General Supply Terms & Conditions
CRJ Services Limited standard terms & conditions for the supply of goods and/or the provision of services ('supply terms') (June 2021)
The Purchaser's attention is particularly drawn to the provisions of clause 3 (Quality of Goods) and clause 10 (Limitation of liability).
1. Definitions and interpretation
1.1 Definitions:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions” the terms and conditions set out in this document.
“Contract” means the contract between the Seller and the Purchaser for the sale and purchase of Goods and/or Services pursuant to these Conditions. The Contract incorporates these Conditions and the Order, including any Order Form and any documents (including any written quotation or proposal) specifically referenced in and/or attached to such Order Form.
“Funder” means a bank or financier providing finance to the Purchaser for the purchase of the Goods. “Goods” the goods (or any part of them) ordered by the Purchaser pursuant to the Order.
“Order” the Purchaser's order for any goods and/or services, as set out in the Order Form or otherwise. “Order Confirmation” the Sellers’ written confirmation of acceptance of an Order whether by countersigning an Order Form or otherwise.
“Order Form” the order form supplied by the Seller for the purposes of ordering goods and/or services from the Seller and signed by or on behalf of the Purchaser.
“New Equipment” plant, machinery, equipment or vehicles previously unused except for demonstration purposes.
“Parts” parts or components and any associated ancillary items in each case relating to plant, machinery, equipment or vehicles
“Purchaser” the person or firm who purchases the Goods and/or Services from the Seller.
“Seller” means CRJ Services Limited (registered in England and Wales with company number 03872602). “Services” the services (or any part of them) ordered by the Purchaser pursuant to the Order.
“Used Equipment” plant, machinery, equipment or vehicles other than New Equipment.
1.2 In these Conditions:
1.2.1 clause headings shall not affect the interpretation of these Conditions;
1.2.2 references to clauses are to the clauses of these Conditions;
1.2.3 a “person” includes a natural person, corporate body or unincorporated body (whether or not having separate legal personality);
1.2.4 unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders;
1.2.5 a reference to any party shall include that party’s personal representatives, successors and permitted assigns;
1.2.6 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under it from time to time; and
1.2.7 any words following the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
1.2.8 written shall include email unless expressly stated otherwise.
1.3 This clause 1 shall survive the termination of the Contract.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of all other terms and conditions that the Purchaser purports to impose or incorporate under any purchase order, acknowledgement of order or similar document, or which are implied by trade, custom, practice or course of dealing.
2.2 Any quotation or proposal given by the Seller shall not constitute an offer and shall only be valid for the period set out therein.
2.3 Any Order from the Purchaser shall be deemed to be an offer by the Purchaser to purchase the Goods and/or Services set out therein in accordance with these Conditions.
2.4 An Order from the Purchaser shall only be deemed to be accepted by the Seller when the Seller issues an Order Confirmation (or, if earlier, when the Seller supplies any of the Goods and/or Services), at which point the Contract shall come into existence.
2.5 The Purchaser is responsible for ensuring that the terms of the Order are accurate.
2.6 Any variation to the Contract shall have no effect unless expressly agreed in writing and signed by a director of the Seller.
2.7 The Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous agreements (whether written or oral) between the parties relating thereto.
The Purchaser acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any written or oral statement, promise, representation, misrepresentation, assurance or warranty (whether express or implied) made or given by or on behalf of the Seller which is not expressly set out in the Contract or expressly agreed in writing and signed by a director of the Seller. Nothing in this clause shall limit or exclude any liability for fraud. This clause 2.7 shall survive the termination of the Contract.
2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.9 Any samples, drawings, descriptive matter or advertising produced by the Seller are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
2.10 The details of any Goods and/or Services in any quotation or proposal issued by the Seller or Order Form are given only for the purposes of identifying the relevant Goods and/or Services and do not make the sale of any Goods and/or Services a sale by description.
2.11 The Seller reserves the right to refuse, delay or accept in part only any Order for Goods if the Seller considers there are reasonable technical or operational grounds for doing so. Such grounds include, without limitation, damage to the Goods, a technical problem or fault in the Goods, delays in the Seller obtaining the Goods and changes in the Seller’s operational needs resulting in the Seller no longer being able to sell the Goods.
3. Quality of the Goods
Used Equipment
3.1 To the extent that the Goods comprise any Used Equipment:
3.1.1 such Goods are sold “as seen”; and
3.1.2 the Purchaser acknowledges and agrees that it has had an opportunity to inspect such Used Equipment; and
3.1.3 the Seller makes no representations and gives no warranties as to the quality, condition, state or description of the Used Equipment, or its fitness or suitability for any purpose, and all implied statutory or common law terms, conditions and warranties as to the Used Equipment are excluded to the fullest extent permitted by law.
New Equipment
3.2 To the extent that the Goods comprise any New Equipment, the only warranties provided by the Seller shall be those expressly set out in writing in the Proposal, Order Form or any quotation annexed and such warranties shall be subject to the terms and conditions applicable to such warranties, as set out in writing in the Order Form or any proposal or quotation annexed to the Order Form.
3.3 Save as provided in clause 3.2, the Seller makes no representations and gives no warranties as to the quality, condition, state or description of the New Equipment, or its fitness or suitability for any purpose, and all implied statutory or common law terms, conditions and warranties as to the New Equipment are excluded to the fullest extent permitted by law.
Parts
3.4 To the extent that the Goods comprise Parts, any warranties made or given by the manufacturer of the Parts (Manufacturer’s Parts Warranty) shall be given on substantially the same terms and conditions by the Seller to the Purchaser.
3.5 Details of any Manufacturer’s Parts Warranty and any associated terms and conditions are available upon request.
3.6 Save as provided in clause 3.4, the Seller makes no representations and gives no warranties as to the quality, condition, state or description of the Parts, or their fitness or suitability for any purpose, and all implied statutory or common law terms, conditions and warranties as to the Parts are excluded to the fullest extent permitted by law.
3.7 This clause 3 shall survive the termination of the Contract.
4. Delivery of the Goods
4.1 Unless agreed by the Seller in writing, the Seller shall make the Goods available for collection from the Seller’s premises on an ex works (EXW) basis. The Purchaser shall be responsible for collecting the Goods during the Seller’s normal business hours and loading the Goods onto a suitable vehicle. The Purchaser shall collect the Goods within 14 days of the Seller giving the Purchaser notice that the Goods are ready for collection.
4.2 If agreed by the Seller in writing, the Seller shall deliver the Goods to the Purchaser’s place of business or to such other location as may be agreed by the Seller in writing, in which case:
4.2.1 delivery may be made at any time after the Seller notifies the Purchaser that the Goods ready for delivery, and at any time of the day;
4.2.2 the Seller may use such means of delivery as the Seller thinks fit;
4.2.3 the Purchaser shall provide the Seller or its agent with safe access to the delivery location;
4.2.4 the Seller or its agent shall be entitled to deliver the Goods to any person whom the Seller or its agent reasonably believes has authority to accept delivery on behalf of the Purchaser; and
4.2.5 the Seller or its agent shall have no responsibility whatsoever for the unloading of the Goods at the delivery location.
4.3 Delivery of the Goods shall be completed:
4.3.1 where the Goods are made available for collection as stated in clause 4.1, upon commencement of the loading of the Goods by or on behalf of the Purchaser; or
4.3.2 where the Goods are delivered by the Seller as stated in clause 4.2, upon the Good’s arrival at the delivery location and prior to unloading; or
4.3.3 where clause 4.7 applies, on the date of deemed completed delivery stated in clause 4.7.1.
4.4 Any dates specified by the Seller for delivery of the Goods are approximate and the time of delivery is not of the essence. The Seller undertakes no obligation to deliver the Goods by any agreed delivery date. The Purchaser must accept delivery of the Goods and pay for it in full notwithstanding any delay in delivery.
4.5 The Goods may be delivered by the Seller in advance of any agreed delivery date upon giving reasonable notice to the Purchaser.
4.6 The Purchaser shall be responsible for obtaining all export and import licences and permits necessary for the collection or delivery of the Goods.
4.7 If the Purchaser fails to collect the Goods when they are ready, fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions:
4.7.1 delivery of the Goods shall be deemed to have been completed:
4.7.1.1 where the Purchaser fails to collect the Goods when they are ready or fails to give the Seller adequate delivery instructions, at 9:00am on the date 14 days after the date of the notice given under clause 4.1 or, as the case may be clause 4.2.1; or
4.7.1.2 where the Purchaser fails to take delivery of the Goods, on the date that the Seller or its agent first attempts to effect delivery of the Goods;
4.7.2 the Seller shall be entitled to recover from the Purchaser as a debt any costs associated with abortive attempts to deliver the Goods; and
4.7.3 the Seller may store or arrange for the storage of the Goods at the Purchaser’s risk until actual collection or delivery and charge the Purchaser for all related costs and expenses (including storage and insurance) and/or sell the Goods and recover from the Purchaser as a debt the shortfall (if any) between the price the Purchaser had agreed to pay for the Goods and the price the Goods has been sold for, in addition to any selling expenses.
4.8 Except to the extent that they are inconsistent with the express terms of the Contract, the Contract (to the extent that it relates to the supply of Used Equipment or New Equipment) is subject to the International Chamber of Commerce Incoterms Rules 2010 regarding ex works (EXW) delivery of the Goods.
5. Loss of or damage to Goods
5.1 The Seller shall have no liability whatsoever for any loss of or damage to the Goods, even if caused by the negligence of the Seller or its agents, unless notice of the loss or damage is given to the Seller within 24 hours of the time of receipt by the Purchaser of the Goods or, in the case of damage not discoverable on normal visual inspection, within 24 hours of when such damage ought reasonably to have become apparent.
5.2 If any loss of or damage to the Goods occurred whilst the Goods were at the Seller’s risk, the Seller’s liability shall be limited to, at the Seller’s option:
5.2.1 issuing a credit note at the pro rata Contract rate against any invoice raised for the Goods; or
5.2.2 repairing or replacing the lost or damaged Goods.
5.3 The Purchaser shall:
5.3.1 provide the Seller with reasonable access to inspect damaged Goods;
5.3.2 retain the packaging of the damaged Goods for inspection by the Seller; and
5.3.3 (if asked to do so by the Seller) return such Goods to the Seller's place of business at the Seller’s cost.
5.4 A signature confirming acceptance of the delivery of the Goods on a carrier’s delivery note shall not be written notice to the carrier or the Seller for the purpose of clause 5.1.
5.5 This clause 5 shall survive the termination of the Contract.
6. Services
6.1 The Seller warrants to the Purchaser that the Services will be provided:
6.1.1 using reasonable care and skill;
6.1.2 by personnel who are suitably skilled and experienced to perform tasks assigned to them; and
6.1.3 in accordance with all applicable laws.
6.2 Save as provided in clause 6.1, the Seller makes no representations and gives no warranties in relation to the Services, and all implied statutory or common law terms, conditions and warranties as to the Services are excluded to the fullest extent permitted by law.
6.3 The Purchaser shall:
6.3.1 co-operate with the Seller in all matters relating to the Services;
6.3.2 provide the Seller, its employees, agents, consultants and subcontractors, with access to the Purchaser's premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services;
6.3.3 provide the Seller with such information as the Seller may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
6.3.4 comply with all applicable laws, including health and safety laws;
6.3.5 keep all materials, equipment, documents and other property of the Seller (Seller Materials) at the Purchaser's premises in safe custody at its own risk and not dispose of or use the Seller Materials other than in accordance with the Seller's written instructions or authorisation.
6.4 If the Seller's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Purchaser or failure by the Purchaser to perform any relevant obligation (Purchaser Default):
6.4.1 without limiting or affecting any other right or remedy available to it, the Seller shall have the right to suspend performance of the Services until the Purchaser remedies the Purchaser Default, and to rely on the Purchaser Default to relieve it from the performance of any of its obligations in each case to the extent the Purchaser Default prevents or delays the Seller's performance of any of its obligations;
6.4.2 the Seller shall not be liable for any costs or losses sustained or incurred by the Purchaser arising directly or indirectly from the Seller's failure or delay to perform any of its obligations as set out in this clause 6.4; and
6.4.3 the Purchaser shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Purchaser Default.
7. Price
7.1 Subject to clause 7.6, the price of:
7.1.1 Goods comprising Used Equipment or New Equipment shall be the price set out in the Order Form;
7.1.2 Goods comprising Parts shall be the price confirmed by the Seller at the time of order by the Customer or, if no confirmation is given, the price set out in the Seller's price list as at the date of the Order.
7.2 The price of the Goods is, unless stated otherwise, given on an ex works (EXW) basis and is exclusive of all costs of packaging, insurance and transport of the Goods and any import or export duties, which shall be invoiced to the Purchaser and paid by the Purchaser at the same time as payment is made for the Goods.
7.3 The charges for Services shall be calculated on a time and materials basis. The time charges shall be calculated in accordance with the Seller's then current hourly rates and the Seller shall be entitled to charge an overtime rate of 150% of such hourly rate on a pro-rata basis for any time worked by individuals whom it engages on the Services on a day that is not a Business Day or outside the hours of 9.00am to 5.00pm on a Business Day.
7.4 Any estimate provided by the Seller in connection with the Services is not legally binding and is designed to give the Purchaser an approximate idea of the likely charges for the Services (including any materials).
7.5 The price of the Goods and/or Services is exclusive of VAT and any other applicable taxes or duties, which the Purchaser shall pay at the same time as payment is made for the Goods and/or Services.
7.6 The Seller may vary the price of the Goods and/or Services at any time between the date of the Order and the date of the Seller’s invoice to reflect any increase in the cost to the Seller of providing the Goods and/or Services that is due to:
7.6.1 any factor beyond the control of the Seller (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.6.2 any request by the Purchaser to change the delivery date(s), quantities or types of Goods and/or Services ordered, or any specification relating to the Goods and/or Services; or
7.6.3 any delay caused by any instructions of the Purchaser in respect of the Goods and/or Services or failure of the Purchaser to give the Seller adequate or accurate information or instructions in respect of the Goods and/or Services.
8. Payment
Used Equipment/New Equipment
8.1 Subject to clause 8.2, the Purchaser shall pay the full price of any Goods comprising Used Equipment or New Equipment and any other amounts payable under clause 7 in respect of such Goods in full, either in cash or by BACS or telegraphic transfer to the Seller’s bank account as notified to the Purchaser in writing, prior to collection or delivery of such Goods.
8.2 No payment shall be deemed to have been made, and the Seller shall have no obligation to deliver any Goods comprising Used Equipment or New Equipment or make them available for collection, until the Seller has received the full price of such Goods and any other amounts payable under clause 7 in respect of such Goods in cleared funds.
Parts
8.3 Subject to clause 8.4 and clause 8.8, the Purchaser shall pay the full price of any Goods comprising Parts and any other amounts payable under clause 7 in respect of such Parts in full, either in cash or by BACS or telegraphic transfer to the Seller’s bank account as notified to the Purchaser in writing, prior to collection or delivery of such Goods.
8.4 Subject to clause 8.8, no payment shall be deemed to have been made, and the Seller shall have no obligation to deliver any Goods comprising Parts or make them available for collection, until the Seller has received the full price of such Goods and any other amounts payable under clause 7 in respect of such Goods in cleared funds.
Services
8.5 Subject to clause 8.6 and clause 8.8, the Purchaser shall pay the full amount of any estimate provided in respect of the Services and any other amounts payable under clause 7 in respect of such Services in full, either in cash or by BACS or telegraphic transfer to the Seller’s bank account as notified to the Purchaser in writing, prior to the commencement of the Services.
8.6 In the event that the charges for the Services:
8.6.1 exceed such estimate, the Purchaser shall pay the balance to the Seller in cash or by BACS or telegraphic transfer to the Seller’s bank account as notified to the Purchaser in writing within 3 Business Days of the date of the Seller’s invoice relating to such charges;
8.6.2 are less than such estimate, the Seller shall refund to the Purchaser the amount of such difference by BACS or telegraphic transfer to the Purchaser’s bank account as notified to the Seller in writing within 3 Business Days of the date of the Seller’s invoice relating to such charges.
8.7 Subject to clause 8.8, no payment shall be deemed to have been made, and the Seller shall have no obligation to provide any Services, until the Seller has received the amount due under clause 8.5 and any other amounts payable under clause 7 in respect of such Services in cleared funds.
General
8.8 If the Seller has agreed any credit terms with the Purchaser in writing in respect of the supply of Goods comprising Parts or the supply of any Services (and such terms have not been terminated by the Seller), payment for the relevant Parts and/or Services shall be made by the Purchaser in accordance with such terms. The Seller may, in its sole and absolute discretion, terminate any such credit terms at any time by giving notice to the Purchaser.
8.9 The Seller reserves the right to require the payment of a deposit or to require that payment is made by letter of credit. Any such terms of payment shall be stated in the Order Form.
8.10 Payment shall be made in pounds sterling unless otherwise stated in the Order Form.
8.11 The Seller may, by agreement in writing, invoice the Funder. Neither agreement to do so nor acceptance of payment direct from the Funder shall release the Purchaser from any of the duties, obligations or liabilities under the Contract, save for the obligation to pay any sum already paid by the Funder. The Purchaser irrevocably represents and warrants to the Seller that notwithstanding payment by the Funder, the Purchaser is the purchaser of the relevant Goods. If the Funder fails to make any payment in accordance with the Contract, the Purchaser shall be obliged to make such payment in place of the Funder, or alternatively shall return the relevant Goods immediately to the Seller at the Purchaser’s risk and cost.
8.12 If the Purchaser (or the Funder on the Purchaser’s behalf) fails to make any payment under the Contract on the due date then (without prejudice to the Seller’s other rights and remedies) the Purchaser (or the Funder on the Purchaser’s behalf) shall pay interest on the overdue amount at a daily rate of 4% above National Westminster Bank PLC’s base rate from time to time, both before and after judgment, until payment is made in full.
8.13 The time for payment shall be of the essence and the failure of the Purchaser (or the Funder on the Purchaser’s behalf) to make any payment under the Contract on the due date shall entitle the Seller at its option to treat the Contract as repudiated.
8.14 The Purchaser shall (or shall procure that the Funder on the Purchaser’s behalf shall) make all payments due under the Contract in full without any deduction or withholding except as required by law and the Purchaser shall not be entitled to (and shall procure that the Funder does not) assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Purchaser (or the Funder on the Purchaser’s behalf) against any amount payable by the Seller to the Purchaser under the Contract or any other contract between the parties.
8.15 This clause 7 shall survive the termination of the Contract.
9. Risk and title
9.1 Risk of damage to or loss of the Goods shall pass to the Purchaser upon completion of delivery under clause 4.3, and in the event of deemed delivery under clause 4.7.1, the risk of deterioration in the Goods due to the passage of time from the date of deemed delivery shall also pass to the Purchaser on such date.
9.2 Title to the Goods (both legal and equitable) shall not, unless otherwise agreed in writing or pursuant to clause 9.4, pass to the Purchaser until the Seller has received in full (in cash or cleared funds):
9.2.1 the price of the Goods plus all any other amounts payable under clause 7; and
9.2.2 all other sums which are due or owing from the Purchaser to the Seller under the Contract or any other contract between the parties.
9.3 Until title to the Goods has passed to the Purchaser in accordance with clause 9.2, the Purchaser shall:
9.3.1 store the Goods (at no cost to the Seller) separately from any goods or equipment of the Purchaser or third parties and mark the Goods in a manner which makes them readily identifiable as the property of the Seller;
9.3.2 not destroy or deface any identifying marks on the Goods or their packaging;
9.3.3 properly protect the Goods against loss or damage;
9.3.4 keep the Goods insured on the Seller’s behalf, either in the joint names of the parties or on the basis that the Seller’s interest is noted on the insurance policy, against loss or damage on an “all risks” basis for the full price payable for the Goods to the reasonable satisfaction of the Seller, and upon request produce the policy of insurance to the Seller;
9.3.5 hold all proceeds of any claim made under an insurance policy as referred to in clause 9.3.4 on trust for the Seller and shall not mingle them with any other monies nor pay the proceeds into an overdrawn bank account; and
9.3.6 not pledge or in any way charge by way of security for any indebtedness any Goods which are the property of the Seller.
9.4 Notwithstanding clauses 9.2 and 9.3, following delivery of the Goods the Purchaser may, subject to the terms of this clause 9, re-sell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Purchaser resells the Goods before such time:
9.4.1 it does so as principal and not as the Seller’s agent; and
9.4.2 title to the Goods shall pass from the Seller to the Purchaser immediately before the time at which resale by the Purchaser occurs.
9.5 At any time before title to the Goods passes to the Purchaser under clause 9.2, if the Purchaser fails to pay for the Goods in accordance with clause 8 (or such other terms as to payment as have been agreed in writing between the parties), or if any of the events listed in clause 14.1 occurs, or if the Contract is terminated under clause 14 or is repudiated, the Seller may by written notice revoke the Purchaser’s right to use and sell the Goods under clause 9.4. The Purchaser shall no longer be entitled to use or retain possession of the Goods and shall immediately return the Goods to the Seller at the Purchaser’s risk and cost. If the Purchaser fails to do so, the Purchaser hereby irrevocably consents to the Seller and/or its representative(s) entering any premises where the Goods are or are reasonably believed to be and removing the Goods. The Purchaser hereby grants to the Seller, its employees and agents an irrevocable licence to lawfully enter into and upon any of the Purchaser’s premises or any premises under the Purchaser’s control where the Goods are stored in order to repossess it. The Purchaser hereby represents and warrants to the Seller that it has the authority to grant the Seller the right of access set out in this clause 9.5.
9.6 The Seller shall be entitled to a general lien on all Goods in the Seller’s possession for the unpaid price of any equipment sold and delivered to the Purchaser by the Seller under the Contract or any other contract between the parties.
9.7 Nothing in this clause 9 shall affect the Purchaser’s obligation to pay for the Goods.
9.8 This clause 9 shall survive the termination of the Contract.
10. Limitation of liability
10.1 Nothing in the Contract shall exclude or limit the liability of the Seller for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees or agents;
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
10.1.4 any other matter in respect of which the law provides that liability may not be excluded or limited.
10.2 Subject to clause 10.1:
10.2.1 the Seller shall not under any circumstances be liable to the Purchaser, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any:
10.2.1.1 indirect or consequential loss; or
10.2.1.2 loss of revenue;
10.2.1.3 loss of goodwill;
10.2.1.4 loss of business opportunity;
10.2.1.5 loss of anticipated saving;
10.2.1.6 loss of profit; or
10.2.1.7 loss of contracts,
arising under or in connection with the Contract;
10.2.2 and clause 10.2.1, the Seller’s total aggregate liability to the Purchaser in respect of all matters 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 a sum equivalent to greater of:
10.2.2.1 the total price payable by the Purchaser under the Contract for the Goods and/or Services and
10.2.2.2 the insurance cover effected by the Seller and actually available to meet the claim in question.
The Purchaser acknowledges that delay in notifying any claim to insurers may prevent the Seller recovering any money from its insurers and that the Purchaser’s right to recover from the Seller shall be restricted accordingly.
10.3 This clause 10 shall survive the termination of the Contract.
11. Confidential information
11.1 Each party (“receiving party”) shall keep in strict confidence all information which is disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors about the disclosing party’s business. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential. This clause 11 shall survive the termination of the Contract.
12. Force majeure
12.1 The Seller shall not be liable to the Purchaser in any manner or be deemed to be in breach of the Contract as a result of any delay in performing or any failure to perform any of the Seller’s obligations under the Contract if the delay or failure is due to any event or circumstance beyond the Seller’s reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party, including any carrier or manufacturer of any Goods); inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour; accident; government actions; failure of a utility service or transport network; act of god; war, threat of war, riot, civil commotion or terrorism; malicious damage; sabotage; requisition; compliance with any law or governmental order, rule, regulation or direction; import or export regulations or embargoes; breakdown of plant or machinery; exceptionally adverse weather; fire; flood; storm; epidemic; or failure by the manufacturer or supplier of any Goods to supply the Goods to the Seller correctly or at all.
12.2 If any event or circumstance prevents the Seller from performing its obligations under the Contract for a continuous period of more than one month, the Seller shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Purchaser, in which case the Seller shall be entitled to be paid immediately for the price of any Goods and/or Services supplied prior to the date of termination (less any sums already paid) and any costs relating to the procurement, storage or delivery of any Goods not yet supplied which the Seller has already incurred or is committed to pay.
13. Suspension of performance
13.1 Without limiting its other rights or remedies, the Seller shall have the right to suspend performance of any or all of its obligations under the Contract (including, without limitation, the obligation to deliver any Goods or provide any Services) by giving notice to the Purchaser if:
13.1.1 the Purchaser fails to pay any amount due under the Contract on the date that payment is required to be made; or
13.1.2 the Purchaser becomes subject to any of the events listed in clause 14.1, or the Seller reasonably believes that the Purchaser is about to become subject to any of them.
14. Termination
14.1 Either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party becomes subject to any of the following events:
14.1.1 it 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 to have no reasonable prospect of doing so, 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;
14.1.2 it commences negotiations with any 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 it is a company) for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or for solvent reconstruction;
14.1.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with its winding up, other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or for solvent reconstruction;
14.1.4 (being a company) 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 it;
14.1.5 (being a company) a floating charge holder over its assets has become entitled to appoint or has appointed an administrative receiver;
14.1.6 a person becomes entitled to appoint a receiver over its assets or a receiver is appointed over its assets;
14.1.7 a creditor or encumbrancer 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;
14.1.8 (being an individual) it is the subject of a bankruptcy petition or order;
14.1.9 any event occurs, or proceeding is taken, with respect to it in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1.1 to clause 14.1.8 inclusive; or
14.1.10 it suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business.
14.2 Without prejudice to its rights under clause 14.1, the Seller may terminate the Contract with immediate effect by giving written notice to the Purchaser if the Seller reasonably believes that any event listed in clauses 14.1.1 to
14.1.10 is about to occur.
14.3 The Seller may terminate the Contract with immediate effect by giving written notice to the Purchaser if:
14.3.1 the Purchaser commits a material breach of the Contract (other than its obligation to make payment pursuant to clause 7) and fails to remedy the same within 7 days after receipt of a notice from the Seller giving particulars of the breach to be remedied; or
14.3.2 the Purchaser fails to make payment in accordance with clause 7 or such other terms as to payment as have been agreed in writing between the parties.
14.4 Where the Seller terminates the Contract pursuant to any of clauses 14.1, 14.2 or 14.3, the Seller shall be entitled to be paid immediately for the price of any Goods and/or Services supplied prior to the date of termination (less any sums already paid), any costs relating to the procurement, storage or delivery of any Goods not yet supplied which the Seller has already incurred or is committed to pay and any other loss and/or damage suffered or incurred by the Seller as a result of the termination. The Seller shall be entitled to retain any deposit paid by the Purchaser and set such deposit off against any amount owing to it by the Purchaser.
14.5 Where the Purchaser terminates the Contract pursuant to clause 14.1, the Purchaser shall immediately pay the Seller for any Goods already delivered and/or Services already provided, notwithstanding any other provision of the Contract or any other agreed payment terms.
14.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination and is without prejudice to any other rights or remedies either party may possess.
14.7 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
15. Notices and communications
15.1 All notices to be given under the Contract shall be in writing and delivered by hand or sent by first class post, recorded delivery post, commercial courier or (where the parties are located in different countries) air mail to the relevant 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 may be specified in the Order Form or as either party may have specified to the other in writing in accordance with this clause 15. Notices addressed to the Seller shall be marked for the attention of the Managing Director.
15.2 All communications between the parties under or in connection with the Contract shall be in writing and may be sent in accordance with clause 15.1 or sent by email to such email addresses as agreed between the parties from time to time.
15.3 A notice or other communication shall be deemed to have been received, if delivered by hand, when left at the relevant party’s address; if sent by first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if sent by air mail, at 9.00 am on the fourth Business Day after posting; if sent by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
15.4 The provisions of this clause 15 shall not apply to the service of any proceedings or other documents in any legal action.
15.5 This clause 15 shall survive the termination of the Contract.
16. Assignment and subcontracting
16.1 The Seller may at any time assign, transfer, charge, licence, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without the Purchaser’s consent.
16.2 The Purchaser shall not assign, transfer, charge, licence, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without the Seller’s prior written consent.
17. General
17.1 Severance. Any provision of the Contract which is held by any court or other component authority to be invalid, illegal, void, voidable or unenforceable (in whole or in part) shall to the extent of such invalidity or illegality, or to the extent it is void, voidable or unenforceable, be deemed to be deleted or modified to the extent necessary to make it valid, legal and enforceable, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.2 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.3 No waiver. 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 preclude or restrict the further exercise of that or any other right or remedy. 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.
17.4 Governing law and jurisdiction. 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 English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales, except that nothing in this clause 17.4 shall limit the right of the Seller to take proceedings (including enforcement proceedings) against the Purchaser in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.
17.5 Conflict. In the event of any conflict or ambiguity between the terms of:
17.5.1 the Conditions;
17.5.2 the Order Form; and
17.5.3 any documents annexed to the Order Form,
a term contained in a document higher in the list shall have priority over one contained in a document lower in the list in respect of such conflict or ambiguity.
17.6 Survival. This clause 17 shall survive the termination of the Contract.