Terms and conditions of sale, delivery and payment
01. Definitions
“ Seller” means Wolfson Microelectronics plc, a company registered in Scotland (Registered Number SC089839) whose registered office is at Westfield House, 26 Westfield Road, Edinburgh EH11 2QB or any of its subsidiary companies.
“Buyer” means the person, firm, company or organisation who buys or has agreed to buy the Goods.
“delivery” has the meaning set out in Condition 7(a) unless the context otherwise requires.
“Goods” means any goods (including any instalment thereof or any parts for such goods) which Seller is to supply to Buyer in accordance with the terms of the Contract.
“Price” means the price of the Goods specified in the Contract.
“Contract” means the contract between Seller and Buyer for the sale and purchase of the Goods (including any Buyer’s Purchase Order).
“Terms and Conditions” means the standard terms and conditions of sale set out in this document which shall be deemed to form part of the Contract and (unless the context otherwise requires) includes any special terms of and conditions to a Contract agreed in writing between Buyer and Seller.
02. General
The Terms and Conditions apply in preference to and supersede any terms and conditions referred to or offered or relied upon by Buyer (whether stated orally or in writing) unless such terms and conditions have been provided in writing by Buyer to Seller and Seller has acknowledged and accepted such terms and conditions in writing signed by a director of Seller.
03. Conclusion of the Contract
Buyer shall issue its order for the Goods on its standard order form stating clearly Buyer’s Purchase Order number and Seller’s Part Number or Reference Number for each item. Contracts for the sale of the Goods are concluded only upon dispatch of the acknowledgement by Seller of the order.
04. Price
(a) The Price is exclusive of VAT or any other applicable taxes and is based on Seller’s current price list (as amended from time to time). Seller reserves the right to increase the Price to take account of any increase in Seller’s costs which are outside of Seller’s direct control at any time prior to delivery of the Goods including but not limited to a significant increase in the price of fuel, metals, raw materials and production costs. Seller also reserves the right to increase the Price if Buyer fails to take delivery of the Goods on the agreed delivery date or (if none) within 6 months of Seller’s acknowledgement of Buyer’s order.
(b) Unless otherwise agreed in writing between the parties, the Price quoted is “Ex Works” as defined in the International Chamber of Commerce Incoterms 2000 edition. All loading transport, shipment and other costs arising subsequent to delivery of the Goods including, without limitation, transport insurance and any Value Added Tax or other tax and charges imposed by the law of Scotland or any other country (“Additional Costs”) shall be met by Buyer or Buyer’s agent. If the Additional Costs are paid by Seller, they shall be invoiced additionally and/or separately from the Price of the Goods and shall be payable by Buyer in accordance with these Terms and Conditions.
(c) Buyer will provide Seller with appropriate shipping documentation, including air waybills, for each consignment within 3 months of the date of shipment. Failure to do so will result in Seller charging UK Value Added Tax at the appropriate rate in addition to the Price which shall be paid by Buyer as an Additional Cost. Any UK VAT so paid by Buyer shall be refunded only on provision of the required documentation.
05. Payment
(a) The Price and the Additional Costs must be paid within 30 days of the date of issue of the relevant invoice without any deductions and free of expenses. Time of payment of the Price and the Additional Costs shall be of the essence of the Contract.
(b) If payment of the Price and/or the Additional Costs or any part thereof is not made by the due date, Seller shall be entitled to:
(i) charge interest on the outstanding amount at the rate of 2 per cent per annum above the Royal Bank of Scotland plc base rate, accruing daily; and/or
(ii) require payment of the Price and any Additional Costs payable by Buyer in advance of delivery of any undelivered Goods; and/or
(iii) refuse to make delivery of any undelivered Goods whether ordered under the Contract or not and without incurring any liability to Buyer for non-delivery or any delay in delivery; and/or
(iv) terminate the Contract.
(c) Payment shall be made, either;
(i) to Seller’s advised bank account; or
(ii) by irrevocable Letter of Credit confirmed by a London Clearing Bank to be established in favour of Seller and to be on terms acceptable to and agreed in writing with Seller.
06. Changes
Seller reserves the right to make any change in the specification of the Goods which does not materially affect the installation, performance or Price thereof. Any such change shall not invalidate any order placed with Seller or impose any liability on Seller.
07. Delivery
(a) All Goods delivered to Buyer shall be delivered “Ex Works” as defined in the Incoterms 2000, unless otherwise agreed in writing between the parties.
(b) Any date(s) or time(s) quoted or acknowledged for delivery of the Goods by Seller are estimates only and Seller shall not be liable for failure to deliver the Goods on or within such date(s) or time(s) nor shall Buyer be entitled to reject any consignment of the Goods or to treat the Contract as repudiated in the event of such failure. Time shall not be of the essence in respect of quoted delivery dates or times.
(c) Unless otherwise agreed in writing with Seller, Buyer shall be bound to accept partial deliveries of the Goods or delivery of the Goods by instalments and the Terms and Conditions herein contained shall apply to such partial delivery or delivery by instalment. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated.
(d) Unless otherwise agreed in writing, Seller reserves the right to ship Goods in advance of any delivery date acknowledged by Seller.
(e) Where the Goods are being shipped, if the Goods are not received by Buyer within 7 days of the date on which Buyer receives notification from Seller of the relevant shipping information, Buyer must advise Seller immediately.
(f) All orders must be for the minimum order quantities (or multiples thereof) for the relevant Goods as specified by Seller from time to time.
(g) Buyer shall notify Seller of any visible defects in the Goods within 7 days of receipt. Goods delivered to Buyer which are defective shall be taken and kept in custody by Buyer until Seller has disposed of, or has given instructions to Buyer to dispose of, the Goods. Any claim for breach of warranty by Buyer in respect of the Goods shall remain unaffected.
(h) If Buyer fails to take delivery of the Goods within 7 days after receiving notice from Seller that they are ready for collection, Seller may store them at Buyer’s expense.
(i) Notification of shortages or incorrect shipments should be received in writing within 7 days of receipt of the Goods into Buyer’s premises. Seller will not be liable for replacement parts if Buyer fails to notify in accordance with this paragraph.
(j) Seller reserves the right to allocate Goods amongst its customers if there is a shortage of Goods.
08. Risk and Title to Goods
(a) The risk in the Goods will pass to Buyer at the time of delivery of the Goods.
(b) The title in the Goods will not pass to Buyer until payment of the Price and any Additional Costs has been made in full by Buyer and until such time:-
(i) Buyer acknowledges that he is in possession of the Goods to the order of Seller and shall hold the Goods on behalf of Seller. If the Goods are resold or otherwise disposed of by Buyer, Buyer will ensure that the entire proceeds of the sale are held on behalf of Seller and shall not be mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as monies belonging to Seller; and
(ii) Buyer shall be obliged to keep the Goods free from the rights of third parties and shall not pledge or purport to transfer title to the Goods, as security; and
(iii) Seller retains the right to recover the Goods from Buyer’s premises (and for this purpose may enter into Buyer’s premises) at Buyer’s expense.
(c) Nothing in this Condition 8 shall confer any right upon Buyer to return the Goods sold to Seller.
09. Cancellation and Rescheduling
Any request for cancellation or rescheduling must be made in writing (stating the nature and detailed reasons for the request). Cancellation and rescheduling requests cannot be accepted within the 30 day period prior to the scheduled delivery date. Outside of that 30 day period, Seller reserves the right to refuse any request for cancellation or rescheduling. Should the request be accepted, Seller reserves the right to invoice Buyer for costs and losses associated with the cancellation or rescheduling up to the Price.
10. Warranty
(a) Seller warrants to Buyer that for 12 months from the date of delivery the Goods will (a) be free from material defects caused by poor workmanship or faulty materials; and (b) conform to their published specification in effect at the date of shipment. Under this warranty, Seller’s liability shall be limited solely to delivering replacement goods, making good such defective Goods or issuing a credit note (for any monies already paid to Seller in respect of the Goods) at Seller’s option provided that:
(i) Buyer notifies Seller in writing within 14 days of discovering such defects;
(ii) the defective Goods or a representative sample are returned to Seller for inspection at Buyer’s expense; and
(iii) Seller determines that the Goods affected are non-conforming with the above warranty and were not damaged as a result of misuse, neglect, accident, improper storage, installation, handling or repair or any other reason which is not attributable to Seller.
Buyer shall pay to Seller the cost (as certified by Seller) of any examination and investigation of returned Goods where in its reasonable opinion Seller does not believe that such Goods are defective.
(b) The warranty in Condition 10(a) applies only to Goods which have been purchased through authorised sales channels.
11. Returns procedure
Buyer must not return any Goods without Seller’s prior written authorisation and a return material authorisation (RMA) number. The RMA number must be quoted on all correspondence. All Goods returned must be appropriately packaged for transit.
12. Disclaimer and limitation
(a) To the extent permitted by law and save as expressly provided in Condition 10, Seller shall be under no liability of whatsoever kind, howsoever caused arising out of or in connection with the Goods or the Contract. All conditions, warranties or other terms whether express or implied, statutory or otherwise are hereby expressly excluded. Nothing in this Condition 12 shall seek to exclude or limit the liability of Seller for death or personal injury.
(b) SELLER SHALL NOT BE LIABLE HEREUNDER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFITS, REVENUE, USE, OR GOODWILL, OR FOR THE COST OF PROCURING SUBSTITUTE GOODS.
(c) IN NO EVENT SHALL THE TOTAL LIABILITY OF SELLER FOR ANY CLAIM ARISING UNDER THESE TERMS AND CONDITIONS EXCEED THE AGGREGATE SUM PAID TO SELLER BY BUYER IN RESPECT OF THE GOODS WHICH GIVE RISE TO SUCH CLAIM.
(d) THE GOODS ARE NOT INTENDED FOR USE IN LIFE SUPPORT SYSTEMS, APPLIANCES, NUCLEAR SYSTEMS OR SYSTEMS WHERE MALFUNCTION CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, DEATH OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. ANY USE OF THE GOODS BY BUYER FOR SUCH PURPOSES IS AT BUYER’S OWN RISK AND BUYER WILL INDEMNIFY SELLER AND ITS SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH SUCH USE.
13. Intellectual Property Rights
(a) Buyer warrants that any design or instruction furnished or given by Buyer to Seller shall not be such as will cause Seller to infringe any patent, copyright, registered design or trade mark or any other intellectual property rights in the execution of Buyer’s order.
(b) These Terms and Conditions and/or the Contract and/or the giving of technical assistance or other information by Seller shall not grant to, convey or confer upon Buyer or Buyer’s customer or upon anyone claiming under Buyer a licence, express or implied, under any patent rights, copyrights, trade marks, registered designs or other intellectual property rights of Seller covering or relating to any combination, machine or process in which the Goods might be or are used or for any product of which the Goods might form part.
14. Contract Violations of Buyer
Seller may terminate the Contract if (a) Buyer is in breach of any of these Terms and Conditions, or fails to provide security or to pay advances or prepayment agreed with Seller, or in event of default of payment; and (b) where the breach is remediable, Buyer has failed to remedy within 14 days of Seller’s notice requiring remedy. Termination does not affect any rights of either party which may have accrued prior to termination.
15. Force Majeure
Seller shall not be under any liability of any kind for non-performance in whole or in part of its obligations under the Contract due to causes beyond the reasonable control either of Seller or Seller’s suppliers including but not limited to any acts of God, government restriction, wars and other hostilities, insurrections, riots, strikes (other than strikes by Seller’s employees), lock-outs, fire, flood, earthquake and other natural disasters, shortage of labour, fuel, machinery and materials, and delays in delivery or defaults on the part of Seller’s suppliers. In any such event Seller may without liability, cancel or vary the terms of the Contract including but not limited to extending the time for performing the Contract for a period at least equal to the time lost by reason of such event.
16. Export Control
(a) If, at the time or times of Seller’s performance hereunder, an export licence is required for Seller lawfully to export the Goods or technical data, then the issuance of the appropriate licences to Seller or its suppliers shall constitute a condition precedent to Seller’s obligations hereunder.
(b) Buyer shall comply with all applicable export laws, regulations and orders and shall not by any means or method export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any Goods or technology of Seller except as permitted by and in accordance with applicable laws and regulations.
17. Modifications
Buyer shall accept Goods whose specification has been modified since the date of order provided that such Goods substantially conform (in Seller’s reasonable opinion) with the order and the modification does not materially affect the performance of the Goods.
18. Law
(a) These Terms and Conditions shall be governed by the laws of Scotland and the parties submit to the exclusive jurisdiction of the Scottish Courts.
(b) Buyer may not assign any of its rights hereunder without Seller’s prior written consent.
(c) Seller reserves the right to subcontract the performance of all or part of the Contract.
(d) The invalidity of one or more provisions of these Terms and Conditions shall not affect the validity of the remaining provisions.
(e) Failure, delay or neglect by Seller to exercise any right contained in these Terms and Conditions will not prejudice Seller’s rights to take subsequent action.
For wafer and die supplies, separate terms and conditions apply. Please contact your Wolfson representative.
TI-TC-0003-01/07
