The customer’s attention is drawn in particular to clause 11.
1. Interpretation
1.1 Definitions:
“Company” means Phoenix Tooling & Development Limited (PT&D) registered in England and Wales with company number 5124607.
“Customer” means any party who enters into a Contract with the Company.
“Conditions” means the terms and conditions set out in this document as amended from time to time.
“Contract” means any contract under which the Company agrees to provide goods or Services to the Customer.
“Goods & Services” shall include tooling, plant and equipment.
“Tariffs” means any duty imposed by a national government, customs territory or supranational union on imports of goods imposed on countries except the United Kingdom.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
2. Basis of contract
2.1 These conditions shall be incorporated in all Contracts to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed accepted when the Company issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence. For the avoidance of doubt a written acceptance of the Order includes acceptance by email.
2.4 No amendment of any Contract or these Conditions shall bind the Company unless confirmed in writing by email by a Director of the Company.
2.5 The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Quotations
3.1 Quotations shall only be available for acceptance for a maximum period of 5 days from the date thereof and may be withdrawn by the Company within such period at any time by written or oral notice.
4. Terms of payment
4.1 All amounts due to the Company, unless otherwise agreed in writing, shall be payable directly to the Company’s bank account, together with VAT, where applicable, at the current rate but without any set-off or deductions whatsoever. The time payment shall be of the essence of the Contract and, without prejudice to any other rights of the Company, if the invoice is not paid in full by the due date, interest shall be payable on any overdue account from the date on which payment was due to that on which it is made.
4.2 In the event of a default in payment by the Customer in accordance with agreed terms the Company shall be entitled without prejudice to any other right or remedy to suspend all further deliveries and to charge interest on any amount outstanding at the rate of 5% per annum above the Bank of England Base Rate in force at the relevant time.
4.3 Unless otherwise agreed by the Company in writing the terms of payment for the goods shall be as follows:
(a) 30% of the total invoice shall be due when placing the order
(b) A further 30% of the total invoice shall be due when the order is 50% completed and the Customer has been advised by the Company.
(c) A further 30% of the total invoice shall be due upon the Customer receiving the first sample of the Goods.
(d) Final 10% of the total invoice shall be due upon tool delivery
4.4 Unless otherwise agreed by the Company in writing the cost for any Repair Works shall be paid at the point of this Contract.
4.5 Any and all customs costs incurred by the Company shall be borne by the Customer.
4.6 All prices are quoted net delivered within the United Kingdom.
4.7 In the event of any alteration being required by the Customer in design specification or quantities the Company shall be entitled to make an adjustment of the contract price corresponding to such alteration.
4.8 All prices are quoted in UK Sterling and all charges and taxes must be settled in this currency.
4.9 The payment terms in this clause 4 shall apply to the Customer irrespective of whether or not they have received payment from any third party to whom the Customer may have subcontracted to. The Customer is therefore not entitled to set off nor withhold payment due to the Company.
4.10 The Company shall not be responsible for any Tariffs that may be payable in relation to this Contract and all expenditure relative to such Tariffs shall be borne by the Customer.
Payment Methods
By BACS
[contact our accounts department for details – purchaseledger@phoenixtooling.co.uk. All credit control correspondence to julie.g@phoenixtooling.co.uk]
Please forward your BACS advice slip to:
Phoenix Tooling & Development Ltd.
1 Shenstone Drive
Northgate
Aldridge
Walsall
West Midlands
WS9 8TP
Tel: 01922 743414
5. Delivery
5.1 Time for delivery is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the order for failure of any cause to meet any delivery time stated.
5.2 Date of delivery shall in every case be dependant upon receipt of final instructions or approvals being obtained from the Customer.
5.3 The Company will endeavour to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due by default by the Company the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby.
5.4 Times quoted for delivery refer only to the date of completion of goods at the company’s works.
6. Cancellation and returns
6.1 Cancellation will only be agreed to by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be reimbursed by the Customer to the Company forthwith.
7. Quality
7.1 The customer shall have no right or claim for shortages or defects apparent on inspection unless:
(a) The Customer inspects the goods immediately on arrival at its premises; and
(b) gives notice in writing to the Company within seven days of receipt of the goods or such shorter period as the Carrier’s conditions may provide specifying the defect; and
(c) The Company is given an opportunity to inspect the goods and investigate any complaint before any use is made of the goods.
7.2 If a complaint is not made to the Company in accordance with this clause 7 then the goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to the Contract.
8. Customer drawings
8.1 The Customer shall be solely responsible for the accuracy of all drawings, advice and recommendations given to the Company by the Customer either directly (e.g. as part of a main contract document) or indirectly or by the Customer’s own advisers or consultants. Examination or consideration by the Company of such drawings, advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless the Company specifically agrees in writing to accept responsibility.
8.2 The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of goods to the drawings and specifications of the Customer where such drawings and specifications shall be at fault or where it is alleged that they involve the infringement of a patent, registered design, copyright or design copyright or other exclusive right.
9. Guarantee
9.1 Subject to the provisions of these Conditions, the conditions and warranties contained in section 12 of the Sale of Goods Act 1979 are to be implied into this Contract.
10. Title and Risk
10.1 Title to the Goods shall only pass to the Customer when the Customer has paid to the Company all the sums due and payable by the Customer under the contract and all other prior agreements between Company and the Customer.
10.2 If the Customer fails to pay such sums the Company shall be entitled to repossess the Goods of which title has not passed to the Customer.
10.3 The Customer hereby licenses the Company, its officers, employees and agents to enter the premises of the Customer for the purpose of satisfying itself that the Goods are kept separately from other goods.
10.4 Until title of Goods has passed to the Customer pursuant to the terms hereof, it shall possess the Goods as a bailee to the Company on the terms of this Contract. Risk shall pass to the Customer so that the Customer is responsible for all loss, damage or deterioration to the Goods at the time the Goods arrive at the place of delivery if the Company delivers the Goods by its own transport or if the Customer arranges transportation of the Goods. In all other circumstances risk shall pass to the Customer at the time the Goods leave the premises of the Company.
11. Liability
11.1 Under no circumstances whatsoever shall the Company be liable in respect of consequential loss, loss of profits, damage to property or injury to person and the Customer shall fully indemnify the Company from and against all loss, damage, demands, claims, actions and proceedings which are incurred by the Company or threatened, demanded, brought or made against the Company by any person , firm or company or governmental or other authority in respect thereof together with all costs and expenses incurred in relation thereto.
11.2 The Company’s liability whether in respect of one claim or the aggregate of various claims arising out of any contract shall not exceed the purchase price payable by the Customer under the Contract.
12. Force Majeure
12.1 The Company shall not be liable for any delay or other failure to perform the whole or part of the Contract caused by any circumstances outside the Company’s reasonable control and shall inform the Client of the beginning and end of such delay or failure and continue performance whenever such circumstances cease to prevail.
13. Confidentiality
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party may use the other party’s confidential information for any purpose other than to exercise its right and perform its obligation under or in connection with the Contract.
14. Entire Agreement
14.1 The Contract constitutes the entire agreement between the parties.
14.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
14.3 If any statement or representation has been made to the Customer, other than in the documents enclosed with the Company’s quotation upon which the Customer relies, the Customer must set out that statement or representation in a document to be attached to or enclosed on the order in which case the Company may clarify the point and submit a new quotation.
15. Variation
15.1 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Waiver
16.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
16.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
17. Severance
17.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this Clause 17, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18. Insolvency
18.1 If the Customer shall become bankrupt or insolvent or compound with creditors or proceedings are commenced for the liquidation of the Customer (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if a Receiver or Manager is appointed for all or any part of its assets or undertaking the Company shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company.
19. Third party rights
19.1 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.
20. Governing Law
20.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject shall be governed by and construed in accordance with the law of England and Wales.
21. Jurisdiction
21.1 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 the Contract or its subject matter or formation.