The Customer’s attention is drawn in particular to the provisions of clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in the City of 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 11.6;
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Products in accordance with these Conditions;
“Customer” the person who purchases the Products from the Supplier;
“Force Majeure Event” has the meaning given in clause 10;
“Order” the Customer’s order for the Products, as set out in the Customer’s purchase order form;
“Products” the Products (or any part of them) set out in the Supplier’s written quotation;
“Price” or “Prices” shall mean the ex-works (EXW) Supplier’s Premises price as defined in clause 7.1;
“Specification” any specification for the Products issued in writing by the Supplier to the Customer;
“Supplier” PHABRIX Limited of Omega House, Enterprise Way, Thatcham, Berkshire, RG19 4AE, UK (registered in England and Wales with company number 05402777);
“Supplier’s Premises” Omega House, Enterprise Way, Thatcham, Berkshire, RG19 4AE, UK;
“Warranty” as defined in clause 5.1;
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person or a corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and e-mails.
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.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Where the Supplier and the Customer execute a pro-forma invoice referred to in clause 7.5, such pro-forma invoice shall be deemed to be an acknowledgment by the Supplier of an order from the Customer accepted by the Supplier conditional upon payment by the Customer whereupon the Contract shall be constituted.
2.5 The Contract constitutes the entire agreement between the parties to the exclusion of any representations (other than fraudulent misrepresentations) made by the Supplier. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any illustrations contained in the Supplier’s catalogues or brochures or on the Website are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Products given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) days from its date of issue.
3.1 Subject to clause 2.6 the Products are described on the Website.
3.2 The Supplier reserves the right to amend the description of the Products if required by any applicable statutory or regulatory requirements or inability to obtain components or other significant change of circumstances.
4.1 The Supplier shall ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered.
4.2 Delivery shall be Ex Works at the Supplier’s Premises. The Customer shall collect the Products within three (3) Business Days of the Supplier notifying the Customer that the Products are ready for collection. If requested by the Customer the Supplier will arrange for collection and transportation to the Customer, provided however that the Supplier shall not be responsible for payment or insurance relating to such transportation.
4.3 Delivery of the Products shall be deemed to have occurred on the completion of loading of the Products at the Supplier’s Premises.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate shipping instructions or any other instructions that are relevant to the supply of the Products.
4.5 If the Supplier fails to deliver the Products, its liability shall (subject to clause 9.2.2 and 10) be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products.
4.6 If the Customer fails to take delivery of the Products within three (3) Business Days of the Supplier notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the fourth Business Day after the day on which the Supplier notified the Customer that the Products were ready for collection; and
4.6.2 the Supplier shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Products were ready for collection the Customer has not collected them, the Supplier may resell or otherwise dispose of part or all of the Products.
4.8 The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery and for a period of twelve (12) months from the date of delivery the Products will be free from material defects in design, materials and workmanship.
5.2 Products shall be deemed accepted if not properly rejected within ten (10) days after receipt by the Customer or, if earlier, onward supply by the Customer. Rejection of a Product shall be in accordance with the Returned Materials Authorisation (RMA) procedure of the Supplier. For any properly rejected Products the Supplier shall pay all charges for importation into the United Kingdom, if any, and the Customer shall pay all charges for the re-importation of such Products into any other country. For a Product that is received not working due to Product failure, the Supplier will either ship a replacement part or cover the cost of the return to the United Kingdom and return shipment of a replacement Produce to the Customer.
5.3 The following shall apply during the twelve (12) month period following delivery of the Product:
5.3.1 should the Product develop a fault, the Supplier will provide first line telephone support to confirm the fault is technical and not operator error;
5.3.2 if the Supplier is unable to resolve any Warranty problem remotely, the Product may be returned to the Supplier for repair or exchange, at the Supplier’s option. Any repair or exchange will be provided free of charge only if the fault is due to a material defect in design, materials and workmanship. If the fault is not due to any such material defect then the Supplier shall notify the Customer of the repair or replacement cost (as the case may be) and the Customer will place a purchase order with the Supplier for the repair or replacement (as the case may be) directly with the Supplier. The Customer will pay all transport, insurance, importation tax, duties and all other costs when sending Product to Supplier. The Supplier pays transport costs only when returning Product to the Customer. The Customer is responsible for importation, tax, duties and all other costs.
5.4 All Warranty repairs, as agreed to by the Supplier, will be performed by the Supplier to meet the same high standard of workmanship as the production process used in new product manufacture and test.
5.5 The Supplier’s Warranty excludes, (without limitation) the following:
5.5.1 SFP module and SFP cage;
5.5.2 accidental damage, including but not limited to, screens, connectors and control button;
5.5.3 damage caused by fire, flood or natural disaster;
5.5.4 damage caused by a third parties or by a third party product, unless under direct written instruction from the Supplier;
5.5.5 damage caused by incorrect voltage being applied to Product or use of an incorrect power adaptor;
5.5.6 product that has been repaired or modified by a non-Supplier approved agent, organisation or third party;
5.5.7 damage arising where the tamper-proof seals have been removed or damaged;
5.5.8 damage caused by misuse or inadequate storage facilities; or
5.5.9 fair wear and tear.
5.6 Except as provided in this clause 5 or clause 9.1, the Supplier shall have no liability to the Customer in respect of the failure of any Product to comply with the warranty referred to in clause 5.1.
5.7 Except as referred to in these Conditions, all warranties, conditions and other terms implied by statute, common law or custom and practice are, to the fullest extent permitted by law, excluded from the Contract.
5.8 The warranty referred to in clause 5.1 shall apply to any repaired or replacement Products supplied by the Supplier for the remainder of the warranty period or for three months from repair or replacement (whichever is the longer).
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on completion of delivery at the Supplier’s Premises.
6.2 Title to the Products shall not pass to the Customer until the Supplier has received payment in full and in cleared funds for the Products.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
6.3.1 hold the Products on a fiduciary basis as the Supplier’s bailee;
6.3.2 store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
6.3.4 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give the Supplier such information relating to the Products as the Supplier may require from time to time,
but the Customer may use or resell the Products in the ordinary course of its business.
6.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to or may happen and notifies the Customer accordingly, then the Customer’s right to possess, use and re sell the Products will cease, provided that the Products have not been resold and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
6.5 When the Products have been delivered to the Customer, the Supplier will be entitled to recover payment by way of an action for the price of the Products notwithstanding that title has not passed.
7. PRICE AND PAYMENT
7.1 The Price of the Products shall be the price set out in the Supplier’s written quotation current at the date of the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to fourteen (14) days before delivery, increase the Price of the Products to reflect any increase in the cost of the Products that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes, tariffs and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The Price of the Products is exclusive of the costs and charges of transport of the Products.
7.4 The Price of the Products is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Products.
7.5 The Supplier will request that the Customer pay for the Products prior to delivery if credit terms have not been approved. In such circumstances the Supplier will issue a pro-forma invoice to the Customer. The Customer will pay the pro-forma invoice amount prior to receipt of the VAT invoice. Upon receipt of payment the Supplier will issue the VAT invoice to the Customer in respect of the payment and confirm receipt of the payment.
7.6 If the Supplier does not issue a pro-forma invoice prior to delivery the Supplier will invoice the Customer for the Products on or at any time after the completion of delivery. The Customer shall pay such VAT invoice in full within thirty (30) days of the invoice date, or such other period of credit as the parties have agreed in writing. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (“due date”), then the Supplier may require the Customer to pay interest on the overdue amount at the rate of four percent (4%) per annum above HSBC PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
8. CUSTOMER’S INSOLVENCY OR INCAPACITY AND TERMINATION
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to or may become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order;
8.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, 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 and such attachment or process is not discharged within fourteen (14) days;
8.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the Customer;
8.2.7 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.8 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.8 (inclusive);
8.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
8.2.11 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
8.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Either party may terminate the Contract for material breach by the other party if such breach is not remedied within 90 days of written notice from the party not in breach requiring that breach to be remedied save that such period will be 30 days in the case of non-payment by the Customer.
8.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury resulting from its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Products Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any other matter which cannot be excluded or limited by law.
9.2 Subject to clause 9.1:
9.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of revenue, loss of business, depletion of goodwill, loss of anticipated savings, wasted management time, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Customer in respect of any event or series of connected events arising under or in connection with this Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed 105% of the Price of the Products or £20,000 (whichever is the greater).
9.3 The Supplier’s directors, officers and employees shall have the benefit of the exclusions and limitations of liability set out in clause 9.2.
10. 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 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, act of terrorism or threat of act of terrorism, riot, civil commotion, legal restriction, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, accident, embargo, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structure, fire, flood, storm, earthquake, loss at sea, epidemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and subcontracting.
11.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier which shall not be unreasonably withheld or delayed.
11.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered by hand, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it save as provided in clause 9.3.
11.6 Set Off. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.7 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by a Director of the Supplier.
11.8 Governing law and jurisdiction. 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 irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.