1.1 In these Conditions the following words and expressions shall have the following meanings:
"Brochure" means the most recent version of the Seller's sales brochure.
"Business Day" means any day (other than a Saturday or Sunday) on which clearing banks are open for business in the City of London for the transaction of normal banking business.
"Buyer" means the buyer of the Goods.
"Buyer's Group" means any parent undertaking or subsidiary undertaking of the Buyer, as defined in section 258 of the Companies Act 1985.
"Conditions" means these terms and conditions of sale.
"Contract" means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods ordered under a Purchase Order subject to these Conditions.
"Delivery Address" means the delivery address agreed in writing by the Seller.
"Force Majeure Event" means any event affecting the performance of any provision of the Contract arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of a Party including, but without limitation, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, failure or shortage of power supplies, traffic, road accident, delay of a third party carrier, breakdown of plant and/or machinery third war, military operations, riot, crowd disorder, strike, terrorist action, civil commotion and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions) of any relevant government, court or authority.
"Goods" means the goods detailed in the Purchase Order as accepted by the Seller pursuant to clause 2.5.
"Intellectual Property Rights" means any patents, trademarks, service marks, registered designs, database rights, applications for any of the foregoing, copyright, unregistered design rights know how and any other similar protected rights in any other country.
"Party" and "Parties" means the Seller or the Buyer or both the Seller and the Buyer (as is applicable).
"Price" means the current recommended retail price (RRP) of the Goods (including VAT) as stated
in the Brochure (or as otherwise notified in writing to the Buyer) less any agreed trade discount applicable to the Buyer.
"Purchase Order" means the Buyer's written or oral purchase order, or an order placed through the Seller's website.
"Quantity Required" means the quantity of Goods to be delivered by the Seller to the Buyer as notified in writing by the Seller to the Buyer in the Purchase Order.
"Seller" means Crosswater Limited (Company Number 03619276) whose registered office is at Lake View House, Rennie Drive, Dartford, Kent, DA1 5FU, UK.
"Specification" means the specification of the Goods as set out in the Brochure or as otherwise notified to the Buyer.
1.2 Any reference in these Conditions to:
(a) a statute or a provision of a statute shall be construed as a reference to that stature or provision as amended, re-enacted or extended at the relevant time;
(b) a clause is to a clause in these Conditions; and
(c) a person includes an individual, a firm, a corporation, an unincorporated association, a government, a state, an agency of government or state, and an association, partnership and joint venture (whether or not having a separate legal personality).
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Where the context dictates, the singular shall include the plural and vice versa and any gender includes the other gender.
2 BASIS OF SALE
2.1 All information contained in the Brochure and/or any quotation (whether written or oral) is given on the basis that it is an invitation to treat only and no Contract will come into existence until the occurrence of one of the events set out in clause 2.5.
2.2 In the interest of continuing design, development and product improvement, the Seller reserves the right to change colour, designs and product specifications set out in the Brochure without prior notice.
2.3 Each Purchase Order constitutes a separate offer by the Buyer to purchase the Goods subject to these Conditions.
2.4 Each Purchase Order shall contain:
(a) the Goods required;
(b) the Delivery Address (or confirmation that the Buyer will collect the Goods from the Seller);
(c) the quantity of Goods it requires; and
(d) the date on which the Buyer would like the Goods to be delivered (such date not being binding on the Seller and being subject to clause 4.1).
2.5 The Purchase Order shall be deemed to be accepted on delivery of the Goods (or any part of the Goods) by the Seller (or, if earlier, on express written acceptance of the Purchase Order by the Seller) and no Contract shall be created before such occurrence.
2.6 These Conditions shall apply to the Contract to the exclusion of all other terms and conditions including, but without limitation, any under which a Purchase Order has been issued and/or any contained in such a Purchase Order.
2.7 In the event of any material queries, inaccuracies, typographical, clerical or other error or omission in the Brochure or any other sales literature, quotation or price list, the Seller shall contact the Buyer and such document shall be subject to correction without any liability on the part of the Seller.
2.8 Any Purchase Order which has been accepted by the Seller pursuant to clause 2.5 may only be cancelled, postponed or varied by the Buyer with the prior written consent of the Seller and on terms that the Buyer will indemnify the Seller in full against all costs and expenses incurred (directly or indirectly) by the Seller as a result of such cancellation, postponement or variation.
3 SPECIFICATIONS, GUARANTEE AND WARRANTIES
3.1 The Seller warrants that the Goods sold to the Buyer shall comply with the Specification (unless agreed otherwise by the Parties in writing).
3.2 Any suggestion or representation concerning any possible use of the Goods made by the Seller in the Brochure or any other sales or marketing literature or in any response to a specific enquiry is given in good faith, but it is entirely for the Buyer (and its customers) to satisfy themselves fully as to the suitability of the Goods for any particular purpose. No suggestion or representation relating to such possible use shall form part of the Contract.
3.3 Unless otherwise specified in the Brochure, all Goods carry a guarantee from the Seller (the "Guarantee "), subject to the conditions of this clause 3.3. The terms of the Guarantee are as follows:
(a) The duration of the Guarantee shall be as specified in the Brochure in relation to the relevant Goods.
(b) The Guarantee is only available to original Buyers who have proof of purchase.
(c) If the Goods have been installed, the Seller must be given the opportunity to inspect the Goods in their installed condition.
(d) The original Buyer must contact the Seller's Technical Department within 7 days of the fault occurring and, if so requested by the Seller, the Buyer must return the Goods to the Seller at the Buyer's own cost.
If the Goods are proved to the reasonable satisfaction of the Seller not to comply with the Specification due to a defect as set out in (a) above, the Seller's sole obligation under the Contract shall be, at its sole option, to:
(i) refund the Price of the Goods;
(ii) repair and return the Goods to the Buyer; or
(iii) send new Goods or parts to the Buyer as a replacement.
(e) Without prejudice to (e) above, if the Goods have been installed in a consumer's home, the Seller may at its sole discretion make a contribution towards the cost of making good any damage to the consumer's home associated with the removal and replacement of the Goods, but it shall be under no obligation to do so.
(f) Due to the Seller's continuous development programme, if in the Seller's opinion the Goods have failed under the terms of the Guarantee and a replacement is offered but identical goods are no longer available, the Seller will replace the Goods with our nearest equivalent product.
(g) The Guarantee applies only to Goods proven to the Seller's reasonable satisfaction to be defective in material or workmanship when they left the Seller's UK premises, and is only valid for products purchased, installed and used for private domestic purposes in the United Kingdom.
(h) The Guarantee does not cover faults caused by or due to wilful damage, neglect, misuse, failure to follow installation instructions, inappropriate cleaning, accidental damage and other events outside the Seller's control. No claim will be accepted where Goods have not been used for the purpose for which they were intended, have not been fitted correctly, have not been maintained to the Seller's recommended standards or have been abused or misused (including, without limitation, where the Goods or their packaging have been damaged by the Buyer or a third party).
(i) The Guarantee does not cover any Goods that have been altered or modified in any way without the prior written consent of the Seller.
(j) If a claim is made under the Guarantee, and the defect is not due to a manufacturing defect, the Seller reserves the right to charge the Buyer at the current hourly rate in respect of any service engineer time.
(k) The Guarantee does not cover ex-display units.
(l) The benefit of the Guarantee cannot be transferred to a third party.
3.4 Any Goods that have been replaced will belong to the Seller. Any replacement Goods issued by the Seller will be liable to a replacement or refund under the terms of the Guarantee for the unexpired portion of the original Guarantee period.
3.5 Except as otherwise provided in these Conditions, all warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 Sale and Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
4.1 The Seller will use reasonable endeavours to deliver the Goods in each of the Buyer’s Purchase Orders it accepts by the agreed delivery date and, if no delivery date is agreed, then within 5 Business Days of the lead time for the Goods as stated in the Brochure, but the timing of delivery of the Goods will not be of the essence in the Contract.
4.2 If, despite using reasonable endeavours, the Seller is unable for any reason to fulfil any delivery of the Goods by the agreed date, the Seller will be deemed not to be in breach of the Contract, nor will the Seller have any liability to the Buyer howsoever caused (including, but without limitation, as a result of negligence) by any delay or failure in delivery. Any delay in delivery will not entitle the Buyer to cancel the Purchase Order unless and until the Buyer has given 7 days’ written notice to the Seller after the expiry of the agreed delivery date requiring the delivery to be made and the Seller has not fulfilled the delivery of the Goods within that period. If the Buyer cancels the Purchase Order in accordance with this clause 4.2 then
(a) the Seller will refund to the Buyer any sums which the Buyer has paid to the Seller in respect of that Purchase Order or part of the Purchase Order which has been cancelled; and
(b) the Buyer will be under no liability to make any further payments under clause 6 in respect of that Purchase Order or part of the Purchase Order which has been cancelled.
4.3 Delivery of the Goods shall be deemed to be made on the earliest occurrence of:
(a) collection of the Goods by the Buyer from the Seller; or
(b) delivery of the Goods by the Seller to the Buyer at the Delivery Address; or
(c) delivery of the Goods by the Seller to a third party carrier engaged by the Buyer.
4.4 The Buyer shall, within 2 Business Days of the delivery of the Goods, notify the Seller in writing of any defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the Specification and which should be apparent on reasonable inspection.
4.5 If the Buyer fails to give notice under clause
4.4 then, except in respect of any defect that is not one which should be apparent on reasonable inspection, the Goods shall be deemed conclusively to be in all respects in accordance with the Specification and accepted by the Buyer.
4.6 The Seller reserves the right to deliver the Goods in instalments and to invoice in instalments and in such event each instalment shall be treated as a separate Contract. Further instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full.
4.7 If the Buyer refuses or fails to take delivery of any of the Goods at the time stated for delivery (otherwise than by reason of any Force Majeure Event or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller will be entitle d to:
(a) store the Goods until actual delivery and charge the Buyer for the cost of storage, transport any related insurance and a handling fee; and/or
(b) sell the Goods at the best prices obtainable in all the circumstances, after deducting all storage, insurance, transport and selling expenses and invoice the Buyer for the difference between the sum obtained by the Seller and the Price and the Buyer shall pay such sum immediately.
4.8 Goods may only be returned for credit after receiving written agreement from the Seller. A re- stocking charge of 25% of the Price will be levied on all returned Goods and a further charge will be levied on all returns that need re-packing. Special orders are non-returnable. Damaged Goods will not be accepted.
5 LIMITATION OF LIABILITY
5.1 The Seller does not attempt to exclude any liability:
(a) for breach of the Seller’s obligations arising under section 12 Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982;
(b) for personal injury or death resulting from the Seller’s negligence;
(c) under section 2(3) Consumer Protection Act 1987; or
(d) any matter for which it would be illegal for the Seller to exclude or to attempt to exclude its liability.
5.2 The Seller shall not be liable to the Buyer for any loss of profit, loss of anticipated profit, loss of business, loss of contract, economic loss, overhead recovery, anticipated savings, loss of data, loss of production, depletion of goodwill, product recall, nor for any special, indirect or consequential loss or damage, or otherwise for any costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) including, but without limitation, any which arise out of or in connection with:
(a) any of the Goods;
(b) the manufacture, sale or supply, or failure or delay in supply, of the Goods by the Seller or on the part of the Seller’s employees, agents or sub- contractors;
(c) any breach by the Seller of any of the express or implied terms of these Conditions or the Contract;
(d) any use made or resale by the Buyer of any of the Goods, or of any goods incorporating any of the Goods;
(e) any statement made or not made, or advice given or not given, by or on behalf of the Seller; or
(f) any act, omission or inaction of any third party haulier in connection with the delivery of the Goods save to the extent that the Seller will pass on any sums recovered by the Seller for and on behalf of the Buyer from such third party haulier (if any), but the Seller shall be under no obligation to commence any proceedings against such third party haulier to recover any sums for the Buyer.
5.3 Subject to clause 5.1, the Seller's total aggregate liability under the Contract shall be limited to the Price the Seller has received under the Contract.
5.4 Subject to clause 5.1, the Seller's liability for defective Goods is limited to its obligations under the Guarantee as set out in clause 3.3.
6 PRICES AND PAYMENT
6.1 The Price is inclusive of value added tax but exclusive of all other taxes and duties, which, if applicable, shall be payable by the Buyer in addition to:
(a) a carriage charge as stated in the Brochure;
(b) any increased costs incurred as a consequence of the application of any legislation resulting in increased costs in delivery;
(c) any cost of demurrage if the Seller's vehicle i s delayed at the Delivery Address beyond a 2 hour period;
(d) any additional cost of delivery notified by the Seller to the Buyer for delivery of the Goods on any day which is not a Business Day; and
(e) any additional cost of delivery notified by the Seller to the Buyer for delivery of the Goods if the Goods are required prior to the agreed delivery date.
6.2 The Seller may invoice the Buyer for the Price at any time after despatch of the Goods from the Seller's UK premises. If any delivery is postponed at the request of, or by the default of, the Buyer then the Seller may submit its invoice at any time after the Goods were ready for delivery in the ordinary course of the Contract, but for the request or default on the part of the Buyer.
6.3 The Buyer shall pay the Price (including value added tax or any other applicable tax or duty together with any items specified in clause 6.1) in accordance with the payment terms notified to the Buyer as stated on the Seller's invoice(s) or, if no such payment terms are stipulated, by the last day of the month following the month in which the Goods were despatched.
6.4 If any sum payable under the Contract is not paid when due then without prejudice to the Seller’ s other rights under these Conditions, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 4% per annum over HSBC Bank Plc base rate from time to time and the Seller will be entitled to suspend all future deliveries of the Goods until the outstanding amount has been received.
6.5 No payment will be deemed to have been received until the Seller has received the Price in full in cleared funds.
6.6 Time for payment will be of the essence under the Contract and the Buyer will indemnify the Seller against all expenses and legal costs incurred by the Seller in recovering overdue amounts.
6.7 Notwithstanding any other provision of these Conditions, all sums outstanding under the Contract will become due immediately on termination of the Contract.
6.8 The Buyer will make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
6.9 Without prejudice to clause 6.8, if the Buyer fails, or the Seller reasonably believes that the Buyer will fail, to pay the Price when due the Seller may demand payment of all sums due, treat the Contract as repudiated by the Buyer and/or suspend all future performance of the Contract until all overdue sums have been paid.
6.10 The Seller shall be entitled to set off and retain any and all sums due to the Buyer against any contingent or actual liabilities of the Buyer to the Seller.
6.11 The Seller reserves the right to increase the Price if any extra cost is incurred by the Seller after quoting the Price as a result of the inaccuracy or incompleteness of any instructions issued by the Buyer, or as a result of any failure to supply any information, drawings or specification required to enable the Seller to proceed with the Contract.
7 RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be collected from the premises of the Seller, at the time when the Seller notifies the Buyer that the Goods are available for collection from the agreed collection point;
(b) in the case of Goods to be delivered to the Delivery Address by the Seller, when the Goods are delivered to the Delivery Address; or
(c) in the case of Goods delivered to a third party carrier engaged by the Buyer, at the time of the Seller handing the Goods to such third party carrier.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price.
7.3 Until ownership of the Goods has passed to the Buyer pursuant to clause 7.2, the Buyer will:
(a) hold the Goods on a fiduciary basis as trustee of the Seller;
(b) keep the Goods free from any charge, lien or other encumbrance;
(c) not destroy, deface or obscure any identifying mark on the Goods or their packaging;
(d) maintain the Goods in a satisfactory condition;
(e) insure the Goods for the Price in full on behalf of the Seller, with the Seller's interest in the Goods noted on the policy, against all usual risks to the reasonable satisfaction of the Seller and on request by the Seller the Buyer shall produce evidence of such policy of insurance to the Seller; and
(f) hold all proceeds of the insurance policy referred to in clause 7.3(e) if any claim is made on the policy on trust for the Seller and not mix it with any other money or pay the proceeds into any overdrawn bank account.
7.4 Notwithstanding the provisions of clause 7.3, the Buyer may resell, use or otherwise dispose of the Goods before ownership has passed to it only if any such sale, use or disposition will be effected in the ordinary course of the Buyer's business and will be a sale, use or disposition of the Seller's property on the Buyer's own behalf and the Buyer will deal as principal. The Seller shall, by reason of the relationship between the Buyer (as trustee) and of the Seller (as beneficiary) be and remain legally entitled to the proceeds of sale and the Buyer shall pay such proceeds of sale into a separate account or, otherwise, shall ensure that all of the proceeds of the sale are kept by or on behalf of the Buyer in a separate and identifiable form and not paid into an overdrawn bank account. Upon receipt of the proceeds of sale, the Buyer shall discharge its debt to the Seller and shall not use or deal with the proceeds of sale in any way whatsoever until such debt has been discharged.
7.5 Until ownership in the Goods has passed pursuant to clause 7.2, the Seller may recover the Goods at any time, and the Buyer grants to the Seller, its agents, employees and sub-contractors an irrecoverable licence at any time to enter any premises where the Goods are or may be stored. In the case of the Goods being stored on premises owned by a third party the Buyer shall procure such a right for the Seller.
7.6 The Buyer's right to possession of the Goods shall cease on the occurrence of any of the events set out in clause 9 of these Conditions. In such circumstances, the Seller may upon notice enter any premises occupied by the Buyer where the Goods are stored and repossess the Goods and the Buyer shall procure a right for the Seller to enter any premises not occupied or owned by the Buyer.
8 FORCE MAJEURE
8.1 If either Party is prevented or delayed in the performance of any of its obligations by a Force Majeure Event then the Party so prevented or delayed will be excused from the performance of its obligations from the date of the occurrence of such Force Majeure Event for so long as such Force Majeure Event continues and shall not be deemed to be in breach of these Conditions or the Contract or otherwise liable to the other Party in any manner whatsoever.
8.2 On the occurrence of any Force Majeure Event, the Parties shall enter into bona fide discussions with a view to alleviating its effects and the Party prevented from performance by it shall use reasonable diligence to remove the cause of the Force Majeure Event (if capable of removal) and to enable its obligations hereunder to be performed. If any Force Majeure Event prevails for a continuous period in excess of 1 month, the Party not affected by the Force Majeure Event may give notice to terminate the Contract forthwith provided that the Parties have not previously agreed a course of action to deal with such Force Majeure Event. If such agreed course of action fails, the Party not affected by the Force Majeure may give notice to terminate the Contract forthwith provided the Force Majeure Event has already prevailed for a period of 1 month.
8.3 If at any time the Seller claims the existence of a Force Majeure Event in respect of its obligations under these Conditions or the Contract with regard to the supply of the Goods, the Buyer shall be entitled to obtain from any other person such quantity of the Goods as the Seller is unable to supply.
9 BUYER'S DEFAULT AND TERMINATION OF THE CONTRACT
9.1 the Seller shall be entitled to terminate the Contract immediately upon the occurrence of any of the following:
(a) the Buyer being in material breach of any term of these Conditions and such breach not being capable of remedy;
(b) the Buyer being in material breach of any term of these Conditions and failing to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
(c) the Buyer (being an individual or firm) becomes bankrupt or goes into sequestration, or (being a partnership) is wound up by the court or becomes bankrupt or goes into partnership administration or sequestration, or (being a body corporate) is wound up by the court or is voluntarily wound up by reason of its inability to pay its debts or an administrator or receiver is appointed of any part or all of its income or assets and in any case if the Buyer enters into any informal or voluntary arrangement (whether or not in accordance with the Insolvency Act 1986) with or for the benefit of the general body of creditors of the individual, the partnership or the body corporate;
(d) the Buyer suffers the equivalent of any similar or analogous event in (c) (above) in any jurisdiction; or
(e) a separate entity acquires Control of the Buyer, or the Buyer is merged with a separate entity. "Control" for the purposes of these Conditions and the Contract shall mean where an entity has 50% or more of the shares or stocks in the Buyer or is able to direct the Buyer's affairs and/or control the composition of the Buyer's board of directors or equivalent body.
9.2 Without prejudice to any of its other rights or remedies, the Seller shall have the right to terminate the Contract without any liability to the Buyer if, in the reasonable opinion of the Seller after an inspection into the Buyer's financial or trade status or in light of any report considered by the Seller, the Seller at its absolute sole discretion deems that the Buyer may not be able to pay the Price.
9.3 Should the Seller choose not to enforce its right to terminate the Contract upon the occurrence of an event specified in clause 9.1(c) or (d) above, the Seller shall have the right to unilaterally amend the discount and payment terms offered to the Buyer as a condition of continuing to supply Goods to the Buyer.
The Buyer hereby undertakes not at any time to divulge any of the terms of the Contract or use any information in relation to the Seller’s business or any other information received from the Seller in relation to the Contract of a confidential or proprietary nature other than for the purposes expressly envisaged by these Conditions.
11 OWNERSHIP OF INTELLECTUAL PROPERTY
11.1 The ownership of and sole rights to obtain the ownership of all Intellectual Property Rights relating to the Goods (including, without limitation, all Intellectual Property Rights in any installation instructions and/or packaging for the Goods) shall at all times be vested in the Seller and the Seller shall be responsible for the registration and other protection of such Intellectual Property Rights in the Goods as the Seller deems fit.
11.2 The Buyer shall not use the Seller's name, logo, or any other identification marks, nor the Seller's product names or images, for the purpose of advertising or publicity (including, without limitation, by registering any such words as a domain name or part of a domain name) without the prior written consent of the Seller.
11.3 If the Goods have been manufactured to the specification or design of the Buyer, the Buyer shall indemnify the Seller and keep the Seller indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with any infringement of any Intellectual Property Rights of any third party where such liability arises as a consequence of the specification or a modification of the specification supplied by the Buyer.
Without prejudice to any rights or remedies implied by statute or common law or under any provision of these Conditions or the Contract, the Buyer shall indemnify the Seller and keep the Seller indemnified in full against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with any and all acts and omissions of the Buyer, its employees, agents or sub-contractors including, but without limitation, all acts and omission relating to the marketing, advertising and sale of the Goods.
13 HEALTH AND SAFETY
Goods supplied by the Seller to its own specification or design are designed to be safe and without risk to health provided they are used strictly in accordance with any instructions or information issued by the Seller as to their use and are also used with any necessary safety precautions. If the Buyer is unclear as to the correct use of the Goods
it should immediately contact the Seller for clarification. It is the responsibility of the Buyer to meet all safety standards in the application, use and sale of the Goods.
14 RELATIONSHIP OF PARTIES
Nothing in these Conditions or any document referred to in either document or any arrangement contemplated by the Parties shall be construed as creating a partnership between the Parties for any purpose and neither Party shall have the power or authority to bind the other Party or impose any obligations on it for the benefit of any third party.
15 AMENDMENTS AND VARIATIONS
Without prejudice to clause 9.3 above, no variation or amendments to the Contract or these Conditions shall be binding unless agreed in writing by an authorised representative of the Seller.
No delay in exercising or failure to exercise any of the rights of either Party arising from or in connection with the Contract or these Conditions shall operate as a waiver or release of that right. Any such waiver or release must be specifically granted in writing signed by the Party granting it.
17.1 The Seller shall be entitled to perform any of the obligations undertaken by it and to exercise an y of the rights granted to it under the Contract or these Conditions through any other company which at the relevant time is its holding company or subsidiary (as defined by Section 736 of the Companies Act 1985) or the subsidiary of any such holding company and any act or omission of any such company shall for the purposes of the Contract be deemed to be an act or omission of the Seller.
17.2 The Seller shall be entitled to carry out its obligations under the Contract through any agents or sub-contractors appointed by it in its absolute discretion for that purpose.
17.3 Except as provided in clauses 17.1 and 17.2, neither Party may assign, sub-contract, sub-license or otherwise dispose of any of its rights arising from the Contract or these Conditions without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed).
17.4 To effect any permitted assignment pursuant to the provisions of clause 17.3, the Parties shall enter into a novation agreement and shall use all reasonable endeavours to procure that the assignee or transferee enters into such novation agreement.
If any term, clause, condition or part of these Conditions is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from these Conditions and shall be ineffective without, as far as is possible, modifying any other provision or part of these Conditions and this shall not affect any other provisions of the Contract which shall remain in full force and effect.
19 ENTIRE AGREEMENT
19.1 These Conditions represent the entire agreement between the Parties relating to the sale and purchase of Goods and supersede all previous agreements, arrangements and understandings between the Parties relating to the sale and purchase of the Goods.
19.2 Each Party acknowledges that in entering into the Contract it places no reliance on any representation, warranty or other statement relating to the subject matter of the Contract, other than as expressly set out in these Conditions.
19.3 Neither Party shall have any liability or remedy in respect of any representation warranty or other statement being false, inaccurate and/or incomplete unless it was made fraudulently or is contained in these Conditions. Nothing in these Conditions shall exclude or limit the liability of either Party for a fraudulent misrepresentation.
20.1 Notices under these Conditions may be served by personal delivery, by first class post or by facsimile.
20.2 Notices shall be deemed to be served:
(a) on delivery when delivered personally; or
(b) on receipt of a printout confirming due transmission when transmitted by facsimile to the facsimile number notified by the other Party; or
(c) two (2) days after mailing if sent by mail, provided the postage is properly paid and such notice is correctly addressed to the respective Par ty at its registered office, or such other address as shall have been notified to the other Party in writing.
21 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
An entity which is not expressly a Party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract and the provisions of the Contracts (Rights of Third Parties) Act 1999 shall be expressly excluded from the Contract.
22 GOVERNING LAW
These Conditions and the Contract shall be governed by English law and the Parties hereby agree to submit to the exclusive jurisdiction of the English Courts.
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