1. Interpretation 1
2. Basis of contract 2
3. Products 2
4. Delivery 3
5. Quality 5
6. Title and risk 7
7. Price and payment 8
8. Termination and suspension 9
9. Limitation of liability 11
10. Force majeure 11
11. General 12
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 in England when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.5.
Contract: the contract between Phion and the Customer for the sale and purchase of the Products in accordance with these Conditions.
Customer: the person or firm who purchases the Products from Phion.
Force Majeure Event: has the meaning given in clause 10.
Products: the products (or any part of them) set out in the Order.
Order: the order by the Customer for the Products.
Phion: Phion Ltd (registered in England and Wales with company number 09235672).
Specification: any specification for the Products that is agreed by the Customer and Phion.
2. BASIS OF CONTRACT
2.1 These Conditions apply to all sales and/or proposed sales of Products by Phion to any Customer 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. Orders may be placed via the telephone, fax, mail or web site. All Orders must clearly indicate the Customer’s telephone number, fax number, complete billing and shipping addresses, catalogue numbers, product names, quantity ordered and price.
2.3 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Phion which is not set out in the Contract.
2.5 A quotation for the Products given by Phion shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The physical properties and other data displayed by Phion on its website(s) or catalogue(s) are obtained from our own data and from literature references. Phion assumes no responsibility for the accuracy or completeness of such data. The Customer agrees that he has the responsibility to fully determine the accuracy and completeness of any technical and safety data concerning any Products or use.
3.2 Phion reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
3.3 Phion’s products are supplied to the Customer for research or laboratory use only and are not to be administered to humans as food or pharmaceuticals. The Customer is entirely responsible for ensuring that the Products supplied are fit for the Customer’s application or intended use.
3.4 The Customer acknowledges that Phion has not tested the Products for safety and efficacy in food, drug or medical devices. The Customer expressly represents and warrants to Phion that the Customer will properly test, use, manufacture and market any Products purchased from Phion and/or materials produced with Products purchased from Phion. The Customer is responsible for verifying the hazards and conducting any further research necessary to learn the hazards involved in using Products purchased from Phion. The Customer also has the duty to warn the Customer’s customers and any support personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. The Customer agrees to comply with instructions, if any, provided by Phion relating to the use of the Products and not misuse the Products in any manner. If the Products purchased from Phion are to be repackaged, relabelled or used as starting material or components of other products, the Customer will verify Phion’s assay of the products.
4.1 Phion shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Phion notifies the Customer that the Products are ready.
4.2 Delivery of the Products shall be completed on the arrival of the Products at the Delivery Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Phion shall use all reasonable efforts to meet a quoted delivery date but shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the failure of the Customer to provide Phion with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.4 If Phion fails to deliver the Products, its liability shall 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. Phion shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the failure of the Customer to provide Phion with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5 If 10 Business Days after the day on which Phion notified the Customer that the Products were ready for delivery the Customer has not taken delivery of them, Phion may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.6 The Customer shall not be entitled to reject the Products if Phion delivers up to and including 5% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Products was delivered.
4.7 Phion may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 If Phion is concerned as to the financial ability of the Customer to pay in full at the due date, the purchase price of the Products, Phion may, without notice to the Customer, delay or postpone the delivery of the Products; and Phion is authorised to change the terms of payment to payment in full or in part in advance of delivery of the entire undelivered balance of said Products. In the event of default by the Customer in the payment of the purchase price or otherwise, of this or any other Order, Phion may defer delivery, cancel this Contract, or sell any undelivered Products on hand for the account of the Customer and apply such proceeds as a credit without set-off or deduction of any kind, against the contract purchase price, and the Customer agrees to pay the balance then due to Phion on demand. The Customer agrees to pay all costs, including, but not limited to reasonable legal and financial fees and other expenses of collection resulting from any default by the Customer in any of the terms hereof.
5.1 Phion warrants that on delivery the Products shall conform in all material respects with their description.
5.2 The Customer is obliged to check the Products immediately upon receipt. Subject to clause 5.4, if:
(a) the Customer gives notice in writing to Phion within 7 days of receipt of the Products that some or all of the Products do not comply with the warranty set out in clause 5.1;
(b) Phion is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by Phion) returns such Products to the place of business of Phion at the cost of the Customer,
Phion shall, at its option replace the defective Products, or refund the price of the defective Products in full.
5.3 Phion shall not be liable under the warranty set out in clause 5.1 in the event that Phion determines that the Customer has misused the Products in any manner, has failed to use or store the Products in accordance with industrial standards and practices, has failed to use or store the Products in accordance with instructions, if any, furnished by Phion, has made any further use of such Products after giving notice in accordance with clause 5.2 or if the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Phion shall have no liability to the Customer in respect of the failure of the Products to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any replacement Products supplied by Phion.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on completion of delivery or if the Customer or agent fails to take delivery of the Products then at the time when Phion has tendered delivery of the Products.
6.2 Title to the Products shall not pass to the Customer until the earlier of:
(a) Phion receives payment in full (in cash or cleared funds) for the Products and any other Products that Phion has supplied to the Customer, in which case title to the Products shall pass at the time of payment of all such sums; and
(b) The Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the property of Phion;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Phion immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give Phion such information relating to the Products as Phion may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Phion receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the agent of Phion; and
(b) title to the Products shall pass from Phion to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2 then, without limiting any other right or remedy Phion may have:
(a) the right to resell the Products by the Customer or use them in the ordinary course of its business ceases immediately; and
(b) Phion may at any time:
(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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.
7. PRICE AND PAYMENT
7.1 The price of the Products shall be the price confirmed by official quotation set out in the Order.
7.2 Phion may, by giving notice to the Customer at any time up to 2 Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond the control of Phion (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Phion adequate or accurate information or instructions.
7.3 The price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
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 Phion, pay to Phion such additional amounts in respect of VAT as are chargeable on the supply of the Products.
7.5 The Customer shall pay the invoice in full and in cleared funds within 30 days from the date of the invoice. Payment shall be made to the bank account nominated in writing by Phion. Time of payment is of the essence.
7.6 If the Customer fails to make payment to Phion within 30 days from the date of the invoice, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of Barclays Bank PLC from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Phion 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 Phion to the Customer.
8. TERMINATION AND SUSPENSION
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, Phion may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) 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 or limited liability partnership) 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 its 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;
(b) 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;
(c) (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;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) 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 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) the holder of a qualifying charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(i) 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(a) to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the financial position of the Customer deteriorates to such an extent that in the opinion of Phion the capability of the Customer to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (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 Without limiting its other rights or remedies, Phion may suspend provision of the Products under the Contract or any other contract between the Customer and Phion if the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(i), or Phion reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to Phion all of the outstanding unpaid invoices and interest of Phion.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 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 liability of Phion for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for Phion to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) Phion shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the total liability of Phion to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Products.
10. FORCE MAJEURE
Phion shall not be liable for any delay or failure in performing its obligations under the Contract in the event that the manufacture, supply or the delivery of the Products is prevented or delayed by a Force Majeure Event. A Force Majeure Event means any event beyond Phion’s reasonable control, including but not limited to an Act of God, water, fire, drought, legislation, failure of power supply, blackout, strike and shortage or failure of supply preventing performance of the contract
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 personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier, fax or email.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
10.3 Waiver. A waiver of any right or remedy under the Contract or law 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.4 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.5 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Phion.
10.6 Governing law. 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 the law of England and Wales.
10.7 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).