DEFINITIONS AND INTERPRETATION
1.1 In these Conditions, unless the context otherwise requires, the following terms shall have the following meanings:
“Business Day” means any day which is not a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.
“Conditions” means these terms and conditions as may be amended from time to time in accordance with clause 16.6.
“Contract” means the contract between the Parties for the manufacture and supply of Goods and, where applicable, the carrying out of Installation Services which shall incorporate the Quotation, any documents referred to therein, the Order, the Supplier’s acceptance of the Order and these Conditions.
“Goods” means the goods (including any instalments of or any parts of) which the Purchaser agrees to purchase from the Supplier pursuant to the Contract.
“Installation Services” means the installation services to be carried out by the Supplier pursuant to the Contract if so stated in the Contract.
“Order” means the Purchaser’s order for the supply of the Goods and, where applicable, Installation Services as set out in the Purchaser’s purchase order form or the Purchaser’s written acceptance of the Quotation.
“Quotation” means the quotation issued by the Supplier to the Purchaser for the supply of the Goods and, where applicable, Installation Services.
“Parties” means the Purchaser and the Supplier.
“Purchaser” means the person, firm or company procuring Goods and, where applicable, Installation Services from the Supplier under the Contract.
“Site” the place where the Installation Services are to be carried out as identified in the Contract.
“Supplier” means Thurston Group Limited (company number 00998540) whose registered office is at Quarry Hill Industrial Estate, Hawkingcroft Road, Horbury, Wakefield, WF4 6AJ.
In these Conditions, unless the context otherwise requires:
any term importing gender includes any gender, and any term importing the singular includes the plural and vice versa;
a reference to a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s successors and permitted assigns;
any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition or phrase preceding those terms;
clause headings are for reference only and do not form part of or affect the interpretation of these Conditions; and
a reference to any enactment, statutory provision or subordinate legislation is a reference to such enactment, statutory provision or subordinate legislation as amended, re-enacted, replaced or extended from time to time, and a reference to an enactment or statutory provision includes reference to any subordinate legislation made under the enactment or statutory provision.
BASIS OF CONTRACT
The Quotation is an offer by the Supplier to supply Goods and/or carry out Installation Services in accordance with these Conditions.
The Quotation is open for acceptance for 30 days or such other period as may be stated in the Quotation.
The Quotation and these Conditions shall be deemed to be accepted when:
the Purchaser issues an Order to the Supplier; and
the Supplier confirms acceptance of the Order in writing, at which point and on which date the Contract shall be formed. If the Supplier does not confirm acceptance of the Order in writing, the Quotation and these Conditions shall be deemed to be accepted, and the Contract shall be formed when (and if) the Supplier begins to fulfil the Order.
The Supplier shall supply the Goods and, where applicable, provide the Installation Services and the Purchaser shall purchase the Goods and, where applicable, the Installation Services as provided for in these Conditions.
These Conditions apply to the Contract to the exclusion of any other terms and conditions, including any terms or conditions which the Purchaser may purport to incorporate or apply, or which are implied by law, trade custom, practice or course of dealing or otherwise.
Any samples, drawings, information or advertising issued and/or published by the Supplier in respect of the Goods and, where applicable, Installation Services shall not form part of the Contract nor have any contractual force unless specifically referenced in the Quotation.
Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice, or other document or information issued by the Supplier shall be subject to correction entirely at the Supplier’s discretion and without any liability on the part of the Supplier.
The Contract constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, negotiations and agreements whether written or oral concerning the subject matter of the Contract.
SPECIFICATIONS AND INTELLECTUAL PROPERTY RIGHTS
The Purchaser shall be responsible for ensuring the accuracy of any information contained in the Order and for ensuring the accuracy of all documents and other information provided to the Supplier in respect of the Goods and, where applicable, Installation Services. The Purchaser shall promptly provide the Supplier with all such information relating to the Goods and, where applicable, Installation Services as required by the Supplier to enable the Supplier to perform the Contract.
The Goods and, where applicable, the Installation Services, shall comply with the description, specifications, quantity and quality set out in the Contract.
Where any designs, specifications, drawings or other information or documents relating to the Goods and, where applicable, Installation Services have been provided to the Supplier by the Purchaser:
the intellectual property rights in them shall vest in the Purchaser and the Supplier shall have an irrevocable, non-exclusive, royalty-free licence (such licence carrying the right to grant sub-licences and to be transferable without the consent of the Purchaser) to copy and use them and to reproduce the designs and content of them for any purpose relating to the Goods and, where applicable, the Installation Services;
the Purchaser warrants that the use of such information or documents by the Supplier for the purposes of the Goods and, where applicable, Installation Services shall not infringe the intellectual property or other rights of any third party;
the Purchaser shall indemnify the Supplier and keep the Supplier indemnified against all liabilities, loss, damage, costs (including legal costs) and expenses suffered, incurred or awarded in respect of a breach of the warranty in clause 3.3.2. Such indemnity shall cover any claim made against the Supplier for alleged infringement of a third party’s intellectual property or other rights arising out of, or in connection with the information or documents, the Goods and, where applicable, Installation Services.
Except as stated in clause 3.3, all intellectual property rights in or arising out of or in connection with the Goods and, where applicable, Installation Services shall be owned by the Supplier. The Supplier grants to the Purchaser an irrevocable, non-exclusive, royalty-free licence to copy and use any documentation provided by the Supplier in connection with the supply of Goods and Installation Services for the sole purpose of receiving and using the Goods and Installation Services in its business. The Supplier shall not be liable for the use of such documentation for any purpose other than the purposes for which the Supplier provided it.
The Supplier reserves the right (at its absolute discretion) to amend the specification for the Goods and, where applicable, Installation Services at the Purchaser’s cost if necessary to comply with any applicable safety or other regulatory or statutory requirements provided such amendment(s) will not materially affect the nature, quality or use of the Goods and, where applicable, Installation Services.
Subject to clause 4.2, the price of the Goods and, where applicable, Installation Services shall be the price stated in the Quotation. Where no price has been provided, the price listed in the Supplier’s current price list shall apply.
The Supplier reserves the right at any time before delivery of the Goods or, where applicable, completion of the Installation Services and without notice to increase the price of the Goods and, where applicable, Installation Services to reflect any increase in costs to the Supplier due to any factor beyond the Supplier’s control as set out in clause 13.3 or any of the following: 4.3.1 foreign exchange fluctuations, changes to currency regulations, taxes and duties, the cost of labour, materials and other manufacturing costs;
4.3.2 any change in delivery dates, quantities or specifications for the Goods and, where applicable, Installation Services requested by the Purchaser; and
4.3.3 any delay caused by any instructions of the Purchaser and/or failure of the Purchaser to give the Supplier adequate information or instructions in respect of the Goods and, where applicable, Installation Services.
Except as stated in the Quotation or in any price list of the Supplier, all prices agreed with the Supplier in respect of Goods shall be on an “ex works” basis. Where the Supplier agrees to deliver and/or arrange alternative delivery of Goods under clause 5.2, the Purchaser shall be liable to pay any costs in respect of transport, craneage, packaging and insurance.
All prices and amounts payable by the Purchaser to the Supplier are exclusive of VAT. The Purchaser shall in addition pay to the Supplier the amount of any VAT properly chargeable for the Goods and, where applicable, Installation Services as provided for on the Supplier’s invoice.
Unless otherwise agreed, the Purchaser shall be entirely responsible for collection of the Goods from the Supplier’s premises, including the cost and logistics of their transportation, the obtaining of any necessary export or import licences and the unloading of the Goods. The Purchaser shall collect the Goods from the Supplier’s premises promptly and, unless agreed otherwise, within 3 Business Days after the Supplier has notified the Purchaser that the Goods are ready for collection, and delivery shall take place on collection.
Where alternative delivery arrangements are agreed between the Parties to that set out in clause 5.1, delivery of the Goods will take place when the Goods are handed over at the Supplier’s premises to the haulage contractor engaged by the Supplier to transport the Goods to the Purchaser’s premises. In these circumstances, clause 4.3 shall apply.
Any dates for delivery quoted by the Supplier in relation to the Goods are estimates only and the Supplier shall not be liable for any costs, losses, damages or expenses arising from any failure or delay to delivery of the Goods. Time for delivery shall not be of the essence of the Contract.
The Supplier has the right to deliver the Goods in advance of the estimated delivery date(s) upon giving reasonable notice to the Purchaser.
The Supplier may deliver the Goods in separate instalments and each separate instalment shall constitute a separate contract and shall be invoiced and paid for separately in accordance with these Conditions. However, failure by the Supplier to deliver any one instalment by an estimated delivery date, or at all, or any defect in any one instalment shall not entitle the Purchaser to treat the Contract as repudiated.
The Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
factors beyond the Supplier’s control as set out in clause 13.3;
any change in delivery dates, quantities or specifications requested by the Purchaser; and/or
a delay or failure on the part of the Purchaser in the provision of adequate delivery instructions or any other information or instructions required for delivery of the Goods.
If the Purchaser fails to collect the Goods from the Supplier’s premises within the timeframe set out in clause 5.1 (except by reason of the Supplier’s default) then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
store the Goods until completion of delivery and charge the Purchaser for all reasonable costs of storage and insurance; or
without further notice to the Purchaser, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) charge the Purchaser for any shortfall below the price which would have been under the Contract.
The Purchaser shall be deemed to have accepted the Goods on delivery in accordance with clause 5.
After acceptance of the Goods, the Purchaser shall not be entitled to reject any Goods which are not in accordance with the Contract. If the Purchaser rejects any Goods not in accordance with the Contract, it must give the Supplier notice of that rejection promptly and in any event before delivery.
Goods delivered to the Purchaser in accordance with the Contract shall only be accepted for return with the Supplier’s prior written approval on terms to be determined at the absolute discretion of the Supplier.
If the Supplier agrees to accept the Goods for return, the Purchaser shall be liable to pay a handling charge of not less than 10% of the invoiced price of the Goods or such lesser handling charge as the Supplier may at its absolute discretion decide and which shall be notified to the Purchaser. Any returned Goods must be returned in their original packaging and condition by the Purchaser and carriage paid to the Supplier.
Any Goods returned without the prior written approval of the Supplier may at the Supplier’s absolute discretion be returned to the Purchaser or stored at the Purchaser’s cost without prejudice to any other rights or remedies the Supplier may have.
The risk in the Goods shall pass to the Purchaser at the time of delivery under clause 5.1 or 5.2.
Notwithstanding delivery and passing of risk in the Goods, or any other provision of these Conditions, title in the Goods shall not pass to the Purchaser until the Supplier has received in cash or in cleared funds payment in full of the price of the Goods and all other monies due from the Supplier to the Purchaser under the Contract.
Until such time as the title in the Goods passes to the Purchaser, and except to the extent that the Supplier’s performance of any Installation Services prevents it from doing so, the Purchaser shall:
at its own cost, store the Goods separately from all other goods in its possession and mark the Goods to ensure they are clearly identifiable as the Supplier’s property. Such Goods shall be held on a fiduciary basis by the Purchaser for the benefit of the Supplier who shall be the bailee in respect of the same;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf and to the reasonable satisfaction of the Supplier from the date of delivery. The Purchaser shall whenever requested to do so by the Supplier produce a copy of the policy of insurance. Without prejudice to any other rights or remedies of the Supplier, if the Purchaser breaches this clause 7.3.3, all sums owing by the Purchaser under the Contract shall become immediately due and payable to the Supplier notwithstanding any other agreement or arrangement to the contrary; and
give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the ongoing financial position of the Purchaser.
Until such time as title in the Goods passes to the Purchaser, and except to the extent that the Supplier’s performance of any Installation Services prevents it from doing so, the Purchaser shall upon the Supplier’s request promptly deliver up all Goods in its possession. If the Purchaser fails to comply with this clause 7.4, the Supplier may enter upon any premises owned, occupied or controlled by the Purchaser where the Goods are situated and repossess them.
Until such time as title in the Goods passes to the Purchaser, the Purchaser shall not pledge or in any way charge the Goods by way of security for any indebtedness. Without prejudice to any other rights or remedies of the Supplier, if the Purchaser breaches this clause 7.5, all sums owing by the Purchaser to the Supplier under the Contract shall become immediately due and payable to the Supplier notwithstanding any other agreement or arrangement to the contrary. This clause 8 only applies if the Contract includes Installation Services.
co-operate with the Supplier in all matters relating to the Installation Services;
provide the Supplier with access to the Site and other facilities reasonably required to carry out the Installation Services which shall include the provision of welfare facilities, access to utilities such as power and water and obtaining and maintaining any licences, permissions, authorisations, consents and permits required for the Installation Services;
promptly give decisions and approvals and take such actions necessary to allow the Supplier to perform the Installation Services. In the absence of any specific instructions from the Purchaser, the Supplier shall progress the Installation Services in a sequence and manner which it thinks fit;
promptly provide free of charge to the Supplier all documents, information and materials in the Purchaser’s possession, or reasonably obtainable, which are necessary for the proper performance of the Installation Services;
keep the Supplier appraised of the requirements of any programme for the Installation Services and any changes or revisions thereto; and
not hinder or prevent the Supplier from providing the Installation Services.
It shall be the Purchaser’s responsibility to:
make all necessary inspections, investigations and surveys as to ground conditions, drainage and services and to ensure that the Site will be fit for the Installation Services to be carried out; and
notify the Supplier of any risks, contingencies and all other circumstances which may influence or affect the Installation Services, including any existing structures, presence of cables and the availability of access, equipment and facilities necessary for the Installation Services. The Supplier shall bear no responsibility whatsoever for the adequacy or suitability of the existing ground conditions of the Site or any adjoining property unless the Supplier has expressly agreed to do so in writing.
carry out and complete the Installation Services regularly and diligently and in accordance with the description, specifications, quantity and quality set out in the Contract and any other requirements specified in the Contract;
comply with all statutory requirements relevant to the Installation Services and operations on Site;
provide materials which are in accordance with the Contract, or if there is no express requirement in the Contract, materials which are new, of good quality, compliant with British Standards and Codes of Practice and appropriate for use in the Installation Services;
carry out and complete the Installation Services using reasonable care and skill;
observe all health and safety rules and regulations and any other security requirements that apply at the Site (subject to the Supplier being given prior written notice of the same).
To the extent that the Installation Services require the Supplier to carry out any design, the Supplier shall carry out such design exercising the reasonable skill and care to be expected of a duly qualified and experienced designer of the appropriate discipline undertaking the design of works similar in scope and character to the Installation Services.
The Supplier shall use reasonable endeavours to meet any dates for completion of the Installation Services which are specified in the Contract or otherwise agreed by the Parties in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Installation Services.
If the progress of the Installation Services is delayed or affected by any impediment, default or breach of the Contract by the Purchaser or any matter beyond the Supplier’s control as set out in clause 13.3, the Supplier shall be entitled to be paid a reasonable amount of any loss and/or expense incurred by the Supplier as a result of the progress of the Installation Services being delayed or affected.
The Supplier shall confirm to the Purchaser when the Installation Services are complete.
On completion of the Installation Services, the Supplier shall remove from the Site all plant and tools and shall leave all areas made available to it for the purpose of executing the Installation Services clean and tidy.
The Supplier shall be entitled to invoice the Purchaser:
for the price of the Goods at any time prior to, on, or after delivery of the Goods; and
where applicable, for Installation Services upon completion of the Installation Services or, if the Installation Services will take longer than one month to complete, in monthly instalments. Where payment for the Installation Services is to be made in monthly instalments, the amount of each instalment shall be the value of the Installation Services provided by the Supplier as at the date of the invoice and any other amount due to the Supplier under the Contract, less any amounts previously paid to the Supplier for Installation Services.
The Supplier’s invoices shall specify the sum the Supplier considers is due to it and the basis on which that sum is calculated.
The Purchaser shall pay invoiced amounts to the Supplier without deduction, counterclaim or set-off by the final date for payment, which shall be 30 days from the date of the relevant invoice or such other payment period as may be agreed by the Parties in writing.
In respect of Installation Services, the following additional payment terms shall apply:
the due date for payment shall be the date of the Supplier’s invoice;
if the Purchaser fails to issue a Payment Notice in accordance with clause 9.4.2, the amount due to the Supplier shall be the amount stated in its invoice;
if the Purchaser intends to pay less than the sum set out in a Payment Notice, or, if no such notice is issued, in an invoice, the Purchaser shall, not later than 7 days before the final date for payment referred to in clause 9.3, issue a notice to the Supplier specifying the sum the Purchaser considers to be due at the date that notice is given and the basis on which that sum is calculated.
The time for payment of sums due in respect of the Goods and, where applicable, Installation Services shall be of the essence of the Contract.
Receipts for payment will only be issued to the Purchaser upon the Purchaser’s request.
If the Purchaser fails to pay any sum properly due under the Contract for the Goods and/or the Installation Services by the relevant final date for payment, then without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled (at its absolute discretion and without notice) to:
terminate the Contract in accordance with clause 12.3;
suspend the further performance of any or all of its obligations under the Contract pending full payment by the Purchaser; and/or
charge the Purchaser interest (whether before and after any judgment) on the overdue amount(s) at the rate of 4% per annum above the Barclays Bank Plc base rate from time to time (but at 4% a year for any period when that base rate is below 0%), until full payment of the overdue amount is made.
The Purchaser may not withhold payment of any invoice, application for payment or other amount due to the Supplier by reason of any right of deduction, set-off, counterclaim or withholding which the Purchaser may have or allege to have for any reason whatsoever (other than as required by law).
Except as stated otherwise in these Conditions, the Supplier warrants that the Goods and, where applicable, the Installation Services shall comply with the description, specifications, quantity and quality set out in the Contract and shall be free from defects in design, materials and workmanship and remain so for a period of 12 months from the date of delivery, or where applicable from the date of completion of the Installation Services, subject to the following:
the Supplier shall not be liable for any defect in the Goods or, where applicable, the Installation Services arising out of or in connection with the documents or any other information provided by the Purchaser;
the Supplier shall not be liable for any defect in the Goods or the Installation Services where the defect is the direct or indirect result of any preparatory work carried out by or on behalf of the Purchaser in anticipation of the Installation Services;
the Supplier shall not be liable for any defect in the Goods or, where applicable, the Installation Services arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Supplier’s instructions (whether oral or in writing), misuse, alteration or repair of the Goods and/or, where applicable, the Installation Services without the Supplier’s prior written approval;
the Supplier shall not be liable for any defect in the Goods or, where applicable, the Installation Services that arises from (whether in part or in whole) any cause beyond the Supplier’s reasonable control within the meaning of clause 13.3; and
the Supplier shall not be liable for any defect in the Goods or, where applicable, the Installation Services arising from any parts, materials or equipment manufactured by a third party, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Supplier.
All terms, conditions and warranties (whether implied or made expressly) whether by the Supplier or its representatives, servants or agents or otherwise (other than those express warranties set out in these Conditions) relating to the Goods or, where applicable, the Installation Services and/or their fitness for purpose, merchantability or condition and whether implied by statute, common law or otherwise are excluded from the Contract to the fullest extent permitted by law.
Any claim by the Purchaser based on any defect in the quality or condition of the Goods and/or the Installation Services shall be notified to the Supplier in writing within 7 days from the date of delivery of the Goods or, in the case of defective workmanship, from the date of completion of the Installation Services or, where the defect was not apparent on reasonable inspection, within a reasonable time after discovery of the defect. If the Purchaser does not notify the Supplier accordingly, the Purchaser shall not be entitled to make a claim against the Supplier in respect of the alleged defect and the Supplier shall have no liability for such defect, and the Purchaser shall be bound to pay the price as if the Goods and, where applicable, Installation Services had been delivered and carried out in accordance with the Contract.
Where any valid claim in respect of the Goods and, where applicable, Installation Services is based on any defect in the quality or condition of the Goods and/or the Installation Services or their failure to meet any specification is notified to the Supplier in accordance with these Conditions, the Supplier shall be entitled to replace the Goods (or the part in question) and/or rectify the Installation Services free of charge or, at the Supplier’s sole discretion, refund to the Purchaser the price of the Goods (or a proportionate part of the price), but the Supplier shall have no further liability to the Purchaser.
The Purchaser shall indemnify the Supplier, its representatives, employees, agents and servants against all loss, damage, claims, expenses and costs whatsoever and howsoever arising whether directly or indirectly out of or in connection with any breach by the Purchaser of any of its obligations under the Contract or in connection with the supply of the Goods and/or the Installation Services and/or their use by the Purchaser.
The Supplier shall indemnify the Purchaser against all loss, damage, claims, expenses and costs whatsoever and howsoever arising in respect of any personal injury to or death of any person and any loss, injury or damage whatsoever to any property real or personal in so far as such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the Installation Services and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Supplier.
The Supplier may terminate the Contract at any time before the Goods are delivered and/or the Installation Services are completed by giving notice to the Purchaser in writing. The Supplier shall not be liable for any costs, loss, damage or expenses whatsoever or howsoever arising from such cancellation.
This clause 12.2 applies if:
the Purchaser breaches any of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
the Purchaser suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986;
the Purchaser 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 any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the Purchaser’s winding up;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Purchaser;
the holder of a qualifying floating charge over the Purchaser’s assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the Purchaser’s assets or a receiver is appointed over all or any of its assets;
a creditor or encumbrancer of the Purchaser 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 the Purchaser’s assets and such attachment or process is not discharged within 7 days;
the Purchaser applies to the courts for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
the Purchaser suspends or ceases, or threatens to suspend or cease, carrying on part of its business; or
the Supplier reasonably anticipates that any of the events mentioned in this clause 12.2 is about to occur in relation to the Purchaser.
If clause 12.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to terminate the Contract without any liability to the Purchaser by serving written notice on the Purchaser. In those circumstances, the outstanding price of the Goods and/or the Installation Services and all other sums (and interest) due to the Supplier under the Contract shall become immediately due and payable to the Supplier.
Where the Supplier terminates the Contract under clause 12.3, the Supplier shall be entitled to be paid its reasonable demobilisation costs and a reasonable sum in respect of any loss, expense or loss of profit incurred as a result of the termination.
The Contract cannot be terminated by the Purchaser except with the agreement in writing of the Supplier which shall in any event be conditional on the Purchaser indemnifying the Supplier against all liabilities, loss (including loss of profit), damage, charges, costs (including legal costs and the cost of all labour and materials used) and expenses incurred by the Supplier as a result of the termination.
Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the Parties that have accrued up to the date of termination including the Supplier’s right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to have effect after termination continue in full force and effect.
Notwithstanding any other provision of these Conditions, in the event of any breach of the Contract by the Supplier, the remedies of the Purchaser shall be limited to damages and the Supplier’s liability shall not exceed the price payable for the Goods and, where applicable, Installation Services. This limit on the Supplier’s liability shall apply however that liability arises, including, without limitation, a liability arising by breach of contract, arising by tort (including, without limitation, the tort of negligence) or arising by breach of statutory duty.
Notwithstanding any other provision of the Contract, the Supplier shall have no liability whatsoever to the Purchaser arising out of, under or in connection with the Contract for:
loss of sales, business or contracts;
loss of anticipated savings;
loss of production or productivity;
loss of or damage to goodwill; or
indirect or consequential loss of any kind.
The Supplier shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay or failure to perform any of obligation in relation to the Goods and, where applicable, Installation Services if such delay or failure was attributable (whether in part or in whole) to any cause beyond the Supplier’s reasonable control or because of an act, omission, negligence, default or wilful misconduct of the Purchaser, the Purchaser’s employees, operatives, agents or contractors. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Supplier’s reasonable control:
an act of God, explosion, flood, tempest, fire or accident;
war or threat of war, sabotage, insurrection, civil disturbance or requisition;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
import or export regulations or embargoes;
strikes, lock-outs or other industrial action or trade disputes or non-availability of employees (whether involving employees of the Supplier or of a third party);
difficulties in obtaining raw materials, labour, fuel, parts or machinery;
power failure or breakdown in machinery; and
weather conditions, transport failures, traffic congestion or any other cause (whether or not of the same nature as the foregoing) beyond the control of the Supplier.
Nothing in this clause 13 is intended to limit or exclude the Supplier’s liability for death or personal injury caused by the Supplier’s negligence or for any other matter in respect of which the law provides that liability cannot be limited or excluded.
Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except:
to its employees, officers, representatives, contractors or advisers who need to know such information for the purposes of carrying out the Party’s obligations under the Contract; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither Party shall use the other Party’s confidential information for any purpose other than to perform its obligations under the Contract.
ASSIGNMENT AND OTHER DEALINGS
The Supplier may assign the benefit of the Contract without the Purchaser’s consent.
The Supplier may at its sole discretion use sub-contractors to complete the Installation Services.
The Purchaser shall not assign, transfer or charge the benefit of the Contract or any right arising under it without the Supplier’s prior written consent.
Unless specified otherwise in these Conditions, any notice required or permitted to be given by either Party to the other under these Conditions shall be in writing and addressed and delivered to the other Party at its registered office or principal place of business or to the email address stated in the Quotation or Order documents, or to such other postal or email address as may at the relevant time be notified by either Party to the other.
Notices shall be deemed to have been received, if delivered by hand, on the date and at the time of delivery (as evidenced by a signed delivery receipt), or if sent by first class post, at 9:00am on the second Business Day after the date of posting. Notices sent by email shall be deemed to be received on the same Business Day that the email is sent. If the email is sent after 5:00pm or not on a Business Day, the notice shall be deemed to be received on the next Business Day.
Unless expressly confirmed in writing by the Supplier, the Supplier’s employees and agents are not authorised to make any representations or give any advice or recommendations concerning the application or use of the Goods or the Installation Services and the Purchaser shall not be entitled to rely on the same. To the extent the Purchaser relies on any such advice, recommendation or representation without the Supplier’s express confirmation that they are authorised to make such advice, recommendation or representation, the Purchaser acknowledges that it does so entirely at its own risk.
The Purchaser acknowledges that, in entering into the Contract, it has not relied on, and shall have no entitlement to rely on, and has no right or remedy in respect of, any written or oral statement, advice, recommendation, representation, misrepresentation, assurance or warranty (whether made negligently or innocently, and whether express or implied) other than as expressly set out in the Contract. Nothing in this clause 16.4 shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
No variation to these Conditions shall be binding unless agreed in writing by the authorised representatives of each of the Parties. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The Supplier’s rights and remedies under the Contract (whether exercised or not) are in addition to, and not exclusive of any rights and remedies implied by statute, common law or otherwise available to it.
No failure or delay on the Supplier’s part to exercise any right or remedy under the Contract or these Conditions (whether in respect of the Purchaser’s breach of contract or not) shall be construed or operate as a waiver or shall restrict or prejudice the exercise any other right or remedy granted by these Conditions or otherwise, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
BRIBERY ACT AND MODERN SLAVERY ACT The Parties shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery, anti-corruption and anti-slavery including, but not limited to, the Bribery Act 2010 and the Modern Slavery Act 2015.
If any provision of the Contract is held by a court or other competent tribunal to be invalid or unenforceable in whole or in part, it shall be severable and shall be deemed omitted from the Contract to the extent necessary to prevent such invalidity or unenforceability, and the remaining provisions shall continue to have full effect.
GOVERNING LAW AND JURISDICTION The Contract shall be governed by English law and the English courts shall have exclusive jurisdiction with regard to all matters arising under it.
