1.1 In these conditions the following words have the following meanings:
the Buyer means the person(s), firm or company who purchases the Goods from Phoenix Corporate Gifts;
Phoenix means Phoenix Corporate Gifts;
Contract means any contract between Phoenix Corporate Gifts and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
Delivery Address: the place where delivery of the Goods is to take place and stated on the sales order form;
Goods: any goods agreed in the Contract to be supplied to the Buyer by Phoenix Corporate Gifts (including any part or parts of them).
2. Application Of Terms
2.1 The conditions shall apply to all Contracts to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, or similar document).
2.2 All orders for Goods must be in writing (and signed by an authorised representative of the Buyer) and shall be deemed to be an offer by the Buyer to purchase pursuant to these conditions.
2.3 On Phoenix Corporate Gifts sending an acknowledgement of order to the Buyer a Contract for the Goods shall be binding.
2.4 No order which has been accepted by Phoenix Corporate Gifts may be cancelled by the Buyer except with the agreement in writing of Phoenix Corporate Gifts and on terms that the Buyer shall indemnify Phoenix Corporate Gifts in full against all loss (including loss of profit), costs (including the costs of all labour and material used), damages, charges and expenses incurred by Phoenix Corporate Gifts as a result of the cancellation.
2.5 Any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of Phoenix Corporate Gifts. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Phoenix Corporate Gifts which is not set out in the Contract.
3.1 The quantity and description of the Goods shall be as set out in Phoenix Corporate Gifts’s sales order form.
3.2 The quality of the artwork supplied by the Buyer shall be reflected in its reproduction. Phoenix Corporate Gifts shall be under no liability in respect of any defect in the Goods arising from the quality of the artwork supplied by the Buyer.
3.3 All samples, drawings, descriptive matter, specifications and advertising issued by Phoenix Corporate Gifts and any descriptions or illustrations contained in Phoenix Corporate Gifts’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and those carrying names or trademarks do not necessarily imply that they have been supplied to or endorsed by the owner of the trademarks.
4.1 Delivery shall be deemed to occur and the risk of loss or damage of any kind in the Goods shall pass to the Buyer on whichever of the following events occur earlier:
(a) The Goods are collected by the Buyer from Phoenix Corporate Gifts's place of business; or
(b) the Goods are despatched to the Delivery Address in accordance with the Buyer's instructions (whether or not such carrier be Phoenix Corporate Gifts's agent or servant); or
(c) 7 days from the date of notice given by Phoenix Corporate Gifts to the Buyer that the Goods are ready for collection or despatch.
4.2 Any dates specified by Phoenix Corporate Gifts for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.3 Subject to the other provisions of these conditions Phoenix Corporate Gifts will not be liable for any delay in the delivery of the Goods howsoever caused.
4.4 If Phoenix Corporate Gifts delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity stated on the sales order form, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.5 Phoenix Corporate Gifts may deliver the goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with the provisions of the Contract.
4.6 Each instalment will be a separate Contract and no cancellation or termination of any one Contract relating to an instalment will entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by Phoenix Corporate Gifts upon despatch from Phoenix Corporate Gifts’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Phoenix Corporate Gifts shall not be liable for any non-delivery of Goods (even if caused by Phoenix’s negligence) unless written notice is given to Phoenix Corporate Gifts within 7 days (or within a reasonable time period where the Buyer is a consumer), of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of Phoenix Corporate Gifts for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time, issuing a credit note or refund to the Buyer at the pro rata Contract rate against any invoice raised for such Goods at Phoenix Corporate Gifts's discretion.
5.4 Phoenix Corporate Gifts shall endeavour to rectify the non-delivery of Goods by its carriers providing the Buyer notifies Phoenix Corporate Gifts by 4pm on the anticipated date of delivery.
6.1 The Goods are at the risk of the Buyer from the time of delivery as defined in clause 4.1.
6.2 Ownership of the Goods shall not pass to the Buyer until Phoenix Corporate Gifts has received in full (in cash or cleared funds) all sums due to it in respect of the Goods;
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as Phoenix Corporate Gifts’s bailee;
(b) store the Goods (at no cost to Phoenix Corporate Gifts) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Phoenix Corporate Gifts’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on Phoenix Corporate Gifts’s behalf for their full price against all risks to the reasonable satisfaction of Phoenix Corporate Gifts.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of Phoenix Corporate Gifts’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Phoenix Corporate Gifts and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
6.6 Phoenix Corporate Gifts shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Phoenix Corporate Gifts.
6.7 The Buyer grants Phoenix Corporate Gifts, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where Phoenix Corporate Gifts is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by Phoenix to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, Phoenix Corporate Gifts’s (but not the Buyer’s) rights contained in this condition 6 will remain in effect.
7.1 Unless otherwise agreed by Phoenix Corporate Gifts in writing the price for the Goods shall be the price set out in Phoenix Corporate Gifts’s price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.3, payment of the price for the Goods is due in pounds sterling on the date specified in the sales order form or if no date specified within 30 days of the date of invoice and time for payment shall be of the essence.
8.2 No payment shall be deemed to have been received until Phoenix Corporate Gifts has received cleared funds.
8.3 All payments payable to Phoenix Corporate Gifts under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
8.5 If the Buyer fails to pay Phoenix Corporate Gifts any sum due pursuant to the Contract the Buyer will be liable to pay interest to Phoenix Corporate Gifts on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Lloyds TSB, accruing on a daily basis until payment is made both before and after judgement.
9.1 Phoenix Corporate Gifts reserves the right to invoice the Buyer for any samples which the Buyer fails to return to Phoenix Corporate Gifts within 30 days of the relevant request by Phoenix Corporate Gifts for the return of such samples.
10. Intellectual Property
10.1 The Buyer warrants that all relevant permissions required for the use of any trademark or logo supplied to Phoenix have been obtained. The Buyer shall indemnify Phoenix Corporate Gifts against all loss, damages, costs and expenses awarded against or incurred by Phoenix Corporate Gifts in connection with, or paid or agreed to be paid by Phoenix Corporate Gifts in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any person which results from Phoenix Corporate Gifts use of the Buyer's trademark or logo.
11.1 Subject to the conditions set out below Phoenix Corporate Gifts warrants that the Goods will correspond with their specification at the time of delivery and be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and be reasonably fit for any particular purpose for which the Goods are being bought.
11.2 Phoenix Corporate Gifts shall not be liable for a breach of the warranty in 11.1 if:
(a) the defect in the Goods arises from any drawing, design or specification supplied by the Buyer;
(b) the total price for the Goods has not been paid by the due date for payment;or
(c) any claim is not notified within 28 days from the date of delivery.
11.3 Where any valid warranty claim in respect of the Goods is notified to Phoenix Corporate Gifts it shall be entitled at its sole discretion to either replace the Goods (or the part in question) free of charge or refund to the Buyer, the price of the Goods (or a proportionate part of the price) and Phoenix Corporate Gifts shall have no further liability to the Buyer.
12. Limitation Of Liability
12.1 Subject to 4 and 5 above, the following provisions set out the entire financial liability of Phoenix Corporate Gifts (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes or limits the liability of Phoenix Corporate Gifts:
(a) for death or personal injury caused by Phoenix Corporate Gifts’s negligence;
(b) under section 2(3) Consumer Protection Act 1987;
(c) for any matter which it would be illegal for Phoenix Corporate Gifts to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.4 Subject to 11.2 and 11.3
(a) Phoenix Corporate Gifts’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or
contemplated performance of this Contract shall be limited to the contract price; and
(b) Phoenix Corporate Gifts shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.5 In the event that the manufacturer of the Goods ordered alters the specification of or withdraws the Goods from sale then Phoenix Corporate Gifts’s sole liability shall be a full refund of the Contract price paid by the Buyer.
12.6 Where the Buyer is a consumer within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 12.2 above shall not apply and nothing in this contract shall affect their statutory rights.
13.1 Phoenix Corporate Gifts may assign the Contract or any part of it to any person, firm or company.
14. Force Majeure
Phoenix reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Phoenix Corporate Gifts including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 14 days, the Buyer shall be entitled to give notice in writing to Phoenix Corporate Gifts to terminate the Contract.
15. Insolvency of the Buyer
If the Buyer becomes insolvent or if the Buyer ceases or threatens to cease business then, without prejudice to any other right or remedy available to Phoenix Corporate Gifts, Phoenix Corporate Gifts shall be entitled to cancel the contract or suspend any further deliveries under the Contract without any liability to Phoenix Corporate Gifts, and if the Goods have been delivered but not paid for payment shall become immediately due and payable.
16.1 Each right or remedy of Phoenix Corporate Gifts under the Contract is without prejudice to any other right or remedy of Phoenix Corporate Gifts whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by Phoenix Corporate Gifts in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by Phoenix Corporate Gifts of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17.1 All communications between the parties about this Contract must be in writing and delivered by hand, sent by pre-paid first class post, sent by e-mail or sent by facsimile transmission:
(a) (in case of communications to Phoenix Corporate Gifts) to its principal place of business; or
(b) (in the case of the communications to the Buyer) to any address of the Buyer set out in the sales order form which forms part of this Contract.
17.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(b) if delivered by hand, on the day of delivery and if sent by e-mail the day it is received;
(c) if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.