The Customer's attention is in particular drawn to the provisions of conditions 6.4, 10 and 11
- The definitions and rules of interpretation in this condition apply in these Conditions.
Account: Business Day: Conditions:
a credit account extended by the Company pursuant to condition 3.
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. the terms and conditions set out in this document as amended from time to time in accordance with condition 15.2.
any contract between the Company and the Customer for
the sale and purchase of the Goods, incorporating these conditions.
In Phase International Ltd with Company number 04158516 and registered office at DB House Rani Drive, Basford, Nottingham NG5 1RF.
means the person, firm or company who purchases the Goods from the Company but excludes consumers.
Force Majeure Event:
an event, circumstance or cause beyond a party’s reasonable control which could not be reasonably
foreseen at the date of Contract and cannot be avoided by appropriate measures.
any goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them) whether goods manufactured by the Company or goods from third party manufacturers that the Company
makes available to Customers from time to time.
the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
the written acceptance of the Order issued by the Company.
- Words in the singular include the plural and vice versa. Condition headings do not affect the interpretation of these Conditions.
- A reference to a statute or statutory provision is a reference to it as amended or re- enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Basis of Contract
- 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 or provided by law, trade custom, practice or course of dealing.
- 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 term of the Order are complete and accurate.
- The Order shall only be deemed accepted when the Company issues an Order Acknowledgement, at which point the Contract shall come into existence.
- Once an Order Acknowledgement has been issued, the Customer cannot amend the Order without the written consent of the Company.
- A quotation for the Goods provided by the Company shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
- The Company may, at its sole discretion, grant credit facilities by opening an Account for the Customer.
- To determine eligibility, the Customer is required to submit a completed application form in such format determined by the Company and confirm that they accept these Conditions.
- The credit limit and credit period applicable to the Account will be determined by the Company at its sole discretion and confirmed to the Customer in writing. If the Company deem that the Customer is not eligible for and cannot benefit from an Account the Company is under no obligation to provide an explanation.
- The Customer acknowledges and agrees that in determining eligibility for an Account, the Company may carry out credit searches with a reputable credit reference agency.
- A Customer who has an Account may be subject to discounts on certain Goods and eligibility for such discounts will be determined by the Company in its sole discretion.
- The Company will provide the Customer with the current RRP for Goods on delivery but any onward price is to be determined by the Customer in their sole discretion.
- Subject to condition 9.1, the Company may in its sole discretion terminate an Account immediately on written notice to the Customer if the Customer fails to make payment for Goods when due.
- The Customer warrants that it will exercise all reasonable skill, care and diligence expected of such role.
- The Customer shall not:
- Represent itself as an agent of the Company for any purpose;
- Pledge the Company’s credit;
- Give any condition or warranty on the Company’s behalf;
- Make any representation of the Company’s behalf;
- Commit the Company to any contracts;
- Otherwise incur liability for or on behalf of the Company;
- sell the Goods outside the EMEA; or
- Without the Company’s written consent, make any promises or guarantees about the Goods beyond those contained in the promotional material supplied by the Company.
- The Company will allow the Customer to use any trade marks associated with the Goods only so far as they are required to allow the Customer to sell the Goods pursuant to the Contract
- In respect of the trade marks under condition 4.3 the Customer:
- shall market and sell the Goods only under such trade marks, and not in association with any other trade mark, brand or trade name;
- shall comply with all rules for the use of the trade marks issued by the Company;
- shall not alter or make any addition to the labelling or packaging of the Goods displaying the trade marks; and
- shall not do, or omit to do, anything in its use of the trade marks that could adversely affect their validity or reputation
Description of Goods
- The quantity and description of the Goods shall be as set out in the Company quotation or Order Acknowledgement. All drawings, descriptive matter, illustrations, specifications advertising and brochures are issued for the sole purpose of giving an approximate idea of the Goods described. They shall not form part of the Contract nor have any contractual force and this is not a sale by sample.
- The Company reserves the right to amend the Goods if required by any applicable statutory or regulatory requirements.
- Subject to condition 6.2 unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the location specified by the Customer in the Order.
- Where the parties agree in writing that delivery shall take place at the Company’s place of business the Customer shall collect within 3 Business Days of being notified that the Goods are ready. The Company may arrange delivery to an alternative location at separate request and cost to the Customer.
- Dates specified by the Company for delivery are intended to be an estimate and time for delivery shall not be of the essence. Any delay in the delivery of the Goods does not give the Customer an ability to claim damages or cancel the Order. The Company 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 adequate information relevant to the supply of the Goods.
- If the Customer fails to accept delivery of any of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
- delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the date on which the Company notified the Customer that the Goods were ready; and
- the Company may store the Goods until delivery takes place, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
- If ten Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs charge the Customer for any shortfall below the price of the Goods.
- If the Customer disputes the quantity of any consignment of Goods they shall notify the Company immediately on delivery. The Customer shall have 48 hours from delivery to provide evidence of any discrepancy and in absence of such evidence the quantity of any consignment of Goods as recorded by the Company upon dispatch from the Company's place of business shall be conclusive evidence of the quantity delivered.
- The Company may deliver Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. 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.
Title and Risk
- The Goods are at the risk of the Customer from the time of delivery.
- Title to the Goods shall not pass to the Customer until the earlier of:
- the Company has received in full:
- all sums due to it in respect of the Goods; and
- all other sums which are or which become due to the Company from the Customer under any Contract; and
- the Customer resells the Good, in which case title to the Goods shall pass to the Customer at the time specified in condition 7.4.
- Until ownership of the Goods has passed to the Customer, the Customer shall:
- hold the Goods on a fiduciary basis as the Company’s bailee and store as separately identifiable from third party goods;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
- maintain Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks. On request of the Company the Customer shall produce a policy of insurance.
- Subject to condition 7.5, the Customer may resell the Goods in the ordinary course of the Customer’s business (but not otherwise) before the Company receives payment for the Goods. However if the Customer resells the Goods before that time:
- it does so as principal and not as the Company’s agent; and
- title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
- At any time before title to the Goods passes to the Customer, the Company:
- may by notice in writing, terminate the Customer’s right under condition 7.4 to resell the Goods or use them in the ordinary course of its business; and
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, the Customer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored to recover them.
- 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. On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 7 shall remain in effect.
- 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. The Customer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect, or, where the Customer’s right to possession has terminated, to recover them.
- The price for the Goods shall be the price set out in the Order Acknowledgement, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery.
- The Company may, by giving notice to the Customer up to three Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
- any delay causes by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
- The Company shall be at liberty to increase the price of Goods from time to time and unless the increase is as a result of the issues set out in condition 8.2 the Company will give at least 30 days’ notice to the Customer of any increase.
- The Company reserves the right to increase the price of the Goods, by giving the Customer not less than 5 working days prior notice in writing, to reflect any increase in the cost of any raw materials or individual overhead amount incurred by the Company where such increase exceeds 3% as compared to the cost of the relevant raw materials or overhead amount at the time the Company previously issued a price list or otherwise notified the Customer of any price.
- The price for Goods shall be exclusive of any value added tax, which the Customer shall additionally be liable to pay the Company at the prevailing rate, subject to the receipt of a valid VAT invoice.
- Customers with an Account must pay sums due by the end of the credit period agreed in writing by the Company. Any discounts granted are revocable immediately upon late payment and the Company will issue an invoice for the balancing charge in these circumstances that shall be payable immediately.
- Customers who do not have an Account shall pay in full (cash/cleared funds) upon submission of an Order.
- Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds. The Customer shall make all payments due under the Contract in full without any deduction by way of set-off, counterclaim, discount, and abatement or otherwise with the exception of a discount that may be granted under an Account.
- If the Customer fails to pay the Company any sum due pursuant to the Contract, then, without limiting the Company’s remedies under condition 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after any judgment. Interest under this condition 9.4 will accrue at the rate of interest under the Late Payment of Commercial Debts (Interest) Act 1998 together with any charges permitted under the same.
- The Company warrants that (subject to these Conditions) upon delivery and for the period set out in promotional material on the Company’s website the Goods shall:
- be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
- be free from material defect in design, material and workmanship; and
- be reasonably fit for any particular purpose for which the Goods are being bought if the Customer has 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 judgment of the Company.
- The Company warrants that (subject to condition 7.4) the Customer shall be entitled to the right to quiet possession implied by Section 2 of the Supply of Goods and Services Act 1982.
- Subject to condition 10.4, if:
- the Customer gives written notice to the Company when the Customer discovers or ought to have discovered that some or all of the Goods do not comply with the warranty set out in conditions 10.1 and 10.2; and
- the Company is given a reasonable opportunity of examining such Goods (by return to Company if requested).
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 price provided that, if the Company so requests, the Customer shall return the Goods/part of Goods which are defective to the Company.
- The Company shall not be liable for a breach of the warranties in conditions 10.1 and
- the Customer makes any further use of such Goods after giving notice;
- the defect arises because the Customer failed to follow Company instructions as to storage, installation, use or maintenance of Goods or (if there are no instructions) good trade practice;
- the Customer alters or repairs Goods without written consent of the Company;
- the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this condition 10, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in conditions 10.1 and 10.2.
- 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.
- These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
Limitation of Liability
- Subject to conditions 6 and 10, this condition 11 sets 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 any breach of these conditions, any use made or resale by the Customer of any Goods, or of any product incorporating any Goods and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these conditions excludes or limits the liability which cannot be legally limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; or
- defective products under the Consumer Protection Act 1987.
- Subject to condition 11.3:
- the Company’s total liability shall be limited to the Contract price; and
- the Company shall not be liable to the Customer for any pure economic loss, loss of profit, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of or damage to goodwill and indirect or consequential loss.
- This condition 11 shall survive termination of the Contract.
- Without limiting its other rights and remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
- 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), obtaining a moratorium, 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;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and Company if the Customer becomes subject to any of the events listed in condition 12.1.2 to condition 12.1.4, or the Company reasonable 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.
- Without limiting its other rights or remedies, the Company 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.
- On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
- Termination of the Contract, however arising, 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 the Contract which existed at or before the date of termination.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
The Company may assign the Contract or any part of it to any person, firm or company. The Customer shall not assign the Contract or any part of it without prior written consent of the Company.
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 a Force Majeure Event, provided that, if the Force Majeure Event continues for a continuous period in excess of 60 days, either party shall be entitled to give notice in writing to terminate the Contract.
- This Contract constitutes the entire agreement between the parties and superseded and extinguishes all previous agreement, promises, assurances, warranties, representations and understanding between them, whether written or oral, relating to its subject matter. 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- No variation of this Contract shall be effective unless in writing and signed by the parties (or their authorised representatives).
- If any provision or part-provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid or unenforceable, it shall be deemed delated, but shall not affect the validity and enforceability of the remaining provisions of the Contract.
- 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.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- Any notice to be received under this Contract shall be in writing and served upon the recipient at its address set out on any Order acknowledgement either by hand, first class post, facsimile or email and shall be deemed served 48 hours after posting if sent by post, on delivery if delivered by hand and on completion of transmission if sent by facsimile or email.
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 and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales 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 for format.