Terms & Conditions
Terms & Conditions of Sale
MODULIFT UK LIMITED Co. No. 04601952 (“the Company”)
Standard Terms and Conditions of Sale (“Conditions of Sale”)
1.1 All quotations are made, and all orders are accepted subject to the following conditions, this includes any ‘general terms’ specified within quotations and orders. All conditions of any company which has placed an order for goods (the “Customer”) with the Company or other conditions or warranties whatsoever are excluded from the contract or any variation thereof, unless expressly accepted by an authorised signatory for the Company in writing.
1.2 Quotations shall only be available for acceptance for a maximum period of 30 days from the date thereof and may be withdrawn by the Company within such period at any given time by written or oral notice.
1.3 If any statement or representation has been made to the Customer upon which the Customer relies, other than in the documents enclosed with the Company’s quotation, the Customer must be set out that statement or representation in a document to be attached or endorsed on the order in which case the Company may clarify the point and submit a new quotation.
2.1 In accordance with trade custom where materials are ordered by reference to numerical quantities or specified weights the Company reserves the right to under or over deliver the quantity ordered by 5 per cent.
2.2 If the Customer requires an alteration in the quantity of an order including suspension or reduction of “firm” schedules then all goods already in progress may be delivered and in accordance with the earlier instruction of the Customer and shall be paid for by the Customer.
2.3 If and so far as work has been necessarily commenced in advance of “firm” schedules in order to provide in accordance with normal process time cycle for deliveries indicated by a “tentative schedule” the Customer shall be liable to accept delivery of such goods at the times and in the quantities so indicated and to pay therefor.
3.1 Time for delivery is given as accurately as possible but is not guaranteed. The Customer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated.
3.2 The Customer shall have the option to arrange their own delivery services and collect Ex Works. Where the Customer does not select this method and instead elects that the Company arrange delivery, the Company shall bear no responsibility for the performance of any third-party conducting delivery services.
3.3 The date of delivery shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Alterations by the Customer in design, specifications or quantities required and/or delays in the provision of essential information, final instructions and approvals by the Customer, may result in delays to delivery. In some circumstances, such delays may be significant, and the Company accepts no liability for any delays caused by the Customer, nor will the Company accept liability for the consequences of any such delays. If with the agreement of the Customer, the Company has to take additional action to overcome such delays caused by the Customer, including by not limited to; overtime, assigning additional workers or premium services from third-parties, this will be at the Customers cost. Any such action to overcome delays is not guaranteed by the Company and is subject to capacity.
3.4 The Company will use its reasonable endeavours to comply with reasonable requests by the Customer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to default of the Company the Customer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby.
3.5 Failure by the Customer to take delivery of goods delivered in accordance with the contract shall entitle the Company to treat the contract as repudiated by the Customer in whole or in part.
4. Risk and Title
4.1 Risk shall pass to the Customer at the time when the goods leave the premises of the Company whereupon the Customer is responsible for all subsequent loss, damage or deterioration to the goods.
4.2 (i) Goods supplied to the Customer will remain the property of the Company until payment for them and all other goods the subject of any Contract between the Company and the Customer, which at the time of payment of the full price of the goods sold under this Contract have been delivered to the Customer but not paid for in full, have been paid for in full.
(ii) The Customer shall only be at liberty to sell the goods purchased from the Company prior to the passing of title on the understanding that if the Customer does sell the goods then the Customer will hold on trust for the Company so much of the proceeds of sale received by the Customer under contracts which include any of the goods hereby sold either in their original or altered state as are necessary to discharge payment in full to the Company.
5.1 All prices are, unless otherwise stated, quoted net ex works exclusive of VAT and are subject to fluctuation in the event of any increase in the cost in labour due to local and national awards or increases in the cost of materials and overheads. The Company reserves the right to add any increase in such costs during the period of production to the quoted price.
6. Terms of Payment
6.1 Unless otherwise agreed by the Company in writing, the terms of payment shall be as per the agreed credit account terms. In the event of a conflict between the terms of the Conditions of Sale and the terms of any credit account in place, the terms of the credit account shall prevail.
6.2 Each consignment shall be separately invoiced and paid for in accordance with the provisions of Condition 5.1.
6.3 No disputes arising under the contract nor delays beyond the control of the Company shall interfere with prompt payment by the Customer.
6.4 In the event of default in payment by the Customer the Company shall be entitled, without prejudice to any other right or remedy, to suspend all further deliveries and to charge interest on any amount outstanding at the rate of 4% per annum above the Bank of England Minimum Lending Rate in force at the time when payment was due.
7. Cancellation, Returns & Alteration
7.1 Order cancellation will only be agreed to by the Company on the condition that the goods have not yet been despatched and all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other costs, loss or damage resulting to the Company by reason of such cancellation will be reimbursed to the Company by the Customer forthwith.
7.2 No returns will be accepted of any non-defective Company products which are not part of its standard stock holding and/or were manufactured to order and/or are custom designed. In addition, no returns will be accepted for any non-defective third-party products.
7.3 Returns of non-defective standard stock products will only be agreed to by the Company on the condition that they will be returned at the Customers expense and risk. The Customer will incur as a minimum, a handling charge equal to 20% of the applicable order’s total value. The handling charge relates to the processing, inspection, and re-stocking of the returned products. The Customer may be liable for further charges upon inspection by the Company, such as to remedy any damage, including aesthetic imperfections. All such charges will be deducted from any credit given to the Customer by the Company. Any credit issued to the Customer by the Company, will solely relate to returned standard stock products. No credit will be issued for any services rendered or any products contained within the provisions of Condition 7.2.
7.4 Alteration or change to an order is not conducted without a written order or instructions to proceed by an appropriate representative of the Customer. The Company shall have up to 7 days to review and consider alteration or change to an order. In the event of any alteration being required by the Customer in design or specification, the Company shall be entitled to make an adjustment of the contract price and/or delivery time corresponding to such alteration. If the Company cannot accept or meet the requirements or any such alteration or change, the provisions of Conditions 7.1, 7.2 and 7.3 will apply, as appropriate.
The Company reserves the right to alter or change dimension of the goods supplied within reasonable limits having regard to the nature of the goods. Dimensions specified by the Company are to be treated as approximate only unless the Customer specifically states in writing that exact measurements are required.
9. Shortages and Defects Apparent on Inspection upon Receipt
The Customer shall have no claim for shortages or defects apparent on inspection upon receipt unless:
(i) the Customer inspects the goods on arrival at its premises, and
(ii) a written complaint is made to the Company within 7 days of receipt of the goods or such shorter period as the carrier’s conditions (if applicable) require specifying the shortage or defect, and
(iii) the Company is given an opportunity to inspect the goods and investigate any complaint before any use is made of the goods.
If a complaint is not made to the Company as herein provided then the goods shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to pay for the same accordingly and in such circumstances Condition 11.5 hereof shall not apply. Any claim made pursuant to Condition 22 is subject to the provisions of Conditions 11.5 and 12.
10. Customer Audit/Inspection/Visit
Unless expressly specified within any order or quotation, any audit, inspection, or access to premises by the Customer or any Third Parties appointed by the Customer, is only by prior arrangement and agreement with the Company. The Company reserves the right to charge the Customer for the time of any Company employees who are deemed necessary to support the facilitation of such audits, inspections, or premises access. This will be at a cost of £150 per hour, per employee, when within standard Company working hours, or double this, when outside of standard Company working hours.
11.1 Save as otherwise detailed within the other Conditions of these Conditions of Sale, the requirements and obligations under the Sale of Goods Act 1979 and the Consumer Rights Act 2015 are to be implied into this contract.
11.2 The Customer shall have no claim in respect of defects not apparent on inspection at the time of the delivery unless:
(i) a written complaint is sent to the Company as soon as reasonably practical after the defect is noticed and no use is made of the goods thereafter and no alteration is made thereto before the Company is given the opportunity in accordance with sub-paragraph 11.4 of this condition to inspect the goods, and
(ii) the complaint is sent within 12 months of the date of delivery by the Company or a maximum of 7 days after the first inspection/thorough examination, whichever occurs first. In accordance with LOLER 98 this first inspection/thorough examination, will be no later than six months after the equipment is put into service.
(iii) in the case of items not manufactured by the Company, within the guarantee period specified by the manufacturer of such item.
11.3 the Customer shall not be entitled to any claim in respect of any repairs or alterations undertaken by the Customer without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to misuse.
11.4 The Company may, within 15 Days of receiving such a written complaint inspect the goods and the Customer, if so required by the Company, shall take all steps necessary to enable the Company to do so.
11.5 In the event of the condition of the goods being such as might or would (subject to these Conditions of Sale) entitle the Customer to claim damages, or to repudiate the contract (whether or not the same is apparent on inspection), the Customer shall not then do so but shall first ask the Company to repair or supply satisfactory substitute goods and the Company shall thereupon be entitled, at its option, to repair or take back the defective goods and to supply satisfactory substitute goods within a reasonable time. If the Company does so repair the goods or supply satisfactory substitute goods the Customer shall be bound to accept such repaired or substituted goods and the Company shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective goods or from the delay before the defective goods are repaired or the substitute goods are delivered.
11.6 The Company makes no assurance or guarantee that sale or use of the goods will not infringe the laws of any country other than England and Wales in which the goods are sold or used.
11.7 In the case of goods or parts thereof not manufactured by the Company, all obligations of the Company are limited to the guarantee (if any) which the Company receives from the manufacturer or supplier of the goods or parts thereof.
12.1 The Company shall not be liable in respect of claims arising by reason of death or personal injury except in so far as the death or injury is attributable to a failure by the Company to exercise reasonable care.
12.2 Further, under no circumstances whatsoever shall the Company be liable for losses special to the particular circumstances of the Customer, indirect losses, work required in connection with the removal of defective goods and the installation of required or substituted goods, loss of profits, damage to property or wasted expenditure.
12.3 Without prejudice to Condition 11.3, where goods are supplied for the purpose of a business, the Company’s liability, whether in respect of one claim or the aggregate of various claims (other than claims for death or personal injury to the extent that the same is caused by a failure of the Company to take reasonable care) shall not exceed £ 1,000,000 and the Customer agrees to insure adequately to cover claims in excess of such amount.
The Company shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under the contract.
14. Intellectual Property & Confidential Information
All drawings, documents and all other information supplied by the Company, are supplied on the express understanding that copyright and all other forms of intellectual property is reserved to the Company and that the Customer will not without the prior written consent of the Company either give away, loan, exhibit or sell any such drawings or extracts therefrom or copies thereof or use them in any way except in connection with the goods for which they are used. Where there is any uncertainty by the Customer, as to whether information is of a confidential nature or not, it shall be treated as confidential in all circumstances, until advised otherwise by the Company in writing.
15. Customer’s Drawings
15.1 The Customer shall be solely responsible for ensuring that all information, instructions, drawings, advice and recommendations given to the Company either directly or indirectly by the Customer or by the Customer’s own advisers or consultants are accurate and suitable. Examination or consideration by the Company of such drawings advice or recommendations shall in no way limit the Customer’s responsibility hereunder unless the Company specifically agrees in writing to accept responsibility.
15.2 The Customer shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture of the goods to the drawings and specifications of the Customer where such drawings and specifications shall be at fault or where it is alleged that they involve an infringement of a Patent, Design Right (registered or unregistered) or any other form of intellectual property.
16. Product Technical Information and Data
The information contained in the advertising sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed, otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and from trials under test conditions. Accordingly, the information contained in the Company’s publications is provided for general guidance only and forms no part of the contract unless expressly agreed in writing. Customers should obtain specific recommendations and advice from the Company regarding the uses and attributes of the Company’s products.
If the Customer shall become bankrupt or shall be deemed to be unable to pay its debts for the purposes of Section 123 of the Insolvency Act 1986 or shall compound with its creditors or if a resolution shall be passed or proceedings shall be commenced for the administration or liquidation of the Customer (other than for a voluntary solvent winding up for the purposes of reconstruction or amalgamation), or if a receiver or manager shall be appointed of all or any part of its assets or undertakings, the Company shall be entitled to cancel the contract in whole or in part by giving written notice to the Customer, without prejudice to any other right or remedy available to the Company.
18. Consumer Protection Act 1987
In circumstances in which the Company supplies goods to the Customer for incorporation with any composite or other products to be produced, manufactured, processed or supplied by the Customer or a third party then the Customer shall indemnify, reimburse and compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) which the Company may incur, or have to bear, if any claim or claims shall be made against the Company relating to the composite or other products.
19. Force Majeure
Neither party shall be under any liability for any delay, loss or damage caused wholly or in part by any; act of God, WHO recognised pandemic, public authority or governmental action, restriction, condition or control (including Brexit), or by reason of any act done or not done pursuant to a trade dispute whether such dispute involves its employees or not or by reason of any other act, matter or thing beyond either party’s reasonable control. Neither party shall be excused for failure or delay resulting from only general economic conditions, other general market effects or any other act, matter, or thing within either party’s reasonable control.
20. Third Parties
A person who is not a party to this contract (a “Third Party”) shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 (the “Act”) to enforce any of the Conditions of Sale. Any right or remedy of a Third Party which exists or is available from the Act is not affected.
21.1 The contract shall be governed and interpreted exclusively according to the Laws of England and shall be subject to the jurisdiction of the courts of England & Wales only.
21.2 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.
21.3 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.
21.4 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.
21.5 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. Duty of Information and Product Recall
The Customer is required to inform the Company as soon as reasonably practicable in writing of any defects in the goods including, but not limited to, errors in documents made available by the Company and agrees to provide the Company with all assistance reasonably necessary to procure the recall of goods if the Company notifies the Customer of any concern or defect affecting the goods.
23. Data Protection
Under any current data protection laws, applicable to a UK based operating business, these requirements and obligations are to be implied into this contract. The Customer can request that the Company provide a copy of their Data Protection Policy.
Terms & Conditions of Purchase
1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions.
Company: Modulift UK Limited (company registration number 4601952).
Contract: the Order and the Seller´s acceptance of the Order.
Goods: any goods agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them and any services whether ancillary to goods or supplied without goods).
Order: the Company´s written instruction to supply the Goods, incorporating these Conditions.
Seller: the person, firm or company who accepts the Company´s Order.
Business Day: a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales.
Know-How: formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions.
Prices: the prices set out in the Seller’s quotation or Company purchase order.
Insolvent: the Seller is Insolvent where it:
(a) gives notice under section 84 Insolvency Act 1986 of or proposes or passes a resolution for, its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up;
(b) has a winding-up order or a notice of striking off made in respect of it;
(i) has an administration order made in respect of it; or
(ii) has a notice of appointment of an administrator filed in respect of it at any court;
(d) proposes, makes or is subject to:
(i) a company voluntary arrangement;
(ii) a composition with its creditors generally;
(iii) an application to a court of competent jurisdiction for protection from its creditors generally; or
(iv) a scheme of arrangement under Part 26 Companies Act 2006;
(e) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income;
(f) ceases to trade or appears, in the reasonable opinion of the Company, to be likely to cease to trade;
(i) Is unable to pay its debts as they fall due; or
(ii) the value of its assets are less than its liabilities, including its contingent and prospective liabilities.
1.2 A reference to a 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 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for Goods by the Company from the Seller shall be deemed to be an offer by the Company to buy Goods subject to these conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller´s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These conditions apply to all the Company´s purchases and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised Company representative.
2.5 Each quotation for Goods from the Seller will be deemed to be an offer by the Seller to sell the Goods upon these Terms and Conditions. All quotations provided by the Seller, including the price provision, will remain open for a minimum of 30 days from its date of receipt.
3. QUALITY, DEFECTS AND ASSURANCE
3.1 The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Order and specification and/or patterns supplied or advised by the Company to the Seller.
3.2 The Company´s rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979 and the Consumer Rights Act 2015.
3.3 At any time prior to delivery of the Goods to the Company, the Company shall have the right to inspect the premises of the Seller and inspect and/or test the Goods.
3.4 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection at no additional cost to the Company.
3.5 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller´s obligations under the Contract.
3.6 If any of the Goods fail to comply with the provisions set out in condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 12.
3.7 The Company may at any time make changes in writing relating to the Order, including changes in the drawings or Specifications, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increase in cost of, or time required for, performance of the Contract an equitable adjustment will be made to the price, delivery schedule or both. Any such claim or adjustment must be approved by the Company in writing before the Seller proceeds with such changes.
3.8 In respect of the Goods the Seller will maintain and observe quality control, supplier quality assurance, environmental protection and safe working practises in accordance with the requirements of the Company, its customs, relevant British Standards and statutory and regulatory bodies.
3.9 Adherence by the Seller, to the Modulift Supplier Code of Conduct, is implied within these Terms & Conditions of Purchase.
4.1 The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
(a) defective workmanship, quality or materials;
(b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods; and
(c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company´s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
4.2 Specifically any design work conducted as part of the Contract by the Seller, shall be covered in full by the Seller’s Professional Indemnity Liability Insurance.
5.1 The Goods shall be delivered, carriage paid, to the Company´s place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Seller shall off-load the Goods at its own risk as directed by the Company.
5.2 The date for delivery shall be specified in the Order or in related correspondence, or if no such date is specified then delivery shall take place within 7 days of the Order.
5.3 The Seller shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
5.4 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Order number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.5 Time for delivery shall be of the essence.
5.6 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company on a business day and during the Company’s business hours.
5.7 If the Goods are not delivered on the due date and/or to the agreed specification and condition as stipulated by the order, then, without prejudice to any other rights which it may have, the Company reserves the right to:
(a) cancel the Contract in whole or in part;
(b) refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
(c) recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods in substitution from another supplier; and
(d) claim damages for any additional costs including (i) any liquidated damages imposed on the Company by any third party, or (ii) any other loss or expense incurred by the Company which is in any way attributable to the Seller’s failure to deliver the Goods on the due date.
5.8 If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Seller at the cost of the Seller.
5.9 Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
5.10 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller´s risk and shall be returnable at the Seller´s expense.
5.11 The Company shall not be deemed to have accepted the Goods, until it has had a reasonable period of time to thoroughly inspect and/or test them following delivery. This right of inspection supersedes any signatures or documentation exchanged upon immediate delivery. Such inspection is deemed to be completed only when it has been conducted by an authorised Company representative.
5.12 The Company shall also have the right to reject the Goods as though they had not been accepted, for 7 days after any latent defect in the Goods has become apparent.
The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall then pass to the Company.
7.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
7.2 No variation in the price nor extra charges shall be accepted by the Company.
8.1 The Company shall pay the price of the Goods 45 days from the end of the month in which the invoice is supplied by the Seller, or within such later period time, as agreed between the Company and the Seller. Any shorter payment period shall have no effect, unless expressly agreed in writing by an authorised Company representative.
8.2 All payments will be made in pounds sterling (GBP) unless agreed differently in writing by the Company.
8.3 Time for payment shall not be of the essence of the Contract in all circumstances.
8.4 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.
8.5 The Seller is not entitled to suspend release or deliveries of the Goods as a result of any sums being outstanding.
8.6 The Company maintains the right to immediately recover from the Seller, any amount overpaid or wrongfully paid to the Seller.
9. CONFIDENTIALITY & DATA PROTECTION
9.1 The Seller shall keep in strict confidence all confidential information exchanged, technical or commercial know-how gained from the Company or its agents, necessary to the fulfilment of the Contract. This includes any other confidential information concerning the Company´s business or its products and services which the Seller may obtain by other means.
9.2 Confidential information shall include but is not limited to: customer information, employee information, specifications, designs, drawings, inventions, processes, procedures, initiatives, operational or commercial practices or plans.
9.3 In all circumstances the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller´s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
9.4 Where there is any uncertainty by the Seller whether information is of a confidential nature or not, it shall be treated as confidential in all circumstances, until advised otherwise by the Company in writing.
9.5 Any requirements and obligations under current data protection laws, applicable to UK based operating businesses, are to be implied into these Terms & Conditions of Purchase, regardless of the geographical location of the Seller.
10. THE COMPANY‘S PROPERTY
Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications, designs and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company´s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
11.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
11.2 The Company shall have the right to terminate the Contract forthwith if:
(a) the Seller commits a material breach of any of the terms and conditions of the Contract; or
(b) any distress, execution or other process is levied upon any of the assets of the Seller; or
(c) the Seller 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 Seller or notice of intention to appoint an administrator is given by the Seller 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 Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
(d) the Seller ceases or threatens to cease to carry on its business; or
(e) the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
11.3 The termination of the Contract, however arising, shall be without prejudice to the rights of the Company and duties of the Seller accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
(a) to rescind the Order;
(b) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
(c) at the Company´s option to give the Seller the opportunity at the Seller´s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(d) to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
(e) to carry out at the Seller´s expense any work necessary to make the Goods comply with the Contract; and
(f) to claim such damages as may have been sustained in consequence of the Seller´s breach or breaches of the Contract.
13.1 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13.2 The Company may assign the Contract or any part of it to any person, firm or company.
14. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered 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.
15.1 In performing its obligations the Seller will comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force, including the Modern Slavery Act 2015 (“Anti-Slavery Laws”).
16.1 The Seller will, and will procure that its officers, employees, agents and any other persons who perform services for Seller or on the Seller’s behalf in connection with the Contract, will not commit any act or omission which causes or could cause the Company or Seller (or that person) to breach, or commit an offence under, any laws relating to anti-bribery and/or anti-corruption, including the Bribery Act 2010.
17.1 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.
17.2 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.
17.3 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.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 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.
17.6 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 courts of England & Wales.
18. BREXIT HAS NO EFFECT
18.1 The UK’s withdrawal from the European Union (“Brexit”), any change or occurrence arising out of or in connection with Brexit or any movement in exchange rates relating to UK pounds sterling will not:
(a) affect any obligation under the Contract; or
(b) have the effect of altering any term of the Contract or of discharging or excusing performance under the Contract.