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1. Definitions
In these Conditions of Supply all references to (a) 'the Seller' are to Tyco
Electronics UK Limited (b) 'the Buyer' are to the person firm or company by
whom the order is given to the Seller (c) 'goods' are to the goods which
are the subject of the order (d) 'services' are to the services which are the
subject of the order (e) 'supply' are to the supply of such goods and/or
services,
2. Entire Agreement
(a) All contracts for supply shall be deemed to incorporate these
Conditions, which represent the complete agreement at the Seller and
Buyer with regard to the supply except as otherwise specifically agreed in
writing by the Seller ("the contract for supply"). These Conditions shall
override any terms and conditions stipulated, incorporated, or referred to
by the Buyer in any order, correspondence, negotiations or any other way.
(b) Catalogues, price lists, advertisements and other published information
are only indications of the type of products and services available and shall
not form part at the contract for supply or any other contract with the
Buyer nor be considered a collateral warranty or a representation of
inducing the same.
3. Acceptance
(a) The Seller's catalogues, price lists and quotations do not constitute
offers made by the Seller.
(b) No order is binding on the Seller until accepted by the Seller's
transmittal to the Buyer of an official Order Acknowledgement Form or
invoice unless the Seller's quotation specifies that it is a bid in response to
an invitation for bids in which event the order or award shall constitute
acceptance of the bid is accordance with the bid terms.
(c) Accepted orders are not subject to cancellation except upon (ii the
written approval of the Seller and (ii) the payment of a fair and equitable
charge to the Seller based upon the actual cost incurred by the Seller in
respect of the order to the date cancellation is received and approved.
4. Specifications etc,
(a) Where the Seller sells goods or performs services which are not to its
standard specification, in preparing and submitting a specification and/or
written acceptance of the Buyer's order the Seller relies upon the Buyer
supplying all necessary relevant and accurate particulars and information.
Any errors or omissions contained in such particulars and information
supplied at any time resulting in any loss or damage to the Buyer shall be
the Buyers sole responsibility.
(b) Any drawings, illustrations, specifications or other material submitted
by the Seller to the Buyer remain the property of the Seller and must not
be communicated to a third party without the written permission of the
Seller. A prospective Buyer has no right to disclose any information
contained therein to a third party without the written consent of the Seller.
5. Prices
The price and terms of payment for the supply shall be as set out in the
Seller's Order Acknowledgement Form except as otherwise provided for
herein provided that the Seller reserves the right by notice given at any
time before delivery of the goods or performance of the services to vary
the price thereof if, after the date of the Order Acknowledgement Form,
there is any increase or decrease in the Sellers general price list
appertaining to such or similar goods or services. Time of payment of the
price shall be of the essence of all contracts for supply.
6. Customs Duties and Taxes
All Customs and Excise duties import and/or export duties and all other
taxes, tariffs and surcharges of any nature whatsoever now on hereafter
levied or imposed in any country on territory either directly or indirectly in
respect of the supply shall be borne by the Buyer and except as stated in
the Order Acknowledgement Form are additional to the prices therein
stated.
7. Exchange Fluctuations
The selling price of Imported goods is based on exchange rates in effect at
the date of the Order Acknowledgement Form and may, without prejudice
to the provisions of Clause 5 above, at the Seller's discretion be increased
to compensate for currency fluctuations.
8. Payment Terms
(a) Except as otherwise specified in writing by the Seller or this Condition
payment for the supply shall be due in full in pounds sterling within thirty
days of the issue of the Seller's invoice
(b) The Seller reserves the right to suspend further deliveries or
performance and/or to cancel allowance of further credit in the event of
any payment not being made when due or if the Seller at its discretion at
any time considers the financial circumstances of the Buyer have ceased
to justify the terms allowed.
9. Delivery
Unless otherwise expressly provided in writing in the Order
Acknowledgement Form, all sales are ex works and delivery of the goods
to the carrier shall constitute delivery thereof to the Buyer, and thereafter
such goods shall be at the Buyers risk. Any claim for shortage or damage
occurring after such delivery or for transportation overcharges should be
directed by the Buyer to the carrier. Any period or date for delivery or for
the performance of services stated in the contract for supply or elsewhere
is the Seller's best estimate when stated but is not a contractual
statement.
10. Invoicing
The Seller may Invoice the Buyer in respect of the supply of goods at the
earlier of the following dates: the date the goods are shipped or the date
the goods are ready for shipment if they are held at the Seller's factory by
instructions of the Buyer or for lack of shipping instructions from the
Buyer. The Seller may 'invoice the Buyer for the supply of services at the
earlier of the following dates: the date of the commencement of
performance thereof or the date indicated in the Order Acknowledgement
Form if performance is delayed by the instructions of the Buyer or by some
other reason beyond the control of the Seller.
11. Passing at Property
(a) No property in or title to the goods shall pass to the Buyer until their full
price has been duly paid in cash to the Seller. Failure to pay the purchase
price as aforesaid when due shall, without prejudice to any other remedies
the Seller may have, entitle the Seller to repossess the goods or so much
thereof as the Seller may determine from any premises where they may be
or to which they may be attached. For the purpose of repossessing the
goods or any part thereof the Buyer shall permit the Seller, its employees
or agents to enter upon such premises and the Buyer shall pay to the
Seller the cost of removal and transport of the goods or any part thereof.
Nothing In this Condition shall confer any right on the Buyer to return any
of the goods or to refuse or delay payment therefore.
(b) The Buyer shall not sell, purport to sell or part with possession of the
goods until the property therein shall trace passed to the Buyer provided
that with the prior written consent of the Seller the Buyer may contract to
re-sell the goods. In any such re-sale the Buyer shall as regards the
sub-purchaser act as principal but shall hold the proceeds of such re-sale
in trust for the Seller in a separate bank account until the Seller has
received the full purchase price due to the Seller.
12. Statutory Liability
(a) The Seller does not exclude or restrict any legal liability it may have for
death or personal injury resulting from the negligence of the Seller its
employees, agents or sub-contractors.
(b) The Seller does not exclude or restrict any of its legal obligations arising
under Section 12 of the Sale of Goods Act 1979 and Section 2 of the
Sale of Goods and Services Act 1982 and Part 1 of the Consumer
Protection Act 1987.
13. Warranty
(a) The Seller warrants the goods against detects in design, materials and
workmanship which become apparent within 12 months of the date of
delivery of the goods to the Buyer.
(b) The Seller warrants that it will perform services with reasonable care
and skill but this warranty shall not apply to any deficiency in such
performance unless it becomes apparent within 12 months of the date of
performance by the Seller.
(c) The periods referred to in paragraphs (a) and (b) of this Clause shall
hereinafter be called "the warranty period".
(d) The Seller's obligation under this warranty is limited:-
(i) In the case of goods: to repairing or as its option supplying on as
exchange basis replacements for any defective goods or part or parts
thereof and making good any defect or defects in the goods which may
develop under normal and proper use within the warranty period.
(ii) In the case of services: to the reperformance of the services or
part or parts thereof shown to be deficient hereunder within the
warranty period.
(e) In the event of the Buyer becoming aware of a defect in goods or of a
deficiency in the performance of services during the warranty period the
Buyer shall promptly supply the Seller with written particulars of such
defect or deficiency, use its heat endeavours to provide all information and
particulars necessary to enable the Seller or its agents to verify the notified
particulars and to ascertain the nature and cause of the defect or
deficiency claimed and shall afford the Seller and/or its agents tell and
proper access and facilities therefore and for making good the doted or
deficiency.
(f) The above warranty shall not apply to any defect in the goods or
deficiency in the services where such defect or deficiency is caused in
whole or in part by:
(i) The installation, storage, use, maintenance or repair of the goods in a
manner reasonably considered by the Seller to be improper:
(ii) The Buyer and/or any user of the goods or of products incorporating
the goods and/or any third party called in by the Buyer and/or such user
as aforesaid changing or adding to the goods without the express
permission in writing of the Seller;
(iii) And other act of the Buyer or any third party
(g) The Seller shall be under no liability whatsoever for any loss or damage
which results from or is caused by erroneous information or lack of
information supplied by the Buyer as to the Buyer's requirements in
relation to the specifications or use of the goods or services.
(h) The Seller shall be under no liability whatsoever to repair, replace or
make good any loss which results from defects or depreciation caused by
damage in transit in circumstances outside the Seller's control, wear and
tear, accidents, neglect, misuse, dampness, abnormal temperature or
other conditions or circumstances beyond the Seller's control as
stipulated in Clause 19 below.
(i) When any defective goods are replaced upon an exchange basis or
defective goods are repaired or services are reperformed the provisions of
this warranty clause shall apply to the
reperformed services or replacement or repaired goods for the unexpired
balance of the warranty period or the period of six months from the date
of reperformance replacement or repair as the case may be whichever is
the longer.
(j) The above warranty provisions do not apply to any goods or services
where it is impracticable or unsafe for the Seller to comply with the same.
(k) All liability under the warranty provisions ceases of the expirations of
the warranty period.
14. Exclusions
(a) The Buyer shall be entitled to the benefit of the aforementioned
warranty which is given in lieu of and replaces, excludes and extinguishes
all and every condition or warranty whatsoever whether express or
implied by statue, common law, trade usage, custom or otherwise.
(b) It shall be the responsibility of the Buyer to determine the suitability of
the goods and of any services for their intended purpose and for actual
application and their compliance with applicable laws, regulation codes
and standards and the Buyer assumes all risks pertaining thereto.
(c) Notwithstanding the exclusion of any warranty as to fitness for purpose
contained in these Conditions, as a separate Condition the Buyer agrees
that in circumstances where the Seller relies on the skill of the Buyer to
judge whether goods or services are fit for the purpose for which they are
purchased or provided the Seller shall accept no liability whatsoever with
regard to that judgment or any matter arising from that judgment and the
Buyer will indemnify the Seller against any loss, damage, costs, claims or
expenses arising there from
15. Rights and Remedies of the Buyer
a) If and insofar as the Seller may beheld to be legally liable to the Buyer
the solo right at redress of the Buyer against the Seller shall be as
expressly provided for in these Conditions or any other conditions
expressly agreed to in writing by the Seller and the Buyer shall have no
other remedies of any kind whatsoever against the Seller
(b) For the purposes of the contract for supply the expression 'legal liability'
shall include the legal liability at the Seller, its employees, agents or
sub-contractors as found by any court or competent authority and, without
prejudice to the generality of the foregoing, shall include:
(i) breach of any contractual obligation by virtue of the empress at
implied
terms of the contract for supply and any fundamental breach and/or
breach at fundamental term:
(ii) negligence arising by virtue of any actor omission which amounts too
failure to take reasonable care or exercise reasonable skill:
(iii) any misrepresentation or mis-statement made by or on behalf of
the Seller;
iv) any other breach at duty.and the expression 'legally liable shall bear a
corresponding meaning(c) This clause shall not confer any rights or
remedies on the Buyer to which the Buyer would not otherwise
be entitled.
16. Limit at Damages ten Breach of Warranty
If notwithstanding the Seller's attempts to comply with the warranty the
Seller is unable to do so the Seller shall pay monetary damages to the
Buyer not exceeding the amount received by the Seller for the defective
goods, or as the case may be, the deficient services.
17. Damage - Physical Property
The Seller shall not be liable in respect at any loss or damage of
whatsoever kind or whatsoever caused whether by reason of the
negligence of the Seller or otherwise, to premises, plant or other physical
property. In the event of legal liability being established the Seller shall not
be liable to pay damages arising from the aforesaid loss or damage.
18. Economic, Other Consequential Loss and Claims by Third Parties
Save as expressly provided for in the contract for supply the Seller shall in
so circumstances be liable for the following loss or damage howsoever
caused and howsoever arising whether by reason of the Seller's
negligence or otherwise, even if such loss or damage was, or ought
reasonably to have been, in the contemplation of the parties at the date of
the contract for supply as being likely to occur:
(i) Economic loss, which shall include, without limitation, loss of profits,
reputation, goodwill, business, use, use of interest, services et employee
or agent, anticipated savings, expenses rendered futile by the breach
and
expenses caused by the breach;
(ii) any other consequential or indirect loss or damages;
(iii) any claim made against the Buyer by any other party.
In the event at legal liability being established the Seller shall not be liable
to pay damages arising from the aforesaid loss or damage.
19. Events beyond the control of the Seller
(a) The Seller does not accept any liability incurred under the contract for
supply wherever and to the extent to which the fulfilment of the Seller's
obligations is prevented frustrated impeded and/or delayed as a
consequence of any 'force majeure' and/or any occurrence whatever
beyond the control of the Seller, such to include, without prejudice to the
generally of the foregoing;
(i) act of God, fires, floods or other casualties;
(ii) wars, riots, civil commotion, embargoes, governmental regulations or
inability to obtain necessary materials from the Sellers usual sources
of supply;
(iii) shortage at transport facilities or delays in transit(iv) existing or future
strikes or other labour troubles affecting the performance thereof
whether
involving the Seller's employees or employees of others and regardless
of
the responsibility or fault on the part of the employers;
(v) failure in whole or in part of power supplies.
(b) The Seller undertakes however to make every reasonable endeavour
within its power to overcome difficulties arising in connection therewith
hat reserves the right to cancel suspend or vary its obligations under the
contract for supply and in the event of shortages of goods or of available
resources for their production storage or delivery or continued difficulty In
rendering services arising from any of the events or circumstances
referred to in paragraph (a) of this clause, the Seller reserves the right to
allocate as it may think fit its available goods and resources and performance
of services between customers and whom it has contractual obligations
in respect thereof and shall not be obliged to purchase goods from
third parties or
sub-contract services to make good such shortages, or performance.
20. Maximum Limit of Damages
It, notwithstanding the provisions of Clauses 13 to 19 inclusive and
Classes 21 and 22, the Seller shall in any circumstances whatsoever be
held legally liable to the buyer then:
(i) The Buyer's sole rights of redress against the Seller shall be limited
to damages;
(ii) the Seller's total liability in respect of any goods and/or services
notwithstanding the number of Incidents for which the Seller is found
legally liable shall in no circumstances exceed the amount received by
the
Seller for the goods or services as the case may be.
21. Insurance
(a) The precise limits of any appropriate insurance cover are primarily
within the Buyer's knowledge thereby enabling the Buyer to effect his own
insurance cover at more economic rates than the Seller.The Buyer agrees
that insofar as the Buyer may require any insurance cover the Buyer shall
effect The same, such to include without prejudice to the generality of the
foregoing:
(i) damage to physical property of any kind;
(ii) economic and ether consequential or indirect toss or damage;
therefore the Buyer acknowledges and accepts that it is reasonable for the
Seller to limit its legal liability and its liability to pay damages as set oat in
those Conditions.
(b) The Buyer hereby agrees and acknowledges that it will procure that
the Buyer's insurers shall in no circumstances whatsoever have any rights
or remedies against the Seller additional to those of the Buyer.
22. lndemnity
The Buyer agrees to indemnify the Seller against any loss, damage, costs,
claims or expenses incurred by the Seller in respect of any liability
established against the Seller by a third party arising out of or is
connection with the contract for supply.
23. Change In Buyer's Financial Circumstances
If the Buyer makes any composition or arrangement with creditors or,
being a company, goes into liquidation whether voluntary or compulsory
or, being an individual or firm, it be or any partner commits any act of
bankruptcy or if a Receiver is appointed in respect of any assets of the
Buyer or it the Buyer fails duly to pay for any goods or services or to
comply with any other requirement under any contract for supply or if the
Seller considers in its absolute discretion that the financial circumstances
of the Buyer do not justify any payment or credit terms or arrangement
previously agreed the Seller may at its option either require payment in
cash before despatch of goods remaining to be delivered or performance
of services remaining to be performed or may cancel further deliveries or
work without prejudice to any other rights or remedies of the Seller and
the Buyer shall remain liable for completed and partially completed
deliveries and work to the same extent as required under Condition 3(c) of
these Conditions in the event of cancellation.
24. Health and Safety
(a) The Buyer agrees only to use the goods and obtain services for uses
specified in the Seller's current sales literature or for other uses which the
Seller has specifically notified is writing to the Buyer as being in the
Seller's opinion free from risk to health and safety.(b) The Buyer agrees to
pay due regard to any information or advice relating to the use of the
goods or
product of the services which the Seller may at any time furnish to it and
agrees that before the goods are used it will, if requested by the Seller,
furnish the Seller with a written undertaking to take any steps which the
Seller way specify with a view to ensuring that the goods will be safe and
without risk to health when used.(c) Any written undertaking given
pursuant to paragraph (b) above shall be deemed to have effect as if it
formed part of the contract for supply.
25. Delivery by Installments
Each delivery or part delivery of any order shall be deemed to be sold
under a separate contract. Neither failure so the Seller's part to make any
delivery or part delivery in accordance with the contract for supply nor any
claim by the Buyer in respect of such delivery or part delivery shall entitle
the Buyer to reject the balance of the order.
26. Quantities
On all orders the Seller shall have the right to ship and bill for a quantity at
goods greater or less than the exact quantity up to a variation of 10%
unless otherwise expressly provided for in the Order Acknowledgement
Form.
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