect or consequential loss arising under or in connection with the Contract suffered by any third party
and
(2) 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, shall in no circumstances exceed 60% of the price of the Goods or the amount of the Supplier’s product liability insurance cover whichever is lower.
10.3 The Customer acknowledges that the Price reflects the limitations contained in this clause 10. The Customer shall effect insurance cover in respect of all risks relating to the Goods which are not covered by this Agreement or for the liabilities excluded under this clause 10 or if such risks cannot be insured by the Customer the Customer shall pay RES for any additional insurance cover it may obtain at the request of the Customer.
- Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 16 weeks, the party not affected may terminate this Contract by giving 7 days written notice to the affected party.
- General
12.1 Assignment and other dealings.
(1) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(2) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Confidentiality.
(1) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(2).
(2) Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(3) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12.3 Entire agreement.
(1) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(2) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.7 Notices.
(1) 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 or other next working day delivery service, commercial courier, or fax or email.
(2) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.7(1); if sent by pre-paid first class post or other next working day delivery service, 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 email, one Business Day after transmission.
(3) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.8 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with English law.
12.10 Jurisdiction. Each party irrevocably agrees that (unless any dispute is referred to a mediator or to arbitration in accordance with clause 12.11) the courts in England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
12.11 Mediation
12.11.1 If any dispute arises in connection with the Contract and such dispute relates to the quality, delivery or title to the Goods (but not otherwise), the parties will attempt to settle it by mediation in good faith in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure and the mediation will start, unless otherwise agreed between the parties, within 28 days of one party issuing to the other a request to mediate. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
12.11.2 The mediation will take place in Leeds, West Yorkshire, England and the language of the mediation will be English. The Mediation Agreement referred to in the CEDR Model Procedure shall be governed by, and construed and take effect in accordance with English law.
12.11.3 If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration. CEDR shall be the appointing body and administer the arbitration. CEDR shall apply the Arbitration Act 1996 (or such other legislation which may be if force in place of that Act) at the time the arbitration is initiated. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be one and the seat or legal place of arbitration shall be Leeds, West Yorkshire, England.
December 2018