GENERAL SALES TERMS AND CONDITIONS

1. INTERPRETATION

1.1. Definitions

"Agreement" means any agreement between the Company and the Purchaser for the sale and purchase of the Goods and Services, incorporating these Conditions and formed in accordance with clause 3.

"Company" means MANITOU UK LIMITED,

"Contractual Products" means a Product which is part of a range of Products granted to the Purchaser according to Appendix II of the distribution agreement of which these conditions form a part.

"Contract Price" means the price for the Goods and Services determined in accordance with these Conditions and the Agreement.

“Force Majeure” means any cause or circumstance whatsoever outside a party's reasonable control including, without limitation any Act of God war, flood, drought, earthquake or other natural disaster; epidemic or pandemic (including COVID-19); riot, act of terrorism, outbreak of hostilities, war, threat of or preparation for war, armed conflict or national emergency; any law or any action taken by a government or public authority; imposition of sanctions or embargo, breaking off of diplomatic relations; increases in tariffs or other duties, taxes or levies imposed on exports or imports, fluctuating exchange rates; strike or other industrial action of any kind; malicious damage; default of suppliers or sub-contractors; accident failure or breakdown of plant or machinery fire flood explosion; changes in health, safety or environmental requirements; changes or new requirements for licenses or consents; delays in export or import of products or services due to controls, processes or restrictions.

"Goods" means all products or goods supplied by the Company.

"Purchaser" means any Dealer contracting to purchase any products or services manufactured or sold or supplied by the Company.

"Services" means any work labour or services carried out by the Company.

 

1.2. Interpretation

     6.4.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

     6.4.2 A reference to a party includes its personal representatives, successors and permitted assigns.

     6.4.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

     6.4.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2. APPLICATION

2.1. All orders made by the Purchaser shall be an offer by the Purchaser to purchase the Goods and Services on these Conditions which shall apply to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2. No terms and conditions attached to or sent by the Purchaser with any purchase order, confirmation of order, specification or other document shall form part of the Agreement.

2.3. These Conditions apply to all purchases of the Goods and Services by the Purchaser and any variation to these Conditions and any other statements made by the Company or its employees shall not be binding unless agreed in writing and signed by an authorised representative of the Company.

2.4. Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company's leaflets, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and Services referred to in them. They shall not form part of the Contract nor have any contractual force.

 

3. ACCEPTANCE

No quotation, order or contract placed by the Purchaser shall be binding on the Company unless and until accepted in writing by a duly authorised representative of the Company or (if earlier) the Company delivers the Goods to the Purchaser or (in the case of Services) commences performance of the Services at which point and on which date the Agreement shall come into existence.

 

4. DELIVERY AND DELAY

4.1. Time of delivery is not of the essence of this contract and any time or date of delivery quoted or accepted by the Company is not a condition of the contract but is approximate only. If no dates are specified, delivery shall be within a reasonable time of acceptance of the order. The Company shall not be liable for the consequence of any delay.

4.2. If the parties agree in writing that a sum is payable as liquidated damages for a delay in delivering the Goods or Services, the Purchaser acknowledges that such sum shall be the entire obligation and liability of the Company and the sole remedy of the Purchaser in respect of the delay in delivering the Goods or Services.

4.3. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to terminate the Agreement.

4.4. If the Goods are to be delivered in instalments and either party cancels the contract the Purchaser shall be responsible for payment of such sum as represents an appropriate part of the contract price for Goods supplied and/or for Services performed prior to the date of cancellation.

 

5. FLUCTUATIONS

5.1. The prices quoted in the Company's price list published on the date of delivery or deemed delivery are exclusive of carriage costs for Contractual Products and exclusive of Value Added Tax and any other levy or tax which the Purchaser shall be liable to pay in addition to the price for the Goods and Services. The Purchaser shall also pay in addition to the price quoted, any extra costs that may be incurred by the Company by reason of failure to provide instructions, specifications or other information as required by or implicit in the contract, or other matters within the control of the Purchaser.

5.2. The Company reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Goods and Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation of duties, significant increases in the cost of labour, materials or other costs of manufacture) any change in delivery dates, quantities or specifications for the Products which is requested by the Purchaser.

 

6. PARTS PRICING, DISCOUNTS, ORDER PROCESS & PARTS WARRANTY

6.1 Prices indicated on the price list available or portrayed by any other alternate medium by the Company are supplied to the Purchaser’s principal place of business or agreed secondary location. They do not include VAT, and are unit prices only, whatever the minimum sale quantity per part may be. The Company reserves the right to modify the prices of the parts without prior notice. Prices shown on the Company’s invoices are those in force at the date of order, irrespective of the date of delivery.

6.2 There is only one way to process spare parts orders to the Company namely by EDI connection i.e. Internet Portal, (VPN).

The Purchaser must indicate the following in all orders:

• Type of order (VOR Express or Stock). VOR means Vehicle off Road.
• Variance of Delivery Address i.e. third party, where a surcharge will apply.
• Manitou parts number (shown in Manitou spare parts catalogues).
• Description of the parts.
• Quantity required.

 

6.3 VOR orders for necessary parts for break-down machines are prepared and shipped the same day of receipt, subject to availability, if the Company receives the Purchasers order by EDI by 3.30 pm. VOR orders of gross weight greater than 50 kg may attract a surcharge. The Company reserves the right to request a minimum VOR order value.

STOCK orders for necessary parts to replenish the Purchasers stock are prepared and shipped within a maximum of five days from order receipt.

VOR orders are for breakdown machines and this must not be abused by the Purchaser. If the Purchaser has a high VOR: Stock ratio it will be scrutinised and the Company may insist on charging the Purchaser for carriage costs where the system is being misused by the Purchaser ordering on VOR for items which should be on stock.

6.4 All Goods are sent insured. It is the responsibility of the consignee to check the external integrity of any consignment before signing acknowledgement of receipt. If uncertain sign as 'unchecked'. Failure to do so may result in any subsequent claim for external damage, or consequence thereof, being rejected. The decision of the Company is final.

6.5 On receipt of any delivery of the Goods, the Purchaser shall examine the Goods carefully and must notify the Company in writing within two days of receiving the Goods of any defect or failure of the Goods to comply with the Agreement.

6.6 The Purchaser is responsible for providing evidence of any defect or failure of the Goods to comply with the Agreement notified to the Company and the Purchaser must give the Company a reasonable opportunity of observing any alleged defect or failure of the Goods to comply with the Agreement and a reasonable opportunity of examining and repairing such Goods.

6.7 All spare parts that have been allocated with a part number and are shown in the Company spare parts catalogues are theoretically held in stock in the Company central parts warehouse. In some case, certain parts might not be available in the standard lead-time. Under such circumstance, orders will be maintained for 12 months, unless the Purchaser issues contrary instructions.

6.8 The Company reserves the right to supply one or more parts different from those ordered, on the condition that they are interchangeable.

6.9 No delay in deliveries, for whatever reason, importance or consequence, can give the right to the payment of indemnities and damages.

6.10 All spare parts purchased from the Company are guaranteed against all manufacturing or material defects for a period of six months from the date of the invoice by the Company.

     6.4.5 The replacement parts must be ordered from the Company. They will be invoiced to the Purchaser, and the Purchaser must return the faulty part to the Company for inspection. A credit note will be issued depending upon the Company's level of responsibility.

     6.4.6 The spare parts warranty does not cover parts fitted on Company equipment which have not been supplied by the Company.

6.11 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to the Company by the third party manufacturer.

6.12 The Company reserves the right to make partial deliveries. The Purchaser shall not be entitled to object to or reject the delivery by reason of the surplus or shortfall.

 

7. PAYMENT

7.1. Payment is due:

     7.1.1. For Contractual Products: In accordance with Terms & Conditions of Manitou Finance Wholesale Finance Agreement;

     7.1.2. For Parts & Service: 30 days from end of month of date of invoice (i.e. for the sake of clarity goods invoiced in October are to be paid on or before the 1st December) [or in accordance with any credit terms agreed by the Company and confirmed in writing to the Purchaser];

     7.1.3. All payments should be supported by a payment schedule to enable reconciliation of the accounts.

7.2. Unless otherwise agreed in writing payment for the Products is due in full without any deductions (whether by way of set-off, counterclaim, discount, abatement or otherwise).

7.3. If the Goods are to be delivered in instalments the Company shall issue a separate invoice in respect of each instalment and the Purchaser shall pay for each instalment of Goods in accordance with Conditions 7.1 or 7.3.

7.4. The time of payment of the price of the Goods and Services shall be of the essence of the Agreement.

7.5. No payment shall be deemed to have been received until the Company has received cleared funds.

7.6. Payment of the price of the Goods and Services shall be paid in pounds sterling or such other currency as may be agreed in writing by the Company.

7.7. If the Purchaser fails to make any payment on the due date then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:

     7.7.1.  cancel the contract or suspend any further deliveries to the Purchaser;

     7.7.2. appropriate any payment made by the Purchaser to such of the Goods and Services (or the Goods and Services already supplied under any other contract between the Company and the Purchaser) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and

     7.7.3. charge the Purchaser interest (both before and after any judgement) on the amount unpaid until payment is made in full. Interest under this clause 7.7.3 will accrue each day at four per cent a year above Bank of England Base Rate from time to time but at 4% a year for any period when that base rate is below 0%.

7.8. Unless otherwise agreed by the Company in writing, the Dealer shall make payment for all Goods and Services by direct debit.

7.9. Unless otherwise agreed in writing by the Company, the price of the Goods:

     7.9.1. excludes amounts in respect of value added tax (VAT), which the Purchaser shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and

     7.9.2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Purchaser.

 

8. LIABILITY

8.1. Subject to the provisions of this condition the Company warrants that the Services shall be provided with reasonable skill and care and the Goods shall correspond with their specification at the time of delivery and on delivery shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

 

8.2. The Company is not liable for any loss or damage whether direct or indirect arising out of any (i) defect in the Goods and Services arising from the Purchaser's specifications (including specification as to materials) or design or (ii) the unsuitability of products or materials selected by the Purchaser.

8.3. Subject to condition 8.2 above, Conditions 8.3, 8.4, 8.5 and 8.6 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 Purchaser in respect of:

     8.3.1.  any breach of the Agreement;

     8.3.2. any use made or resale by the Purchaser of any of the Products, Genuine Parts and Approved Attachments; and

     8.3.3. any representation, statement or tortuous act or omission including negligence arising under or in connection with the Conditions.

8.4. 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 Agreement.

8.5. Nothing in these Conditions excludes or limits the liability of the Company:

     8.5.1.  for death or personal injury caused by the Company's negligence; or

     8.5.2. for breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

     8.5.3.  under section 2(3), Consumer Protection Act 1987; or

     8.5.4. for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

     8.5.5.  for fraud or fraudulent misrepresentation.

8.6. Subject to Condition 8.5:

     8.6.1. the Company's aggregate 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 Agreement shall be limited to 1.5 times the Contract Price; and

     8.6.2. The Company shall not be liable for a breach of warranty pursuant to condition 8.1 unless the Purchaser gives written notice of defect to the Company within 30 days of delivery of the Goods or, in the case of Services, within 30 days of performance of the Services.

8.7. Subject to Clause 8.5 the Company shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

     8.7.1.  loss of profits; or

     8.7.2.  loss of business; or

     8.7.3.  depletion of goodwill or similar losses; or

     8.7.4.  loss of anticipated savings; or

     8.7.5.  loss of goods; or

     8.7.6.  loss of contract; or

     8.7.7.  loss of use; or

     8.7.8.  loss or corruption of data or information; or

     8.7.9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

8.8. The Company shall not be liable for a breach of the warranty in Clause 8.1 if:

     8.8.1. the Purchaser makes any use of the Goods in respect of which it has given written notice under Clause 8.6.2; or

     8.8.2.  the defect arises due to normal wear and tear; or

     8.8.3. the defect is caused by accident, improper use or misuse of the Goods outside its normal application, the use of dirty or unsuitable oil in connection with the Goods, defective filters, dirt and neglect; or

     8.8.4. the defect is caused by interference with the Goods or any part thereof without the Company's consent; or

     8.8.5. the defect arises because the Purchaser failed to follow the advice or recommendations or instruction booklets of the Company or the manufacturer or (if there are none) good trade practice.

8.9. The Company shall not be responsible for any defect in any part supplied, repaired or fitted by the Purchaser or a third party and the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or third party to the Company if the same is assignable.

8.10. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled at its sole discretion, to refund to the Purchaser the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Purchaser.

 

9. COPYRIGHT AND DESIGN

9.1. The Purchaser acknowledges that all trade marks, copyright, design rights and other intellectual property rights created, subsisting or used in or in connection with the Goods and Services including all documentation and manuals relating thereto shall remain the sole property of the Company or (as the case may be) third party rights, owner. For the avoidance of doubt, the Purchaser shall not during or at any time after the completion, expiry or termination of the Agreement in any way question or dispute such ownership thereof by the Company or third party.

9.2. Notwithstanding the sale of the Goods and Services the Company reserves the right to commence proceedings against the Purchaser in respect of any infringement by the Purchaser of the Company's registered designs, patents, copyright or trademarks existing in (1) the Goods, (2) any drawings designs or other specifications of the Goods or (3) any other materials supplied by the Company to the Purchaser.

 

10. ADVERTISING

10.1. The contents of any advertising appearing on the Goods or their packaging or appearing on any other material issued by the Company is believed to be true and accurate. The Company accepts no liability in respect of any costs, claims, damages, awards or other compensation which the Purchaser may incur as a result of any of the advertising being untrue or as a result of its infringing any trademark, copyright, design right or any other intellectual property rights of a third party.

10.2. The Purchaser 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 Agreement. Nothing in this Clause shall exclude or limit the Company's liability for fraudulent misrepresentation.

10.3.   If the Company provides any samples, drawings or specifications for the Goods these are for illustrative purposes only and they do not form part of the Agreement.

10.4. Any errors or omissions in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Company can be corrected by the Company at any time without any liability on the part of the Company.

10.5. Any packaging material provided by the Company to the Purchaser [including any packaging bearing the Company’s logos or trade marks] may only be used to pack Spare Parts and must not be used by the Purchaser (or any of its employees, agents or sub-contractors) to pack spare parts or other products purchased from third parties. The Purchaser shall be responsible (at its own cost and expense) for the disposal and recycling of waste arising from use of such packaging material.

 

11. CANCELLATION

The Company may refuse to accept cancellation of an Agreement unless payment is received in full to cover the total costs involved in the production of the Goods and performance of the Services that are the subject of the order at the time of cancellation, together with loss of profit in respect thereof.

 

12. TITLE

Notwithstanding the provisions of Condition 13:

12.1. Title in the Goods sold or supplied to the Purchaser will not pass to the Purchaser until the Company has received payment from the Purchaser of the Contract Price in full inclusive of VAT thereon together with all other monies that may be or become due from the Purchaser to the Company hereunder or under any other contract made between the Purchaser and the Company.

12.2. If payment is made by the Purchaser by cheque, bill of exchange, promissory note, other negotiable instrument (and whether payable immediately or in the future) or in any other way which does not involve the Company receiving the full sum due in cleared funds, payment shall not for the purpose of these provisions be treated as having been received until the Company has received cleared funds.

12.3. Until title to the Goods passes to the Purchaser the Purchaser shall:

     12.3.1. hold the Goods as fiduciary bailee for the Company; and

     12.3.2. store the Goods (at no cost to the Company) in satisfactory conditions and separately from any other goods and in a manner which makes them readily identifiable as the Goods of the Company.

12.4. The Purchaser grants the Company, its agents and employees an irrevocable licence at any time to enter the Purchaser's Premises for the purpose of inspecting the Goods and all stock entries, books of account, invoices, sales ledgers and other documents pertaining to them and for the purposes of inspecting the Goods or any of them and the Purchaser shall be responsible for all the Company's costs and expenses in connection with so doing and the Company shall not be liable for any damage caused by entering the Purchaser's Premises.

12.5. At any time before title to the Goods has passed from the Company to the Purchaser, the Company shall be entitled to require the Purchaser to deliver the Goods or any of them to it on demand and the Purchaser shall immediately comply with the Company’s request.

12.6. Until title of the goods is passed to the Purchaser, the Purchaser shall maintain an adequate insurance coverage.

12.7. The Purchaser:

     12.7.1. may sell any Goods in the ordinary course of business which may have been delivered but which are still owned by the Company; and

     12.7.2. shall be entitled to attach the Goods to goods of a third party or its own but not in such a way that the Goods lose their separate identity, and are not capable of being removed;

PROVIDED THAT the Company may by notice given at any time terminate the Purchaser’s right to resell the goods in respect of which title has not passed and such rights shall terminate automatically if:

     12.7.3. the Purchaser has a bankruptcy order made against him or makes an arrangement or composition with its 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 and/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 Purchaser or notice of intention to appoint an administrator is given by the Purchaser 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 Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or

     12.7.4. the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Agreement or any other contract between the Company and the Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or

     12.7.5. the Purchaser encumbers or in any way charges any of the Goods.

12.8. If pursuant to the rights granted in sub-condition 12.5. the Purchaser sells the Goods before the Contract Price has been satisfied, the Purchaser shall hold the proceeds of sale as trustee for the Company until the contract price has been paid and shall open a separate account with its bankers for the sole purpose of receiving the proceeds of sale of the Goods and paying out of it the price of the Goods to the Company.

 

13. DELIVERY AND RISK

13.1. The Goods are at the Purchaser's risk from the first delivery of the Goods to the

Purchaser. "Delivery" shall mean:

     13.1.1. Where the Goods are to be collected by the Purchaser when the Goods have been loaded on to the vehicle of the Purchaser or its carrier, or (if the Purchaser fails to collect the Goods) upon the expiry of 14 days after the Company has given the Purchaser notice that the Goods are ready for collection.

     13.1.2. Where the Goods are to be delivered by the Company or its carrier when the Goods are so delivered or (if the Purchaser fails to notify the Company of the place at which the Goods are to be delivered) upon the expiry of 14 days after the Company has given the Purchaser notice that the Goods are ready for delivery.

13.2. All Goods are sent at the Purchaser's own risk. In case of damage and/or short delivery during transport and/or unloading, it is the responsibility of the consignee to make its claim known to the transport company at time of receipt of Goods. The Purchaser shall inform the Company within two working days thereafter of any abnormality.

13.3. If the Company has not delivered the Goods within four months’ of the delivery date specified in the Agreement or otherwise notified to the Purchaser, and thereafter fails to deliver the Goods within thirty days after being notified in writing to do so the Purchaser, the Purchaser may terminate the Agreement by giving written notice to the Company. The Purchaser shall be entitled to receive a refund of any deposit paid by the Purchaser to the Company for the Goods that were the subject of the terminated Agreement.

13.4. If for any reason the Purchaser will not 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 Purchaser has not provided or obtained appropriate instructions, documents, licences, consents or authorisations (“Purchaser Caused Event”), the Goods will be deemed to have been delivered, risk in the Goods will pass to the Purchaser and the Purchaser shall pay to the Company any and all additional costs and expenses incurred by the Company as a result of the Purchaser Caused Event (including storage, delivery costs and insurance).

 

14. RETURN OF SPARE PARTS

14.1. In case of wrong delivery of parts, a return request should be sent to the Company’s Spare Parts Department within a maximum period of 30 days from the date of invoice. Each return claim will be submitted to the Company for prior approval. All items returned without such prior approval or outside of the indicated period will be refused.

     14.1.1. ONLY items having a unit net price higher than £30. Non-standard parts purchased for specific machines will be not be accepted for return.

     14.1.2. Where the Company accept responsibility for delivery of wrong parts, such will result in an agreed and organised collect delivery of related part(s) by and at the Company's cost. All other parts returns will be at the Purchaser's expense.

     14.1.3. If the parts are returned due to the fault of the Purchaser, the refund will be executed on the basis of the price initially invoiced less 20%. If the fault is that of the Company, the amount charged by the Company to the Purchaser for the relevant part will be fully credited to the Purchaser.

14.2. It is possible to return slow moving spare parts to the Company. All such returns are subject to the Company's prior agreement and are strictly limited to items and quantities as authorised. Transport charges for the return of authorised items, as well as insurance, will be at the Purchaser’s expense.

     14.2.1. Parts returned will be paid on the basis of the net stock prices (valid on date of return agreement) less 50% for stock depreciation.

     14.2.2. Return parts agreements will be valid for a period of eight weeks, after which the parts concerned will be refused by the Company.

 

15. ACTION FOR PRICE

The Company shall be entitled to sue for the price of the Goods notwithstanding that title to the Goods has not passed to the Purchaser.

 

16. LIEN

The Company shall have a lien upon all goods, vehicles or parts of vehicles handed or delivered to the Company by the Purchaser or otherwise in the possession of the Company and owned or used by the Purchaser until all moneys due to the Company from a Purchaser whether due under this contract or any other have been paid in full.

 

17. REPAIRS

17.1. If any Goods or other materials received by the Company from the Purchaser for repair or for any other reason are not removed within seven days of the Company's request to the Purchaser to remove the same, the Company may charge for storage (at the rate at which it normally charges for storage) and may at any time thereafter sell the Goods or other materials and deduct all unpaid charges for repairing or storing the Goods together with any other expense incurred by the Company out of the proceeds of sale, the balance being paid to the Purchaser.

17.2. Any defective Goods or parts which are not fit for further use and which are not collected by the Purchaser within seven days of the Company's request that they be collected will be disposed of and the Company will not be called upon to make any payment to the Purchaser in respect thereof.

 

18. DETERMINATION OF CONTRACT

18.1. Without  limiting  its  other  rights  or  remedies,  the  Company  may  terminate  the

Agreement with immediate effect by giving written notice to the Purchaser if:

     18.1.1. the Purchaser commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 8 days of the Purchaser being notified in writing to do so;

     18.1.2. the Purchaser 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), obtaining a moratorium, 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;

     18.1.3. the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

     18.1.4. the Purchaser's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

     18.2. Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Agreement or any other contract between the Purchaser and the Company if the Purchaser becomes subject to any of the events listed in 18.1.2 to 18.1.4, or the Company reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under the Agreement on the due date for payment.

18.3. Without limiting its other rights or remedies, the Company may terminate the Agreement with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under the Agreement on the due date for payment.

18.4. On termination of the Agreement for any reason the Purchaser shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Purchaser immediately on receipt.

18.5. Termination of the Agreement, however arising, 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 Agreement which existed at or before the date of termination.

18.6. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.

 

19. ASSIGNMENT

19.1. The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

19.2. The Purchaser shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the Company’s prior written consent.

 

20. FORCE MAJEURE

20.1. Each party's failure in its obligation of performance hereunder (except payment obligations) shall be excused to the extent that such failure is caused by an event of Force Majeure).

20.2. A party claiming the occurrence of such shall promptly notify the other party thereof within 72 hours. In the event of Force Majeure, the time for performance or care will be extended for a period equal to the duration of the event of Force Majeure.

20.3. If the Force Majeure in question prevails for a continuous period in excess of three months, the parties shall enter into good faith discussions with a view to alleviating its effects or to agreeing upon such alternative arrangement as may be fair and reasonable.

20.4. Each of the parties shall take all necessary measures to minimize the consequences of an event of Force Majeure.

 

21. COMMUNICATIONS

21.1. All communications between the parties about these Conditions and the Agreement shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:

     21.1.1. (in case of communications by hand or sent by pre-paid first class post to the Company) to its registered office or such changed address as shall be notified to the Purchaser by the Company; or

     21.1.2. (in the case of the communications by hand or sent by pre-paid first class post to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Purchaser.

     21.1.3. (in the case of the communications by email) to the address specified in the distribution agreement of which these conditions form a part.

21.2.  Communications shall be deemed to have been received:

     21.2.1. 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

     21.2.2. if delivered by hand, on the day of delivery; or

     21.2.3. if delivered by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 21.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a bank or public holiday in the place of receipt.

21.3. Communications addressed to the Company shall be marked for the attention of The Company Secretary.

 

22. ENTIRE AGREEMENT

22.1. It is acknowledged and agreed that the Contract (including the documents and instruments referred to herein) (“the Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto.

22.2. The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently).

22.3. It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.

 

23. VARIATIONS

No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The Purchaser understands that as a condition to agreeing a variation, the Company may alter the Agreement for the provision of the Goods and/or the Services (including increasing the price of the Goods and/or Services).

 

24. WAIVER

Failure or delay by the Company in enforcing or partially enforcing any provision of the Agreement will not be a waiver of any of its rights under the Agreement.

 

25. THIRD PARTY RIGHTS

The Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

 

26. DISPUTE RESOLUTION

If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute), then except as expressly provided in the Agreement either party shall give to the other written notice of the Dispute, setting out its nature and full particulars and on receipt of the notice, the Dealer Principal of the Purchaser and the Managing Director of the Company shall attempt in good faith to resolve the Dispute.

 

27. LAW and JURISDICTION

27.1. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

27.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.