The Buyer’s attention is drawn in particular to the provisions of condition 12.
1. Definitions and Interpretation
1.1 Definitions In these Conditions, the following definitions apply:
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Buyer the person or firm who purchases Goods and/or Services from the Seller;
Charges the charges payable by the Buyer for the supply of the Goods and/or Services in accordance with condition 9;
Commencement Date has the meaning given in condition 2.3;
Conditions the terms and conditions set out in this document as amended from time to time in accordance with condition 16.3;
Confidential Information any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of the Seller and disclosed to or otherwise obtained by the Buyer in connection with the Contract;
Contract the contract between the Seller and the Buyer for the supply of Goods and/or Services which incorporates these Conditions, the Order, the Goods Specification and the Services Specification (where applicable);
Deliverables all documents, products and materials developed by the Seller or the Seller Personnel as part of or in relation to the Services in any form or media, including drawings, diagrams, designs, pictures, specifications and reports (including drafts);
Equipment Products any products removed from a Vehicle in the course of providing the Services and replaced by the Goods including:
- factory fitted power take off;
- plastic mud flaps and guards if not suitable for carrying dangerous goods / chemicals;
- battery boxes; and
- fuel tanks;
Force Majeure Event has the meaning given in condition 15;
Goods the goods (or any part of them) set out in the Order;
Goods Specification the specification for the Goods that is set out in the Order, agreed by the Seller and the Buyer or provided by the Seller to the Buyer on the Buyer’s request, as the case may be;
Insolvency Event has the meaning given in conditions 14.2(c) and 14.2(d);
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
OEM the original equipment manufacturer under whose name and branding the Vehicle is marketed and sold;
Order the Buyer’s order for the supply of the Goods and/or Services, as set out in the Buyer’s purchase order form, as communicated by the Buyer to the Seller over the phone or in the Buyer’s written acceptance of the Seller’s quotation, as the case may be;
Services the services, including any Deliverables, to be provided by the Seller under the Contract;
Services Specification the specification for the Services that is set out in the Order agreed by the Seller and the Buyer or provided by the Seller to the Buyer on the Buyer’s request, as the case may be;
Seller Meller Flow Trans Limited (registered in England and Wales with company number 04085371);
Seller Materials all materials, equipment and tools, drawings, data sheets, specifications and data supplied or made available by the Seller to the Buyer whether orally, in writing, graphically, electronically or in any other format;
Seller Personnel the personnel engaged by the Seller in the performance of the Contract; and
Vehicle the Buyer’s vehicle specified in the Order in respect of which the Goods are to be supplied or the Services performed.
1.2 Interpretation In these Conditions, the following rules apply:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
(b) 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.
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 trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase Goods and/or Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order or provides verbal confirmation of its acceptance of the Order over the phone, as the case may be, at which point the Contract shall come into existence (Commencement Date).
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any illustrations contained in the Seller’s catalogues or brochures 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.
2.5 Any quotation given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 90 days from its date of issue or such other period as is stated on the quotation or agreed between the parties.
2.6 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
2.7 The Seller reserves the right to amend the Goods Specification and/or Services Specification at its discretion:
(a) from time to time provided that any such change does not materially detract from the functionality or performance of the Goods or Services in question; and
(b) in the event the vehicle delivered to the Seller by (or on behalf of) the Buyer in respect of which the Goods or Services are to be provided differs in any way from the specification of the Vehicle.
3. Delivery of the Goods
3.1 The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Buyer and Seller reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
3.2 The method of delivery (either collection by the Buyer or delivery by the Seller) and the location from which collection should occur or to which delivery should be made (Delivery Location), as applicable, shall be set out in the Order or otherwise agreed between the parties in writing.
3.3 If the method of delivery is collection by the Buyer:
(a) the Buyer shall collect the Goods from the Delivery Location during the Seller’s business hours within 14 days of the Seller notifying the Buyer that the Goods are ready; and
(b) delivery of the Goods shall be completed when the Goods are made available to the Buyer for loading at the Delivery Location.
3.4 If the method of delivery is delivery by the Seller:
(a) the Seller shall deliver the Goods to the Delivery Location at any time after the Seller notifies the Buyer that the Goods are ready; and
(b) delivery of the Goods shall be completed on arrival of the Goods at the Delivery Location.
3.5 The Buyer shall provide all necessary delivery instructions, documents, licences, authorisations, labour and equipment to enable the Goods to be safely delivered at the Delivery Location and shall ensure that each delivery of Goods is signed for by an authorised representative.
3.6 The Seller will use its reasonable endeavours to meet quoted delivery dates, however unless otherwise agreed in writing any dates quoted for delivery are approximate only. The time of delivery is not of the essence.
3.7 If the parties have agreed in writing that time of delivery is of the essence and the Buyer has provided satisfactory evidence that a delay would result in consequential loss to the Buyer, the Buyer has the right to cancel the Contract in so far as it applies to the delayed Goods. The terms set out in this condition shall be the Buyer’s only remedy in relation to the delay.
3.8 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses 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 Seller shall have no liability for any delay in or failure to deliver the Goods to the extent that such delay or failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other information that is relevant to the supply of the Goods.
3.9 If the Buyer fails to take or accept delivery of the Goods within 14 days of the Seller notifying the Buyer that the Goods are ready or the Seller is unable to deliver them due to the Buyer’s breach of condition 3.5 then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 09:00 on the 14th day after the day on which the Seller notified the Buyer that the Goods were ready;
(b) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence);
(c) the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance); and
(d) the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
3.10 If the Goods are delivered to a Delivery Location or the Services are performed at a location outside the United Kingdom:
(a) the Buyer shall be responsible for and shall procure and supply to the Seller at its own expense any import or other licence or authority necessary for the import of the Goods to the Delivery Location;
(b) the Seller shall be responsible for procuring any necessary export licence unless the Order is placed by the Buyer from within the United Kingdom, in which case the Buyer shall be responsible for the procurement of any necessary export licence and shall do so at its own cost; and
(c) the Buyer and Seller will cooperate and provide to the other any information reasonably required in connection with procuring any such licence or authority.
3.11 The Seller 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. The Buyer shall pay for the Goods in each instalment without set-off, counterclaim or deduction in respect of any previous or future scheduled instalment or other goods ordered from the Seller.
3.12 If the Buyer requests delivery of the Goods by instalments, condition 3.11 shall apply, and the Seller reserves the right to charge the Buyer for the delivery of each instalment.
4. Quality of the Goods
4.1 The Goods are described in the Seller Materials provided to the Buyer from time to time.
4.2 The Seller warrants that on delivery, and for a period of 12 months from the date of delivery (or, in the case of refurbished Goods such lesser period as is stated in the Seller’s quotation) (Warranty Period), the Goods shall:
(a) conform in all material respects with their description and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be fit for any purpose held out by the Seller.
4.3 The Seller shall assign to the Buyer any assignable manufacturer’s warranty or other guarantee applicable to the Goods or any of them. If the Seller becomes insolvent, any such warranties and guarantees shall be deemed to have been assigned immediately prior to the onset of insolvency.
4.4 Prior to delivery, the Buyer shall have the right to enter into the Seller’s premises to inspect and test the Goods manufactured by the Seller. Inspections carried out pursuant to this condition shall be carried out during business hours on reasonable notice to the Seller.
(a) If following an inspection the Buyer reasonably considers that the Goods do not comply with the Seller’s warranties in condition 4.2, the Buyer shall inform the Seller within 14 days of the inspection and the Seller shall take such action as is necessary to ensure that the Goods are or will be as warranted under condition 4.2. If the Buyer does not provide such notice to the Seller within 14 days of the inspection, the Buyer will be deemed to have accepted the Goods and shall not be entitled to reject the Goods in accordance with condition 4.5, if the rejection is due to any defect which would have been apparent during the test and inspection.
4.5 Subject to condition 4.6, if:
(a) in the case of:
(i) a defect that is apparent on normal visual inspection, the Buyer gives notice in writing to the Seller within 14 days of delivery that some or all of the Goods do not comply with the warranty set out in condition 4.2; or
(ii) a latent defect, the Buyer gives notice in writing to the Seller during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in condition 4.2;
(b) the Seller is given a reasonable opportunity to examine such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.6 If the Seller agrees to inspect the Goods at the Buyer’s premises:
(a) the Buyer shall provide at its own cost all services and assistance reasonably required by the Seller to inspect the Goods and carry out any necessary repair or replacement of the Goods;
(b) if the Goods have been installed within a product (such as a Vehicle) which was not supplied by the Seller, the Seller shall not be responsible for the cost of removing the Goods and subsequent re-installation of the repaired or replacement Goods. If carried out by the Seller, the Buyer shall reimburse the Suppler for its costs for such removal and/or reinstallation;
(c) unless the Contract included installation or commissioning services in relation to the Goods, the Seller reserves the right to charge the Buyer a reasonable fee in respect of the labour and other expenses incurred by the Seller in relation to its attendance at the Buyer’s premises; and
(d) if upon examination of the Goods by the Seller, the Seller determines in its reasonable opinion that the defect or failure does not result from any non-compliance of the Goods with condition 4.2, the Buyer shall reimburse the Seller for all the Seller’s costs in relation to its inspection of the Goods.
4.7 The Seller shall not be liable for any Goods’ failure to comply with the warranty set out in condition 4.2 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with condition 4.5;
(b) the defect arises because the Buyer 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 industry practice regarding the same;
(c) the defect arises as a result of the Seller following any drawing, design or Goods Specification supplied by the Buyer;
(d) the Buyer alters or repairs the Goods without the written consent of the Seller;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.8 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.
4.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller, save that conditions 4.2 and 4.5 shall apply to any repaired or replacement Goods only for the unexpired balance of the warranty period of the original Goods.
5. Test Certificates
5.1 If specified in the Order, the Seller will provide test certificates for the Goods. If the Goods are manufactured by the Seller, it will provide such test certificates without charge. Where an independent test certificate is required from a third party, any costs and fees incurred in obtaining such test certificate shall be paid for by the Buyer.
6. Title and risk
6.1 Risk in the Goods shall pass to the Buyer on completion of delivery of such Goods, or, if applicable, in accordance with condition 3.9(b).
6.2 Title to the Goods shall pass to the Buyer at the earlier of:
(a) the Seller receiving payment in full (in cash or cleared funds) for:
(i) the Goods; and
(ii) any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 6.4.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods for which it has not paid separately from all other goods held by the Buyer 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) give the Seller such information relating to the Goods as the Seller may require from time to time; and
(e) permit or procure permission for the Seller, its agents and authorised representatives to enter any premises of the Buyer or of any third party where the Goods are stored in order to inspect whether the Buyer is in compliance with this condition 6.3 and/or recover the Goods.
6.4 Subject to condition 6.5, the Buyer may resell 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 Buyer resells the Goods before that time:
(a) it does so as principal and not as the Seller’s agent; and
(b) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to an Insolvency Event, then, without limiting any other right or remedy the Seller may have:
(a) the Buyer must immediately notify the Seller of the Insolvency Event;
(b) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(c) the Seller may at any time:
(i) require the Buyer to deliver up all Goods in its possession which have not been resold; and
(ii) 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. Performance of the Services
7.1 The Seller shall from the Commencement Date and for the duration of the Contract provide the Services to the Buyer in accordance with the Contract in all material respects.
7.2 The Seller will use its reasonable endeavours to perform the Services by the date(s) specified in the Order or agreed between the parties to the Contract, as applicable, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
7.3 The Seller warrants that it shall provide the Services with reasonable care and skill. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.4 The Buyer acknowledges that where, as part of the Services, the Seller agrees to install the Goods in the Vehicle, the Seller is reliant on the OEM (or its nominated third party provider) to undertake certain programming and calibration work in order to complete the installation (as detailed in the Order or otherwise agreed between the parties in writing from time to time). While the Seller warrants the Goods installed will be approved by the OEM for use with the Vehicle, it cannot guarantee: (i) the successful completion by the OEM (or its nominated third party provider) of such programming and calibration work (as this is outside the Seller’s control); or (ii) the compatibility of the Goods if the vehicle delivered to the Seller by (or on behalf of) the Buyer in respect of which the Goods or Services are to be provided differs in any way from the specification of the Vehicle.
7.5 If the third party programming and calibration work required to complete the installation of the Goods cannot be successfully completed by the estimated delivery date for any reason the Seller will use its reasonable endeavours to work with the OEM (or its nominated third party provider) to resolve the issue as quickly as possible. If the issue cannot be resolved within 60 days of the estimated delivery date then the Seller may, at its option and as the Buyer’s sole remedy, terminate the Contract, remove the Goods from the Vehicle and refund the price of the removed Goods and associated Services in full.
8. Buyer obligations
8.1 The Buyer shall:
(a) ensure that the terms of the Order and (if submitted by the Buyer) the Goods Specification and Services Specification are complete and accurate;
(b) co-operate with the Seller in all matters relating to the delivery of the Goods and performance of any associated Services including the provision of all necessary assistance and labour;
(c) provide the Seller and the Seller Personnel with access to the Buyer’s premises, office accommodation and other facilities reasonably required by the Seller for the purpose of delivering the Goods and performing any associated Services;
(d) provide such information to the Seller as the Seller may reasonably request for the purpose of delivering any Goods and performing any associated Services and ensure that such information is accurate in all material respects;
(e) keep and maintain all Seller Materials at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation; and
(f) comply with all applicable laws, regulations and industry standards or guidance (including any applicable British Standard) and any applicable and binding judgment of a relevant court of law relating to its activities under the Contract.
8.2 If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
(a) the Seller shall without limiting its other rights or remedies have the right to suspend provision of the Goods and/or performance of the Services until the Buyer remedies the Buyer Default;
(b) the Seller shall not be liable for any losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this condition 8.2; and
(c) the Buyer shall reimburse the Seller on demand for any losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default including costs relating to keeping any of the Seller Personnel at the Buyer’s premises.
9. Charges and payment
9.1 The Charges for the Goods and the Services (if any) shall be the charges set out in the Order, or, if no price is quoted in the Order or any additional Charges are incurred in accordance with condition 9.5:
(a) the Charges for the Goods shall be as set out in the Seller’s published price list in force on the date of delivery of the Goods or otherwise determined in accordance with condition 9.5; and
(b) the Charges for the Services shall be calculated on a time and materials basis in accordance with condition 9.3.
9.2 The Seller reserves the right to charge the Buyer a minimum Price of £25.00 for each Order.
9.3 Where the Charges for the Services are calculated on a time and materials basis:
(a) the Charges shall be calculated in accordance with the Seller’s standard daily fee rates;
(b) the Seller’s standard daily fee rates for each individual are calculated on the basis of a seven and a half hour day from 08:00 to 16:30 worked on Business Days (Working Hours); and
(c) the Seller shall be entitled to charge an overtime rate of up to 25% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by any Seller Personnel outside Working Hours.
9.4 The Charges exclude any amounts incurred by the Buyer in respect of the Buyer complying with its obligations under condition 8.1.
9.5 The Seller reserves the right to, by giving notice to the Buyer at any time before delivery of the Goods or performance of the Services, to increase the Charges to reflect any increase in the cost of the Goods or provision of the Services that is due to:
(a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
(c) additional Services being required as a result of any act or omission of the Buyer (including a failure to ensure the Vehicle in which the Goods are to be installed is in an appropriate and satisfactory condition); or
(d) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
9.6 The Seller shall be entitled to charge the Buyer for any expenses reasonably incurred by the Seller Personnel in connection with the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, the cost of services provided by third parties and materials.
9.7 The Charges are exclusive of:
(a) the costs and charges of packaging, insurance and transport of the Goods, which the Buyer shall pay to the Seller; and
(b) amounts in respect of value added tax (VAT) if applicable, which the Buyer shall pay to the Seller at the prevailing rate, subject to receipt of a valid VAT invoice.
9.8 The Seller may invoice the Buyer for the Charges upon completion of delivery of the Goods or performance of the Services in respect of each applicable Vehicle or with such other frequency as is agreed in writing by the parties.
9.9 Unless otherwise agreed in writing, the Buyer shall pay each invoice in full and in cleared funds 30 days end of month from the date of the invoice. Payment shall be made to the bank account nominated in writing by the Seller.
9.10 Payment shall fall due in accordance with condition 9.9, as applicable, and the Seller shall accordingly be entitled to sue for the Charges once it is due, despite the fact that title to the Goods has not passed to the Buyer.
9.11 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then without prejudice to the Seller’s other rights under the Contract:
(a) the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount; and
(b) the Seller reserves the right to suspend the Contract until such time as payment of the overdue amount has been received in full by the Seller.
9.12 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).
10. Collection of Equipment Products
10.1 The Seller may remove Equipment Products from the Vehicle in the course of providing the Services to the Buyer and the Seller shall store any Equipment Products at the Seller’s registered office or such other address as the Seller may notify to the Buyer from time to time.
10.2 The Buyer shall collect the Equipment Products from the premises referred to in condition 10.1 during the Seller’s business hours within 14 days of the Seller notifying the Buyer that the Services are completed.
10.3 If the Buyer fails to collect the Equipment Products within 14 days of the Seller notifying the Buyer that the Services are completed then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
(a) risk in the Equipment Products shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence); and
(b) the Seller may resell or otherwise dispose of part or all of the Equipment Products.
11. Intellectual Property Rights
11.1 The Buyer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods and the Seller Materials are and shall remain the sole property of the Seller or (as the case may be) the third party rights owner.
11.2 All Intellectual Property Rights arising in the performance of the Services (including the Deliverables) shall be owned by the Seller.
11.3 The Buyer may use the Deliverables only for the purpose of receiving the Services. The Buyer shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party.
11.4 To the extent that the Goods are manufactured in accordance with a Goods Specification supplied by the Buyer and/or Services are performed in accordance with a Services Specification supplied by the Buyer, the Buyer shall indemnify, keep indemnified and hold harmless the Seller from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation whether arising in tort (including negligence), in contract or otherwise and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller as a result of or in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Goods Specification or Services Specification. This condition 11.4 shall survive termination of the Contract.
11.5 The Seller may inform third parties that it provides or has provided the Goods and Services to the Buyer. The Buyer licenses the Seller to use its name and logo(s) for this sole purpose.
12.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its Seller Personnel (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1979;
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
12.2 Subject to condition 12.1:
(a) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
(i) any indirect, special, consequential or pure economic loss or damage;
(ii) any loss of profits, anticipated profits, revenue or business opportunities; or
(iii) damage to goodwill,
(in each case arising as a direct or indirect result of the relevant claim); and
(b) the Seller’s total liability to the Buyer in respect of all other claims, losses or damages 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 100% of the Charges for the Goods and/or Services supplied in respect of the affected Vehicle which gave rise to such claims, losses or damages.
13.1 Subject to condition 13.2, the Buyer shall:
(a) use the Confidential Information solely for the performance of the Contract; and
(b) keep the Confidential Information strictly confidential and not, without the Seller’s prior written consent, disclose it to any other person.
13.2 The Buyer may disclose the Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Buyer’s rights or carrying out its obligations under or in connection with the Contract and the Buyer shall ensure that such persons comply with this condition 13.2;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) if such information is public knowledge or already known to the Buyer at the time of disclosure or subsequently becomes public knowledge other than by breach of any duty of confidentiality (contractual or otherwise).
13.3 This condition 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies, either party may terminate the Contract at any time by notice (such notice to be in writing for any Order with a value of over £5,000 (excluding VAT)).
14.2 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer:
(a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
(b) fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being given written notice to do so;
(c) (being a body corporate) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event);
(d) (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application or the giving of any notice) by him or any other person in respect of any of these circumstances) (also an Insolvency Event)) (or, the other party being a partnership, has a partner to whom any Insolvency Event applies);
(e) (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; or
(f) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
14.3 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods and/or Services under the Contract or any other contract between the Seller and the Buyer if the Buyer becomes subject to an Insolvency Event or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under the Contract on the due date for payment.
14.4 If the Buyer terminates the Contract under condition 14.1 and the Contract relates to a Good ordinarily stocked by the Seller, the Seller reserves the right to charge the Buyer a fee of 20% of the Charges and/or fair and reasonable compensation for any work in progress on the Services at the time of termination including compensation for loss of anticipated profits and consequential loss.
14.5 If the Buyer terminates the Contract under condition 14.1 and the Contract relates to Goods which have been specifically manufactured for the Buyer and if:
(a) such manufacture has been completed and/or any Services relating to such Goods have completed at the time of termination, the Seller reserves the right to charge the Buyer a fee of 100% of the Charges; or
(b) such manufacture has not been completed at the time of cancellation and/or any Services relating to such Goods are in progress, the Seller reserves the right to charge the Buyer a fee up to 100% of the Charges (calculated on a pro rata basis according to the stage of production and/or Services in progress),
the Buyer shall also reimburse the Seller in full for all costs and obligations incurred by the Seller in connection with such manufacture and any costs and fees incurred by the Seller as a result of such cancellation including compensation for loss of anticipated profits and consequential loss.
14.6 On termination of the Contract for any reason:
(a) the Buyer shall immediately pay to the Seller all the Seller’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which the Buyer shall pay immediately on receipt;
(b) the Buyer shall return all of the Seller Materials and any Deliverables which have not been fully paid for. If the Buyer fails to do so, the Seller 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 other than receiving and using the Services;
(c) the parties’ rights and remedies that have accrued as at termination shall be unaffected; and
(d) conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect.
15. Force majeure
15.1 If a party (an Affected Party) is prevented, hindered or delayed in or from performing any of its obligations (excluding an obligation to pay any amount due) under the Contract by a Force Majeure Event, the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.2 A Force Majeure Event means any event which hinders, delays or prevents performance of a party’s obligations and which is either beyond that party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
15.3 If the period of delay or non-performance continues for 3 months, the either party may terminate the Contract by giving 10 Business Days’ written notice to the other party.
16.1 Assignment subcontracting and other dealings
(a) The Seller may at any time assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract.
(b) The Buyer shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract without the Seller’s written consent.
16.2 Entire agreement The Contract (incorporating these Conditions) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. The Buyer 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.
16.3 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 agreed in writing and signed by the Seller.
16.4 Waiver Except as set out in condition 2.6, 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 or 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.
16.5 Severance If any 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 shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered: (i) by hand or by pre-paid first-class post or by a signed-for next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or (ii) by e-mail to the e-mail address specified on the Order or otherwise notified to a party from time to time.
(b) Any notice shall be deemed to have been received: (i) if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address; (ii) if sent by pre-paid first-class post, at 09:00 on the second Business Day after posting; (iii) if sent by a signed-for next Business Day delivery service, at the time recorded by the delivery service; and (iv) if sent by e-mail at 9.00 on the next Business Day after transmission provided the sender does not receive an error message or out of office message in response to such e-mail.
(c) This condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.7 Third party rights No one other than a party to the Contract shall have any right to enforce any of its terms.
16.8 Relationship Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Seller and the Buyer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.9 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. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract.
16.10 Jurisdiction The Buyer 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 the Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this condition shall limit the Seller’s right to take proceedings against the Buyer 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 jurisdictions.