1. General
1.1 All orders for products ("Products") will be accepted by FENIX TEK SRL ("Fenix Tek") subject to these terms and conditions of sale. Any person who places orders for Products or Services with Fenix Tek ("Customer") is bound by these terms and conditions. No other terms will apply to the supply of Products by Fenix Tek unless agreed in writing by an authorised signatory of Fenix Tek. Fenix Tek reserves the right to amend these terms and conditions at any time. The most current version of these terms and conditions can be found at www.fenixconnectors.com. References to the "Fenix Connectors website" include Fenix Connectors's website and any other catalogue of products published by Fenix Tek in any medium.
1.2 All descriptions of the Products contained on the Fenix Connectors website or otherwise communicated to the Customer are approximate only and shall not form any part of the contract between Fenix Tek and the Customer. Fenix Tek shall not be liable to the Customer for any errors or omissions on its website, the Fenix Tek catalogue or other product advertisement. The advertising of products on the Fenix Tek website is not an offer capable of acceptance; it merely constitutes an invitation by Fenix Tek for the Customer to make an offer to purchase Products. Fenix Tek ' acceptance of the Customer's order will take place when Fenix Tek confirms pricing and delivery dates to the Customer in writing, at which point a contract will come into existence between Fenix Tek and the Customer.
1.3 Fenix Tek is a business-to-business supplier. The Fenix Connectors website is intended for use by business customers and not by private individuals acting as consumers (“Consumers”). Notwithstanding the foregoing, nothing in these terms and conditions of sale shall affect the statutory rights of a Customer who deals as a consumer.
1.4 The Customer’s particular attention is required for clause 11, which sets out certain limitations of Fenix Tek’ liability.
2. Prices and GST
2.1 The prices of the Products are as set out on the Fenix Connectors website. Fenix Tek reserves the right to change prices without prior notice at any time. Customer is informed that prices and products in the printed hard copy catalogue are subject to change. Up-to-date information can be found on the Fenix Connectors website. In the event of any conflict between prices for any products listed on the Fenix Connectors website and prices listed in the physical catalogue, prices listed on the Fenix Connectors website shall prevail.
2.2 The price of an ordered Product will be as set out on the Fenix Connectors website at the time of order acceptance by Fenix Tek, except for products ordered for delivery at a future specified date (“forward orders”). The price for forward orders may be varied by Fenix Tek after the date of order acceptance by written notice to the Customer.
2.3 All prices exclude GST, which Fenix Tek will add at the rate applicable at the date of order acceptance. If GST applies to any supply the Customer must pay an additional amount equal to the amount of GST. Fenix Tek will provide a GST-compliant tax invoice within 28 days of a request. "GST" means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
3. Ordering
3.1 Fenix Tek reserves the right to decline to trade with any company or person. Fenix Tek may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Fenix Tek. Further, Fenix Tek may cancel orders which have been accepted by giving written notice of such cancellation to the Customer by telephone, email or facsimile within a reasonable period of receipt of the order by Fenix Tek. If Fenix Tek rejects or cancels an order for which payment has been taken, it will refund the amount to the Customer as soon as reasonably practicable.
3.2 Fenix Tek executes orders to the Customer's requirements, but may provide substitute products where requested by the Customer, or where the product has been superseded by the latest version. To the extent that orders cannot be fulfilled completely from stock, the unfulfilled balance will (at the Customer's option) either be put on back order to be fulfilled when Fenix Tek next has available stock or be cancelled and refunded to the Customer.
3.3 The Customer must submit orders using the Fenix Tek stock numbers and the priced units used on the Fenix Connectors website or in the Fenix Tek hard copy catalogue, and must specify which delivery option is required. Any telephone, fax or internet confirmation of a previous order by the Customer must be marked 'CONFIRMATION ONLY' or otherwise clearly identified as a confirmation to avoid duplication. If the Customer orders the wrong product or number of products, or duplicates orders, the provisions of clause 12 (Cancellation and Returns) will apply.
4. Delivery
4.1 Subject to any cancellation, substitution or non-fulfilment of Customer's orders in accordance with clause 3 (Ordering), Fenix Tek will deliver the products specified in the Customer's order. Fenix Tek may use third party delivery agents to deliver products to Customers.
4.2 The Customer's delivery options, and the prices for them, are as set out on the Fenix Connectors website at the date of order or will be notified to the Customer at the time of order. Customer is informed that delivery options and prices in the printed hard copy catalogue are subject to change and up-to-date information can be found on the Fenix Connectors website. In the event of any conflict between delivery options and delivery prices for any products listed on the Fenix Connectors website and in the hard copy catalogue, the delivery options and delivery prices listed on the Fenix Connectors website shall prevail.
4.3 Delivery prices apply per order, irrespective of the number of products ordered. Delivery will be made to the Customer's usual business address, unless otherwise agreed in writing.
4.4 Fenix Tek will aim to deliver products in accordance with the times and dates for delivery quoted on the Fenix Connectors website or by Fenix Tek' employees (the 'Quoted Delivery Times'), but Quoted Delivery Times are approximate only and Fenix Tek shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. Delivery of products marked in the hard copy catalogue or on the Fenix Connectors website as requiring special handling may (because of the nature of the products) take longer to be delivered.
4.5 If any delivery has not been made by the Quoted Delivery Time, then subject to the Customer notifying Fenix Tek of such delay, Fenix Tek will endeavour to ascertain if the product has been delivered and will inform the Customer of the status of the delivery or the new expected delivery time. Fenix Tek may also, at its discretion, refund the total delivery charge to the Customer. If a revised delivery time is not acceptable Fenix Tek may also, at its discretion, offer an alternative delivery option. These are the Customer's exclusive remedies for late delivery and Fenix Tek shall not be liable for any loss or damage (including indirect, consequential or economic) suffered or incurred by the Customer or any other party in relation to late delivery.
4.6 Special delivery conditions may apply for export orders. Call +39 0365 388032 for more details.
5. Inspection, Transit Delays and Non-delivery
5.1 The Customer must inspect all products as soon as is reasonably possible after delivery or collection. The Customer shall, within 10 days of the date of delivery or collection or, in the case of sub-clause iv. below, the Quoted Delivery Time or any updated estimated date for delivery, give written notice to Fenix Tek in detail of:
i. Any defect in a Product that is apparent on reasonable examination. In this case Fenix Tek shall, at FenixTek's discretion, replace the Product or refund the purchase price. See clause 9 for terms of Warranty. In any event the Customer must refuse parcels delivered to it in a damaged condition;
ii. Any shortfall in Products delivered. In this case Fenix Tek shall, at its discretion, deliver the undelivered Products or refund the price of the undelivered Products;
iii. Any delivery of Products not in accordance with the order. In this case Fenix Tek shall, at Fenix Tek 's discretion, replace the Products or refund the purchase price; or
iv. Any non-delivery of the Products (in which case the time limit is within 10 days of the estimated despatch date). In this case Fenix Tek shall deliver the undelivered Products or refund the price of the undelivered Products.
5.2 If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. Fenix Tek ' record of the products despatched (including the quantity) shall be conclusive evidence of the products received by the Customer, unless proved otherwise by the Customer.
5.3 The remedies set out above are the Customer's exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order. Fenix Tek shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from these circumstances.
6. Payment
6.1 If Fenix Tek has not granted credit to the Customer, payment terms are cash with order.
6.2 Credit terms (subject to satisfactory references and at Fenix Tek 's absolute discretion) are available. If credit has been granted, on acceptance of a Customer's order, Fenix Tek will issue that Customer with an invoice. The Customer shall pay the price of the product or service by the 30th day of the month following the month in which the products are despatched. All payments must be made without any set-off, deduction or counterclaim.
6.3 If any sum is not paid on the due date for payment then, without prejudice to any other right or remedy:
i. all sums then outstanding from the Customer will immediately become due and payable notwithstanding that such sums would not otherwise be due until a later date, and
ii. the Customer will be liable to pay all expenses and legal costs incurred by Fenix Tek in relation to obtaining or seeking to obtain an appropriate remedy; and
iii. Fenix Tek may charge the Customer interest from the due date until payment is made in full (both before and after any judgement) on the amount unpaid at a rate which is 5 per cent
7. Risk and Ownership
7.1 In the case of products to be delivered to the Customer's property, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer wrongfully fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when Fenix Tek has attempted to deliver the products. In the case of products which the Customer orders to be collected from an Fenix Tek trade counter, risk of damage or loss to the products shall pass to the Customer at the time of collection.
7.2 Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to Fenix Tek has been made (in cash or cleared funds). If the Customer is late in paying any sum to Fenix Tek, then Fenix Tek shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises Fenix Tek and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.
7.3 Demand for or recovery of the products by Fenix Tek shall not of itself discharge either the Customer's liability to pay the whole of the price and take delivery of the products or Fenix Tek 's right to sue for the whole of the price.
8. Product and Availability Information
8.1 Fenix Tek reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any Fenix Tek catalogue. The most up to date information on the availability and design of the products Fenix Tek supplies is available on the Fenix Connectors website.
8.2 Unless otherwise confirmed in writing, nothing on the Fenix Connectors website or in any Fenix Connectors catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.
9. Warranties and Remedies
9.1 Fenix Tek warrants that no product purchased from Fenix Tek is materially defective.
9.2 To the extent permitted by the Competition and Consumer Act 2011 (CCA), in the event of any such Product being materially defective, and subject to the provisions of clause 5 (Inspection, Transit Delays and Non-Delivery) surrounding defects apparent on delivery, Fenix Tek will (at its option) replace or repair the product or refund the purchase price.
9.3 These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of Fenix Tek.
9.4 To the extent permitted by the CCA, the remedies set out in this clause 9 shall be the Customer's sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.
9.5 The availability of the remedies set out in this clause 9 is subject to:
i. a claim being made in writing to Fenix Tek, prior to the return of any defective product, and within 12 months of the original date of despatch or date of service, or such other periods as may be indicated by Fenix Tek for specific products from time to time in writing; and
ii. the Customer returning or disposing of the relevant products, or making them available for collection by Fenix Tek, in accordance with Fenix Tek 's instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from Fenix Tek and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.
9.6 Where the Customer returns defective products otherwise than in accordance with these provisions, Fenix Tek may refuse such products and return them to the Customer at the cost of the Customer.
9.7 Any products which are replaced by Fenix Tek shall become the property of Fenix Tek. Title to replacement products shall pass to the Customer in accordance with the provisions of clause 7 (Risk and Ownership), and the period of the replacement product's warranty shall be the unexpired period of the defective product's warranty.
9.8 The Customer shall have no remedy in respect of any untrue statement made to it upon which it relied in ordering products and/or services (unless such untrue statement was made fraudulently) other than any remedy it may have set out expressly in these terms and conditions of sale.
9.9 Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).
9.10 Except as required by law, Fenix Tek will not be liable to the Customer for any loss, damage or liability of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions (statutory or otherwise) or breach of any other duty of any kind imposed on Fenix Tek by operation of law. The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.
9.11 In giving the warranties set out above, Fenix Tek does not exclude or limit any application of the Competition and Consumer Act 2011 (CCA) where to do so would contravene the CCA or cause any term of these conditions to be void ("Non Excludable Condition"). These warranties are in addition to any Non- Excludable Conditions.
10. Liability
10.1 Fenix Tek shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through the Fenix Tek technical helpline) whether or not due to its negligence or that of its employees, agents or sub-contractors.
10.2 Fenix Tek shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with:
i. any express or implied terms of the contract between Fenix Tek and the Customer, or of any order accepted by Fenix Tek;
ii. any duty of any kind imposed on Fenix Tek by law arising out of or in relation to the contract between Fenix Tek and the Customer or order;
iii. any defect in the products or services;
iv. intellectual property rights infringement; or
v. any other loss whatsoever arising out of these terms and conditions of sale.
10.3 If, not withstanding any other provisions in these terms and conditions of sale including without limitation clauses 9 (Warranties and Remedies), and 11 (Liability), any liability attaches to Fenix Tek, Fenix Tek 's liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, tort or otherwise in respect of one or more of:
i. any express or implied terms of the contract between Fenix Tek and the Customer, or of any order accepted by Fenix Tek;
ii. any duty of any kind imposed on Fenix Tek by law arising out of or in relation to the contract between Fenix Tek and the Customer or the order;
iii. any defect in the products or services;
iv. intellectual property rights infringement; or
v. any other loss whatsoever arising out of these terms and conditions of sale;
shall be limited in the aggregate to $100,000 or the total value of the order, whichever is greater.
10.4 The products and items sold by FENIX TEK have not been tested for applications in the medical and / or food sector and / or for safety applications or for joint use with medical-surgical aids of any kind and nature. Likewise, FENIX TEK products have not been tested for application in the context of nuclear activities or in the aeronautical field. FENIX TEK products must not, therefore, be used in these areas, with respect to which FENIX TEK assumes no responsibility for malfunctions and / or damage to things or people.
10.5 Nothing in these terms and conditions of sale shall exclude or limit the liability of Fenix Tek for death or personal injury caused by the negligence of Fenix Tek or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.
11. Cancellations and Returns
11.1 Fenix Tek may, at its discretion and in writing, allow an order to be cancelled where there is no fault with the product subject to Fenix Tek recovering from the Customer the costs incurred by RS, and subject to the processing charge provided for in this clause 12.
11.2 In the event of cancellation of part of any order only, Fenix Tek may invoice the Customer any difference in selling price per unit applicable to the quantity actually despatched up to the time of cancellation compared to the quantity ordered.
11.3 A processing charge may apply in respect of all products returned other than due to defects covered by the warranty at clause 9 (Warranties and Remedies). Fenix Tek reserves the right to apply a handling charge of 20% of invoice value.
11.4 Customers may only return products to Fenix Tek, and receive a credit or refund and on the following conditions:
i. The Customer must contact Fenix Tek in advance (phone +39 0365 388032) to obtain prior consent and a returns number (to be quoted on all relevant paperwork);
ii. Return must be made within 15 days of the date of delivery (as stated on the delivery documentation) or collection of such product(s).
iii. Products must be returned to Fenix Tek in their original condition and packaging, unused and in a condition which will enable them to be immediately fit for re-sale;
iv. The Customer must follow any specific instructions which appear on the Fenix Connectors website (including those available in the Product Returns section) or with any product regarding its return to Fenix Tek; and
v. Products must be adequately packed and despatched freight prepaid, clearly labelled to: Fenix Tek SRL – Centro Resi – Loc.Comero, 4 – 25070 Casto (BS) - Italy
vi. The Customer must quote the invoice details or the Fenix Tek reference number on the Fenix Tek Customer Returns Form from the original despatch note, otherwise any credit given for the returned products will be based upon the lowest sales price.
11.5 Where the Customer returns products to Fenix Tek not in accordance with clause 12.4 (i) – (vi) above (for example, after the period for returns has expired or in an unfit state) Fenix Tek may refuse to accept the return and return the products to the Customer at the Customer's expense or may apply a handling charge which relates to the actual cost of reprocessing (subject to the minimum charge set out on the Fenix Tek website).
11.6 Fenix Tek accepts no responsibility for any loss of or damage to products in transit from Customer to Fenix Tek or for any items received by Fenix Tek with them.
11.7 The Customer may only cancel or amend scheduled orders (i.e. orders for Products to be delivered periodically and which are specifically sourced for the Customer) if notice is received in writing at least 14 days prior to the next delivery date.
12. Force Majeure
A force majeure event is any event beyond the reasonable control of Fenix Tek (including but not limited to government actions, war, fire, explosion, flood, labour disputes, traffic congestion, the downtime of any external line, or Fenix Tek 's inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If Fenix Tek is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then Fenix Tek shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, Fenix Tek may cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Customer.
13. Intellectual Property Right
The Customer acknowledges that Fenix Tek and its licensors own the intellectual property rights in the Fenix Connectors website, the Fenix Connectors catalogues, the catalogue content and the stock numbers, and that their whole or partial reproduction without Fenix Tek 's prior written consent is prohibited.
14. Anti-Bribery
14.1 The Customer shall (and shall ensure that persons associated with it or other persons who are providing goods or services in connection with these Terms and Conditions shall) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption, including, but not limited to, the UK Bribery Act 2010 (the Relevant Requirements) and shall:
i. not (directly or indirectly) induce any employee, agent or subcontractor of Fenix Tek to make any concession to or confer any benefit on the Customer, refrain or withhold from doing any act, in return for any gift, money, or other inducement;
ii. not do or omit to do any act that will cause or lead Fenix Tek to be in breach of any of the Relevant Requirements;
iii. promptly report to Fenix Tek any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this contract;
14.2 The Customer is informed that:
i. Fenix Tek employees are not permitted to accept gifts of more than token value, loans, excessive entertainment or other substantial favours from any company or individual that does business with Fenix Tek or seeks to do so;
ii. Fenix Tek employees are not permitted to solicit gifts or other favours from any company or individual that does business with Fenix Tek, or seeks to do so; and
iii. entertainment of Fenix Tek employees is acceptable only if it has a justifiable business purpose. It should be of a reasonable nature and such that Fenix Tek 's employees, agents or contractors, can reciprocate.
14.3 Financial restrictions on gifts and entertainment are contained in Fenix Tek 's Anti-Bribery Policy and further details are available on request.
14.4 Any breach of this clause 16 shall be a material breach of these terms and conditions which is incapable of remedy.
15. Data Protection and Customer Information
FENIX TEK processes the personal data of its customers in accordance with the provisions of the law, according to the methods and for the purposes specified in the Privacy Policy published at the following Internet address: www.fenixconnectors.com - section "Customer support" - “ Privacy Policy ".
16. Law and Jurisdiction
The Court of Brescia (Italy) will be exclusively competent for any dispute arising from these general conditions of sale and from the related product supply contracts. These general conditions of sale are governed by Italian law.