Terms & Conditions of Sale
Locomotives and rolling stock are generally made to order. We will provide an estimated delivery schedule, however, many factors can affect the building schedule and adjustments to the schedule may be necessary, if this is the case then we will keep you informed.
VALUE ADDED TAX
All prices quoted by us are inclusive of VAT at the prevailing rate.
TERMS OF PAYMENT
1. Prices quoted at the date of order are fixed for the quoted delivery period.
2. Orders for locomotives and rolling stock to be manufactured in accordance with agreed specifications are normally accepted on the basis of an initial deposit of 50% of the quoted price with the balance payable upon notification that the product is ready for delivery.
3. Orders for new or second-hand goods available from stock are accepted on the basis of 100% payment of the quoted price with order.
4. Orders for supplementary work and delivery charges (where applicable) are payable in full on completion.
5. Alternative payment terms for new locomotives and rolling stock are negotiable, subject to any increase or decrease in the quoted price at the sole discretion of Phoenix Locomotives Ltd.
6. In the event of order cancellations 25% of the total sale price is non-refundable. Any additional refunds of deposits, part payments or full payments, are made at the sole discretion of Phoenix Locomotives Ltd and are subject to the saleability of the work in hand and any costs of modification for resale.
7. When locomotive kits are supplied in instalments and with staged payments, the full payment must be made within 12 months from the collection date of the first instalment. The seller reserves the right to increase the price in line with the current pricing structure of any parts or instalments taken after 12 months.
CONDITIONS OF BUSINESS
In these conditions the "Seller" means Phoenix Locomotives Ltd. 1 Colchester Road, Southport PR8 6XJ (the "Premises") and the "Buyer" means any person placing an order with the Seller for the purchase of goods or the supply of services in relation to goods as specified ("Goods"). In relation to the provision of services, references to Goods shall be construed as references to the provision of the services, the materials used to perform them and the provision of the finished item or work.
1.2 English Law
The Contract (as defined below) shall in all respects be governed by English Law. The Buyer and the Seller irrevocably submit to the non-exclusive jurisdiction of the English Courts.
1.3 Construction and Interpretation
The construction of the Contract is not affected by any heading and reference to the plural shall include the singular and vice versa. Reference to one gender shall include reference to all genders.
Any variation to the Contract shall only be binding if it is recorded in a document signed by a director of the Seller.
Notices may be given to either party by being sent to the party's address set out overleaf by letter where appropriate. Any such notice posted shall be deemed to have been received 48 hours after posting.
Failure by the Seller to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
1.7 Any express or implied waiver by the Seller of any provisions of the Contract or of any breach or default by the Buyer may be terminated by the Seller at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the Seller from acting upon that provision or any subsequent breach or default or from enforcing any provision of the Contract.
1.8 Force Majeure
The Seller shall not be liable in any way for loss, damage or delay arising as a result of any event or circumstances beyond its reasonable control.
The Buyer shall indemnify the Seller against all reasonable fees, costs and other expenses (including without limitation all legal costs) incurred by the Seller in enforcing the Contract or any of its provisions.
1.10 The Buyer shall indemnify the Seller against any loss it may suffer or liability it may incur in consequence of a claim brought by a third party arising out of the Buyer's use or possession of the Goods, except where such claim is brought as a result of the Seller's negligence.
1.11 Compliance with Legislation
Save as is expressly provided in the Contract it is the Buyer 's obligation to acquaint himself and to comply with all applicable requirements and restrictions imposed by governmental and other authorities or corporations and to obtain all necessary consents, approvals and licences relating to the possession or use of the Goods.
1.12 Supremacy of this Contract
If there is any conflict between the terms of this Contract any other agreement between the Buyer and Seller whether oral or written the terms of this Contract shall prevail.
Should any provision of this Contract become illegal or void for any reason:
(a) The validity of the remaining provisions shall not be affected; and
(b) The parties shall enter into negotiations in good faith to find a replacement for the provision which is of similar economic effect.
1.14 Assignment and Transfer
This Contract shall not be assigned in whole or in part by the Buyer and any such purported assignment shall be void. The Buyer may not transfer, delegate or sub-contract any of its duties or obligations without the prior written consent of the Seller.
2.1 The Seller agrees to sell or supply the Goods to the Buyer on these Conditions.
2.2 All orders accepted, and all Goods supplied, by the Seller are subject to these Conditions and to none other unless expressly accepted in writing and signed by a director of the Seller. The Contract comprised by these Conditions and the particulars shown shall comprise the entire Contract between the Seller and the Buyer ("the Contract"). Any other terms, conditions or provisions proposed by the Buyer orally or in writing shall be of no effect, and shall not form any part of the Contract.
2.3 Only a director is authorised to make any written representation on behalf of the Seller in respect of any matter to which the Contract relates. No other representation shall impose any obligation upon the Seller whether in respect of negligence or otherwise. Any representation made by or on behalf of the Seller prior to the date hereof unless specified on this page is hereby expressly withdrawn.
(a) A contract under which the Company shall supply Goods to the Buyer shall only come into existence once the Company has received the Buyer's order and until acceptance the Company shall be under no obligation to the Buyer.
(b) Acceptance will be made when the order of the Buyer is received within the time specified in the Seller's quotation or, if none is specified, within 30 days of the date of the quotation and the order is acknowledged by the Seller in writing.
(c) Once the order has been accepted, the Buyer shall have no right to cancel that order.
2.5 A quotation is subject to alteration without notice.
2.6 The Buyer shall, upon acceptance of his order and as subsequently required by the Seller, provide the Seller with such information as it may require to fulfil the Contract
3. THE PRICE
3.1 Upon receipt of the order with a minimum of 50% of the sale price as deposit, the price will be fixed for the goods as specified in the order.
3.2 The Seller shall, in any event, have the right to increase the Price to reflect any increase in the Seller's costs arising after the date of quotation or acceptance of the Buyer's order as a result of:
(a) any alteration in or in addition to the Buyer's requirements;
(b) the Buyer's instructions or lack of instructions;
(c) any increase in any tax, duty or levy (including without limitation VAT) imposed on goods or services, and any fluctuation in the foreign exchange rate.
3.3 In addition to the Price the Buyer shall pay any applicable VAT or other tax, duty or levy which may be chargeable in connection with the supply of the Goods.
3.4 Unless otherwise specified on this page the Price is ex-works (as defined in Incoterms 1990 edition) the Premises and excludes any charge for carriage, packing or insurance.
(a) Upon acceptance of the Buyer's Order, and at other times during the performance of the Contract, the Seller may request the Buyer to pay one or more deposits ("Deposit(s)") unless the Buyer pays the full Price within 30 days of notice of acceptance of the offer under clause 2.5 above. A Deposit shall comprise such part of the Price as the Seller shall determine, and the Seller shall invoice the Buyer for each Deposit.
(b) The Seller shall not be obliged to proceed with the Contract until such Deposits as it has requested have been paid to it in full. The Seller shall have the right not to proceed with the Contract without further notice if at any time any such Deposit has not been paid in full by the due date. All sums paid in advance by the Buyer to the Seller shall be treated as a deposit and not as a part payment.
(c) The Seller shall be entitled to recover any loss it may incur over and above any Deposit paid hereunder in consequence of any breach of the Contract by the Buyer, whether or not the Contract is terminated in consequence of such breach.
4.2 The Buyer shall make payment in full of any interim or final invoice for the Goods or a Deposit within 30 days of the date of invoice. If payment of any invoice is not made in full by the due date, interest shall thereafter be payable until payment at a rate of 2% above the base rate (from time to time) of Lloyds Bank plc com-pounded monthly after as well as before judgement.
4.3 Payment shall be made in pounds sterling, or in such other currency to which the Seller agrees in writing.
5. DELIVERY AND RISK
5.1 Delivery shall be made at the Premises and risk shall pass when the Goods are handed to the Buyer or its nominee at the Premises. The Seller will notify the Buyer when the Goods are ready for collection and the Buyer or its nominee shall collect the Goods within 30 working days of such notice.
5.2 The Buyer agrees to pay all reasonable charges for storage, transport and insurance occasioned by its failure to take delivery.
5.3 Any date(s) given or agreed for delivery shall be estimates only although the Seller shall endeavour to deliver the Goods at the Premises by such date(s). Time shall not be of the essence in relation to delivery.
6.1 The Goods shall remain the property and in absolute ownership of the Seller until the Buyer has paid in full all amounts owed by the Buyer to the Seller (including VAT) in respect of the Goods.
6.2 Without prejudice to the generality of paragraph 6.1, unless and until payment is made:
(a) the Buyer shall hold the Goods as the Seller 's fiduciary agent; and
(b) the Seller may at any time request the return of the Goods (or any of them which have not been paid for) which are in the possession or control of the Buyer;
(c) the Buyer shall keep and store the Goods separately and in such a manner as to enable them to be identified as the Seller's property; and
(d) the Buyer shall keep the Goods in good condition and shall maintain full insurance in respect thereof on the Seller's behalf in an amount which is not less than the Price, and the proceeds of such insurance shall be held on trust for the Seller; and
(e) the Seller may repossess the Goods at any time and for this purpose the Buyer hereby grants to the Seller an irrevocable licence to enter upon any of the Buyer's premises and to remove the Goods. All costs incurred by the Seller in repossessing the Goods shall be borne by the Buyer.
6.3 Notwithstanding any repossession of the Goods, the Buyer shall remain liable to pay the Price.
7. GUARANTEE & LIMITATION OF LIABILITY
7.1 If the Contract is for the sale of Goods (other than Goods referred to in 7.2 below), then the Seller undertakes to repair (or at its option to replace or refund the price of) such Goods at no charge to the Buyer where they are proved to the Seller's reasonable satisfaction to be faulty or defective within 12 months from the collection date by reason of faulty materials or workmanship used in their manufacture.
7.2 Any liability of the Seller under 7.1 and above is subject to strict compliance by the Buyer with the following:
(a) the Buyer must inform the Seller promptly in writing on discovery of the alleged defect and promptly return the affected Goods, carriage paid, with a full written report on the defect unless the Seller agrees to inspect in situ;
(b) the Goods must have been stored, maintained and (where applicable) used with reasonable care and in accordance with the Seller's recommendations.
(c) The Goods must not have been altered or tampered with, or repaired other than by the Seller.
7.3 Where a Buyer is dealing as a "consumer" (within the meaning of that term as defined in the Unfair Contract Terms Act 1977) his statutory rights shall not be affected by the provisions of this Contract.
7.4 To the extent permitted by law, the Seller shall not be liable to the Buyer for any loss, expense or damage of any kind whether direct, indirect, financial or consequential and whether arising from negligence or otherwise and whether in respect of the supply of the Goods, or from any act or omission of the Seller.
8. DETERMINATION OF CONTRACT
The Seller shall have the right to terminate the Contract forthwith without prejudice to its accrued rights and to invoice the Buyer for the cost of work and materials then incurred if:
(a) the Buyer defaults in the payment on its due date of any sum under or pursuant to any transaction under the Contract or commits any continuing or serious breach of any provision of the Contract and fails to remedy such breach (if remediable) within 10 working days of the Seller's notice to do so delivered to the Buyer's address (as specified on this page); or
(b) the Seller should learn or believe upon reasonable grounds that any of the following events has occurred or is likely to occur:
(i) the Buyer, being an individual, commits an act of bankruptcy or a petition of bankruptcy is filed against him; or
(ii) distress or execution is levied against any of the Buyer 's assets and is not paid or discharged within seven days; or a judgement against the Buyer remains unsatisfied for more than seven days; or a receiver is appointed with respect to any of the Buyer's assets; or
(iii) a petition is presented for the winding up of or for an administration order to be made in relation to the Buyer; or a resolution passed for the Buyer's winding up (other than a members' voluntary winding up for the purposes of amalgamation or reconstruction on terms approved in writing by the Company); or
(iv) the Buyer suspends or threatens to suspend payment of its debts or is deemed unable to pay its debts for the purposes of section 123 Insolvency Act 1986; or ceases or threatens to cease to carry on its business or any material part as a going concern; or as a result of any change in the powers, business or circumstances of the Buyer it is unlikely to be in a position to fulfil the Agreement or any transaction pursuant thereto; or
(v) any event in a foreign jurisdiction analogous to, or comparable with, (i) to (v) above; or
(vi) the Buyer refuses or is unable to meet sums due to the Seller when they fall due; or
(vii) the Buyer ceases to be in a position to fulfil the Contract.