1. Contract
    1. This contract is made between Phoenix Flow Measurement, and the Customer as stated in the order from you (“you”). The terms of this contract will override terms that you may have sent or may send to us or any other written correspondence or verbal communication including any advice or recommendation made before we accept the order. Any typographical clerical or other errors or omissions in the catalogue, quotation, price list order or any other document may be changed without us incurring any liability.
  2. Description
    1. The description of the goods in any literature whether by photograph, written statement, diagram, illustration or other such means is only included for the purpose of demonstration and information and does not form part of the contract terms in any way whatsoever.
    2. We reserve the right to supply you with alternative goods if a supplier marginally alters the item or we change supplier to one that supplies items of a similar design to the same specification or description so that there is no material effect on the quality or performance.
  3. Orders
    • Subject to Clause 5.2 below, an order for goods will be accepted once it has been received in our offices, either in writing (including electronic receipt by email or fax) or verbally. We will not send any written confirmation of order but all orders are subject to these contract terms.
    • We will not accept the cancellation of an order unless the cancellation is made in writing and you agree to pay us in full for all our costs and losses resulting from such cancellation.
  4. Price of Goods
    1. All goods will be supplied at a price ex‐factory in pounds sterling as set on the date of dispatch. Payment will be in the currency stipulated by us at the time of the order or as subsequently varied by us to take account of exchange rate fluctuations. Value added tax (VAT) and postage and packing will be added at the rate current on that date.
    2. Prices are only provided as a guideline. We reserve the right to vary the prices at any time in particular but not limited to any increase in the cost to us which is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture).
    3. Subject to Clause 4.2, If we do provide you with a written quotation, then the prices quoted will be held for the time period written in the quotation or if no period is stated then the time period will be set at 30 days
  5. Payment Terms
    1. For deliveries within Mainland UK, we will issue you with an invoice on delivery of the goods. All invoices must be paid at the terms shown on each invoice. In addition to any other rights we may have under this contract, we reserve the right to charge interest on any sum overdue at a rate of 4% above the base rate of Bank of Scotland (or its equivalent) from the date the sum becomes due until the date we receive payment in cleared funds (such dates inclusive). The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
    2. Unless other arrangements are agreed at the time of the order, if you are making an order outside of the Mainland UK, then before we will accept the order and arrange delivery we will require you to either pay for the order in advance, or arrange for an irrevocable letter of credit through a reputable bank.
    3. In any event, if you fail to pay an invoice, then at our discretion we may cancel the order together with any future orders and/or suspend delivery immediately until we are in receipt of the outstanding moneys. We may also add to the outstanding invoice any additional costs (including but not limited to any legal costs) that we may have to incur as a result of your default.
    4. Cancellation following receipt of order where manufacturing has commenced will be subject to a charge of not less than 100% of the original order value. In addition, you agree to indemnify us against any additional costs associated with such cancellation.
    5. We will only issue a receipt if you request so in writing.
  6. Delivery
    1. We will use our reasonable endeavours to arrange delivery to the delivery address given on the order form. Delivery dates are only given as estimates and we will not be liable for any delay in delivery of the goods. You will not be entitled to cancel the order or refuse payment for late delivery.
    2. If we deliver the order in instalments, each delivery will be regarded as separate contract to be covered by the contract terms, and our failure to deliver one instalment will not give you the right to reject the whole order.
    3. If you do not allow us to deliver the goods, or you fail to give us an address adequate to allow delivery and without just cause (and provided this is not due to anything we have done or failed to do) then without jeopardising any other right that we may have under this contract, we will be allowed to:
      1. Store the goods until actual delivery and charge you additional storage costs provided that the costs are reasonable. We may also charge you for the cost of insurance; or
      2. After one month dispose of the goods, and charge you for any shortfall (or pass to you any excess payment).
    4. You must notify us of any shortfall in the delivery of your order within 5 working days of receipt of the order. Notification may be made by telephone if followed up in writing, or by fax.
  7. Risk and Title to the Goods
    1. Risk in the goods will pass to you either:
      1. On delivery to the delivery address on the order form;
      2. On delivery to an authorised third party that you have notified to us;
      3. When we attempt to make delivery but you wrongly fail to take delivery;
      4. If delivery is outside Mainland UK, on delivery ex‐factory into the hands of the party making the delivery on our behalf.
    2. Even though risk may have passed under Clause 7.1, the right of title in the goods will not transfer to you until we have received full payment in cash or cleared funds into our bank account. Goods remain the property of Phoenix Flow Measurement Ltd. until all relevant accounts are settled.
    3. Until we have received full payment you shall:
      1. Hold the goods on our behalf as bailee, and keep the goods separate from your own property and properly protected, insured and identified as our property;
      2. Allow us to enter your property or that of a third party where the goods are stored and take repossession of the goods on an all moneys due basis. This means that we do not have to show that the particular item was delivered by us at some point.
    4. Until full title has passed you will not be entitled to mortgage or charge the goods and if you do this then all the moneys that you owe us will become immediately due for payment.
  8. Warranties
    1. We warrant that (subject to the other provisions of these conditions) upon delivery and for a period of twelve months from the date of delivery the goods will be free from defects in material and workmanship.
    2. We shall not be liable for a breach of the warranty unless;
      1. you have given written notice of the defect to us within 5 working days of the time when you discover or (if the damage is as a result of damage in transit to the carrier) ought to have discovered the defect; and
      2. we are given a reasonable opportunity after receiving notice of examining such goods and you (if asked to do so by us) return such goods to our place of business for inspection at our cost (such cost to be reimbursed to us in the event that it is established that we are not in breach of warranty). In the event that any goods cannot reasonably be returned we reserve the right to submit a separate quote for on‐site attendance and repair, (provided that this will be reimbursed to you should the goods prove to be due to our defect).
    3. We shall not be liable for a breach of warranty if ;
      1. you use the goods after giving notice under 8.2.1;
      2. the defect arises because you failed to follow our oral or written instructions as to storage, installation, commissioning or maintenance of the goods or if there are none, good trade practice;
      3. you have altered or repaired the goods without our consent.
      4. You have not paid for the goods in full.
    4. Subject to 8.2 and 8.3 if any of the goods do not conform to the warranties we shall at our option either repair or replace any goods (or the defective part) that we have manufactured which you are able to establish are not working due to our defective workmanship or materials or refund the price of the goods at the contract rate provided that if we so request you shall return the defective part or parts to us. We reserve the right to choose which of the remedies of repair, replacement or refund are appropriate in the circumstances. Once the goods have been repaired or replaced or refunded we shall have no further liability in respect of the said defects.
    5. Any goods returned and replaced will become our property.
    6. Any goods that we sell to you that are manufactured by a third party are sold with only the manufacturers’ warranty (if any) and you will have to take up such issue with the manufacturer directly. We do not offer warranties or guarantees on these goods in any way whatsoever. Subject to the above we agree on our prior agreement to accept the return of any faulty third party goods so far as is reasonably practicable and solely for the purpose of forwarding to that
      third party and/or receiving any subsequently repaired goods on your behalf.
    7. Subject to clause 8.4 above, and clause 8.9 below, our entire liability in respect of any act or omission as specified above will be limited in respect of each such claim or series of claims to
      1. £500,000 in respect of physical damage to or loss of tangible property; and
      2. In the case of any other permitted claim under this Clause to the total fee payable under this contract.
    8. We offer no other warranties on the goods, that is to say we do not warrant that the goods are of satisfactory quality or that the goods are fit for a particular purpose or subject to a particular description or quality standard. We exclude to the fullest extent permitted by law all warranties conditions or other terms implied by statute or common law.
    9. Except in the event of death or personal injury caused by our negligence, we will not be liable to you in any way whatsoever (and this will include any losses as a result of failing to deliver under Clause 8.8), whether that be under contract, tort or otherwise, for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation (even if due to our negligence) that you may suffer as a result
      of the supply of the goods or their use or re‐sale.
    10. In any event we will not be liable for any breach of this contract if the breach is caused by an event beyond our reasonable control.
  9. Intellectual Property Rights and Confidentiality
    1. You will not use or deal with any of our brochures, catalogues, or price lists, in such a way as to infringe any intellectual property rights that we may have in such items. You will also not infringe such rights in any goods supplied by us whether they are manufactured by us or by a third party.
    2. If you have supplied us with any designs or information you will underwrite us in full against any infringement of any third party’s rights and any liability that we may incur as a result of such infringement. You warrant that you have the right to disclose to us any third party information.
    3. Other than specified in Clause 9.4 below, we are and will remain the absolute owner of all intellectual property rights in any work, which is made, conceived, created, developed, written, devised or acquired by us in the course of the provision of the goods under this contract. We will grant Client a non‐exclusive, non‐transferable and personal licence to use such intellectual property rights for the period of this contract or while the goods continues to be used (whichever period is longer).
    4. Each party will keep all details of this contract confidential. This will not apply if the details were known to that party before entering into the contract, were told by a third party who was not under an obligation of confidentiality, or where the details are required to be disclosed by law or statute.
  10. Export
    1. Where the goods are supplied for export from the United Kingdom, the provisions of this Clause 10 shall apply in addition to and, in case of conflict, to the exclusion of the other Clauses hereof
    2. We reserve the right not to supply certain customers or countries and to require full details of intended use and final destination of the goods.
    3. You shall be responsible for complying with any legislation or regulations governing the export of goods from the United Kingdom and importation of goods into the country of destination and for the payment of any duties taxes or other expenses in connection therewith.
    4. We shall be under no obligation to give Notice under Section 32 (3) of the Sale of Goods Act 1979.
    5. Unless otherwise agreed, payment is due on delivery. Goods shall be deemed to have been delivered when the invoice has been presented in the United Kingdom accompanied by appropriate documents of title.
    6. We reserve the right to charge VAT at the ruling rate until you provide proof of export of the goods from the United Kingdom.
    7. You shall be responsible for arranging for testing and inspection of the goods at our premises before shipment. We shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
    8. For full details on export orders please discuss with the order office at time of order.
  11. Termination
    1. In the event that a petition is presented or a meeting is convened for the purpose of either winding‐up your company, or a petition for an administration order is made or a receiver (including if an administration receiver) is appointed on your behalf, or a voluntary arrangement or a petition for bankruptcy is made against you, or any such similar action is taken against your company or business, then we will have the immediate right to cancel the contract or suspend performance of the contract and all moneys will become due for immediate payment.
    2. On termination of this contract for whatever reason
      1. we will be entitled to payment for any goods that we have properly provided or charges we have incurred in respect of the provision of those goods prior to the date of termination;
      2. we will immediately return all your records, or if you instruct otherwise we will arrange for their immediate destruction;
      3. you will immediately cease to use our intellectual property rights (if any) in any goods.
  12. Non-Poaching and Publicity
    1. You will not attempt to employ either directly or as consultants any of our employees or third party sub‐contractors to provide the same or similar services as provided by us under this contract for a period of six months after the date of the delivery of the goods without our prior written permission. We will be entitled to charge a fee equivalent to the fees charged under this contract by way of compensation.
    2. We will be allowed to refer to you in publicity after the completion of the contract.
  13. Notices
    • Notices to be given under this contract must be made in writing to the address written on the order form or such other address as you or we may notify to the other from time to time. Notices will be sent by recorded delivery, hand delivered or sent by facsimile transmission, provided that the original of the fax is then sent by post within 24 hours of the facsimile transmission having been sent.
  14. Disputes
    • If any dispute arises in connection with this agreement, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR. The mediation will start not later
      than 30 days after the date of the ADR notice. No party may commence any court proceedings OR arbitration in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
  15. General
    1. If either of us choose to waive or ignore a breach of the contract, then this will not prevent us from taking action in respect of the same type of breach at a future date.
    2. We will not be liable for any breach of the contract as a result of any circumstance beyond our reasonable control.
      We will notify you immediately if such a circumstance arises and work with you to alleviate the issue, but this will be the total extent of our liability under this contract.
    3. The contract will be governed by English Law and will come under the exclusive jurisdiction of the English Courts.
  16. Liability
    • Notwithstanding anything else herein under no circumstances will Seller be liable for any, indirect, punitive or consequential damages (including lost profits), whether arising in contract or tort, and under no circumstances shall Seller be liable for any amounts in excess of the total amounts actually received by Seller from Buyer.