Conditions of Sale

  1. Interpretation

 Definitions

In these conditions (unless the context otherwise requires) the following words have the following meanings:

Seller: Spiroflow Limited.

Purchaser: the person, firm or company, with whom the Contract for the purchase of Goods is made.

AO: the Acknowledgment of Order issued by the Seller to the Purchaser under the terms of this Contract

Contract: the contract for the provision of Goods and Services (if any), made between the Seller and the Purchaser of which these conditions comprise part.

EDP: the estimated period for delivery of the Goods or the relevant instalment of the Goods, as the case may be, and for the completion of the Services or part of the services relating to the relevant instalment as the case may be, as specified in the Particulars of Contract

Force Majeure: has the meaning given in Clause. 16.

Goods: the goods or any part thereof agreed to be sold and as described in the Specifications and if repaired or replaced by the Seller pursuant to the Contract.

Order: the Seller’s written order for the Goods and Services.

Particulars of Contract: the Particulars of Contract stated on the AO (or attached hereto) including the Specifications and any Special Conditions

Services: the services (if any) which the Seller has agreed to provide as described in the Particulars of Contract which are ancillary to the sale of Goods such as, without implying limitation, installation, erection and/or testing

Special Conditions: any special conditions contained in the AO or agreed in writing by the Seller and the Purchaser and attached hereto or

otherwise agreed in writing after the date hereof.

Specification: means the description and technical specification of the Goods and/or Services, set out or referred to in the Particulars of Contract.

 

Construction. In these Conditions, the following rules apply:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a party includes its personal representatives, successors or permitted assigns.

A reference to a statute or statutory provision is a reference to such statute or 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.

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.

A reference to writing or written includes faxes and e-mails.

 

  1. Basis of Contract.

2.1           These Conditions apply to the Contract to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2.         The Order constitutes an offer by the Purchaser to purchase the Goods in accordance with these Conditions. The Purchaser is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Purchaser are complete and accurate.

2.3.          The Order shall only be deemed to be accepted when the Seller issues a written AO at which point the Contract shall come into existence.

  1. 4 The Contract constitutes the entire agreement between the parties. The Purchaser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.

2.5           Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.6           A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue

2.7           If there is any conflict between any terms of this contract then then the parts of the

Contract shall prevail and take priority in the following order.

  1. a) the AO
  2. b) the Special Conditions
  3. c) the Specifications
  4. d) these Conditions.

 

  1. Seller’s Option to Terminate on non-fulfilment of Conditions,

The Contract shall come into force in accordance with Clause2.3 but may at the Seller’s option cease to be binding on the parties, (save for this Clause 3) if within 30 days from the date the Contract comes into force, the Purchaser has not:

 

  1. obtained all necessary licences, consents and approvals and given particulars to the Seller: or
  2. given to the Seller all necessary technical information required by the Seller and signed agreed technical specifications; or
  3. paid the deposit referred to in the AO (if any) or
  4. d) fulfilled any other conditions referred to in the AO and the Special Conditions.

 

and in any of such circumstances the Purchaser shall reimburse the Seller for all loss and expenses it may have already incurred or may thereafter incur in connection with this Contract.

 

  1. Goods.

4.1.          The Goods are as described in the Specifications.

4.2           Additions, Alterations and Improvements.

  1. a) The Seller may carry out, without notice to the Purchaser, alterations or improvements in design, materials or methods of manufacture from time to time, and may substitute other reasonably similar parts for any proprietary parts ordered by the Purchaser, which the Seller considers to be unprocurable, or unprocurable within a reasonable time, or unprocurable with difficulty or at an excessive cost.
  2. b) Further, the Seller may supersede, materially alter or abandon the design or type of the Goods contracted for and may substitute another design or type. In exercising this right, the Seller shall give written notice to the Purchaser and the Purchaser may within 14 days after such notice is given, terminate the Contract by giving notice to the Seller. If the Contract is so terminated the deposit paid to the Seller, if any, shall be returned to the Purchaser, but the Seller shall have no other liability whatsoever for any loss, damage cost expense, action and /or claim which may be suffered or incurred by the Purchaser.

c)The Seller shall be entitled to charge the Purchaser for all goods and/ or services additional to and not included in the Goods and the Services. Charges shall be raised at the Seller’s rate of charge current at the date of execution or supply of the additional goods and or services. While the Seller will endeavour to advise the Purchaser before such charges are incurred the Purchaser shall be deemed to have authorised the Seller to execute and/or supply such additional goods and/or services as the Seller may consider to be appropriate in the best interests of the Purchaser.

 

  1. Delivery

  2. Unless otherwise specified in the Particulars of Contract delivery shall take place at the Seller’s works (FCA Incoterms 2012) or at the place of performance of the Services.
  3. The Seller will endeavour to give delivery of the Goods or each instalment of the Goods at or about the end of the EDA or within a reasonable time thereafter, but in respect of delivery, time is not to be the essence of the Contract and any delay in delivery of the Goods and/or one or more instalments thereof beyond a reasonable time after the EDA shall not entitle the Purchaser to rescind or otherwise terminate the Contract. Further if the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Purchaser in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

The EDP shall be calculated as from the date on which all the conditions specified in Clause 3 hereof shall have been complied with.

  1. Where the Goods are handed to a carrier for carriage to the Purchaser any such carrier shall be deemed to be the agent of the Seller and not the Purchaser for the purposes of S. 44,45, and 46 of the Sale of Goods Act 1979.
  2. Unless within 10 days of receipt of an invoice in respect of the Goods or one or more instalments of the Goods which the Seller alleges have been delivered to the Purchaser, the Purchaser shall notify the Seller in writing that the Goods or any relevant instalments of the Goods, as the case may be, have not been delivered to the Purchaser, the Goods or the relevant instalments of the Goods shall be deemed to be delivered to the Purchaser
  3. The Purchaser shall inspect the Goods or any instalment of the Goods upon

delivery thereof. Unless the Purchaser shall notify the Seller, in writing within 7 days of delivery, of any defects and /or damage in the Goods or any instalment of the Goods, which would have been apparent upon a reasonable inspection of the  same at delivery thereof, the Seller shall have no liability at common law, pursuant to statute or otherwise to the Purchaser, for any such defect and/or damage (whether arising directly or indirectly from any breach of contract or statutory duty, negligence or other tortious act or omission or otherwise) and the Goods or the instalment of the Goods as the case may be, shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to pay for the same accordingly.

  1. The Supplier shall have no liability for any failure to deliver the goods or late delivery to the extent that the failure is caused by a Force Majeure or the Purchaser’s failure to provide to the Seller with an adequate delivery instruction or any other instructions that are relevant to the supply of the Goods.

 

  1. Price.

  2. a) Unless provided otherwise in the AO, the price quoted shall be FCA Incoterms 2012 and is exclusive of VAT and all charges for any erection, packing, insurance, freight and delivery charges.
  3. b) The Seller is free to increase quoted prices (whether accepted or not) to cover variations in cost of materials, manufacture, carriage, and insurance when such variations in such costs arise between the date of quotation and the date of the Contract coming into force.

 

  1. Payment.

  2. a) Save to the extent provided otherwise in the Particulars of Contract, the provisions of this clause 7 shall apply.
  3. b) Any invoice issued by the Seller shall be Payable within 20 business days of the date of Invoice,
  4. c) The deposit (if any) paid in accordance with the Particulars of Contract is irrevocable, non-returnable (except in accordance with clause 5(b)) and non-interest bearing and for the avoidance of doubt shall be appropriated by the Seller against costs incurred in connection with this Contract.
  5. d) When the Goods are, or any instalment of the Goods is, made available for delivery to the Purchaser, the Seller may submit an invoice for the Price or the appropriate instalment of the Price as the case may be.
  6. e) If, upon the terms applicable to the Contract, the Price shall be payable by instalments or if the Purchaser has agreed to take specified quantities of Goods at specified times, a default by the Purchaser of the payment of any due instalment of the Price, or the failure to give delivery instructions in respect of the quantity of Goods outstanding, shall cause the whole of the balance of the Price to become due forthwith.
  7. f) Payment of the Price or the relevant instalment of the Price, as the case may be, shall be made in full to the Seller in accordance with the terms of the Contract and the Purchaser shall not be entitled to exercise any right of set off, lien, deduction withholding or any other similar right or claim whatsoever which the Purchaser would otherwise have, save for this provision (including but without implying any limitation, any such right or claim arising after an instalment of the Goods has been delivered, because of non-delivery of other instalments or other subsequent default by the Seller.) but excepting any deduction or withholding provided by law.
  8. g) If any payment that is to be made hereunder to the Seller is more than 30 days overdue, the Seller shall be entitled (without prejudice to any other rights or remedies, and without giving prior notice) to charge interest thereon, from the date of default until the sum due is paid (as well after as before judgement) on a day to day basis at a rate of 4% above the Lloyds Bank Plc Base Rate from time to time applicable with a minimum rate of 10% per cent per annum.
  9. Time of payment shall be of the essence and failure to make any payment on the due date, or any other breach by the Purchaser shall entitle the Seller without prejudice to its other rights hereunder:
  • to suspend performance of this Contract until arrangements as to payment have been established to the satisfaction of the Seller or
  • on giving 14 days’ notice to terminate this Contract and on such termination the relevant provisions of clause 19 shall apply.
  1. In the event that the Seller may decide to take any legal steps for the recovery of any overdue payment then the Purchaser shall indemnify the Seller for      the cost of all such steps (before as well as after judgement).
  2. Any warranty of the Seller under, pursuant to or in connection with the Contract is conditional upon payment of all amounts due to the Seller under, pursuant to or in connection with the Contract, and for the avoidance of doubt, the Seller shall have no liability at common law, pursuant to statute or otherwise for any breach of any such warranty unless such amounts have been paid in full.

 

  1. Storage

  2. a) The Seller shall be entitled to store the Goods (or any instalment of them) at its own premises or elsewhere in either case at the Purchaser’s expense if:
  • (i) where the Goods are, or the instalment is, as the case may be, delivered at the Seller’s premises and the Purchaser fails to take delivery of the
  • same when made available for delivery: or

(ii) where the Goods are, or the instalment is, as the case may be, delivered to some other place and either: –

  1. the Seller is unable to despatch the Goods or the instalment as the case may be by reason of any act or omission on the part of

the Purchaser: or

  1. the Seller has made the Goods or the instalment, as the case may be but the Purchaser fails to take delivery: or

 

(iii) the Seller is withholding delivery of the Goods or the instalment as the case

may be pursuant to Clause 6(h)(i) hereof.

 

  1. b) The expenses that the Seller shall be entitled to reclaim from the Purchaser shall include all reasonable costs incurred by the Seller (whether by way of storage, insurance or otherwise) in respect of the Goods or the instalment, as the case may be and it is expressly declared that it shall be reasonable for the Seller to effect insurance in respect of the same notwithstanding that the risk therein has passed to the Purchaser

 

  1. Title and risk

9.1           The risk in the Goods shall pass to the Customer on completion of delivery.

9.2           Title to the Goods shall not pass to the Customer until

the Supplier receives payment in full (in cash or cleared funds) for the Goods

9.3           Until title to the Goods has passed to the Purchaser, the Purchaser shall:

(a)               store the Goods separately from all other goods held by the Purchaser so that they remain readily identifiable as the Seller’s property;

(b)               not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c))              maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d)               notify the Supplier immediately if it becomes subject to any of the events listed in clause 17.2; and

(e)               give the Seller such information relating to the Goods as the Seller may     require from time to time.

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9.4           If before title to the Goods passes to the Purchaser, the Purchaser becomes subject to any of the events listed in clause 17.2 then, without limiting any other right or remedy the Seller may have:

the Seller may at any time:

  • require the Purchaser to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
  • if the Purchaser fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them and the Purchaser gives the Seller an irrevocable licence to enter its premises for this purpose.
    • Where property in the Goods has not passed the Seller may nevertheless maintain an action against the Purchaser for the purchase price and all other monies owing to the Seller by the Purchaser notwithstanding Section 49 of the Sale of Goods Act 1979.

  1. Intellectual Property.

  2. a) The copyright in all drawings, patterns, data, literature photographs, illustrations, specifications, performance data, dimensions, weights manufacturing and operating techniques, and the like (“the Information”) shall remain the property of the Seller and (except marked as or otherwise indicated) the Information shall be confidential and shall not be disclosed or used except where the Purchaser has paid all sums due to the Seller under the Contract and only as necessary for the purpose of application and use by the Purchaser of the Goods in relation to which they were supplied.
  3. b) All the Information whether contained in the Contract or made by way of representation, have been provided by the Seller in the belief that it is as accurate as reasonably possible, but it does not, save for the Specification, constitute a description of the Goods and shall not be taken to be a representation made by the Seller, and is not warranted to be accurate.
  4. c) The Purchaser shall not alter or deface any of the Seller’s registered trademarks as marked on the Goods when the Goods are so marked or apply to them such other trade mark of written matter which is likely to injure the reputation of the Seller’s trade mark.
  5. d) The Seller shall indemnify the Purchaser against damage and costs awarded as a consequence of the Goods themselves and the delivery or importation thereof infringing its option any patent rights published (at the date of the Contract) in the United Kingdom provided always that:

(i) this indemnity shall not apply to any infringement which is due to the Seller having followed an instruction, furnished or given by the Purchaser, or to

the use of such material, in a manner or for a purpose, or in a foreign country not specified or disclosed to the Seller, or in combination with any other materials or process.

  1. ii) this indemnity is conditional, on the Purchaser giving to the Seller the earliest possible notice in writing of any claim being made or action threatened against the Purchaser, and on the Purchaser permitting the Seller, at the latter’s expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
  2. e) There is no licence granted, (implied or express) to manufacture, produce or sell or otherwise use the Goods in a manner, which may infringe any patent rights, owned by the Seller and others.
  3. f) The Purchaser warrants that any instructions furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any letters patent, copyright, utility model, registered design, right of confidence, or trade mark in execution of the Purchaser’s order.

 

  1. Sub- Contracting

The Seller is entitled at any time to sub-contract the Contract or any part thereof to any person, firm or company as it sees fit.

 

  1. Outside Work

Where the Seller delivers any goods to and/or provides any services at the Purchaser’s premises or other premises, the Purchaser shall indemnify the Seller against cost, loss expense and/or damage suffered or incurred by the Seller and against all actions and/or claims by third parties (including the Seller’s employees) arising directly or indirectly from the carrying out of other works at such premises or from defects in or unsuitability of other works being carried out at such premises or apparatus or plant (other than apparatus or plant supplied by the Seller) or from negligence or other tortious act or omission and/or breach of contract or statutory duty on the part of the Purchaser its employees or any third party (other than the Seller’s own employees ) and howsoever arising.

 

  1. Installation and Testing
  2. a) Where the Seller undertakes the erection, installation and /or testing of Goods (or any part thereof) the Purchaser shall at its own expense provide such layout and other drawings and information and such power, compressed air, water and other facilities as the Seller may require and charges and costs in connection with such provision shall be borne by the Purchaser.
  3. b) Unless agreed otherwise the Purchaser shall bear and indemnify the Seller against all travel and subsistence costs incurred by the Seller’s employees and agents in providing any erection installation, start-up, testing, maintenance and other related services, where such services are provided otherwise than at the Seller’s premises in Clitheroe.
  4. c) The Purchaser shall be responsible for compliance with all statutory requirements and third-party rights in connection with the siting, installation, erection and use by the Seller of the Goods to the Purchaser’s order and shall indemnify the Seller accordingly.
  5. d) The Seller’s prices for any installation and erection are based on free and continuous access to the site with hard standing cranage and transport adjacent to the erection position. Should delays occur beyond the control of the Seller such extra costs and expenses as may be incurred due to such delays shall be borne by the Purchaser.

 

  1. Quality and Defective Goods

14,1The Seller warrants that on delivery and for a period of 12 months from the date of delivery (Warranty period),] the Goods shall: ;

  1. conform in all material respects with the Specification;
  2. be free from material defects in design, material and workmanship and
  3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and
  4. be fit for any purpose held out by the Seller

14,2         Subject to clause 14.3 if:

  1. a) The Purchaser gives notice in writing to the Seller during the warranty period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 14.1; and
  2. b)              the Seller is given a reasonable opportunity of examining such Goods; and

the Purchaser (if asked to do so by the Seller) returns such Goods to the Supplier’s place of business at the Customer’s cost,

the Seller shall, if reasonably satisfied that there has been a breach of the warranty, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full

 

14.3       The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 14.1 in any of the following events:

  1. a) the Purchaser makes any further use of such Goods after giving notice in accordance with clause 14.2
  2. b) the defect arises because the Purchaser failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
  3. c) the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Purchaser;
  4. d) the Purchaser alters or repairs such Goods without the written consent of the Seller;
  5. e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  6. f) The Goods have been used to process material of the Purchaser which was not disclosed to the Seller prior the date of the contract or was specifically rejected by the Seller as being suitable for processing by the Goods.

14.4       Except as provided in this clause 14, the Seller shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 14.1

14.5.        The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

14.6         These Conditions shall apply to any repaired or replacement Goods supplied by the Seller

 

  1. Limitation of liability

15.1         Nothing in these Conditions shall limit or exclude the Seller’s liability for:

  1. a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  2. b) fraud or fraudulent misrepresentation;
  3. c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
  4. d) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

15.2         Subject to clause 15.1

  1. a) the Seller shall under no circumstances whatever be liable to the Purchaser, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  2. b) the Seller’s ‘s total liability to the Purchaser in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed thehigher of price of the Goods or the proceeds (if any) of any claim that the Seller’s insurance company pays out under any policy or policies in respect of a claim by the Purchaser.

 

  1. Force Majeure.

Without prejudice to Clause 7(b)  neither the Seller or the Purchaser  shall  be liable for any loss, costs, expense, claim action and or damage caused by the delay in the performance or non-performance of any of their respective obligations hereunder, where the same is occasioned by any cause whatsoever that is beyond the either the Seller’s or Purchaser’s s control, including but not limited to an Act of God, war civil disturbance, requisition, government or parliamentary restrictions, prohibitions or enactment of any kind. import or export regulations, strikes, lock -outs or trade dispute (whether involving its own employees or those of any other person) difficulties in obtaining workmen or materials, breakdown of machinery, fire or accident. Should any such event occur then the party claiming the Force majeure may by notice in writing suspend the Contract for a period not exceeding 3 months. without incurring any liability for any loss cost, expense, claim, action and/or or damage thereby occasioned.

 

If the Force majeure is still subsisting after three months, then either party may by notice in writing to the other terminate the contract. without incurring any liability for any loss cost, expense, claim, action and/or or damage thereby occasioned.

 

17. Termination and suspension

17.1         If the Purchaser becomes subject to any of the events listed in clause 17,2, the Seller may terminate the Contract with immediate effect by giving written notice to the Purchaser.

17.2         For the purposes of clause 17.1, the relevant events are:

  1. a) the Purchaser 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 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 has any partner to whom any of the foregoing apply;
  2. b) 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 its creditors [other than where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Purchaser];
  3. c) 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 Purchaser, other than for the sole purpose of a scheme for a solvent amalgamation of the Purchaser with one or more other companies or the solvent reconstruction of the Purchaser;
  4. d) 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 Purchaser;
  5. e) the holder of a qualifying floating charge over the Purchaser’s assets has become entitled to appoint or has appointed an administrative receiver;
  6. f) a person becomes entitled to appoint a receiver over the Purchaser’s assets or a receiver is appointed over the Purchaser’s assets;
  7. g) the Purchaser is the subject of a bankruptcy petition or order;
  8. h) 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 its assets and such attachment or process is not discharged within [14] days;
  9. i) any event occurs, or proceeding is taken, with respect to the Purchaser in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 17.2 a) to h) inclusive;
  10. j) the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
  11. k) the Purchaser’s financial position deteriorates to such an extent that in the Seller’s opinion the Seller’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
  12. l) the Purchaser dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

 

17.4         Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the    Purchaser and the Seller if the Purchaser  becomes subject to any of the events listed in clause 17.2 (a) to (l), or the Seller reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under this Contract on the due date for payment.

17.5         On termination of the Contract under this clause 17. the Purchaser shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and the Seller may retain the deposit if any paid by the Purchaser.

17.6         Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

17.7         Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect

 

18.1         Assignment and other dealings.

  1. a) The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
  2. b) The Purchaser may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

18.2         Notices.

  1. a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax [or e-mail].
  2. b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.2a); if sent by pre-paid first class post or other next working day delivery service, at [9.00 am] on the [second] Business Day after posting; 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 [or e-mail], one Business Day after transmission.
  3. c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

18.3         Severance.

  1. a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
  2. b) If [one party gives notice to the other of the possibility that] any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

18.4         Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.5         Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

18.6         Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.

18.7         Governing law. The 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 the law of England and Wales.

18.8         Jurisdiction.  Subject to the provisions of Clause 19.1 and 19.2,

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

 

19            Disputes and Claims

19.1.        The parties will attempt in good faith to resolve any dispute or claims arising out of or relating to this Contract promptly.

19.2         If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as recommended to the parties by the Centre for Dispute Resolution (CEDR).

19.3.        If the matter has not been resolved by an ADR procedure within 28 days of the initiation of such procedure, or if either party will not participate in an ADR procedure, the dispute shall be referred to the English Courts under Clause 18.8, subject to the rights of either party to enforce a judgement obtained in the English Courts in any other jurisdiction.