1.2. Definitions. In these Conditions, the following definitions apply:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions” the terms and conditions as set out in this document.
“Contract” the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” the person or firm who purchases the Goods from the Supplier.
“Goods” the goods (or any part of them) set out in the Order.
“Grade” the grade of the Goods as set out in the Supplier’s literature, a copy of which is available on request.
“Pro Forma Invoice” the proforma invoice issued by the Supplier to the Customer outlining the price payable and Grade of the Goods.
“Order” the Customer’s order for the Goods, as set out in the Customer’s account form.
“Supplier” Phoenix Cellular (registered in England and Wales with company number 09697970).
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 Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order submitted by the Customer is accurate.
2.3. The Order shall only be deemed to be accepted when the Supplier issues a Pro Forma Invoice, at which point the Contract shall come into existence.
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 the Supplier which is not set out in the Contract.
2.5. This Contract may not be cancelled by the Customer except with the agreement in writing of the Supplier on terms that the Customer shall indemnify the Supplier against all costs, expenses and liabilities incurred by the Supplier in relation to the Contract prior to its cancellation.
3.1. The Goods are as described in the Pro Forma Invoice supplied by the Supplier.
3.2. The Supplier allocates a Grade to the Goods using reasonable care and skill.
4.1. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.2. Delivery of the Goods shall be completed:
4.2.1. on the Goods’ arrival at the Delivery Location; or
4.2.2. if to be collected by the Customer or a courier (on behalf of a Customer) the collection of the Goods from the Delivery Location by that party.
4.3. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
4.4. The Supplier shall not be liable for any delay in delivery of the Goods.
5. Quality and Returns
5.1. It is the Customer’s responsibility to inspect the Goods to ensure that the Goods are as described in the Pro Forma Invoice.
5.2. Following the inspection in clause 5.1, if in the Customer’s opinion the Goods do not comply with the Grade, the Customer shall inform the Supplier and shall return the Goods to the Supplier within 14 days from delivery. The Customer agrees to return such Goods to the Supplier’s place of business at the Customer’s cost.
5.3. The Supplier will not accept return of Goods received later than 14 days from delivery for any reason whatsoever.
5.4. The Supplier does not carry out any testing on the battery or for any water damage of the Goods nor is any warranty provided in this regard.
5.5. The Supplier purchases used phones from strategic suppliers where the Goods often come from consumers trade in programs and as such the Supplier can not nor does not provide any warranty or guarantee as to the authenticity of the parts of any Goods supplied.
5.6. On receipt of any Goods returned, the Supplier shall test the Goods and the following shall apply:
5.6.1. in the event that the Supplier agrees, in its sole opinion (acting reasonably) that the Goods do not comply with the Grade, the Supplier will at its discretion repair or replace the defective Goods, or refund the price of the defective Goods in full; or
5.6.2. in the event that the Supplier does not agree, in its sole opinion (acting reasonably) that the Goods do not comply with the Grade, it will notify the Customer of the decision and return the Goods to the Customer
5.7. The Supplier shall not be liable for Goods’ returned under clause 5.2 in any of the following events:
5.7.1. the Goods arrived at the Supplier’s place of business later than 14 days from the initial delivery date;
5.7.2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.7.3. the Supplier, acting reasonably, believes the Customer has altered, repaired on in any way tampered with the goods without the written consent of the Supplier; or
5.7.4. the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions.
5.8. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.9. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1. The risk in the Goods shall pass to the Customer on delivery.
6.2. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
6.3.4. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7. Price and payment
7.1. The price of the Goods shall be the price set out in the Order.
7.2. The price of the Goods is exclusive of the costs, tariffs and charges of packaging, insurance, export and transport of the Goods, which shall be invoiced to the Customer.
7.3. The price of the Goods is exclusive of amounts in respect of value added tax (VAT) other than those Goods to which the marginal rate of VAT is applicable, which shall be deemed to have been included in the price. 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 Goods.
7.4. The Supplier may invoice the Customer for the Goods on or at any time before the completion of delivery.
7.5. Time of payment is of the essence.
7.6. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate 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.
8. Limitation of liability
8.1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
8.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.1.2. fraud or fraudulent misrepresentation;
8.1.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
8.1.4. defective products under the Consumer Protection Act 1987; or
8.1.5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2. Subject to clause 8.1:
8.2.1. the Supplier 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
8.2.2. the Supplier’s total liability 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 the price actually received by the Supplier in respect of the Goods.
9.1. The Customer may not assign any of its rights or obligations under the Contract without the prior written consent of the Supplier.
9.2. A notice given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business.
9.3. No waiver by the Supplier of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provisions.
9.4. If any provision of the Contract is held by a court or other competent authority or tribunal to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
9.5. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and each party agrees to be subject to the non-exclusive jurisdiction of the courts of England and Wales.
9.6. For the purposes of the Contracts (Rights of Third Parties) Act 1999, the Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.