In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.4.
Contract: the contract between PhosphonicS and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from PhosphonicS.
Force Majeure Event: has the meaning given in clause 9.
Goods: the goods (or any part of them) set out in the Order.
Incoterms: the uniform rules for the interpretation of trade terms published by the International Chamber of Commerce and applicable at the date hereof.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order or otherwise communicated to PhosphonicS.
Quotation: PhosphonicS’ written quotation to the Customer for the Goods.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and PhosphonicS.
Supplier: PhosphonicS Limited incorporated and registered in England and Wales with company number 4829817 whose registered office is at 7 The Quadrangle, Grove Business Park, Wantage, OX12 9FA, UK.
2. Basis of contract
2.1 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 by trade, custom, practice or course of dealing, including without limitation any terms set out or referred to in the Customer’s purchase order.
2.2 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 terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 Any Quotation shall be valid for 60 days from issue unless otherwise specified.
2.4 The Contract shall come into existence when PhosphonicS issues a written acceptance of the Order.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of PhosphonicS which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by PhosphonicS and any descriptions or illustrations contained in PhosphonicS’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.7 The Customer may not cancel or amend any Order once accepted. If the Customer wishes to change the delivery date(s), quantities or types of Goods ordered, or the Specification, it shall so notify PhosphonicS. PhosphonicS shall notify the Customer of any additional charges payable in relation to such change and may at its discretion agree to implement such change subject to the payment by the Customer of such charges.
3.1 Delivery of the Goods shall be completed:
- a. if the Customer is responsible for carriage, when PhosphonicS notifies the Customer that the Goods are ready for collection; or
- b. if PhosphonicS is responsible for carriage, when PhosphonicS delivers the Goods to the delivery point specified in the Order.
3.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Customer may not cancel its Order unless PhosphonicS fails to deliver the Goods within 90 days after the estimated delivery date, in which case PhosphonicS’ liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3.3 PhosphonicS shall not be liable for any failure to deliver or delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide PhosphonicS with any instructions that are relevant to the supply of the Goods or to make adequate provision for the loading or unloading of the Goods.
3.4 If the Customer fails to accept the Goods or to collect the Goods within three Business Days of PhosphonicS notifying the Customer that the Goods are ready for collection (as applicable), then, except where such failure or delay is caused by a Force Majeure Event or PhosphonicS’ failure to comply with its obligations under the Contract, PhosphonicS may store the Goods until they are collected by the Customer, and charge the Customer for all related costs and expenses (including insurance).
3.5 If 10 Business Days after the day on which PhosphonicS notified the Customer that the Goods were ready for delivery the Customer has not accepted or collected them, PhosphonicS may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.6 The Customer shall not be entitled to reject the Goods if PhosphonicS delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
3.7 The Customer shall inspect the Goods promptly after delivery and shall be deemed to have accepted any Goods 5 Business Days after their delivery unless the Customer has notified PhosphonicS to the contrary. If the
Goods are damaged or otherwise delivered in material breach of the Contract, the Customer may reject them and shall:
- a. provide PhosphonicS with written notice detailing the reason for rejection; and
- b. store the Goods until PhosphonicS has arranged for their collection.
3.8 PhosphonicS may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. Quality, warranty and use
4.1 PhosphonicS warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
- a. conform in all material respects with their description and any applicable Specification; and
- b. be free from material defects in design, material and workmanship.
4.2 Subject to clause 4.3, if:
- a. the Customer gives notice in writing to PhosphonicS during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
- b. PhosphonicS is given a reasonable opportunity of examining such Goods; and
- c. the Customer (if asked to do so by PhosphonicS) returns such Goods to PhosphonicS’ place of business at PhosphonicS’ cost,
- d. PhosphonicS shall, at its option, repair or replace the defective Goods (including by replacement with alternative goods of equivalent or improved function), or refund the price of the defective Goods in full. Such repair, replacement or refund shall be the Customer’s sole and exclusive remedy in relation to the non-compliance of the Goods with the warranty set out in clause 4.1.
4.3 PhosphonicS shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.1 in any of the following events:
- a. the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2;
- b. the defect arises because the Customer failed to follow PhosphonicS’ oral or written instructions as to the storage, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- c. the Customer alters or repairs such Goods without the written consent of PhosphonicS;
- d. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- e. the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 These Conditions shall apply to any repaired or replacement Goods supplied by PhosphonicS, provided that the warranty set out in clause 4.1 shall apply to any repaired or replacement Goods only for the warranty period remaining in respect of the Goods originally repaired or replaced.
4.5 The Goods are intended for use for the purposes designated by PhosphonicS and are not intended for any other use (including without limitation for use in the production of food, drugs or cosmetics, for diagnostic purposes, or for any other use in relation to humans). The Customer shall use, store, install and maintain the Goods only in accordance with any user manuals, technical documentation, operating instructions, safety information and other recommendations or instructions provided by PhosphonicS. Without limiting the foregoing, the Customer shall be responsible for conducting its own risk and hazard analysis in relation to its use, storage, installation and maintenance of the Products and ensuring that such activities together with the disposal of the Products are safe in all respects and compliant with all applicable laws. The Customer shall indemnify PhosphonicS against all losses, liabilities, costs and damages incurred by PhosphonicS (including legal fees) in relation to any third party claim or action against PhosphonicS arising from the Customer’s breach of its obligations in this clause.
5. Title and risk
5.1 The risk in the Goods shall pass to the Customer on delivery.
5.2 Title to the Goods shall not pass to the Customer until PhosphonicS receives payment in full (in cash or cleared funds) for the Goods.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
- a. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as PhosphonicS’ property;
- b. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- c. notify PhosphonicS immediately if it becomes subject to any of the events listed in clause 7.1; and
- d. give PhosphonicS such information relating to the Goods as PhosphonicS may require from time to time.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.1, then, without limiting any other right or remedy PhosphonicS may have, PhosphonicS may at any time:
- a. require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
- b. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. Price and payment
6.1 The price of the Goods shall be the price set out in PhosphonicS’ acceptance of the Order or in the Quotation.
6.2 PhosphonicS may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond PhosphonicS’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs).
6.3 The price of the Goods is exclusive of amounts in respect of:
- a. value added tax and other tax;
- b. costs and charges for packaging, insurance and transport of the Goods (where PhosphonicS is responsible for carriage); and
- c. any additional charges which PhosphonicS is entitled to charge under the Contract;
- d. which shall in each case be invoiced to the Customer.
6.4 PhosphonicS may invoice the Customer for the Goods on or at any time after the completion of despatch of goods/services.
6.5 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice to the bank account nominated in writing by PhosphonicS. Time of payment is of the essence.
6.6 If the Customer fails to make any payment due to PhosphonicS under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Barclay’s Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
6.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding.
7. Termination and suspension
7.1 PhosphonicS may terminate the Contract with immediate effect by giving written notice to the Customer if:
- a. the Customer fails to make any payment by its due date under the Contract or is otherwise in material breach of the Contract and (where such breach is remediable) has not remedied such breach within ten Business Days of receiving notice from PhosphonicS requiring its remedy; or
- b. the Customer ceases or threatens to cease to trade, becomes insolvent or is the subject of insolvency proceedings, makes an arrangement or composition with its creditors, has a receiver and/or administrator appointed over its undertaking or is the subject of any similar or equivalent action or occurrence, or a creditor or encumbrancer of the Customer attaches or takes possession, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets.
7.2 On termination of the Contract for any reason the Customer shall immediately pay to PhosphonicS all of PhosphonicS’ outstanding unpaid invoices and interest.
7.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
7.4 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect, including clauses 1, 4, 5, 8, 9 and 10.
8. Limitation of liability
8.1 Subject to clause 8.3:
- a. PhosphonicS shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of reputation or goodwill (in each case whether direct or indirect) or any indirect or consequential loss arising under or in connection with the Contract; and
- b. PhosphonicS’ total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
8.3 All warranties, conditions and other terms not expressly set out in these Conditions in relation to the Goods, including (without limitation) those implied by statute or common law are excluded to the fullest extent permitted by law.
9. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of PhosphonicS. PhosphonicS may assign the Contract to a third party at any time.
10.2 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
10.3 Each right or remedy of PhosphonicS under the Contract is without prejudice to any other right or remedy of PhosphonicS whether under the Contract or not.
10.4 No variation to these Conditions shall have any effect unless expressly agreed in writing and signed by PhosphonicS.
10.5 Any failure or delay by PhosphonicS in enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by PhosphonicS of any breach
of any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent or other breach.
10.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
10.7 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.