1. DEFINITIONS
1.1 Customer means the party identified as the Customer in this agreement to whom Phoenix may
agree to supply Products in accordance with these terms and conditions.
1.2 Phoenix means Phoenix Office Supplies Limited of 56 Broadfield Business Park, Broadfield
Road, Heeley, Sheffield, SS 0XJ or any subsidiary or associated company.
1.3 "Products" means goods including but not limited to computer hardware and software items to
be provided by Phoenix to the customer in accordance with these terms and conditions.
1.4 "Third Party Software" means all software owned by or licensed to the Customer from a third
party owner (whether or not supplied by Phoenix) and which comprises part of the products.
2. ORDER ACCEPTANCE
2.1 All orders placed with Phoenix by the customer for products shall constitute an offer to
Phoenix, under these terms and conditions, subject to availability of the products and to
acceptance of the order by Phoenix's authorised representative.
2.2 All orders are accepted and products supplied subject to these express terms and conditions
only. No amendment of these terms and conditions will be valid unless confirmed in writing
on or after the date hereof by Phoenix's authorised representative.
2.3 It is agreed that these terms and conditions prevail over the customer's terms and conditions of
purchase unless these latter terms and conditions are amended by Phoenix in writing and
signed by Phoenix.
3. INDEPENDENT CONTRACTOR
The relationship between the supplier and the customer is that of independent contractor.
Neither party is the agent of the other, and neither party has any authority to make and
contract or make any obligation expressly or implied in the name of the other party without
that party's prior written consent for express purposes connected with the performance of this
Agreement.
4. DESPATCH
4.1 Any time quoted for despatch is to be treated as an estimate only, but despatch may be
postponed because of conditions beyond Phoenix's reasonable control, and in no event shall
Phoenix be liable for any damages or penalty for delay in despatch delivery.
4.2 Risk shall pass to the customer at the time the products are dispatched by Phoenix. Phoenix
accepts no liability for loss or damage caused by the carrier
4.3 If products have not been received, the customer must notify Phoenix within 7 days of the
date of the invoice. If proof of delivery is required, this must be requested within 14 days of
the date of the invoice.
5. CANCELLATION AND RESCHEDULING
Subject to clause 8.2 any request by the customer for cancellation of any order or
rescheduling of deliveries will only be considered by Phoenix if made at least 12 hours before
despatch of the products, and shall be subject to acceptance by Phoenix's sole discretion, and
subject to a reasonable administration charge therefore by Phoenix against all loss, costs
(including the cost of labour and materials used and overheads incurred), damages, charges
and expenses arising out of the order and its cancellation or rescheduling.
6. PRICES
6.1 Catalogues, price lists and other advertising literature or material as used by Phoenix are
intended only as an indication as to the price and range of goods offered and no prices,
descriptions or other particulars contained therein shall be binding on Phoenix.
6.2 All prices are given by Phoenix at the time of the order on an ex-works basis and the customer
is liable to pay for transport, packing and insurance.
6.3 All quoted or listed prices are based on the cost to Phoenix supplying the products to the
customer. If before delivery of the product there occurs any increase in any way of such costs
in respect of products, which have not yet been delivered, the price payable may be subject to
amendment without notice at Phoenix's discretion.
6.4 All prices are exclusive of Value Added Tax and any similar taxes. All such taxes are payable
by the customer and will be supplied in accordance with UK legislation in force at the tax
point date.
7. PAYMENT TERMS
7.1 Invoices will be raised and dated by Phoenix on the date of despatch of the products, unless
otherwise specifically negotiated and agreed. Invoices will be payable by the customer 14
days from date of the invoice. Payments which are not received when payable will be
considered overdue and remain payable by the customer, together with interest for the late
payment from the date payable at the rate of 4% per annum above the base rate. Such interest
shall accrue on a daily basis and be payable on demand after as well as before judgement.
7.2 When all prices, taxes and charges due in respect of the products and any products supplied
previously to the customer have been paid in full, title to hardware products only shall pass to
the customer.
7.3 Not withstanding despatch and the passing of risk in the products to the customer or of any
other provision of these conditions, the property in the hardware Products shall not pass to the
Customer until Phoenix has received in cash or cleared funds payment of the price of the
products and all of the products agreed to be sold by Phoenix to the customer for which
payment is then due.
7.4 Until such time as the property in the products passes to the customer, the customer shall hold
the products as Phoenix's Fiduciary agent and bailee, and shall keep the products properly
stored, protected and insured and identified as Phoenix property. Until that time the customer
shall be entitled to resell or use the products in the ordinary course of its business, but shall
account to Phoenix for the proceeds of sale or otherwise of the products, whether tangible or
intangible, including insurance proceeds, and shall keep all such proceeds separate from any
monies or property of the customer and third parties and, in the case of tangible proceeds,
property stored, protected and insured.
7.5 Until such time as the property in the products passes to the customer (and provided the
products are still in existence and have not been resold), Phoenix shall be entitled at any time
to require the customer to deliver up the products to Phoenix and, if the customer fails to do
so forthwith, to enter upon any premises of the customer or any third party where the products
are stored and repossess the products.
7.6 The customer's power of sale or right to use products shall immediately cease if an
Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated
bankrupt or enters into liquidation whether compulsory or voluntary, or if the customer makes
an arrangement with its creditors, or generally becomes unable to pay its debts within the
meaning of the insolvency Act 1986.
7.7 On termination of the customer's power of sale or right to use the products the customer will
immediately hold the products to the order of Phoenix.
7.8 The customer shall not be entitled to pledge or in any way charge by way of security for any
indebtedness any of the products which remain the property of Phoenix, but if the customer
does so, all monies owing by the customer to Phoenix shall (without prejudice to any other
right or remedy of the seller) forthwith become due and payable.
7.9 Phoenix reserves the right to cease supplies of the products to the customer at any time. On
such cessation of supplies, Phoenix reserves the right to withdraw any credit facility such that
the whole of the customer's account becomes due for payment forthwith.
8. SPECIFICATION OF PRODUCTS
8.1 Phoenix will not be liable in respect of any loss or damage caused by or resulting from any
variation for whatsoever reason in the manufacturer's specifications or technical data and will
not be responsible for any loss or damage resulting from curtailment or cessation of supply
following such variation. Phoenix will use its reasonable endeavours to advise the Customer
of any such impending variation as soon as it receives any notice thereof from the
manufacturer.
8.2 Unless otherwise agreed, the products are supplied in accordance with the manufacturer's
standard specifications as these may be improved, substituted or modified. Phoenix reserves
the right to increase its quoted or listed price, or to change accordingly in respect of any
orders accepted for products of non-standard specifications and in no circumstances will it
consider cancellation of such orders or the return of the products.
9. PROPRIETY RIGHTS IN SOFTWARE PRODUCTS
9.1 The customer hereby acknowledges that any propriety right in any Third Party Software
supplied hereunder including but not limited to any title or ownership rights, patent rights,
copy-rights and trade secret rights, shall at all times and for all purposes vest and remain
vested in the Third Party Software owner.
9.2 The customer hereby acknowledges that it is its sole responsibility to comply with any terms
and conditions of licence attaching to Third Party Software supplied and delivered by Phoenix
(including if so required the execution and return of a Third Party Software licence). The
customer is hereby notified that failure to comply with such terms and conditions could result
in the customer being refused a software licence or having the same revoked by the
proprietary owner. The customer further agrees to indemnify Phoenix in respect of any costs,
charges or expenses incurred by Phoenix at the suit of a Third Party Software owner as a
result of any breech by the customer of such conditions.
9.3 NO TITLE OR OWNERSHIP OF SOFTWARE PRODUCTS OR ANY THIRD PARTY
SOFTWARE LICENSED TO THE CUSTOMER UNDER THIS AGREEMENT IS
TRANSFERRED TO THE CUSTOMER UNDER ANY CIRCUMSTANCES.
10. RETURNS
10.1 Phoenix reserves the right to levy an administration charge in respect of rotation of products
and returns.
10.2 Returns must be made subject to the following:
(a) prior authority having been obtained from Phoenix which will be given at Phoenix's sole
discretion;
(b) within 30 days of the date of the invoice;
(c) subject to stock rotation policy;
(d) the products must be properly packed;
(e) the products must be in a saleable condition;
(f) the products must be accompanied by a detailed packing list;
(g) the product is covered by warranty (see section 11).
10.3 Phoenix reserves the right to reject any products returned which do not comply with the
conditions set out in clause 10.2
10.4 If Phoenix nevertheless agrees to accept any products returned in a non-saleable condition,
Phoenix reserves the right to charge the cost to the customer of bringing the products to a
saleable condition.
11. WARRANTY
11.1 Phoenix warrants that it has good title to or licence to supply all products to the customer.
11.2 If any part of the hardware products should prove defective in materials or workmanship
under normal operation or service such products will be repaired or replaced only in
accordance with any warranty cover and terms provided by the manufacturer of the products
PROVIDED THAT no unauthorised modifications to the product or to the system of which
the product forms part have taken place. Phoenix is not responsible for the cost of labour or
other expenses incurred in repairing or replacing defective or non-conforming parts.
11.3 All software products supplied hereunder are supplied "as is" and the sole obligation of
Phoenix in connection with the supply of software products is to use all reasonable
endeavours to obtain and supply a corrected version from the manufacturer concerned in the
event that any such software product should fail to conform to its product description
PROVIDED ALWAYS THAT the customer notifies Phoenix of any such non-conformity
within 90 days of the date of delivery of the applicable Software product.
11.4 If the products are rejected by the customer, as not being in accordance with the customer's
order pursuant to clause 11.2 or 11,3, Phoenix will only accept the return of such products
provided that it received written notification thereof giving detailed reasons for rejection.
Phoenix will not consider any claim for compensation, indemnity or refund until liability, if
any has been established or agreed with the manufacturer and where applicable the insurance
company. Under no circumstances shall the invoiced products be deducted or set off by the
customer until Phoenix has passed a corresponding credit note.
11.5 EXCEPT AS SPECIFICALLY SET OUT IN THIS CLAUSE 11, PHOENIX DISCLAIMS
AND EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
BE STATUTE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF DESCRIPTION, DESIGN, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, OR ARISING FROM ANY PREVIOUS COURSE OF
DEALING, USAGE OR TRADE PRACTICE.
12. INDEMNITIES AND LIMITS OF LIABILITY
12.1 Phoenix will indemnify the customer for direct physical injury or death caused solely by
defects in any of the products or caused solely by the negligence of its assigned employees
acting within the course of their employment and the scope of their authority.
12.2 Phoenix will indemnify the customer for direct damage to property caused solely by defects in
any of the products or caused solely by the negligence of its assigned employees acting within
the course of their employment and the scope of their authority. The total liability of Phoenix
under this sub-clause shall be limited to X100,000 for any one event or series of connected
events.
12.3 Except as stated in clauses 12.1 and 12,2 above, Phoenix disclaims and excludes all liability
to the customer in connection with these terms and conditions including the customers use of
the products and in no event shall Phoenix be liable to the customer for special, indirect or
consequential damage including but not limited to loss of profits or arising from loss of data
or in connection with the use of the products. All terms of any nature, express or implied,
statutory or otherwise, as to correspondence with any particular description or sample, fitness
for purpose or merchantability, are hereby excluded.
12.4 The customer shall indemnify and defend Phoenix and its employees in respect of any claims
by third parties, which are occasioned by or arise from any Phoenix performance or nonperformance
pursuant to the instructions of the customer or its authorised representative.
13 TERMINATION FOR CAUSE
This agreement may be terminated forthwith by notice in writing:
13.1 By Phoenix of the customer fails to pay any sums due hereunder by the date notwithstanding
the provisions for late payment in clause 7.1
13.2 If either party fails to perform any of its obligations under this Agreement and such failure
continues for a period of 14 days after written notice hereof, by the other party.
13.3 If either party is involved in any legal proceedings concerning its solvency, or ceases trading,
or commits and act of bankruptcy or is adjudicated bankrupt or enters into liquidation,
whether compulsory or voluntary, other than for the purposes of an amalgamation or
reconstruction, or makes an arrangement with it s creditors or petitions for an administration
order or has a Receiver or Manager appointed over all or any part of its assets or generally
becomes unable to pay its debts within the meaning of Section 123 of Insolvency Act 1986,
then without prejudice to any other rights or remedies available to it, the other party shall have
the right to terminate this Agreement forthwith.
13.4 Any termination of this Agreement pursuant to this clause shall be without prejudice to any
other rights or remedies a party may be entitled to hereunder or at law, and shall not affect any
accrued rights or liabilities of either party.
14 EXPORT AND/OR RE-EXPORT LIMITATION
Having regard to the current statutory or other United Kingdom government regulations in
force from time to time and, in the case of products manufactured in the United States of
America, to the current export rules and regulations of the United States Department of
Commerce in force from time to time and regardless of any disclosure made by the customer
to Phoenix and an ultimate destination for any products, the customer will not export or reexport
directly any products without first obtaining all such written consents or authorisation
as ma be required by any applicable government regulations.
15 CONTRACT
15.1 The headings in this agreement are for ease of reference only and shall not affect its
interpretation or construction.
15.2 No forbearance, delay or indulgence by either party in enforcing its respective rights shall
prejudice or restrict the rights of that party, and no waiver of any such rights of any breach of
any contractual terms shall be deemed to be a waiver of any other later breach.
1S.3 The customer agrees to assign any of its rights herein without prior written consent of
Phoenix.
15.4 In the event of any of these terms and conditions or any part of any of them being judged
illegal or unenforceable for any reason, the continuation in full force and effect of the
remainder of them shall not be prejudiced.
15.5 Neither party shall be liable to the other for any delay in or failure to perform its obligations
hereunder (other than a payment of money) where such delay of failure results from force
major, act of God, fire, explosion, accident, industrial dispute or any other case beyond its
reasonable control.
15.6 Any documents or notices given hereunder by either party to the other must be in writing and
may be delivered personally or by recorded delivery or registered post and in the case of post
will be deemed to have been given 2 working days after the date of posting. Documents or
notices shall be delivered or sent to the addresses of the parties on the first page of this
agreement or to any other address notified in the normal course of trading in writing by either
party to the other for the purpose of receiving documents or notices after the date of this
agreement.
15.7 These terms and conditions shall be governed and construed in accordance with English Law.
|
