CONDITIONS OF SALE
- Definitions:
1.1 “Buyer" means the person firm or company who purchases or agrees to purchase Goods or Services from the Seller.
1.2 “Seller" means Phoenix MarCom Limited.
1.3 “Conditions" mean the terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.4 “Goods" mean the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
1.5 “Services" mean the services the Seller is to supply in accordance with these Conditions.
1.6 “Contract" means the contract for the purchase and the sale of the Goods and Services.
1.7 “Writing" includes facsimile and email transmissions.
- Conditions Applicable
2.1 The Conditions shall apply to all contracts for the sale of Goods or Services by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document.
2.2 All written orders for Goods or Services shall be deemed to be an offer by the Buyer to purchase Goods or Services pursuant to the Conditions and the terms contained in any written quotation supplied by the Seller.
2.3 Acceptance by the Seller of any such written or verbal orders will be subject to the Conditions and the terms contained in any written quotation supplied by the Seller.
2.4 Any variation to the Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in Writing by the Seller.
2.5 Business communications may be conducted by email. This form of communication is not secure and cannot be guaranteed to be confidential. If business information is sent to or received from the Buyer by email we will assume that the risk associated with this form of communication is accepted by the Buyer, unless otherwise instructed.
2.6 The Seller's employees or agents are not authorised to make any representation concerning the Goods or Services unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
- Price
3.1 The price of the Goods or Services shall be the Seller's quoted price in writing or where no price has been so quoted the price shown on the Seller's invoice. All prices quoted are valid for thirty days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
3.2 All prices are exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller at the rate ruling at the date of the Seller's invoice.
3.3 Except as otherwise stated under the terms of any quotation or otherwise agreed in writing between the Buyer and the Seller all prices given by the Seller in relation to Goods are on an ex-works basis and where the Seller agrees to deliver the Goods to the Buyer's premises or any other destination determined or specified by the Buyer, the Buyer shall be liable to pay the Seller's charges for transport packaging and insurance.
- Terms of Payment
4.1 In the case of a Buyer who has not established an agreed credit account with the Seller payment for all Goods and Services must be made by the Buyer in full within 30 days of the date of the Seller's invoice.
4.2 In the case of a Buyer who has an agreed credit account with the Seller the Buyer shall pay the price of the Goods or Services plus any additional charges agreed between the Buyer and the Seller or any additional charges in accordance with the Conditions as shown on the Seller's invoice within 30 days of the date of the Seller's invoice or any such other period as may have been agreed in writing between the Seller and the Buyer notwithstanding that in relation to Goods delivery may not have taken place and property in the Goods have not passed to the Buyer and in relation to Services the Services may not have been completed. The time for payment of the said price shall be the essence of the Contract.
4.3 If the Buyer fails to make payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
a) Cancel the Contract and/or suspend any further deliveries to the Buyer;
b) Appropriate any payment made by the Buyer to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit; and
c) Charge the Buyer interest (both before and after any judgment) on the total amount unpaid at the rate of four per cent (4%) per annum above the Lloyds TSB Bank plc base rate from time to time from the date when payment becomes due until payment is made in full (a part of a month being treated as a full month for the purposes of calculating interest).
- The Goods or Services
5.1 The quantity and description of the Goods and the details of the Services to be provided shall be as set out in the Seller's quotation or invoice or as otherwise agreed in writing between the Seller and the Buyer.
- Delivery of Goods and Completion of Services
6.1 Delivery of Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller delivering the Goods to that place.
6.2 Any dates quoted for the delivery of the Goods or completion of Services are approximate only and the Seller shall not be liable for any delay in the same howsoever caused. Time for delivery of Goods and time for completion of Services shall not be of the essence.
6.3 Should an expedited delivery of Goods or an expedited completion of Services be agreed between the Buyer and the Seller an addition to the price may be charged by the Seller to cover the costs of overtime working or any other additional costs incurred and the Buyer shall be liable for payment of such charges.
6.4 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
- Preliminary Work
7.1 All preliminary work carried out by the Seller in relation to either Goods or Services whether experimentally or otherwise at the Buyer's request shall be charged to the Buyer and the Buyer shall be liable for payment of such charges.
- Proofs
8.1 Proofs of work may where appropriate be submitted by the Seller to the Buyer for the Buyer's approval and the Seller shall incur no liability for any errors (whether such errors are the result of mistakes made by the Seller or not) which are not corrected by the Buyer.
8.2 Where the Buyer makes alterations or author's corrections requiring additional proofs the Seller shall charge the Buyer and the Buyer shall be liable for the payment of such charges to cover the extra costs of implementing such corrections or alterations and reproducing proofs.
8.3 When style type or layout is left to the Seller's judgment changes there from made by the Buyer shall be additionally charged by the Seller and the Buyer shall be liable for payment of such charges.
- Materials supplied by the Buyer
9.1 The Seller may reject any paper, plates, films, or other material supplied or specified by the Buyer which appear to the Seller to be unsuitable. Additional costs incurred if such materials are found to be unsuitable during production may be charged by the Seller to the Buyer and the Buyer shall be liable for payment of such charges.
9.2 Where materials are so supplied or specified the Seller will take every care to secure the best results but responsibility will not be accepted by the Seller for imperfect work caused by defects in or unsuitability of materials so supplied or specified.
9.3 Quantities of materials supplied shall be adequate to cover normal spoilage.
- Buyer's property
10.1 Any Buyer's property in the form of copy, film, prints, plates, paper, or any other materials or originals supplied by or on behalf of the Buyer to the Seller shall whilst in the possession of the Seller or in transit from the Buyer to the Seller be deemed to be at the Buyer's risk and the Buyer should insure accordingly.
10.2 The Seller shall be entitled to make a reasonable charge for storage of any items owned by the Buyer which may be left with the Seller after completion of the Contract and the Buyer shall be liable to pay such storage charges.
- Complaints
11.1 Any complaint relating to the Goods or Services supplied must be notified in Writing to the Seller by the Buyer within fourteen (14) days from the date of completion and invoice. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods or Services and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the full price for the Goods and Services.
- Risk and Property
12.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
a) At the time when the Seller notifies the Buyer that the Goods are ready for collection or
b) At the time of delivery where the Seller agrees to deliver to the Buyer's premises or to another destination designated by the Buyer.
12.2 In spite of delivery having been made property in the Goods shall not pass from the Seller until:
12.2.1 The Buyer has paid the price plus VAT in full; and
12.2.2 No other sums whatever shall be due from the Buyer to the Seller.
12.3 Until property in the Goods passes to the Buyer in accordance with Clause 12.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller's property.
12.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
12.5 The Seller shall be entitled to recover the price of the Goods (plus VAT) notwithstanding that the property in any of the Goods has not passed from the Seller.
12.6 Until such time as the property in the Goods passes from the Seller the Buyer shall upon request deliver up such Goods that have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under Clause 12.4 shall cease.
12.7 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
12.8 The Buyer shall insure and keep insured the Goods to the full price against "all risks" to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
- Illegal matter and copyright
13.1 The Seller shall not be required to print or publish any matter which is or may be of an illegal or libellous nature or an infringement of copyright or proprietary or other rights of any third party.
13.2 The Seller shall be indemnified by the Buyer in respect of any claims costs and expenses arising out of any libellous matter or any infringement of copyright patent design or any other property or personal rights contained in any material printed or published for the Buyer. Such indemnity shall extend to any amounts paid or demanded for the advice or services of any lawyer or solicitor and any other legal costs incurred as well as the costs of the Seller for the time and expenses spent in the settlement of any claim.
- Insolvency of Buyer
14.1 This clause applies if:
a) The Buyer ceases to pay its debts in the ordinary course of business or cannot pay its debts as they become due; or
b) The Buyer makes any voluntary arrangement with its creditors or becomes the subject of an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into voluntary liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
c) An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
d) The Buyer ceases or threatens to cease to carry on business; or
e) The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
14.2 If this clause applies then without prejudice to any other right or remedy available to the Seller the Seller shall:
a) be entitled to cancel the Contract or any other work for the Buyer without any liability to the Buyer and shall be entitled to charge for work already carried out whether completed or not and for materials purchased for the Buyer and such charge or charges shall be immediately due and payable notwithstanding any previous agreement or arrangements to the contrary.
b) have a general lien on all Goods in the Seller's possession (whether worked upon or not) and shall be entitled on the expiration of fourteen (14) days' notice to dispose of those Goods in such manner and at such price as the Seller thinks fit and apply the proceeds towards such debts as may be owed by the Buyer to the Seller.
- Force majeure
15.1 The Seller shall be under no liability if the Seller is unable to carry out any provision of the Contract for any reason beyond the Seller's control including (without limiting the foregoing) an Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation of furtherance of a dispute or owing to any inability to procure materials required for the performance of the Contract.
15.2 During the continuance of such a contingency the Buyer may by giving written notice to the Seller elect to terminate the Contract and pay for work done and materials used but subject thereto shall otherwise accept delivery when available.
- General
16.1 Any notice required or permitted to be given by either party to the other under these conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
16.2 No waiver by the Seller or any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
16.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
16.4 The headings in these Conditions are for convenience only and shall not affect their interpretation.
- Proper Law of Contract
17.1 The Contract shall in all respects be construed in accordance with the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction over any dispute or difference arising out of or in connection with such Contract.
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