Hi5 Electronics Limited (“the Company”)
TERMS AND CONDITIONS OF QUOTATION AND SALE (“the Terms”)
You have agreed to purchase the Goods from the Company (as defined in the Terms) on these terms and conditions. You acknowledge that you have been provided a copy of these Terms and by entering in to this Contract (as defined in the Terms), you agree to be bound by them.
1.1 The definitions and rules of interpretation in this condition apply in these Terms.
“Company”: Hi5 Electronics Limited, Sherwood Industrial Park, Queensway, Rochdale, OL11 2NU.
“Contract”: any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these Terms.
“Customer”: the business or company who purchases the Goods from the Company.
“Delivery Point”: the place where delivery of the Goods is to take place under condition 4.
“Goods”: namely Printed Circuit Boards (“PCB”) or Printed Wiring Boards (“PWB”) and any other goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them).
“Tooling”: a charge applied to invoices payable by the Customer in respect of costs incurred by the Company in producing and/or procuring the Goods for the first time and to use the Tooling to make subsequent Goods for the Customer.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Terms.
2 APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Terms apply to all the Company’s sales and any variation to these Terms and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods subject to these Terms.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order via email is issued by the Company or (if earlier) the Company starts to produce or procures the Goods.
2.6 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence unless in accordance with clause 2.5. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s website, brochures or catalogues 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 and this is not a sale by sample.
4.1 The Company shall courier the Goods to the Customer (at the Customer’s expense) but shall take no responsibility for any failed or delayed delivery.
4.2 If it is agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business and the Customer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these Terms the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Customer fails to accept delivery of any of the Goods when they have been delivered to the Customer or when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods shall be deemed to have been delivered; and
4.5.3 the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and/or unloading (as the case may be) of the Goods.
4.7 If the Company delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Customer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
6.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
6.5 The Customer’s right to possession of the Goods shall terminate immediately if:
6.5.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 6 shall remain in effect.
7.1 Subject to condition 7.2, the price for the Goods shall be the price set out in the Company’s quotation (unless any changes, amendments or modifications have been made or requested to be made to the Goods).
7.2 The Company reserves the right to amend the price due to factors outside the Company’s control including but not limited to increase in price of materials or labour, duties and charges, transport charges or fluctuations in the value of currencies.
7.3 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to Tooling, packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling on the last day of the month following the month of the date of the invoice to the Customer.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 10% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9 DATA AND INTELLECTUAL PROPERTY
9.1 The Customer shall provide the Company with all necessary drawings, artwork and data (“Information”) for the production and/or procurement of the Goods.
9.2 The accuracy of such Information supplied in any format whatsoever is the responsibility of the Customer. The Company takes no responsibility for or obligation to the accuracy of such Information, whether for the manufacture, safety or efficacy of the Goods, nor to its compliance with any specification or legislative requirement when used in the production of the Goods. Any cost or loss suffered by the Company due to inaccurate information is entirely at the cost of the Customer and will be charged for.
9.3 The Company acknowledges that the intellectual property rights (“IPR”) in the Information is and shall remain the property of the Customer and that the Company will not obtain any IPR in the Information other than expressly granted to it under these Terms.
9.4 The Customer grants to the Company a non-exclusive royalty-free and non-transferable licence to use the Information as is necessary for the Company to carry out its obligations under these Terms.
9.5 The Customer shall obtain all necessary approvals, authorisations, licences, consents and waivers necessary for the Company to use all the Information as envisaged by these Terms.
9.6 The Customer warrants that:
9.6.1 The Information does not and shall not contain any content, material or data that is materially inaccurate, obscene, defamatory, harassing, offensive, malicious, breaches or infringes any applicable law, regulation or rights of any third party.
9.6.2 It is the legal proprietor of the Information or has the right to use the Information in the manner required under these Terms.
9.6.3 The Customer hereby indemnifies and keeps the Company indemnified against all actions, proceedings, claims, damages and reasonable costs and expenses (including legal costs) incurred by the Company in consequence of any breach or alleged breach of the above warranties.
10.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
10.2 The Company warrants that (subject to the other provisions of these Terms) on delivery [, and for a period of 3 months from the date of delivery,] the Goods shall:
10.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
10.2.2 be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of the Company.
10.3 The Company shall not be liable for a breach of any of the warranties in condition 10.2 unless:
10.3.1 the Customer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 14 days of the time when the Customer discovers or ought to have discovered the defect; and
10.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the [Company’s] cost for the examination to take place there.
10.4 The Company shall not be liable for a breach of any of the warranties in condition 10.2 if:
10.4.1 the Customer makes any further use of such Goods after giving such notice; or
10.4.2 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
10.4.3 the Customer alters or repairs such Goods without the written consent of the Company.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with any of the warranties in condition 10.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate PROVIDED THAT, if the Company so requests, the Customer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
10.6 If the Company complies with condition 10.5 it shall have no further liability for a breach of any of the warranties in condition 10.2 in respect of such Goods.
10.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 3 month period.
11 LIMITATION OF LIABILITY
11.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of these Terms, including any deliberate breach of these Terms by a party, or its employees, agents or subcontractors;
11.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
11.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Terms excludes or limits the liability of the Company:
11.3.1 for death or personal injury caused by the Company’s negligence; or
11.3.2 under section 2(3), Consumer Protection Act 1987; or
11.3.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
11.3.4 for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3:
11.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
11.4.2 the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.1 The Company may assign the Contract or any part of it to any person, firm or company.
12.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13 FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 This 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 submit to the exclusive jurisdiction of the English courts.
15.1 All communications between the parties about the Contract shall be in writing and sent via email:
15.1.1 (in case of communications to the Company) to firstname.lastname@example.org
15.1.2 (in the case of the communications to the Customer) to the email address of the addressee (if it is a company) or (in any other case) to any email address of the Customer set out in any document which forms part of the Contract or such other email address as shall be notified to the Company by the Customer.
15.1.3 Communications shall be deemed to have been received 48 hours after the date that the email was sent by the sender.
15.2 Communications addressed to the Company shall be marked for the attention of the Company Secretary.
Further conditions for purchases made via www.hi5electronics.co.uk (the “Website”)
• For any Consumers (as defined under s.3(1) of the Consumer Protection (Distance Selling) Regulations 2000) purchasing Goods over the Website, the Consumer Protection (Distance Selling) Regulations 2000 and the following additional terms shall apply to such transactions.
• All Goods are bespoke and made to the Consumer’s specific requirements and therefore cannot be exchanged and/or refunded unless in accordance with Condition 9.
• The Company is not liable and/or responsible for the card issuer or bank charging the Consumer/Customer as a result of the Company’s processing of the Consumer’s credit/debit card payment in accordance with it’s order.
• Pricing on the Website will be provided by the Company’s online calculator and the Company endeavours that all pricing information on the Website is accurate, occasionally an error may occur and Goods may be mispriced. If the Company discovers a pricing error the Company will at it’s discretion, either contact the Consumer/Customer and confirm whether the order at the correct price is to be proceeded with or cancelled. The Company is not obliged to supply Goods at the incorrect price.