Terms & Conditions
1.1 In these Conditions: 'BUYER' or 'YOU' or 'YOUR' means the person, persons or company engaged in a transaction with us or the person who accepts a quotation from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller. 'GOODS' means the Goods (including any instalment of the Goods or any parts for them) which the Seller is to supply in accordance with these Conditions. 'SELLER' or 'US' or 'OUR' or 'WE' means
Phoenix Vehicle Parts Ltd, ( registered number 6645849 ) whose registered office is at Unit A4, Enterprise Park, Brunel Drive, Newark, NG24 2DZ ENGLAND.
'CONDITIONS' means the standard Terms & Conditions of sale set out in this document and (unless the context otherwise requires) includes any special Terms & Conditions agreed in Writing between the Buyer and Seller. 'CONTRACT' means the Contract for the purchase and sale of the Goods. 'WRITING' or 'WRITTEN' includes cable, facsimile transmission and comparable means of communication. 'VERBAL' or 'ORAL' includes communication by mouth either directly or by other comparable means.
1.2 Any reference in the Conditions to any provisions of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any Written or Verbal quotation of the Seller which is accepted by the Buyer, or any Written or Verbal order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other Terms & Conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 These Terms & Conditions apply to any Contract of Sale or Purchase formed between the Seller and the Buyer to the exclusion of any different Terms & Conditions printed on or referred to in any documents issued by the Buyer. Any such different Terms & Conditions shall not apply to the Contract and shall be deemed not to constitute a counter-offer. Any supply of Goods to the Buyer shall be deemed to be subject to these Terms & Conditions.
3 Price of the Goods
3.1 The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller's published price list current at the date of acceptance of the order.
3.2 The Seller reserves the right at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller, (including but not limited to the cost of materials, labour, transport or other overheads, any tax, duty or variation in exchange rates) any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused in any way by the Buyer.
3.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in Writing between the Buyer and Seller, all prices are given by the Seller on an ex-works basis.
3.4 Any price quoted or published is exclusive of any applicable value added tax, unless stated otherwise which the Buyer shall be additionally liable to pay to the Seller.
3.5 While we try and ensure that all our prices are accurate, some prices may be incorrectly listed. If we discover an error in the price of the Goods you have ordered we will inform you as soon as possible and offer you the Goods at the correct price. We are under no obligation to provide Goods to you at an incorrect, lower price, even after we have acknowledged your order or despatched the Goods. If we cannot contact You, We will treat the order as cancelled. If payment has been made and you wish to cancel your order, you will receive a full refund of the price paid.
3.6 Where there is no error in our pricing as per clause 3.5 or otherwise, the prices that you pay for the Goods will be those ruling at the date of despatch of the Goods.
4 Terms of Payment
4.1 Subject to any special terms agreed in Writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongly fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
4.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) as per the Sellers terms of payment, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
4.3 If the Buyer fails to make payment on the due date, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
4.3.1 Cancel the Contract or suspend any further deliveries to the Buyer;
4.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
4.3.3 Reserve the right to proceed against the Buyer for the full balance of any outstanding debt.
4.4 The Buyer shall not be entitled to withhold payment of any amount due and payable to the Seller under this or any other Contract because of any dispute or claim by the Buyer in respect of faulty or damaged Goods or any other alleged breach of Contract nor shall the Buyer be entitled to set off against any amount payable under the Contract, any monies which are not then due and payable by the Seller or in respect of which the Seller disputes liability.
4.5 We reserve the right to charge a surcharge if You elect to pay Us by any form of either debit or credit card.
4.6 Without prejudice to any other rights that We may have if You fail to pay the invoice price by the due date We may charge You interest on any overdue amount from the date of which payment was due to that on which it is made (whether before or after judgment) on a daily basis in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. We also reserve the right to claim from You reimbursement for all costs and expenses (including legal costs) incurred in the collection of any overdue amount.
4.7 In the event of a cheque not being cleared by Our bank and being represented or returned to the drawer, We may charge a fee of £25.00 for each cheque so returned to cover bank charges and administration costs.
5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collections or, if some other place for delivery is agreed by the Seller, by the Seller delivering Goods to that place.
5.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
5.3 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and if the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.
5.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may sell the Goods at the best price readily obtainable.
5.5 The quantity of any consignment of Goods as recorded by Us upon despatch from Our place of business or that of one of Our suppliers will be conclusive evidence of the quantity received by You on delivery unless You can provide conclusive evidence proving the contrary.
5.6 We will not be liable for any non-delivery of Goods (even if caused by Our negligence) unless We receive notice in Writing to Us within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.6.1 Our liability for non-delivery of the Goods will be limited to, at Our discretion, replacing the Goods within a reasonable time, issuing a credit note at the pro-rata Contract rate against any invoice raised for such Goods or a refund of the purchase price paid.
5.6.2 Any claim that any Goods have been delivered damaged or do not materially comply with their description will be notified by the Buyer to the Seller and (where appropriate to the carrier)within 3 days of their delivery.
5.7 This Contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate Contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.
6.1 Not with standing any other provision of these Conditions, the risk in the Goods shall pass from the Seller to the Buyer upon delivery of such Goods to the Buyer. However, notwithstanding delivery and the passing of risk in the Goods, title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for all of the Goods delivered and all other Goods agreed to be sold by the Seller to the Buyer for which full payment of the full price of the Goods there under has not been paid.
6.2 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and Bailer, and shall use their best endeavours to keep the Goods separate from those of the Buyer and third parties and property stored, protected stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
6.3 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and re-possess the Goods.
6.4 The Buyer shall not be entitled to pledge or in any charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7 Warranties and Liabilities
7.1 Each of the Goods are supplied with the benefit of a warranty given by the Goods’ manufacturers (details of which will be provided to You on request) provided that You comply with the Conditions set out in clause 7.2 as well as any provided with the Warranty.
7.2 If Goods become faulty during the period of the Warranty for reasons unconnected with Your acts, omissions or misuse of the Goods, You must notify Us in Writing and/or by completing a warranty claim form (including a description of the fault) and return such Goods to Us. Such Goods shall be returned to the manufacturer for review and testing. Based on the manufacturers’ opinion and further subject to clause 7.2.3 and 7.3, We will replace such Goods with the same or superior Goods, without charge or raise a credit note. The manufacturer’s opinion shall be final and binding and We shall have no further liability to You. If Goods become faulty after expiry of the Warranty, and You request that We replace or repair such Goods, then We shall charge Our then standard list price for such repair or replacement.
7.2.1 Your sole remedy in respect of a failure of the Goods is to comply with the Warranty as set out in the Warranty Conditions.
7.2.2 We must be afforded reasonable opportunity and facilities to investigate any claims made under the Warranty and You will if so requested in Writing by Us promptly return any Goods the subject of any claim and any packing materials securely packed and carriage paid to Us for examination.
7.2.3 We will have no liability with regard to any claim in respect of which You have not complied with the claims procedures in the Warranty Conditions.
7.3 The above warranty is given by Us subject to Us having no liability:
7.3.1 In respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working Conditions, failure to follow the Seller's instructions (whether Oral or in Writing), misuse or alter or repair of the Goods without the Seller's approval;
7.3.2 If the total price for the Goods has not been paid by the due date for payment.
7.4 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, Conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.5 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
7.6 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within a reasonable time after the notification of the defect to the Buyer. If a defect is discovered by the Buyer but delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
7.7 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price).
7.8 Except in respect of death or personal injury caused by the Seller's negligence, and except in the case of warranties in individual cases on which the Seller may accept liability, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
7.9 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
7.9.1 Act of God, explosion, flood, tempest, fire or accident;
7.9.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
7.9.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority;
7.9.4 Import or export regulations or embargoes;
7.9.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
7.9.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
7.9.7 Power failure or breakdown in machinery.
8 Insolvency of Buyer
8.1 This clause applies if:
8.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
8.1.2 An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
8.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
8.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
9.1 The Buyer warrants and confirms that the signatory to the Contract has the necessary authority to bind the Buyer and the Contract remains fully enforceable in the event of that warranty being breached.
10 Data Protection Act 1998
10.1 We may monitor and/or record any phone calls You may have with Us, for training and/or security purposes.
10.2 Personal Data as defined in the Data Protection Act or any amendment or re-enactment thereof in respect of a Buyer which is obtained in the course of any Contract to which these Terms & Conditions relate, will be held on Our computer system, and may be used by Us for the purposes of assessing the level of credit which should be extended to the Buyer. The information may also be used for the future marketing of related products and services, unless the subject of the personal data gives the Seller notice in Writing to the contrary.
10.3 We may transfer information about You to Our financiers, who:
10.3.1 May use, analyse and assess information about You, including the nature of Your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with Us;
10.3.2 From time to time, may make searches of Your record at credit reference agencies where Your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
10.3.3 May give information about You and Your indebtedness to the following:
(i) Our or their insurers for underwriting and claims purposes;
(ii) any guarantor or indemnifier of Your or Our obligations to enable them assess such obligations;
(iii) their bankers or any advisers acting on their behalf;
(iv) any business to whom Your indebtedness or Our arrangements with Our financiers may be transferred – to facilitate such transfer;
10.3.4 May monitor and/or record any phone calls You may have with them, for training and/or security purposes;
10.3.5 In the event that they transfer all or any of their rights and obligations under their agreement with Us to a third party, may transfer information about You to enable the third party to enforce their rights or comply with the obligations.
10.4 We will provide You with details of Our financiers on request, including a contact telephone number if You want to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about You. You also have a right to receive a copy of certain information they hold about You if You apply to them in Writing. However a fee will be payable.
10.5 Personal Data will be used only for the purposes stated, and information held will not be disclosed to any other third party saves where permitted by law, or to protect against fraud, or after obtaining your consent.
10.6 Our use of Personal data is covered by Phoenix Vehicle Parts Limited registration under the Data Protection Act, and a Buyer may obtain copies of the Personal Data held by Phoenix Vehicle Parts Limited upon payment of the prescribed fee.
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.4 The Contract shall be governed by and construed in accordance with English Law and each party agrees to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising under the Contract.