Yorvik Electronics Limited, York, United Kingdom
General Terms and Conditions for our sales of Goods
All orders following the Brexit and made on or after the 4th of January 2021 are subject to these Terms and Conditions
In this document the following words shall have the following meanings
1.1 “Buyer” means the organisation or person who buys Goods from the Seller;
1.2 “Conditions” means the terms and Conditions of sale set out in this document and any special Terms and Conditions agreed in writing by the Seller;
1.3 “Delivery date” means the date indicated by the Seller when the Goods are to be delivered if and when the Seller organizes the shipment on behalf of the Buyer;
1.4 “Goods” means the articles to be supplied to the Buyer by the Seller;
1.5 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.6 “Price” means the price agreed between the Seller and the Buyer for an order, or such other Price as the parties may agree in writing, plus any freight, packing, insurance or other charges or interest thereon as may be specified by the Seller or as may apply in accordance with these Conditions;
1.7 “Seller” means Yorvik Electronics Limited incorporated and registered in England and Wales under the company number 11403241, whose registered office address is at The Raylor Centre, James street, York, YO10 3DW, North Yorkshire, United Kingdom;
1.8 “Transporter” means any carrier, freight forwarder, broker or agent handling a shipment;
1.9 “Incoterm” means International Commercial Terms are as pre-defined commercial terms published by the International Chamber of Commerce (ICC) relating to international commercial law;
1.10 “FCA” Incoterm meaning Free Carrier (named place of delivery).
2 Conditions of application
2.1 A link to these terms and conditions appears on all our contractual documents and all our emails.
2.2 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and Conditions including any terms or Conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document. No other terms are implied by trade, custom, practice or course of dealing.
2.3 Any modification of these Conditions, without any exception, shall be considered null and void unless agreed in writing by the Seller.
2.4 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these General terms and Conditions for our sales of Goods.
2.5 Any advice, recommendation or representation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods or otherwise which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and, accordingly, the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
2.6 Nothing in these Conditions shall affect the statutory rights of any Buyer dealing as a consumer.
3 Offers, orders, and acceptance
3.1 The validity of quotations for Goods is considered correct at the date and time of issue and only within the limits of the stocks available and accessible to the Seller.
3.2 The price of the Goods does not include delivery charges.
3.3 The Goods are shipped under the Incoterm©2020: FCA.
3.4 The Buyer therefore has the choice of the transporter and organizes the shipment at his convenience.
3.5 When the Seller organizes the shipment on behalf of the Buyer, the Seller shall communicate a shipment price that shall be considered correct at the date and time of issue.
3.6 When the Seller arranges a shipment on behalf of the Buyer, the shipping costs shall be invoiced to the Buyer as the same amount which was paid by the Seller. Upon request, the Seller shall provide the Buyer with a copy of the shipping invoice issued by the Transporter.
3.7 A quotation for the Goods shall not constitute an offer.
3.8 If, by any reason the Seller has under‐priced an item, the Seller will not be liable to supply that item to the Buyer at the stated price.
3.9 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
3.10 The Buyer shall be responsible to the Seller for the accuracy of the terms of any order, including all applicable technical specifications. The Buyer shall provide all such information in sufficient time to enable the Seller to process the order in accordance with this agreement.
3.11 The quantity, quality and description of the Goods and any specifications relating to them shall be as stated in the Buyer’s order if and when accepted by the Seller.
3.12 All orders once accepted by the Seller are non-cancellable and non-returnable.
4 Pricing, billing and payment
4.1 For the price of the Goods, the Seller can only commit to the prices accepted by him on confirmation of the order.
4.2 The Goods may be invoiced at the time of order, with full payment at the time of order or payment of a deposit at the time of order, or at the time of shipment.
4.3 The Goods are payable within 30 days from the date of shipment with the following exceptions:
4.3.1 First order from a new customer;
4.3.2 Previous and current overdue payment;
4.3.3 Exceeding of the credit limit communicated by a Credit Insurance Company and/or by a Financial Rating Company;
4.3.4 Goods in allocation and/or their alternatives;
4.3.5 Goods with a special price offer;
4.3.6 Goods with an expected delivery date of more than 30 days;
4.3.7 Specifically and/or custom manufactured Goods.
4.4 The Seller reserves the right to grant, refuse, restrict, cancel or alter credit terms at its sole discretion at any time.
5 Consequences of late payment
If the payment of the Price or any part thereof is not made by the due date, or at the latest 5 calendar days after this due date, the Seller shall be entitled to:
5.1 Require payment in advance of delivery in relation to any Goods not previously delivered
5.2 Refuse to deliver any undelivered Goods, whether ordered as part of the order that is the purpose of this invoice or not and without incurring any liability to the Buyer for non-delivery or late delivery
5.3 Appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit
5.4 Terminate the contract without such termination shall restrict the consequences of late payment as detailed in Articles 5 and 6.
6 Consequences of late payment for more than 28 calendar days
In the event of late payment without justification or without any valid and acceptable reason, for more than 28 calendar days, the debt will systematically be passed on to our lawyers and/or an international debt collection company. In accordance with the English law, all costs related to this situation will be at the expense of the debtor which include:
6.1 administrative fees
6.2 legal fees
6.3 legal interests
6.4 lawyer fees
6.5 debt collection fees
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby confirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so far as to constitute a sale by sample.
9.1 The Goods are shipped under the Incoterm©2020: FCA.
9.2 When the Seller organizes the shipment on behalf of the Buyer and unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Buyer on the date specified by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
9.3 When the Seller organizes the shipment on behalf of the Buyer, the date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such date’s compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.
9.4 When the Seller organizes the shipment on behalf of the Buyer, at the time of shipment, the Seller shall communicate to the Buyer the tracking number given by the Transporter that allows the Buyer to follow the delivery status. Occasionally delivery to the Buyer may be affected by a Force Majeure event. See Clause “Force Majeure” for the Seller’s responsibilities when this happens.
9.5 When the Seller organizes the shipment on behalf of the Buyer, and if the Seller is unable to deliver the Goods for reasons beyond its control, the Seller will store or arrange for the storage of the Goods until such time as delivery can be made and the Buyer will be responsible for any expenses associated with such storage.
9.6 When the Seller organizes the shipment on behalf of the Buyer, and if the Buyer does not accept delivery of the Goods on the delivery date or within 3 days of the notification that Goods are ready for shipment before or after the delivery date, the Buyer shall pay a reasonable storage fee until the Goods are shipped to the Buyer.
9.7 When the Seller organizes the shipment on behalf of the Buyer, the Seller shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat any other related contract as repudiated.
9.8 When the Seller organizes the shipment on behalf of the Buyer, and where the Buyer requires delivery of the Goods by instalments, rescheduling requires the Seller’s written agreement and will not be possible unless at least 3 month’s written notice is provided and so agreed. Each delivery shall constitute a separate contract and failure by the Buyer to pay the Price in respect of any instalment shall entitle the Seller to treat any other related contract as repudiated in addition to any other rights of the Seller pursuant to these Conditions.
9.9 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 3 months of the delivery date.
9.10 When the Seller organizes the shipment on behalf of the Buyer, the Seller delivers to the United Kingdom and all countries in geographical Europe. If the Buyer orders Goods for delivery to one of the International Delivery Destinations, their order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that the Seller has no control over these charges and cannot predict their amount. The Buyer will be responsible for payment of any such import duties and taxes. The Buyer should contact their local customs office for further information before placing their order.
9.11 The Buyer must comply with all applicable laws and regulations of the country for which the Goods are destined. The Seller will not be liable or responsible if the Buyer breaks any such law.
10.1 The Seller is a distributor of Goods and the Buyer is exclusively responsible for detailing the specification of the Goods, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.
10.2 The Buyer is required to test the Goods upon delivery and shall be deemed to have accepted the Goods 14 days after delivery. Accordingly, no claim for defect, damage or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 14 days of delivery. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
10.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods.
10.4 The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.
11 Risk and Title
11.1 Under the Incoterms©2010: FCA, risk of damage or loss of the Goods shall pass to the Buyer in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection, or in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery.
11.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Goods and of all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
11.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
11.4 Until payment of the Price the Buyer shall be entitled to resell or use the Goods in the course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
11.5 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or of any third party where the Goods are stored and repossess the Goods.
11.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
11.7 The Seller shall be entitled to recover the Price notwithstanding that property in any of the Goods has not passed from the Seller.
12.1 If the Goods are found to be defective, the Seller shall replace the defective Goods free of charge during the Seller’s supplier’s warranty period from the date of delivery, provided that the Buyer informs the Seller in writing as soon as the defect appears and with a full test report.
12.2 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
12.3 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer and the Buyer shall have no other remedy against the Seller.
12.4 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods in the event that the Price has already been paid.
12.5 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to Conditions 11 and 12 below.
12.6 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer and the Buyer shall have no other remedy against the Seller.
12.7 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to Conditions 11 and 12 below.
13.1 Seller’s liability: the Buyer’s attention is particularly drawn to this clause
13.2 References to liability in this clause 13.1 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 The Seller only supplies the Goods for internal use by the Buyer’s business, and with the exception of Goods sold by us as franchised distributor, the Buyer agrees not to use the Goods for resale, unless they are integrated into a product that he has manufactured.
13.3.1 Nothing in these Terms limits or excludes the Seller’s liability for:
13.3.2 death or personal injury caused by the Seller’s negligence;
13.3.3 fraud or fraudulent misrepresentation;
13.3.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
13.3.5 any other liability that cannot be limited or excluded by law.
13.4 Subject to clause 11.3.1, the Seller will under no circumstances be liable to the Buyer for:
13.4.1 any loss of profits, sales, business, or revenue; or
13.4.2 loss or corruption of data, information or software; or
13.4.3 loss of business opportunity; or
13.4.4 loss of anticipated savings; or
13.4.5 loss of goodwill; or
13.4.6 any indirect or consequential loss.
13.5 the Seller’s total liability to the Buyer for all losses arising under or in connection with the Contract will in no circumstances exceed the price of the Goods.
13.6 Except as expressly stated in these Terms, the Seller does not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, the Seller will not be responsible for ensuring that the Goods are suitable for the Buyer’s purposes.
14. Limitation of Liability
14.1 Where any court or arbitrator determines that any part of Clause 13 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price.
14.2 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.
15 Intellectual Property Rights
15.1 Where any Goods supplied by us embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user licence, to the exclusion of all liabilities and obligations on our part.
15.2 The Buyer will indemnify us against all liabilities for infringement of third-party intellectual property rights arising from our compliance with the Buyer’s specific requirements regarding design or specification for the Goods or arising from the use of the Goods in combination with other products.
15.3 In the event that all the Goods or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights and the use is thereby prevented, the Seller will at its own expense and option either procure for the Buyer the right to continue using the Goods or replace the same with a non-infringing product, or modify the Goods so that they become non-infringing, or may elect to retake possession of the Goods and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods.
15.4 All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
16 Force Majeure
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.
17 Relationship of Parties
Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.
18 Assignment and Sub-Contracting
The contract between the Buyer and the Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
19.1 A waiver of any right or remedy under this agreement or by law shall only be effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
19.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
21 No set off
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.
22 Entire Agreement
These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties.
23 Governing Law and Jurisdiction
This agreement is governed by the English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the English courts.