MOBILE RETAIL LTD TERMS AND CONDITIONS OF SALE (“Conditions”)
The Customer’s attention is in particular drawn to the provisions of condition 15 (Limitation of Liability) and condition 10.1.1 (non-refundable deposit).
1. Definitions and Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these Conditions.
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Company Mobile Retail Ltd (company number 5906686) whose principal place of business is at Unit 1, Great Union Street, Hull, HU9 1AL.
Conditions the terms and conditions set out in this document as amended from time to time.
Contract any contract between the Company and the Customer for the sale and purchase of the Goods and/or Design Services, incorporating these Conditions and the Schedule.
Customer the person, firm or company who purchases the Goods and/or Design Services from the Company as specified in the Schedule.
Delivery Point the place where delivery of the Goods is to take place under condition 5.
Deposit the initial non-refundable payment payable in accordance with condition 10, details of which are set out in the Schedule.
Design Services Levels Any service levels which the Company has agreed to meet in respect of the design services or any aspect of the provision of the Goods.
Design Services any services agreed in the Contract to be supplied to the Customer by the Company as set out in the Schedule.
Design Specification the design specification as set out in the Schedule.
Goods any goods including any vehicle (as vehicle is defined in the schedule) agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them) as set out in the Schedule.
Intellectual Property patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
Schedule the schedule of details attached to these Conditions.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. Application of terms
2.1 Subject to any variation under condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document) or which are implied by trade, custom or course of dealing.
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods and/or Design Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods and/or Design Services by the Customer from the Company shall be deemed to be an offer by the Customer to buy Goods and/or Design Services subject to these Conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until the Schedule has been signed by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.6 The Customer shall ensure that the terms of the Schedule, its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Schedule has been signed by both the Company and the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3. Description
3.1 The quantity and description and the Specification of the Goods shall be as set out in the Schedule.
3.2 All samples, drawings, descriptive matter, specification and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have contractual force and this is not a sale by sample. In addition the Customer agrees and acknowledges that the Customer is responsible for its own use of the Goods and that the Company makes no warranty and assumes no responsibility as to likely sales targets for the Goods as any sales or business revenue will be entirely dependent upon the business and sales activities of the Customer.
3.3 The Company reserves the right to amend the Design Specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Goods
4.1 To the extent that the Goods are to be manufactured in accordance with a Design Specification supplied by the Customer, the Customer shall indemnify the Company irrevocably in full and on demand against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Design Specification. This condition 4.1 shall survive termination of the Contract.
4.2 The Company reserves the right to amend the Design Specification if required by any applicable statutory or regulatory requirements
5. Delivery
5.1 Delivery of the Goods shall take place either at Mobile Retail Limited, Unit 1, Union Street, Hull, HU9 1AL or such other location as specified in the Schedule or otherwise agreed with the Customer.
5.2 Unless otherwise agreed in writing, the Customer shall take delivery of the Goods and/or Design Services on the day that the Company gives it notice that the Goods and/or Design Services are ready for delivery. Where the Company has agreed to deliver the Goods and/or Design Services to the Customer’s premises or other Customer nominated location the Customer shall take delivery of the Goods and/or Design Services as soon as the Goods and/or Design Services arrive at the Customer’s premises or other Customer nominated location.
5.3 Any dates specified by the Company for delivery of the Goods and/or Design Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. The Company shall not be liable for any delay in delivery of the Goods that is caused by a force majeure event as defined in condition 20 or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. If no dates are so specified, delivery shall be within a reasonable time.
5.4 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 140 days.
5.5 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
5.5.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence);
5.5.2 the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready delivered; and
5.5.3 the Company may store the Goods until delivery takes place, and charge, whereupon the Customer for all related costs and expenses (including insurance).
5.6 If 10 Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Company may:
5.6.1 invoice the Customer for the balance of the Price together with any storage charges (if the Customer has requested a delay in delivery); or
5.6.2 resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.7 The Customer shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
5.8 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.9 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6. Non-delivery
6.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
6.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
6.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
7. Client Property
7.1 The Customer agrees and acknowledges and understands that it may be required to supply products or materials or vehicles to the Company to enable the Company to perform its obligations under the Contract to the extent that the Customer does make such supplies then it agrees to maintain in place full and adequate insurance for any of its property that may be temporarily in the Company’s possession. The Company agrees to use reasonable care when dealing with such Customer property.
8. Risk/title
8.1 The Goods are at the risk of the Customer from the time of delivery at the Delivery Point.
8.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are or which become due to the Company from the Customer on any account.
8.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
8.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
8.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
8.4.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
8.4.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
8.5 The Customer’s right to possession of the Goods shall terminate immediately if:
8.5.1 the Customer becomes subject to any of the events listed in condition 21.1.2 to condition 21.1.6; or
8.5.2 the Customer encumbers or in any way charges any of the Goods.
8.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
8.7 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
8.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
8.9 On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 7 shall remain in effect.
9. Price
9.1 The price for the Goods and/or Design Services to be provided are set out in the Schedule.
9.2 If the Customer requires delivery to its own premises or to another Customer nominated location, and the Company has agreed to this, the Company reserves the right to charge the Customer a delivery charge and the Customer shall pay such delivery charge within 30 days of the date of the Company’s payment request or invoice in respect of such delivery charge.
9.3 Subject to condition 9.2, the price for the Goods and/or Design Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage (except to the Delivery Point) and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
9.4 The Company may invoice the Customer for the Goods and/or Design Services at any time.
10. Payment
10.1 Subject to condition 10.4, the price shall be paid as follows:
10.1.1 the Deposit prior to acceptance of the order of the Contract by the Customer, this Deposit is non-refundable even if the Contract is cancelled or terminated for any reason;
10.1.2 the stage payment, as detailed in the Schedule, once the Company has informed the Customer that the Goods have been painted in accordance with the Design Specification; and
10.1.3 the balance (to be received in cleared funds) prior to collection of the Goods at the Delivery Point,
for the avoidance of doubt the Company may withhold the Goods from the Customer at the Delivery Point if the balance of the price for the Goods has not been paid by or on behalf of the Customer.
10.2 Time for payment shall be of the essence.
10.3 No payment shall be deemed to have been received until the Company has received cleared funds.
10.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
10.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
10.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
11. Customer Obligations
11.1 The Customer shall:
11.1.1 ensure that the terms of the Schedule and (if submitted by the Customer) the Design Specification are complete and accurate;
11.1.2 provide the Company with such information as the Company may reasonably request if the Customer is purchasing the Goods through a third party finance provider;
11.1.3 co-operate with the Company in all matters relating to the Design Services;
11.1.4 provide the Company with such information and materials as the Company may reasonably require to supply the Design Services, and ensure that such information is accurate in all material respects;
11.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Design Services before the date on which the Services are to start; and
11.1.6 keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
11.2 If the Company’s performance of any of its obligations in respect of the Design Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
11.2.1 the Company shall without limiting its other rights or remedies have the right to suspend performance of the Design Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
11.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this condition 11.2;
11.2.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default; and
11.2.4 the Customer shall be solely responsible for ensuring any licence, towing capability and towing vehicle are correct for their purchase.
11.3 The Customer acknowledges that if it requires a third party to make any modification and/or alternation to the Goods, the Company will not allow such modification and/or alternation to be carried out by a third party until such time as the Goods have been delivered in accordance with condition 5 and the total price paid in accordance with condition 10.
12. Design Service Levels
12.1 The Company shall provide the Design Service to the Customer in accordance with the Design Service Levels in all material respects.
12.2 The Company shall use all reasonable endeavours to meet any performance dates for the Design Service specified in the Schedule, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Design Service.
12.3 The Company shall have the right to make any changes to the Design Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Design Service, and the Company shall notify the Customer in any such event.
12.4 The Company warrants to the Customer that the Design Service will be provided using reasonable care and skill.
13. Quality
13.1 Where the Company is not the manufacturer or fitter of the Goods, the Company shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company. Warranty work authorised by the Company shall be on a “back to base” basis. The Customer is solely responsible for transporting the Goods to and from the Company. The “back to base” warranty is valid for a period of no longer than 3 months from the date of collection of the Goods. Notwithstanding the remainder of this condition 13, where such warranty or guarantee is transferred to the Customer:
13.1.1 the Company shall have no further liability in respect of the Goods or part of the Goods to which such warranty or guarantee relates;
13.1.2 the Customer shall deal directly with the third party responsible under or for the warranty or guarantee;
13.1.3 the Company shall not bear any responsibility for, nor shall it pay any contribution in respect of, delivery of the Goods back to the relevant third party.
13.2 Subject to condition 13.1, the Company warrants that (subject to the other provisions of these Conditions) on delivery, and for a period of 3 months from the date of delivery, the Goods shall:
13.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
13.2.2 conform in all material respects with the Design Specification; and
13.2.3 be reasonably fit for purpose; and
13.2.4 be reasonably fit for any particular purpose for which the Goods are being bought if the Customer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Customer to rely on the skill and judgement of the Company.
13.3 The Company shall not be liable for a breach of any of the warranties in condition 13.2 unless:
13.3.1 the Customer gives written notice of the defect to the Company within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
13.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods; and
13.3.3 the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost for the examination to take place there.
13.4 The Company shall not be liable for a breach of any of the warranties in condition 13.2 if:
13.4.1 the Customer makes any further use of such Goods after giving such notice; or
13.4.2 the defect arises because the Customer has failed to maintain the Goods to a sufficient standard; or
13.4.3 the defect arises as a result of the Company following any drawing, design or instructions or any aspect of the Design Specification supplied by the Customer; or
13.4.4 the defect arises because the Customer has not ensured that the manufacturer’s warranty or any warranty given by the Company is up-to-date or servicing has not been undertaken; or
13.4.5 the defect arises as a result of the Goods having been driven not within the limitations of the vehicle noted by the manufacturer or advised by the Company; or
13.4.6 the defect arises as a result of the Goods being modified or altered by a third party; or
13.4.7 if the Goods have been towed or driven outside of the weight restrictions for the Vehicles as advised by the manufacturer or the Company or as further noted on the Schedule; or
13.4.8 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice; or
13.4.9 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
13.4.10 the Goods differ from their description or any applicable Design Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
13.4.11 the Customer alters or repairs such Goods without the written consent of the Company.
13.5 Except as provided in this condition 13, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 13.
13.6 If any of the Goods do not conform with any of the warranties in condition 13.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Customer’s expense, return the Goods or the part of such Goods which is defective to the Company.
13.7 If the Company complies with condition 13.5 it shall have no further liability for a breach of any of the warranties in condition 13.2 in respect of such Goods.
13.8 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
13.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
14. Third Party Responsibility
14.1 The Company can have no responsibility for any third party acts or omissions and in particular can have no responsibility for any tax or registration issues with the Goods nor any third party warranty claim in respect of the manufacturer’s warranty as any claims will need to be raised by the Customer with the manufacturer directly.
15. Limitation of liability
15.1 Subject to condition 5, condition 6 and condition 13, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
15.1.1 any breach of these Conditions;
15.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
15.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
15.2 Nothing in these Conditions excludes or limits the liability of the Company:
15.2.1 for death or personal injury caused by its negligence, or the negligence of its employees, agents; or subcontractors (as applicable);
15.2.2 fraud or fraudulent misrepresentation;
15.2.3 breach of the terms implied by under section 12 of the Sale of Goods Act 1979;
15.2.4 defective products under the 2(3), Consumer Protection Act 1987; or
15.2.5 for any matter in respect of which it would be unlawful for the Company to exclude or attempt to exclude its liability.
15.3 Without prejudice to condition 15.2, the Company shall not, under any circumstances, be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
15.3.1 loss of profit; or
15.3.2 loss of goodwill; or
15.3.3 loss of business; or
15.3.4 loss of business opportunity; or
15.3.5 loss of anticipated saving; or
15.3.6 special, indirect or consequential damage,
suffered by the other Customer that arises under or in connection with this Contract.
15.4 Without prejudice to condition 15.2 or condition 15.3, the Company’s total liability arising under or in connection with this Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to the Contract Price.
16. Company Obligations
16.1 In accordance with the Schedule, the Company, at the Company’s sole discretion, may:
16.1.1 provide to the Customer the Design Services; and
16.1.2 provide any additional rights or services as have been agreed between the parties.
16.2 The Company may cease to provide and/or withdraw the rights and entitlements set out in condition 16.1 in the event that the Customer uses the Goods in any way which, in the Company’s sole opinion, does or may cause damage to the reputation or goodwill of the Company or any third party.
16.3 If this Contract terminates or the Customer sells or otherwise disposes of any Goods which are branded with the Company’s trade marks to a third party, the Customer undertakes to strip the Goods of all the Company’s trade marks before the sale to such third party is completed unless the Company has otherwise expressly agreed in writing with such third party that such third party may use the Company trade marks on the Goods.
16.4 Where the Customer sells or otherwise disposes of the Goods which are branded with any trade mark(s) it shall provide the Company with the details (including name, address and other contact details) of the third party to whom the Customer is to sell or has sold the Goods.
17. Intellectual Property
17.1 The Customer acknowledges that the Company is the owner or licencee of the Intellectual Property relating to or arising in respect of the Goods or of the goodwill associated therewith and/or the training, marketing and promotional material and information provided by the Company or of the goodwill associated therewith. The Customer acknowledges and agrees that it shall have no rights in respect of such Intellectual Property.
17.2 The Customer shall not sub-licence, transfer or otherwise deal with the rights of use of the Intellectual Property granted under the Contract unless the Company expressly permits this in writing.
18. Export Sales
18.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 18 shall apply notwithstanding any other provision of these Conditions.
18.2 The Customer shall be responsible for complying with any legislation or regulations governing the importation, use or sale of the Goods in the country of destination, the payment of any duties or takes on them and the transportation and storage of the Goods including without any limitation any obligation to translate any instructions, labelling or packaging into any other language.
18.3 The Customer is responsible for arranging, testing and inspecting the Goods prior to transportation. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after transportation, or in respect of any damage incurred during transit.
19. Assignment
19.1 The Company 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 or any part of it to any person, firm or company.
19.2 The Customer shall not be entitled to 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 or any part of it without the prior written consent of the Company.
20. Force majeure
20.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, import or export regulations or embargoes provided that, if the event in question continues for a continuous period in excess of 140 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
21. Termination
21.1 Either party shall have the right at any time and for any reason to immediately terminate the Contract in whole or in part by giving the other party written notice, whereupon all work on the Contract shall be discontinued without liability to the Company, if:
21.1.1 the other party commits a material breach of any of the terms and Conditions of the Contract; or
21.1.2 any distress, execution or other process is levied upon any of the assets of the other party; or
21.1.3 the other party has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the other party or for the granting of an administration order in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party; or
21.1.4 the other party ceases or threatens to cease to carry on its business; or
21.1.5 the Customer’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
21.1.6 (being an individual) the Customer 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.
21.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in condition 21.1 to condition 21.1.6, or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
21.3 The termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
21.4 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination.
21.5 The Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
21.6 Any licence to use the Company’s Intellectual Property (which for the avoidance of doubt includes the Trade Marks) granted under this Contract shall terminate on termination of the Contract. The Customer shall ensure that on termination of the Contract the Goods will be stripped of all the Company’s Intellectual Property and that any and all materials and information containing the Company’s Intellectual Property are returned to the Company immediately or are destroyed immediately, at the Company’s request.
22. General
22.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
22.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
22.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
22.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
22.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
22.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
23. Communications
23.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email:
23.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company or in the case of faxes, or emails to the fax number, or email address notified to the Customer by the Company from time to time; or
23.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer or in the case of faxes, or email to the fax number, or email address notified to the Company by the Customer from time to time.
23.2 Communications shall be deemed to have been received:
23.2.1 if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
23.2.2 if delivered by hand, on the day of delivery; or
23.2.3 if sent by fax or email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
23.3 Communications addressed to the Company shall be marked for the attention of the Office Manager.
