FOUNDRAX ENGINEERING PRODUCTS LIMITED
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND/OR SERVICES
The Buyer’s attention is particularly drawn to the provisions of clause 12.
1. Interpretation
1.1. Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Buyer: the person who purchases the Goods and/or Services from the Company.
Company: Foundrax Engineering Products Limited registered in England and Wales with company number 0460583.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.
Contract: the contract between the Company and the Buyer for the supply of Goods and/or Services, consisting of the Order and its acceptance by the Company subject to the Conditions.
Force Majeure Event: has the meaning given to it in clause 15.1.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Buyer and the Company.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the document headed Order to which these Terms and Conditions apply.
Services: the services, supplied by the Company to the Buyer as set out in the Order.
Service Specification: the description or specification for the Services as agreed between the Company and the Buyer from time to time.
Company Materials: has the meaning set out in clause 8.1.6.
1.2. Construction. In these Conditions, the following rules apply :
1.2.1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2. a reference to a party or parties shall mean a party or parties to this Contract and includes its personal representatives, successors or permitted assigns;
1.2.3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.5. Save for the purposes referred to in clause 15.3, a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Contract constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification whether provided by the Company or submitted by the Buyer are accurate and complete.
2.3 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence. If ordering via the website the Company will send an email to the Buyer acknowledging receipt, but this does not mean that the order has been accepted. Acceptance of an order placed via the website will take place when the Company sends an email confirming that the Goods have been dispatched (Dispatch Confirmation). The Contract between the Company and the Buyer will only be formed when the Dispatch Confirmation is sent.
2.4 Any quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its state of issue unless stated otherwise by the Company.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.6 The Buyer acknowledges that it has not relied on any statement, representation made or given by or on behalf of the Company which is not set out in the Contract.
3. Goods
3.1. Any samples, drawings, descriptive matter or advertising issued by the Company and Goods Specification or any descriptions of the Goods or illustrations or descriptions of the Services contained in the Company’s catalogues, website or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them and shall not form part of the Contract nor have any contractual force and the Company may alter a Goods Specification or Services Specification including, technical specifications of Goods where supply chain or other issues necessitates such alteration.
3.2. To the extent that the Goods are to be manufactured in accordance with a
Specification supplied by the Buyer, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Company reserves the right to amend the Goods Specification or Services Specification if required by any applicable statutory or regulatory requirements or as set out in clause 3.1.
4. Delivery of Goods
4.1 The Company shall make the Goods available for collection by the Buyer at, or deliver the Goods to, the location set out in the Order or such other location as the parties may agree (Delivery Location).
4.2 Delivery of the Goods shall be completed once the Goods have been unloaded at the Delivery Location (if the Company is delivering the Goods at premises other than its own) or when collected (if to be collected by the Buyer at the Delivery Location.
4.3 Any dates specified by the Company for delivery and any dates quoted for delivery of the Goods by the Company are intended to be an estimate only, and the time of delivery is not of the essence. If no dates are so specified, delivery shall be within a reasonable time.
4.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Buyer’s failure to provide the Company with adequate delivery instructions for the Goods, or any other instructions that are relevant to the supply of the Goods.
4.5 If the Buyer fails to accept or take delivery of the Goods within 5 Business Days of the Company notifying the Buyer that the Goods are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods shall be deemed to be delivered; and
the Company shall store the Goods until actual delivery takes place, and charge the Buyer for all related costs and expenses (including storage and insurance).
4.6 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.7 The Company reserves the right not to deliver to certain countries or organisations or businesses where, in the sole opinion of the Company, there are restrictions or other difficulties in relation to certain Goods for certain international delivery destinations.
4.8 If Goods are ordered from the Company website for international delivery the Order may be subject to import duties and taxes for which the Buyer will be liable. The Company has no control or liability over or in connection with these charges.
4.9 The Buyer must comply with all applicable laws and regulations of the country for which the Goods are destined. The Company will not be liable or responsible if the Buyer breaks any such law.
5 Quality of Goods
5.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
5.2 The Company warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
5.2.1 materially conform with their description and be free from material defects in design, material and workmanship; and
5.2.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) as amended.
5.3 Subject to clause 5.4, the Company shall not be liable for a breach of any of the warranties in condition 5.2 unless:
5.3.1 the Buyer provides sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;
5.3.2 the Buyer gives notice in writing during the Warranty Period, or if the defect is as a result of damage in transit within 5 Business Days of the time when the Buyer discovers or ought to have discovered the defect;
5.3.3 the Company is given a reasonable opportunity after receiving such notice to examine the Goods; and
5.3.4 the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost.
5.4 The Company shall, at its option, repair or replace any defective Goods which do not comply with clause 5.2, or refund the price of such defective Goods in full.
5.5 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 5.2 if:
5.5.1 the Buyer makes any further use of such Goods after giving a notice in accordance with clause 5.3;
5.5.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.5.3 the defect arises as a result of the Company following any drawing, design or Goods Specification supplied by the Buyer;
5.5.4 the Buyer alters or repairs such Goods without the written consent of the Company or, having received such consent, does so other than in accordance with the Company’s instructions;
5.5.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, incorrect installation of the Goods or abnormal working conditions; or
5.5.6 any payment due by the Buyer to the Company is outstanding.
5.6 Except as provided in this clause 5, the Company gives no warranty and makes no representations in relation to the Goods and shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2 and all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
5.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied to the Buyer by the Company under clause 5.4.
6 Title and risk
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 Title to the Goods shall not pass to the Buyer until the Company has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods that the Company has supplied to the Buyer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
6.3.5 notify the Company immediately if it becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.12; and
6.3.6 give the Company such information relating to the Goods as the Company may require from time to time.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value and not less than the price paid by the Buyer for the Goods; and
6.4.2 any such sale shall be a sale of the Company’s property on the buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.12, or the Company reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Buyer to deliver up the Goods without charge and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7 Supply of Services
7.1 The Company shall provide the Services to the Buyer in accordance with the Service Specification in all material respects.
7.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified on the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event.
7.4 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.
8 Buyer’s obligations
8.1 The Buyer shall:
8.1.1 ensure that the terms of the Order and (if submitted by the Buyer) the Goods Specification and/or the Services Specification are complete and accurate
8.1.2 co-operate with the Company in all matters relating to the provision of Goods and/or Services;
8.1.3 provide the Company, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
8.1.4 provide the Company with such information and materials as the Company may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and/or Services before the date on which the Services are to start or the Goods are delivered; and
8.1.6 keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Buyer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
8.2 If the Company’s performance of any of its obligations in respect of the supply of Goods and/or Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
8.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services and/or delivery of the Goods until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Company’s performance of any of its obligations. Consequential delay by the Company as a result of Buyer Default shall be at least equal to or greater than the delay caused by the Buyer;
8.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Buyer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Buyer Default.
9 Charges and payment
9.1 The price of the Goods:
9.1.1 if ordering directly with the Company, (not via the Company website),shall be the price set out in the Order subject to loss of any discount specific in the Order being lost due to failure of the Buyer to meet payment of any agreed instalments within timescales set out in the Contract or failure of the Buyer to meet other payment terms whether set out the Order or these Conditions (which form part of the Order);
9.1.2 shall be payable in full with immediate effect if the Buyer fails to meet any agreed credit terms or staged payments set out in the Order;
9.1.3 if ordering via our website shall be as quoted on our website at the time you submit your order;
9.1.4 shall, in the event of no price being quoted by the Company, be the price set out in the Company’s published price list as at the date of delivery;
9.1.5 is exclusive of all costs and charges of packaging, insurance and transport of the Goods, which shall be paid by the Buyer when it pays for the Goods;
9.1.6 shall be subject to the provisions of clause 9.3
9.2 The charges for Services shall be on a time and materials basis and:
9.2.1 shall be calculated in accordance with the Company’s standard fee rates, as set out in the Order, or if no price is quoted, the rates agreed between the parties in writing; and
9.2.2 the Company shall be entitled to charge the Buyer for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials; and
9.2.3 for the avoidance of doubt charges shall include the cost of the Buyer’s staff attending the Buyer’s premises for the purpose of fulfilment of pre-agreed Services but the Buyer refuses such Services where prior arrangement had been made for provision of the same and the Buyer has failed to provide a minimum notice of 2 Business Days of cancellation of the same.
9.3 The Company reserves the right to:
9.3.1 increase its standard fee rates for the charges for the Services which shall be notified to the Buyer
9.3.2 increase the price of the Goods, by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost of the Goods to the Company that is due to:
9.3.2.1 any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.3.2.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
9.3.2.3 any delay caused by any instructions of the Buyer in respect of the Goods or failure of the Buyer to give the Company adequate or accurate information or instructions in respect of the Goods.
9.4 The Buyer shall pay each invoice submitted by the Company:
9.4.1 within 30 days of the date of the invoice; and
9.4.2 in full and in cleared funds to a bank account nominated in writing by the Company.
9.5 Time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Buyer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 Without limiting any other right or remedy of the Company, if the Buyer fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of 8 per cent per annum above the then current Bank of England’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment.
9.8 The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
9.9 The Buyer irrevocably appoints the Company to be the Buyer’s agent to store or dispose of any items held by the Company (whether or not such items are the subject of the Order) if the Buyer is in default for more than 90 days of any amount due to the Company and it shall have the right to deal with such items as it thinks fit. Any amount which remains outstanding after the Company has carried out such action shall remain as a debt due form the Buyer to the Company and shall continue to accrue interest from the time when the payment was due as set out in clause 9.11 and the Company reserves all rights in respect of such balance due. The Company shall not be liable to the Buyer in any way by reason of the storage or disposal of such items
9.10 The Company will not refund any part of the purchase price of Goods by reason of the failure of the Buyer to obtain necessary licences or failure of the Buyer to comply with applicable laws, permits or other restrictions or imposition of sanctions in relation to the Goods ordered or applicable within the geographic location of the Buyer.
10 Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the supply of Goods and/or Services shall be owned by the Company unless otherwise agreed in writing between the parties.
10.2 The Buyer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Buyer’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Buyer.
10.3 All Company Materials are the exclusive property of the Company.
11 Confidentiality
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
12 Limitation of liability: THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
12.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
12.1.2 fraud or fraudulent misrepresentation;
12.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
12.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
12.1.5 defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1 and 12.3:
12.2.1 the Company shall not be liable to the Buyer, in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, f or any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Company, its employees, agents or subcontractors; and
12.2.2 the Company’s total liability to the Buyer 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, including losses caused by a deliberate breach of the Contract by the Company, its employees, agents or subcontractors shall not exceed the amount paid by the Buyer to the Company under the Contract.
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13 Termination
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within a reasonable period after receipt of notice in writing of the breach;
13.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.1.3 the other party 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 its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
13.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
13.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
13.1.6 a creditor or encumbrancer of the other party 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 its assets and such attachment or process is not discharged within 14 days;
13.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
13.1.8 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.2 to clause 13.1.9 (inclusive);
13.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
13.1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, the Company may terminate the Contract:
13.2.1 by giving the Buyer 1 months’ written notice;
13.2.2 with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, the Company shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Company if:
13.3.1 the Buyer fails to make pay any amount due under this Contract on the due date for payment; or
13.3.2 the Buyer becomes subject to any of the events listed in clause
13.1.2 to clause 13.1.12, or the Company reasonably believes that the Buyer is about to become subject to any of them.
14 Consequences of termination
On termination of the Contract for any reason:
14.1.1 the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied or visits made by the Supplier for provision of Services but the Supplier was unable to fulfil the Services as a result of the Buyer cancelling the pre-agreed Services less than 2 Business Days prior to the visit but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt. ;
14.1.2 the Buyer shall return all of the Company Materials and any Deliverables which have not been fully paid for. If the Buyer fails to do so, then the Company may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
14.1.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15 General
15.1 Force majeure:
15.1.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or delay or default of suppliers or subcontractors.
15.1.2 The Company shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.1.3 If the Force Majeure Event prevents the Company from providing any of the Services and/or Goods for more than 2 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
15.2 Assignment and subcontracting:
15.2.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
15.2.2 The Buyer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.3 Notices:
15.3.1 Any notice required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
15.3.2 Any notice shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second]Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
15.3.3 This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause only, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
15.4 Waiver and cumulative remedies:
15.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
15.5 Severance:
15.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.
15.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
