Issue No. 7 January 2024
Terms & Conditions of Sale
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in this agreement.
1.2 Bespoke Goods: means any goods manufactured by the Company for the Buyer at the Buyer’s request to the Buyer’s specification, which includes but is not limited to, the manufacture of non-standard goods and non-standard size goods.
1.3 Buyer: means the person, firm or company who purchases the Goods or Services from the Company.
1.4 Buyer’s Goods: means any goods owned by the Buyer which are supplied by the Buyer to the Company in order that the Company can perform the Services.
1.5 Conditions: means these terms and conditions as amended from time to time in accordance with clause 2.3.
1.6 Company: means Clark Drain Limited of Station Road, Yaxley, Peterborough, PE7 3EQ (company registration number 01397422).
1.7 Contract: means any contract between the Company and the Buyer for the sale and purchase of the Goods or Services, incorporating these Conditions.
1.8 Delivery Point: means the place where delivery of the Goods is to take place under clause 4.
1.9 Goods: means any goods agreed in the Contract to be supplied to the Buyer by the Company including (where applicable) the Buyer’s Goods and the Bespoke Goods.
1.10 Services: means any services agreed in the Contract to be provided by the Company in respect of the Buyer’s Goods or to the Bespoke Goods.
1.11 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.
1.12 Words in the singular include the plural and in the plural include the singular.
1.13 A reference to one gender includes a reference to the other gender.
1.14 Clause headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under clause 2.3 the Contract shall incorporate these Conditions to the exclusion of all other terms and conditions (including, but not limited to, any standard terms or conditions of the Buyer which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply because of such document being referred to in the Contract.
2.3 Any variation to these Conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised officer or employee of the Company. Entirely without prejudice to clause 4.5, if any variation in relation to Bespoke Goods which involves re-drawing or otherwise has an impact on the cost of manufacture, the Company will endeavour to inform the Buyer of the change of cost and the change in any timescales prior to continuing with the Contract, but the Company will be entitled in any event to payment from the Buyer of a reasonable sum as a result of the variation.
2.4 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company relating to the Goods or Services which is not set out in the Contract. Nothing in this clause 2.4 shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.5 Each order or acceptance of the Company’s quotation for Goods or Services which is issued by the Buyer shall be deemed to be an offer by the Buyer to buy those Goods or Services subject to these Conditions.
2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.
2.7 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. In relation to Bespoke Goods, the Buyer will supply to the Company the full technical specification for the Bespoke Goods and the Company will supply a drawing with the Company’s interpretation of the Buyer’s requirements (“the acceptance drawing”). The Buyer must check the acceptance drawing and any drawings and technical specifications supplied by the Company with the acceptance drawing and confirm acceptance of the same in writing, otherwise the Company reserves the right not to proceed to manufacture the Bespoke Goods.
2.8 Any quotation issued by the Company is given on the basis that no Contract shall come into existence until the Company dispatches an acknowledgement of order to the Buyer. Any such quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.9 No order placed by the Buyer which has been accepted by the Company may subsequently be cancelled by the Buyer without the written consent of the Company. The Company may withhold its consent or grant consent subject to such conditions as the Company may in its discretion decide.
3. DESCRIPTION
3.1 The quantity and description of the Goods or Services shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 The Company reserves the right to alter or modify the specification of the Goods or Services without prior notice to the Buyer.
3.3 All samples, drawings, descriptive matter, specifications, dimensions and weights issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract and this is not a sale by sample.
4. DELIVERY
4.1 Delivery of the Goods shall take place at the Company’s place of business or at such other address as may be agreed by the Company and the Buyer.
4.2 The Buyer shall take delivery of the Goods within five days of the Company giving it notice that the Goods are ready for delivery.
4.3On dispatch of the Goods by the Company, the Company will provide the Buyer with confirmation of dispatch by email in accordance with clause 16.1(b). Such confirmation will be treated by the Company and the Buyer as proof of delivery without any further substantiation being necessary or required. The email may contain a photograph of the delivery, or GPS location tracking but there is no obligation on the Company to provide any further information by way of proof of delivery beyond its said email confirmation. No cancellation of the Contract will be accepted by the Company under clause 2.9 after the Goods have been dispatched without payment of a fee by the Buyer to the Company; such fee to be a sum decided upon by the Company in its absolute discretion.
4.4 If the Company agrees to deliver the Goods at the Buyer’s premises or at another address specified by the Buyer then the Buyer will notify the Company prior to delivery of all applicable weight, delivery and load restrictions.
4.5 Any dates specified by the Company for delivery of the Goods or completion of the Services are intended to be an estimate only and time for delivery or completion shall not be made of the essence by notice. If no dates are so specified, delivery of the Goods or completion of the Service shall be within a reasonable time taking into account the Buyer’s actions in terms of the time taken for the acceptance of drawings and any technical information in relation to Bespoke Goods.
4.6 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 or completion of the Services (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.
4.7 If for any reason the Buyer refuses or is unable 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 Buyer has not provided appropriate instructions, documents, licences or authorisations or the Buyer is not present to accept delivery, or off-loading facilities are not available owing to time restrictions:
(a) risk in the Goods shall pass to the Buyer;
(b) the Goods shall be deemed to have been delivered;
(c) the Company may store the Goods until delivery and the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
(d) the Buyer will pay to the Company an administrative fee of 15% of the price of the Goods or Services (exclusive of value added tax) together with a redelivery charge, both of which will be payable by the Buyer within 14 days from the date of the Company’s invoice.
4.8 The Buyer (if necessary) shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and unloading the Goods.
4.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.10 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.11 Subject to the Company’s obligations under clauses 5.1 and 9.4 the Buyer will not be entitled to return any Goods after delivery without the written consent of the Company which the Company will be entitled to withhold at its discretion. The Company will not in any event grant consent if the Goods have been manufactured or supplied to the Buyer’s specifications or the Buyer’s request to return the Goods is received by the Company more than 30 days after delivery of the Goods to the Buyer.
4.12 If the Company consents to provide a replacement of the Goods according to clauses 5.1 or 9.4 the Company shall only account for the cost of delivery of the replacement of the Goods to the Buyer at the address originally provided to it as per clause 4.1. The Company shall not provide for the cost of delivery to any other address than that provided to it as per clause 4.1 including that of any of the Buyer’s customers.
4.13 Subject to clauses 4.11, 5.1 and 9.4, if the Company does at its discretion accept the return of any Goods, the Buyer will pay a re-stocking charge to the Company in a sum to be decided by the Company acting reasonably. Agreement of the said sum will be a condition precedent to the return of any Goods. The restocking charge will be deducted from the invoice and/or a credit note will be given at the Company’s absolute discretion.
5. SHORTAGES OR NON-DELIVERY
5.1 The Buyer will inspect the Goods on delivery. Acceptance of the Goods will be treated as confirmation that the Goods have been inspected and accepted without issue. In the event of short delivery or damage or defects to the Goods the Buyer must send an email to the Company at [email protected] setting out the detail of the short delivery, damage or defects within 24 hours following the time of delivery. Upon such email notification the Company shall investigate and if appropriate inspect the Goods and shall, if any shortages are confirmed or if the Goods are found to be damaged or faulty, at its sole discretion either repair or replace them. The Buyer will not attempt to repair any damaged Goods without the prior approval of the Company.
5.2 The Company will not accept liability for shortage of or damage to the Goods if:
(a) the Buyer fails to inspect the Goods on delivery: to this end the Buyer is reminded that pallets should be fully unpacked as often smaller parts of the order will be packed in the centre of the pallet or inside other products to prevent damage;
(b) the Buyer fails to send the follow up email referred to in clause 5.1; or
(d)if the Buyer or any user of the Goods installs the Goods without first notifying the Company of damage or fault to the Goods.
5.3 The Company shall not be liable for any non-delivery of Goods unless the Buyer gives written notice to the Company of the non-delivery within 48 hours following the date when the Goods would in the ordinary course of events have been received.
5.4 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.
6. RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery as confirmed by clause 4.3. Subject to clause 4.7 the Company accepts liability for any loss or damage to the Buyer’s Goods whilst they are on the Company’s premises and before delivery to the Buyer.
6.2 Subject to clause 6.10 ownership of the Goods shall not pass to the Buyer until the Company has received payment in full (in cash or cleared funds) of all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are, or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) 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 Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 Until ownership of the Goods has passed to the Buyer (and provided that the Goods are still in existence and have not been resold) the Company may at any time require the Buyer to deliver up the Goods to the Company.
6.6 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.
6.7 The Buyer 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 (if the Company has required the Buyer to deliver up the Goods under clause 6.5) to repossess them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this clause 6 shall remain in effect.
6.10 The terms of clauses 6.2 to 6.8 will not apply to the Buyer’s Goods.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company’s price list published on the date of acceptance of the Buyer’s order and the price for the Services shall be the price specified in the Contract.
7.2 The price for the Goods or Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.3 The Company may, by giving notice to the Buyer at any time up to ten days before delivery of the Goods or before the Company commences the Services, increase the price of the Goods or Services that is due to:
(a) any factor beyond the Company’s control (including but not limited to foreign exchange fluctuations, increases in taxes and duties, the imposition of any levy, 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, Services to be performed, or the description provided as per clause 3.1; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
7.4 In addition where the Company is required to inspect delivered Goods for damage or defects and it is found that the Goods are not damaged or defective or in fact the goods are not Goods delivered by the Company; then the Buyer must pay the Company a reasonable sum for the Company’s costs of and arising out of the inspection.
8. PAYMENT
8.1 Unless otherwise agreed in writing by the Company, payment of the price for the Goods or Services is due in pounds sterling on either (a) the date of the Buyer’s order for all non-account customers of the Company – this means that all non-account customers contract with the Company on a pro forma basis, and (b) for account customers, payment is due within 30 days from the date of the Company’s invoice. Account customers are those who have opened a credit account with the Company. If there has not been any trading activity between the Company and the Buyer for a period of twelve (12) months, from the date of delivery of the previous purchase, then payment terms will be reviewed by the Company, and the Buyer may not be considered to be an account customer at that time and in these circumstances.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds. The company does not accept payment by cheque.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provisions in these Conditions.
8.5 The Buyer 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 Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract:
(a) the Company may suspend any further delivery of the Goods or performance of the Services; and/or
(b) the Buyer shall be liable to pay simple interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis until payment is made whether before or after any judgment. In addition where the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 applies, the Buyer shall be liable to pay compensation to the Company as stated in that legislation.
9. QUALITY
9.1 The Company warrants that (subject to the other provisions of these Conditions):
(a) on delivery and for a period of twelve months thereafter the Goods (excluding the Buyer’s Goods and the Bespoke Goods) shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and (b) on delivery and for a period of twelve months thereafter the Goods (excluding the Buyer’s Goods and the Bespoke Goods) shall be reasonably fit for any particular purpose for which such Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Company; and
(b) the Services shall be performed by the Company with reasonable skill and care and in accordance with normal industry standards.
9.2 The Company shall not be liable for a breach of any of the warranties in clause 9.1 unless:
(a) the Buyer gives written notice of the defect to the Company within seven days of the time when the Buyer discovers or ought to have discovered the defect, such written notice containing full details of the relevant invoice(s) the subject of the Goods or Services; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods or Services and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there. The Company reserves the right to request photographic or other reasonable evidence as to the defects alleged prior to either inspecting the Goods or Services or requesting the Goods to be returned for inspection.
9.3 The Company shall not be liable for a breach of any of the warranties in clause 9.1 in respect of the Goods if:
(a) the Buyer makes any further use of the Goods after giving notice of a defect in the Goods as per sub-clause 9.2 (a);
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice (note that installation guides/videos are available on the Company’s website for certain products);
(c) the Buyer alters or repairs such Goods without the written consent of the Company;
(d) the Buyer sells the Goods to any third party and written notice of the defect is given to the Company after the Goods have been delivered to the third party;
(e) the Buyer fails to make the Goods available to the Company for collection by the Company within 30 days of the notification of the defect pursuant to sub-clause 9.2 (a) or within 30 days of the Company’s request pursuant to sub-clause 9.2 (b) whichever is the later; or
(f) the Buyer destroys the Goods without the written consent of the Company.
9.4 Subject to clauses 9.2 and 9.3 if any of the Goods do not conform with any of the warranties in clause 9.1 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 Buyer shall, at the Company’s expense, return the Goods, or the part of such Goods which is defective, to the Company;
9.5 if any of the Services do not conform with any of the warranties in clause 9.1 the Company shall re-perform the Services as soon as reasonably practicable.
9.6 If the Company complies with clause 9.4 it shall have no further liability for a breach of any of the warranties in clause 9.1 in respect of such Goods or Services.
9.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the twelve month period.
9.8 The coating used on all ductile iron products is a temporary coating only. Depending on the environment they are used in, ductile iron products might begin to oxidise. Such oxidation does not affect the integrity or strength of the Goods in any way, even if it is not aesthetically appealing and should not be compared to the corrosion of mild steel. After the initial stage, the oxidation rate of ductile iron will decrease and a protective layer will build up. When trafficked the surface will gradually take on a dark polished finish. Should this not be desirable the Company recommends that the Goods be painted with a proprietary rust-inhibiting paint at periodic intervals as needed. Any coating that is applied to the Goods when delivered is intended to protect the Goods between manufacture and installation only. The Company will not therefore accept claims for defect because of surface corrosion.
10. USE OF PERSONAL INFORMATION
10.1 The Company will use any personal information provided by or on behalf of the Buyer to:
(a) supply the Goods or Services to the Buyer;
(b) process the Buyer’s payment for the Goods or Services; and
(c) if the Buyer has agreed to this during the order process, to inform the Buyer about similar products or services that the Company provides, but the Buyer may stop receiving these communications at any time by contacting the Company using the contact details given to the Buyer during the ordering process.
10.2 The Company’s full privacy policy is available on the Company’s website at: www.clark-drain.com/privacy-policy
10.3 Where the Buyer makes an application for credit for the Goods or Services the Company may perform checks against the name and financial standing of the Buyer and, where the Buyer is a company, any director of the Buyer. By agreeing to the Contract, the Buyer agrees that the Company may obtain, retain and provide to third parties, including credit reference agencies, personal information and details of financial standing of the Buyer and, where the Buyer is a company, any director of the Buyer. This right also extends to disclosing any delinquent payment information related to the Buyer. The Company will monitor and keep records of information relating to the Buyer’s trade performance. Credit reference agencies may keep a record of any search that they conduct and will share information with other businesses when assessing applications for credit and fraud prevention.
10.4 The Company will only give personal information to other third parties where the law either requires or allows the Company to do so.
11. TERMINATION
11.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer 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 the Buyer being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Buyer's financial position deteriorates to such an extent that in the Company's opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods or Services under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in sub-clauses 11.1 (b) to 11.1 (d), or the Company 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.
11.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment and fails to pay that amount within 14 days of the Buyer being notified in writing to do so.
11.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all the Company's outstanding unpaid invoices and interest due under the Contract.
11.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
12. LIMITATION OF LIABILITY
12.1 Subject to clauses 4, 5 and 9, 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 subcontractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 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.
12.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence;
(b) under section 2(3), Consumer Protection Act 1987;
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.4 Subject to clauses 12.2 and 12.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the sum of £50,000;
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract;
(c) it is the responsibility of the Buyer to determine the suitability of the Goods for their end use. The Company has no control over how the Goods are to be used or the conditions in which the Goods will be used. Subject to the other provisions of these Conditions the Company shall not be liable to the Buyer to the fullest extent permitted by law as to the suitability of the Goods for their end use;
(d) in relation to Bespoke Goods, given that the Company is manufacturing to the specification and instruction of the Buyer, to the fullest extent permitted by law (i) the Company shall not be liable to the Buyer as to the suitability of the Bespoke Goods for their end use and (ii) the Buyer remains fully liable for the installation of the Bespoke Goods and the use of the Bespoke Goods by any user of the Bespoke Goods; and
(e) where Goods are either to be modified or are modified by the Buyer, the Company excludes liability to the fullest extent permitted by the law in relation to any claims howsoever arising in relation to the Goods, including but not limited to claims arising in connection with (a) the suitability of the Goods for their end use and (b) compliance with MOD requirements, British Standards or Eurocodes or equivalent (as amended from time to time).
12.5 Copyright in all documents prepared by or for the Company in connection with the Goods and/or the Bespoke Goods and in any designs depicted in and works executed from these documents shall, unless otherwise agreed, remain the property of the Company but the Buyer shall have a non-exclusive, royalty free, transferable licence to copy, use and publish such documents (including copies thereof) for any purpose connected with the Goods including without limitation its sale, letting, use, maintenance, redesign, repair, reinstatement, advertisement, marketing, alteration, renewal, redevelopment or refurbishment and the Company agrees not to assert any moral rights in such documents (or the Goods) to such end granted pursuant to the Copyright Designs and Patents Act 1988 or any statutory re-enactment or modification thereof. The Company shall not be liable for the use of such documents for a purpose other than that for which they were prepared.
13. ASSIGNMENT
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14. FORCE MAJEURE
The Company reserves the right to defer the date of delivery of the Goods or performance of the Services or to cancel the Contract (without liability to the Buyer) if it is prevented from, hindered 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 or supranational actions (including but not limited to the imposition of duties that add to the costs of the Company in performing the Contract), 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, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
15. GENERAL
15.1 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.
15.2 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.
15.3 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.
15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.5 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.
15.6 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 submit to the exclusive jurisdiction of the English courts.
16. COMMUNICATIONS
16.1 Entirely without prejudice to the method of and the timeframe for communications referred to in clause 5 which will prevail for the purpose of that clause only, all other 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 email:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company or by email to the Company at [email protected]; or
(b) (in the case of communications to the Buyer) to the registered office of the Buyer (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer. In the case of email, this may be sent to the Buyer at any email address notified to the Company or with which the Company has communicated with the Buyer in relation to the Contract.
16.2 Communications shall be deemed to have been received:
(a) 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
(b) if delivered by hand, on the day of delivery; or
(c) if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.