Sales Terms & Conditions
1. Definitions
1.1 "The Company" means Phos Limited trading as Phos. Company incorporated in England and Wales. "The Buyer" the Person, Firm or Company for whom purchasing goods from the company, are pursuant to these terms. "The Conditions" the Standard Terms & Conditions of sale as set out in this document, together with any special Conditions agreed in writing between the Buyer and the company. "The Contract" means any contract between the company and the Buyer for the sale of goods. "The Goods" any goods which the company agrees to supply to the buyer in accordance with these Terms and conditions. "Order" means the buyers written acceptance of the Quotation. "Order Acknowledgement" the company's written form of confirmation and acceptance of the order.
2 General
2.1 These conditions and contracts of which they form part of, shall be explained in agreement with the English Law and the buyer complies with the exclusive jurisdiction of the English courts, in respect of both contractual and non-contractual matters .These conditions are deemed to be incorporated in all contracts for the sale and supply of the company’s services, equipment, products and materials and expressly exclude any terms and conditions proffered by the Customer. The current version of our Terms and Conditions of sale will be provided at the point of sale only.
2.2 If any provision or part of a provision of the Contract is found by the English court or other body of competent jurisdiction to be illegal invalid void, voidable, unenforceable or unreasonable it shall be deemed severable and the remaining provisions of the contract and the remainder of such provision shall continue in full force and effect. Failure or delay by the Company in enforcing or partially enforcing any provision of the contract will not be constituted as a waiver of any of its rights under the contract. Any waiver by the Company 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.
2.3 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. The formation, existence, construction, performance, validity and all aspects of the Contract shall be deemed by English Law and the parties submit to the jurisdiction of the English Courts.
3 Applications of Terms
3.1 These Terms and conditions apply to all the Company's tenders, offers, orders, quotations and agreements relating to the Sales of Goods to the buyer by the company. Any additional or different terms or conditions proposed by the Buyer are expressly objected to and will not be binding upon the company, unless assented to in writing and signed by a director of the company.
3.2 The company can without notice amend, consolidated, modify, extend, or replace this terms and conditions.
4 Orders and Specifications
4.1 No order placed by the Buyer shall be deemed to be accepted by the company until the company sends an Order Acknowledgement at which point and on which date the contract shall come into existence.
4.2 Any order for, or any statement of intent to purchase goods or any assent for company to perform lighting design work or be provided with lighting design from buyer shall constitute assent to these terms and conditions.
4.3 No Verbal orders will be accepted from Buyer until a written order placed by buyer has been accepted by the company; the contract will then come into existence subjected to these conditions. Any modifications must be agreed in writing by both parties.
4.4 All Orders should be sent by email, fax or mail and should state the Buyer's relevant order number and company's quotation, or order acknowledgement reference number, if provided. No terms or conditions enclosed upon, delivered with or contained in the Buyer's purchase order confirmation of order or other document will form part of the Contract simply as a result of such Document being referred to in the Contract.
4.5 It's the buyer's responsibility to ensure that Order acknowledgement and other related documents are accurate. Any Typographical, clerical or other accidental errors in any Sales literature, Quotation, Acceptance of Order Acknowledgement, invoice or other documents or information issued by the company shall be subject to correction without any liability on the part of the company.
4.6 All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight, and dimensions submitted with a quotation are approximate only and none of these shall form part of the contract. After receipt of any order adequate drawings will be supplied where necessary to enable the Customer to prepare foundations and arrange for the supply of services. Drawings and technical specifications supplied by the Company are confidential and the Customer shall not communicate these or the contents thereof to third parties
4.7 All Call-off orders will be accepted from Buyer with the call-off dates originally stated with the purchase order forming the contract. In the event that the schedule only includes the fitting quantities, it is applied that the first fix items are part of the first delivery and forms the contract accordingly. Should the Buyer wish to revise the scheduled delivery dates as originally dated with the purchase Order / Contract, this must be issued in writing and is only applicable if agreed by ourselves in writing. If this is not accepted in writing by ourselves, the original contract applies. Should the Buyer refuse delivery or not provide delivery information, any failed delivery charges and or storage fees may apply at the discretion of Phos. Should the Buyer wish to cancel a Call-off order, our standard Cancellations policy is applied (see section 7).
4.8 Our special finishes are meticulously hand-finished, giving each piece a unique and personalised touch. Unlike massproduced items created by machines, the human touch in our process inevitably results in small imperfections. However, we believe that these imperfections add character and distinction to our custom pieces, making them truly one-of-a-kind. During our rigorous quality control process, our dedicated team carefully inspects every item. If any imperfections are not noticeable when viewed from a distance of 1 meter, we consider them to meet our high standards and pass the quality control check (as would be experienced by the end client when installed).
We strive to exceed your expectations by delivering products that showcase the craftsmanship and authenticity that can only be achieved through an engineered hand-finished product.
5 Descriptions
5.1 The description of the Goods shall be as set out in the Company's brochure and website. The buyer acknowledges and agrees that all descriptive matter and advertising issued by the company and any descriptions or illustrations contained in the company documentation are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. The Company will not be held liable for any discrepancies between illustrations or descriptions given and the actual products. Output and data figures stated are typical values and are subject to change. The Company reserves the right to make changes to products without notice at any time. They will not form part of this Contract, nor be relied upon by the buyer when entering into this agreement.
5.2 The company reserves the right to amend or change specification datasheets, brochures, website and the company's pricelist without notice. The Buyer must ensure that the goods ordered are suitable for the intended purpose before commencing installation, bulk production or investment in tooling.
6 Samples
6.1 The buyer acknowledges that samples of goods constitutes to an order set out in clause 4.
6.2 The returning of samples is accepted only if returned in Good condition with its original packaging, if otherwise, the return will be refused by the company.
7 Cancellations
7.1 Cancellation of Standard goods ordered will be accepted only if made in writing (verbal order cancellation will not be accepted) and received within 48 hours of delivery, a 40% restocking charge will apply. (See the returns policy for more information).
7.2 If a special production or non-stock products are required to fulfil an order, a written cancellation request must be approved by the company, if no production has been done and no material purchased. Cancellation of Special, or non-stock products will not be accepted and are chargeable in full.
8 Carriage
8.1 Phos’ standard carriage charges apply to UK mainland postcodes (England, Scotland and Wales). However some areas, the Scottish Highlands, Northern Ireland and the Islands, will be subject to an additional fee so please check with our sales team in this regard.
8.2 Any special delivery requirements incur an extra charge subject to special delivery request.
8.3 Export Buyers see clause 17.
9 Delivery
9.1 Unless otherwise agreed in writing by the company, delivery of the Goods shall take place at the address detailed on the Buyer's order, and any dates specified by the Company for delivery of Goods are intended to be estimation only.
9.2 Subject to the other provisions of these Conditions the company will not be liable for any loss including loss of profit, damages, charges or expenses caused directly or indirectly by any delay of the delivery of the Goods (even if caused by the company's negligence) nor will any delay entitle the Buyer to cancel the contract. If for any reason the Buyer will not accept delivery of any of the goods, or the company is unable to deliver the goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, risk in the goods will pass to the Buyer including loss or damage caused by negligence) the Goods will be deemed to have been delivered and the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
9.3 The Company may deliver the Goods by instalments and each instalment shall be treated as a separate Contract so that failure to deliver or defects on one or more instalment shall not entitle the Buyer to reject the other instalments.
9.4 The buyer must check the goods upon receipt and report any damage, loss or unsatisfactory condition on the enclosed Delivery note in writing within 24 hours of proof of receipt of goods. Goods damaged in transit must be kept in their original packaging for inspection by the Company or its agents.
9.5 When delivery or collection of goods is made by the Company or carrier beyond the entrance to the Customer’s premises, the Customer shall accept all responsibility for and indemnify the Company against all damage to property or injury to persons occurring for whatsoever cause on such premises unless caused by the negligence of the Company or its servants or the carrier of his servants.
10 Non-Delivery
10.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer. The Company shall not be liable for any non-delivery of Goods even if caused by the Company's negligence unless written notice from the buyer is given to the Company within 24 hours of the date when the Goods would in the ordinary course of events have been received. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rate Contract rate against any invoice raised for such Goods.
11 Risk/Title
11.1 The Goods are at the risk of the Buyer once delivery is completed.
11.2 Ownership of the Goods shall not pass to the Buyer until the Company has received full payment or cleared funds all sums due to it from the Buyer on any account.
11.3 Until ownership of the Goods has passed to the Buyer, the Buyer must hold the Goods on a fiduciary basis as Company's Bailee, store the Goods (at no cost to the Company) separately from all other goods in such a way that they remain readily identifiable at the Company's property, not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company (On request the Buyer shall produce the policy of Insurance to the Company and hold the proceeds of the insurance referred to in on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank Account).
11.4 If the Buyer resells any of the Goods on a retail basis it will be responsible for complying with all applicable laws and for the provision of proper labels and instructions as requested by the Department of Trade and Industry and/or any other authority for the time being empowered to make any requirements as to the sale or installation of such Goods.
11.5 The Buyer's right to possession of the Goods shall terminate immediately if:
11.6.1 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 relief for insolvent debtors, or (being a buddy corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation except a solvent voluntary liquidation for the purpose of reconstruction or amalgamation or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution is passed or a petition presented to any Court for the winding up of the Buyer or for the granting of administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or
11.6.2 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 Company 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, the buyer encumbers or in any way charges any of the goods.
12 Price
12.1 Unless otherwise agreed by the Company in writing (and except in cases of obvious error) The price for the Goods set out in the company's price list are net, exclusive of any VAT and do not include carriage charge unless Quoted.
12.2 Unless otherwise stated all prices quoted will be valid for a period of 30 days only from its date of issue. Quotations are not binding on the company until an order has been accepted.
12.3 Where the Company and the Buyer agree a discount in respect of the Company's price list any such discount will only apply where confirmed in a quotation.
12.4 The Company will endeavour to execute all orders at the price ruling at the time of acceptance but reserves the right, to amend or change the pricelist without notice in the event of any increase in the cost to the Company. This could be due to an increase in labour or production.
12.5 Should the company incur extra expense not provided for in the quotation or contract owing to the suspension of the work on the customers instructions or owing to any other circumstances whatsoever for which the Company is not responsible, such additional expense shall be added to the price quoted and be paid for by the Customer accordingly.
13 Payments and Credit Accounts
13.1 The Company shall provide a credit account to buyers who have developed a trading history with the company. This will be apparent once the buyer deals with the company on a regular basis and orders five (5) separate proforma invoices (this is subject to an agreed amount by the director of the company) over a period of 90 days.
13.2 The company will carry out credit checks using a third party underwriter, before any credit limit or value is authorised. (The value will be decided by the Director of the company).
13.3 The company's standard account terms are 30 days nett of invoice. Unless otherwise agreed in writing by the director.
13.4 Where the company chooses, or are required by applicable law, to provide or make available an invoice, the company reserves the right to provide or make available electronic invoices and the buyer agrees to such form of invoicing. Buyers who purchase goods by card payments shall receive invoices in the post.
13.5 The Buyer shall make all payments under the Contract without any deduction whether by way of set-off, counterclaim, discount abatement or otherwise unless the Buyer has a valid Court Order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
13.6 If the Buyer fails to pay the Company any sum on the due date then this will mean:
13.6.1 If the buyer has a credit account the company may reduce the credit limit or withdraw it and put the account on proforma invoice basis, where the buyer will make payment in advance before despatching goods.
13.6.2 The company to withdraw or decrease the discount that was given to the buyer.
13.6.3 The Buyer to be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5% above the base lending rate published from time to time by the Bank of England accruing on a daily basis until payment is made whether before or after any judgement.
14 Limitation of Liability
14.1 The following provisions of this Condition 16 set out the entire financial liability of the Company including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of any breach of these Conditions and any representation, statement or omission including negligence arising under or in connection with the Contract.
14.2 All terms implied by statute or common law and the conditions implied in section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law. Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence its employees, agents or representatives; for breach of the company's responsibilities under section 12 of the sales of goods act 1979 and section 2 of the sale and supply of goods and services act 1982 or section 2(3) of the consumer protection act 1987; or for fraudulent misrepresentation.
14.3 The Company's total liability in contract tort (including negligence or breach of statutory duty, misrepresentation or otherwise arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid by the Buyer and,
14.3.1 The Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill otherwise) costs, expenses, loss of anticipated savings, loss of use, loss of contracts or other Claims for consequential compensation howsoever caused which arise out of or in connection with the Goods.
15 Intellectual Property
15.1 The buyer acknowledges that the Company (or its licensor) will retain all rights on all patents, copyright, registered and unregistered designs, trademarks and other intellectual property rights which subsist in any goods, inventions, Drawings/designs created or made by an employee or agent of the company and any other materials provided in relation with the goods.
15.2 The property and any copyright or other intellectual property rights in any Buyer Materials shall belong to the Buyer and any Company Materials shall, unless otherwise agreed in writing between the Buyer and the Company belong to the Company subject only to a licence in favour of the Buyer to use the Company Materials for the purposes of receiving the Goods.
15.3 The buyer shall not have authorisation on any third party to, alter, copy or modify or otherwise tamper with the goods, their packaging or any material provided by the company, in relation to the goods.
15.4 Clause 15.1 applies to the company website. The company owns all intellectual property rights on the site, and the material published on it. These entireties are covered by copyright laws. All such rights are reserved.
15.5 Buyers can print off copies, download parts of any page(s) from the site for personal reference and may present to others within the buyers organisation. Buyers must not alter any materials printed or downloaded and no use of illustrations, videos, photography or any graphics separately from any associated text. If the buyer has printed off, downloaded or copied any part of the company's site in breach of these terms of use. The buyer's rights to use the company's site will be terminated and you must return or destroy any copies of the materials made.
15.6 The company endeavours not to offer for sale goods which infringe known and valid patents but shall be liable, and no claim shall be made against it by the Customer for any damage or loss of profits arising from infringement of any patent or registered design or from any proceedings or threatened proceedings in respect of infringement of any patent or registered design by any use or sale of the goods the subject of the contract. Or warrant implied under the Sales of Goods Act 1893 or otherwise is limited accordingly.
16 Force Majeure
The Company 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 the Company including without limitation acts of God, governmental actions, war or national Emergency, riot, civil commotion, fire explosion, flood, epidemic, lock-outs, strikes or other about 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.
17 Export
17.1 As the goods are supplied for export from the United Kingdom, the provisions of this condition 17 shall (subject to any terms agreed in writing between the buyer and the seller) apply not withstanding any other provisions of these conditions.
17.2 The buyer shall be responsible for complying with all legislation or regulations (including acquiring at the buyers cost all necessary licenses and authorities) governing the importation of the goods into the country of destination outside the United Kingdom and for payment of all taxes and duties thereon.
17.3 Unless otherwise agreed in writing between the buyer and the company, the goods shall be delivered either by air or sea port on Ex-Factory UK terms. The company shall not be in any obligation to provide notice under section 32(3) of the sales of goods act 1979. Buyers will provide all necessary assistance and information to the company to enable for goods or any instalment to be delivered accurately.
17.4 The company shall have no liabilities for any loss, damage or delay in transit or any extra charges due to these occurrences.
17.5 All partners will need to have links with an installation / reinstallation team local to their territory with all necessary electrical certifications and insurances.
18 Warranty
18.1 All the Company's products sold directly by the company are guaranteed for five (5) years from the date of delivery with proof of order/purchase. Without this, the warranty cannot be honoured.
This does not include LED strip which is guaranteed for two (2) years from the date of delivery with proof of order/purchase. Note strip which has been modified by the customer and not in-house at Phos Ltd is guaranteed for one (1) year. Without this, the warranty cannot be honoured.
18.2 The Company’s liability in respect of good supplied for any loss, injury or damage attributable to any defect in or failure of such goods shall be limited to making good by replacement or repair at the option of the Company, defects which under proper use appear therein within 5 years (or such other period as may be specified) after the original goods shall have first been despatched by the Company which arise solely from faulty design, materials or workmanship provided that the Company shall so require all such defective goods shall be promptly returned to the Company’s works, carriage paid, in lieu of the said right for repair or replacement, the Company shall have the option to take back the said defective goods and refund the purchase price. When the Company accepts responsibility to repair or replace the goods or to refund the price. The Company will state what portion of carriage costs it will pay or refund. Provided further that if the goods found to be defective during the aforesaid period of 5 years have been repaired or worked upon by any person other than the Company then the Company’s obligations herein cease forthwith. In the case of goods not of the Company’s manufacture, the Customer shall be entitled only to such benefits as the Company may have received under any guarantees given in respect
In the case of goods not of the Company’s manufacture, the Customer shall be entitled only to such benefits as the Company may have received under any guarantees given in respect thereof.
This is subject to the warranty terms and returns policy.
18.3 The Company will not accept liability for installation errors, including situations where the environmental conditions are not suitable for the IP-Rating of the goods.
18.4 The Company's liability shall not exceed the invoice value of the goods accepted as defective. No allowance will be issued for buyers or third parties, consequential damage or other expense incurred.
19 TERMINATION FOR BREACH OF CUSTOMER
If the Customer commits any breach of any term or condition of any contract for the sale and supply of the Company’s equipment, materials and service, the Company shall have the right by notice in writing to terminate the contract at once notwithstanding any previous waiver of this right. The Company may by notice in writing cancel the contract forthwith if the Customer becomes bankrupt or makes any composition for the benefit of creditors or being a Company, goes into liquidation either voluntarily or compulsory. Any termination or cancellation shall be without prejudice to any rights of either party arising prior to the date
Procurement Terms & Conditions
Conditions of Contract
The Contractor’s acknowledgement of the Purchase Order shall constitute acceptance of these conditions and shall create the Contract between the Contractor and the Customer, save as varied by any pre-existing terms and conditions agreed between the Customer and the Contractor.
1. Definitions - In these conditions:
“Contract” means the agreement between the Customer and Contractor comprising the Contractor’s quotation or tender and the Customer’s acceptance thereof, including this Purchase Order, and any documents referred to therein.
“Contractor” means the supplier of any Goods or Services under the Contract.
“Customer” means Phos Ltd.
“Days” means calendar days save where the context otherwise requires.
“Data Protection Legislation” means the GDPR, the Data Protection Act 2018 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
“FOIA” means the Freedom of Information Act 2000.
“Goods” means anything supplied or to be supplied to the Customer under the Contract.
“GDPR” means the General Data Protection Regulation (EU 2016/679).
“Purchase Order” means the document relating to the order for Goods and/or Services to be supplied by the Contractor to the Customer in accordance with the terms of the Contract.
“Services” means all the Services that the Contractor is required to carry out under the Contract.
2. Conditions for the supply of Goods - Contractor’s duties
(i) The Contractor shall supply the Goods to the Customer in accordance with the terms of the Contract
(ii) The Contractor shall ensure that the Goods shall:
(a) be free from defects in materials and workmanship and remain so for 12 months after delivery;
(b) be of satisfactory quality (within the meaning of the Sales of Goods Act 1979) and fit for any purpose held out by the Contractor or made known to the Contractor by the Customer, expressly or by implication, and in this respect the Customer relies on the Contractor’s skill and judgment;
(c) conform with the specifications, drawings, descriptions given in any material (in whatever format made available by the Contractor) supplied by, or on behalf of, the Contractor;
(d) be free from design defects;
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
(iii) The Contractor shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note correctly addressed to the Customer which shows the Purchase Order number, order and dispatch dates, the type and quantity of the goods, returns instructions and, in the case of part delivery, the outstanding balance remaining to be delivered;
(c) if the Contractor requires the Customer to return any packaging material for the Goods to the
Contractor, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Contractor at the cost of the Contractor.
(iv) The Contractor shall deliver the Goods:
(a) on the date specified in the Purchase Order or, if no such date is specified, then within 7 days of the date of the Purchase Order;
(b) to the address specified in the Purchase Order or as instructed bythe Customer before delivery;
(c) between 9 am and 4 pm Monday to Fridays, or as instructed by the Customer;
(v) Where the Contractor fails to deliver the Goods (or part of the Goods) or the Goods (or part of the Goods) do not comply with the provisions of clause 2(ii), then without limiting its other rights or remedies implied by statute or common law, the Customer shall be entitled:
(a) to terminate the Contract;
(b) request the Contractor, free of charge, to deliver substitute goods within the timescales specified by the Customer;
(c) to require the Contractor, free of charge to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to reject the Goods (in whole or part) and return them to the Contractor at the Contractor’s own risk and expense and the Customer shall be entitled to a full refund on those Goods or part of Goods duly returned;
(e) to buy the same or similar Goods from another supplier and to recover any expense incurred in respect of buying the goods from another supplier which shall include but not be limited to administration costs, chargeable staff time and extra delivery costs.
(vi) (a) The Customer shall be under no obligation to accept or pay for any Goods delivered in excess of the quantity ordered. If the Customer elects not to accept such over-delivered Goods it shall be entitled to give notice in writing to the Contractor to remove them within 30 days of and to refund to the Customer any expenses incurred as a result of such over-delivery (including but not limited to the costs of moving and storing them) failing which the Customer shall be entitled to dispose of such Goods and to charge the Contractor for the costs of such disposal. The risk in any over-delivered Goods shall remain with the Contractor until they are collected by or on behalf of the Contractor or disposed of or purchased by the Customer, as appropriate.
(b) The Customer shall be under no obligation to accept or pay for any Goods supplied earlier than the date for delivery stated in the Specification.
(c) Unless expressly agreed to the contrary, the Customer shall not be obliged to accept delivery by instalments. If, however, the Customer does specify or agree to delivery by instalments, delivery of any instalment later than the date specified or agreed for its delivery shall, without prejudice to any other rights or remedies of the Customer entitle them to terminate the whole or part of the contract without further liability to the Contractor.
(d) If the Customer is affected by circumstances of Force Majeure, the Customer shall be entitled to suspend partially or totally the date or dates for delivery of the Goods until such time as the circumstances of Force Majeure have ceased and such suspension shall not give rise to any claim by the Contractor against the Customer nor entitle the Contractor to terminate the Contract.
3. Conditions for the supply of Services - Contractor’s duties
(i) The Contractor shall supply the Services to the Customer in accordance with the terms of the Contract.
(ii) In supplying the Services, the Contractor shall:
(a) co-operate with the Customer in all matters relating to the Services and comply with all the Customer’s instructions;
(b) perform the Services with all reasonable care, skill and diligence in accordance with best industry practice in the Contractor’s industry, trade or profession;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Contractor’s obligations are fulfilled in accordance with this Contract;
(d) ensure that the Services shall conform with all descriptions and specifications set out in the Contract;
(e) comply with all applicable laws;
(f) provide all equipment, tools and vehicles and other items as are required to provide the Services;
(g) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises.
4. Call-off Order
Call-off Order is an order created to cover multiple supplies or deliveries from a single company. A Call-off order may be applied in the following circumstances:
(a) For a medium / long / regular term supply of the same services from the same supplier
(b) For regular, multiple deliveries to a range of dispersed sites
(c) An unknown future delivery schedule
(d) Where precise volumes or values are not known until after delivery
(e) Where delivery and packing charges or supplier discounts, regularly affect final prices
(f) A different legal contract exists with the supplier and the order is raised internally for control purposes only
(g) Where there is a proven need to reduce document processing (reduce quantity of invoices through consolidated billing etc) An order of this type can only be placed after the appropriate procurement requirements have been satisfied.
5. Warranty
(a)The Contractor warrants that the Deliverables shall be free from defects in design, materials and workmanship and remain so for 12 months after delivery.
(b)The Customers rights under the Contract are in addition to its rights and remedies implied by statute and common law.
(c) If any part or aspect of the Goods fail or becomes defective within 12 months from the date the Goods were delivered to the Customer, the Contractor must without delay and at no cost to the Customer do all things necessary to remedy the defect or failure in the Goods. This can be by way or repair, replacement, modification or other means acceptable to the Customer. If the Supplier does not do so, within a reasonable period following notice of the defect from the Customer, then the Customer will have the right to remedy the defect and recover reasonable costs so incurred from the Contractor.
6. Charges and Payment
(i) The charges for the Goods and/or Services shall be as set out in the Purchase Order and shall be the full and exclusive remuneration of the Contractor in respect of the supply of the Goods and/or Services. Unless otherwise agreed in writing by the Customer, the charges for the Goods and/or Services shall include every cost and expense of the Contractor directly or indirectly incurred in connection with the supply of the Goods and/or Services. In respect of the supply of Goods, this shall include but not be limited to the costs of packaging, insurance, delivery, unloading, stacking and carriage.
(ii) The Contractor shall submit an invoice within 28 days of supplying the Goods or Services to the satisfaction of the Customer. The invoice shall be on letterhead paper correctly addressed to the Customer and include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order number, a breakdown of the Goods and/or Services supplied and the amount of VAT payable. Save where an invoice is disputed, the Customer shall pay the Contractor on 60 days net end of month of receipt of invoice. Invoices must be sent to Phos Ltd.
(iii) Whenever under the Contract any sum or sums of money shall be recoverable from or payable by the Contractor to the Customer, that amount may be deducted from any sum then due, or which at any later time may become due, to the Contractor under the Contract or under any other contract with the Customer.
7. Prevention of Fraud and Corruption
The Contractor shall not receive or agree to receive from any person, or offer or agree to give to, or procure on behalf of any person in the employment of the Customer, any gift or consideration of any kind as an inducement or reward for doing or not doing anything, or for showing favour or disfavour to any person in connection with the Contract.
8. Data Handling
(i) The Contractor shall comply with any notification requirements under the Data Protection Legislation and shall duly observe all their obligations under the Data Protection Legislation which arise in connection with the Contract.
(ii) When handling the Customer’s data (whether or not personal data), the Contractor shall ensure the security of the data is maintained in line with the security requirements of the Customer as notified to the Contractor from time to time.
(iii) Notwithstanding the general obligation in sub-clause 6
(i), where the Contractor is processing personal data for the Customer as a data processor (as defined by the GDPR) the Contractor shall:
(a) ensure that it has in place appropriate technical and organisational measures to ensure the security of the personal data (and to guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data);
(b) provide the Customer with such information as the Customer may reasonably request to satisfy itself that the Contractor is complying with its obligations under the Data Protection Legislation;
(c) promptly notify the Customer of any breach of the security requirements of the Customer;
(d) promptly notify the Customer of any request for access to or a request to rectify or erase
personal data; and
(e) ensure that it does not knowingly or negligently do or omit to do anything which places the Customer in breach of the Customer’s obligations under the Data Protection Legislation;
(f) ensure that its staff are suitably trained;
(g) ensure that personal data is not transferred outside the European Economic Area without the Customer’s prior written consent.
(iv) In addition to the above, when handling the Customer’s personal data, the Contractor shall comply fully with the requirements set out in the Customer’s Data Processing and Sharing Requirements Schedule.
9. Disclosure of Information
(i) The Contractor shall not disclose any confidential information received from the Customer, shall safeguard it accordingly and shall not disclose it to any other person without the prior written permission of the Customer,unless such disclosure is required by law, any governmental or regulatory authority or by a court of competent jurisdiction.
(ii) The Contractor shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Contractor’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the contract.
(iii) The Contractor shall not disclose any other information, which is not confidential information, relating to the Contract or the Customer’s activities without the prior written consent of the Customer, unless such information is already in the public domain.
(iv) This clause shall survive termination or expiry of the Contract.
10. Discrimination
The Contractor shall perform its obligations under the Contract in accordance with all applicable equality law and the Customer’s equality and diversity policy as provided to the Contractor from time to time.
11. Sub-contracting and assignment
The Contractor shall not sub-contract or transfer, assign, charge, or otherwise dispose of the Contract or any part of it without the prior written consent of the Customer. Where the Contractor enters into a contract with a supplier or sub- contractor for the purpose of performing the Contract or any part of it, he shall cause a term to be included in such contract which requires payment to be made by the Contractor to the supplier or sub-contractor within a period not exceeding 30 days from receipt of a valid invoice as defined by the contract requirements.
12. Intellectual Property Rights
(i) In respect of any Goods that are transferred to the Customer as part of the Services under this Contract, the Contractor warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer.
(ii) Subject to any prior rights of the Customer, and to the rights of third parties arising otherwise than under the Contract, such intellectual property rights as are derived from or arise as a result of the performance of the Contract by the Contractor shall vest in the Contractor. The Contractor hereby grants the Customer a perpetual, royalty-free, irrevocable, non-exclusive licence to use all intellectual property rights in the materials created or developed pursuant to the Contract.
(iii) The Contractor shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses suffered incurred by the Customer as a result of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Contractor, its employees, agents or subcontractors.
(iv) This clause shall survive termination or expiry of the Contract.
13. Termination
(i) Without limiting its other rights or remedies, the Customer may terminate the Contract:
(a) in respect of the supply of Services, at any time by giving the Contractor one month’s (or, if the Contract is less than 3 months in duration, at least 10 working days’) written notice; and
(b) in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Contractor, whereupon the Contractor shall discontinue all work on the Contract. The Customer shall pay the Contractor reasonable costs necessarily and properly incurred by him as a result of the termination, excluding loss of profit and consequential losses, provided that the amount shall not exceed the total cost of the Contract.
(ii) Without prejudice to any other right or remedy it might have, the Customer may terminate the Contract by written notice to the Contractor with immediate effect if the Contractor
(a) (without prejudice to clause 11(ii)(d)), is in material breach of any obligation under the Contract which is not capable of remedy;
(b) repeatedly breaches any of the terms and conditions of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms and conditions of the Contract;
(c) is in material breach of any obligation which is capable of remedy, and that breach is not remedied within 30 days of the Contractor receiving notice specifying the breach and requiring it to be remedied;
(d) breaches any of the provisions of all clauses.
(e) becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Contractor (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Contractor’s assets or business, or if the Contractor makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
(iii) Termination or expiry of the Contract shall not affect the rights of the parties to the Contract that may have accrued prior to termination or expiry and shall not affect clauses which expressly or by implication survive termination or expiry of the Contract.
(iv) Upon termination or expiry of the Contract, the Contractor shall:
(a) give all reasonable assistance to the Customer and any incoming supplier of the Goods and/or Services; and
(b) return all requested documents, information and data to the Customer as soon as reasonably practicable.
14. Loss or Damage
(i) The Contractor shall, without delay and at the Contractor’s own expense, reinstate, replace or make good to the satisfaction of the Customer, or if the Customer agrees, compensate the Customer, for any loss or damage connected with the performance of the Contract, except to the extent that such loss or damage is caused by the neglect or default of the Customer.
(ii) “Loss or damage” includes but is not limited to: loss or damage to property; personal injury, sickness or death; and loss of profits or loss of use suffered as a result of any loss or damage. Including remedial work or action carried out by the customer / indirect or consequential loss or damage.
(iii) This clause shall survive termination or expiry of the Contract.
15. Insurance
The Contractor shall effect and maintain an adequate level of insurance cover in respect of all risks that may be incurred by him in the performance of this Contract.
16. Notices
A notice may be served: by delivery to the Contractor; by sending it by email to him; or by ordinary first class post to the Contractor’s last known place of business or registered office. A notice shall be deemed served at the time of delivery, at the time of receipt for an email, or on the second working day after posting.
17. Governing law and Jurisdiction
The Contract shall be governed by and interpreted in accordance with English Law. The courts of England and Wales shall have exclusive jurisdiction to settle any claim arising out of or in connection with this Contract.
18. Variations to the Contract
The Contract may only be varied if it is in writing and signed by the Contractor and Customer.
19. General
(i) A person who is not a party to the Contract shall have no right to enforce any of its provisions which, expressly or by implication, confer a benefit on him, without the prior written agreement of the parties.
(ii) Any waiver or relaxation either partly, or wholly of any of the terms and conditions of the Contract shall be valid only if it is communicated to the other party in writing and expressly stated to be a waiver. A waiver of any right or remedy arising from a breach of contract shall not constitute a waiver of any right or remedy arising from any other breach of the Contract.
(iii) Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
(iv) If any provision of the Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Contract and rendered ineffective as far as possible without modifying the remaining provisions of the Contract, and shall not in any way affect any other circumstances of or the validity or enforcement of the Contract.