Business Terms of Mosca Direct Ltd.

TERMS AND CONDITIONS OF SALE OF GOODS AND SUPPLY OF SERVICES

1. INTERPRETATION

a) “Buyer” means the person, firm or company who purchases the Goods and/or Services from the Seller;

b) “Conditions” means these terms and conditions for the sale and supply of Goods and Services;

c) “Contract” means the contract between the Seller and the Buyer for the sale and supply of Goods and/or Services, incorporating these Conditions, and includes any International Contract unless the context of these Conditions otherwise provide;

d) “Goods” means any goods set out in the Order and agreed in the Contract to be supplied by the Seller to the Buyer;

e) “International Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods where the principal place of business of the Buyer is in a country other than Great Britain notwithstanding the fact that the Goods may be despatched and delivered in different countries or in the same country; or where the Goods are to be delivered to, or the Services are to be performed at, any place outside of Mainland Great Britain;

f) “Machinery” means Goods which consist of machinery and/or equipment and/or tools;

g) “Order” means the Buyer’s order for the supply of Goods and/or Services as set out in the Buyer’s purchase order form or the Buyer’s written acceptance of the Seller’s quotation as the case may be.

h) “Seller” means Mosca Direct Limited (company number 3911521) whose registered address is Colliers Way, Colliers Business Park, Cotgrave, Nottinghamshire, NG12 3HA;

i) “Services” means the services set out in the Order and may include any or all of the following:-

 the installation of Goods;

 the commissioning of Goods;

 the repair and/or maintenance and/or servicing of Goods.

For the avoidance of doubt “Services” does not include any of the following:-

 site wiring or the supply of necessary cable;

 supply of tubing for an air supply line to any pneumatic equipment and the mains supply;

 supply of air compressor if no mains supply available;

 building or civil work, preparation of floors, the making of holes in walls, floors or ceilings or other structure, for access of the Goods or installation otherwise;

 the testing of any floor, wall, ceiling or other structure for the purpose of establishing the load bearing capacities thereof.

j) “Termination Event” means each of the events specified in clauses 13.1.1 to 13.1.6 inclusive;

k) “Writing” includes telex, cable, facsimile transmissions and comparable means of communication including e-mail.

2. BASIS OF SALE AND SUPPLY

2.1 These Conditions shall apply to the sale and supply by the Seller of all Goods and/or Services

purchased by the Buyer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Buyer including any terms implied by trade, custom, practice or course of dealing.

2.2 Subject to clause 2.3, no variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this clause shall exclude or limit the Seller’s liability for fraudulent misrepresentation.

2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list,

acceptance of offer, invoice or other documentation or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2.4 The Order constitutes an offer by the Buyer to buy the Goods and/or Services subject to these Conditions.

2.5 The Order shall be deemed to be accepted by the Seller when a written acceptance of the Order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Buyer or starts to perform the Services (as the case may be) at which point the Contract shall come into existence.

2.6 The Buyer shall ensure that the terms of the Order and any applicable specification are complete and

accurate.

2.7 Any tender or quotation is given on the basis that no Contract shall come into existence until the

Seller despatches an acceptance of order to the Buyer. Any tenders or quotations submitted to the Buyer shall remain valid for the period stated therein, but if no period is specified such tenders and quotations shall be valid for 30 days from the date thereof, provided that the Seller has not previously withdrawn such tenders and quotations.

3. ORDERS AND SPECIFICATIONS

3.1 The Buyer shall be under a duty to bring any errors or discrepancies in the Order to the Seller’s notice immediately on becoming aware of any such error or discrepancy.

3.2 The Seller reserves the right, from time to time and without notice, to make any changes to the

specification of the Goods in order to comply with any applicable safety or statutory requirements, PROVIDED THAT any such changes shall not materially affect the performance of the Goods. If the Seller requests a change to the specification of the Goods for any other reason, the Buyer shall not unreasonably withhold or delay consent to such changes.

3.3 The Seller reserves the right, from time to time and without notice, to make any changes to the

Services in order to comply with any applicable safety or statutory requirements, PROVIDED THAT any such changes shall not materially affect the nature, scope of, or the charges for the Services. If the Seller requests a change to the scope of the Services for any other reason, the Buyer shall not unreasonably withhold or delay consent to such changes.

3.4 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the

agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation.

4. GOODS

4.1 The Goods are as described in the Seller’s catalogue or the Order or any specification for the Goods that is agreed in writing by the Buyer and Seller (Goods Specification).

4.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of the Goods Specification.

5. DELIVERY

5.1 The Seller shall take reasonable endeavours to deliver the Goods to, and/or perform the Services at, the Buyer’s premises or such other address as may be agreed between the parties (Delivery Location) on the date indicated by the Seller or the date agreed between the parties, but the time of delivery or performance shall not be of the essence and if despite those endeavours, the Seller is unable for any reason to fulfil any delivery of the Goods or perform the Services on the date so indicated, the Seller shall not be deemed to be in breach of contract or have any liability whatsoever to the Buyer.

5.2 The Seller shall have the right to deliver any Goods in separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

5.3 Each instalment shall be a separate Contract. Failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of the Goods delivered in any one instalment, or any cancellation or termination of any one instalment shall not entitle the Buyer either to repudiate or cancel any other instalment or to reject or refuse to take delivery of any of the Goods delivered in any other instalment.

5.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery, or, where goods are sold EXW, on arrival of goods at the Buyers location If the Buyer fails to accept delivery of any of the Goods (otherwise than by reason of the Seller’s fault) or the Seller is unable to deliver the Goods on time because the Buyer has not provided adequate instructions for delivery, documents, licences or authorisations then, without prejudice to any other right or remedy available to the Seller, delivery of the Goods shall be deemed to have been completed on the day the Seller notified the Buyer that the Goods were ready for delivery and the Seller may:

5.4.1 Store the Goods until actual delivery, whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance);

or

5.4.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage, insurance and selling expenses) charge the Buyer for any shortfall below the price under Contract.

6. RISK

Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery, or if the Buyer wrongfully fails to take delivery, the time when delivery is deemed to take place in accordance with clause 5.4.

7. PRICE

7.1 The price for the Goods and Services shall be the price specified by the Seller in the Order, and which unless otherwise stated shall be: -

7.1.1 Exclusive of Value Added Tax (which the Buyer shall additionally be liable to pay to the Seller); and

7.1.2 Calculated on an Ex-Works basis.

7.2 Where the Seller is required to deliver the Goods on any basis other than Ex-Works, unless a specific fee or charge is agreed by the Buyer with the Seller, the Seller reserves the right to charge a reasonable fee to the Buyer for the cost of any carriage and/or other expenses incurred by the Seller in relation to the delivery of the Goods (including, without limitation, all costs or charges in relation to packaging, loading, unloading and insurance) (“Additional Charges”).

7.3 Unless otherwise stated in the supplier proposal document, the price for the Goods is exclusive of any additional caging or guarding (over and above that supplied with the Goods) which is either: -

7.3.1 Required by the Buyer; or

7.3.2 Required by law or recommended by the Seller as prudent in order to comply with the law.

7.4 The Seller reserves the right, by giving notice to the Buyer at any time before delivery or performance, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions).

8. PAYMENT TERMS

8.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods and/or the Services on or at any time after the Seller has:-

8.1.1 Despatched the Goods (or any instalment thereof); or 8.1.2 Performed or tendered performance of the Services.

8.2 Subject to clause 8.3 of these Conditions, the Buyer shall pay the invoice 30 days from the date the Seller’s invoice is issued.

8.3 Where the total Contract includes (in whole or part) the sale and supply of Machinery, the payment terms detailed in clause 8.2 of these Conditions shall apply unless the price for such Machinery is £5,000 or more, in which case, unless agreed otherwise in writing, the Buyer shall pay the price of such Machinery as follows:-

8.3.1 50% of the price (plus VAT) at the time the order Order is made;

8.3.2 40% of the price (plus VAT) on despatch; and

8.3.3 10% of the price (plus VAT) within 30 days from the date of delivery.

8.4 Notwithstanding the provisions of clauses of 8.2 and 8.3 above, in the event that the Buyer fails to

make payment for any Goods and/or Services together with any Additional Charges by the due date, all invoices issued to the Buyer by the Seller in respect of any Goods and/or Services sold or supplied pursuant to any other Contract shall immediately fall due for payment and any credit offered or extended by the Seller to the Buyer in respect of the same shall be cancelled forthwith.

8.5 The Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken

place and the property in the Goods may not have passed to the Buyer.

8.6 The time of payment shall be of the essence.

8.7 No payment shall be deemed to have been received until the Seller has received cleared funds.

8.8 All payments payable to the Seller under the Contract shall become due immediately on its

termination despite any other provision.

8.9 The Buyer shall make all payments due under the Contract in full without any deduction whether by

way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

8.10 If the Buyer fails to make any payment pursuant to the Contract on the due date then, without prejudice to any other right or remedy available to the Seller:-

8.10.1 The Seller shall be entitled to charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 3% per annum above the Seller’s bankers current base rate from time to time, such interest accruing on a daily basis, until payment is made;

and

8.10.2 The Seller shall be entitled to:-

8.10.2.1 withhold delivery of any Goods agreed to be sold by the Seller to the Buyer

or any instalment thereof; and

8.10.2.2 suspend the performance of any Services or part thereof (being in either case the subject of the Contract or any other Contract) until payment in full is made.

8.11 Unless agreed otherwise in writing, payment shall be made in pounds sterling, and payment received

in any other currency will not be deemed payment in full, notwithstanding the fact that any such currency other than pounds sterling may, at the Seller’s sole discretion, be accepted in part payment of the Goods and Services.

8.12 The Seller may revise its payment (or credit) terms from time to time without recourse to the Buyer

if, at any time, the Buyer’s credit status changes.

8.13 Unless otherwise agreed in writing by the Seller and with respect to International Contracts only, payment for the Goods shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller in a form acceptable to the Seller and confirmed by a first class London Bank.

9. TITLE

9.1 Notwithstanding the delivery of and the passing of risk in the Goods, or any other provision of these

Conditions, title in the Goods shall not pass to the Buyer until the Seller had received in cash or cleared funds payment in full all sums due to the Seller in respect of:

9.1.1 all of the Goods; and

9.1.2 all other sums which are or which become due to the Seller from the Buyer on any account.

9.2 Until such time as title in any Goods delivered by the Seller passes to the Buyer, the Buyer shall:

9.2.1 hold such Goods as the Seller’s fiduciary agent and bailee;

9.2.2 shall keep such Goods (at no cost to the Seller)separate from those of the Buyer and third parties in such a way that they remain readily identifiable as the Seller’s property;

9.2.3 maintain such Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller; and

9.2.4 not destroy, deface or obscure any identifying mark or packaging on or relating to such Goods.

9.3 The Buyer may resell the Goods before ownership has passed to it solely on the following

Conditions:

9.3.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and

9.3.2 any such sale shall be a sale of the Seller’s property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.

9.4 The Buyer's right to possession of the Goods shall terminate immediately:

9.4.1 upon the occurrence of a Termination Event; or

9.4.3 if the Buyer encumbers or in any way charges any of the Goods.

9.5 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any

of the Goods has not passed from the Seller.

9.6 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter

any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.

9.7 Where the Seller is unable to determine whether any Goods are the Goods in respect of which the

Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all Goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.

9.8 On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained

in this clause 9 shall remain in effect.

10. INTERNATIONAL PROPERTY RIGHTS

10.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any materials provided by the Buyer) shall be owned by the Seller.

10.2 The Seller grants to the Buyer, or shall procure the direct grant to the Buyer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use any deliverables provided in the course of the Services (excluding materials provided by the Buyer) for the purpose of receiving and using the Services and the deliverables in its business.

10.3 The Buyer shall not sub-license, assign or otherwise transfer the rights granted by Clause 10.2.

10.4 The Buyer grants the Seller a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Buyer to the Seller for the term of the Contract for the purpose of providing the Services to the Buyer.

10.5 Where any writing or other mark or design is applied to the Goods either at the Buyer’s request or to the Buyer’s specification, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any intellectual property rights of any person which results from the Seller’s use of the Buyer’s specification.

11. INTERNATIONAL CONTRACTS DISTINGUISHED

11.1 For the avoidance of doubt, when or where delivery shall take place and the time that risk shall pass

from the Seller to the Buyer shall be determined, in the case of an International Contract, by the Incoterm agreed between the parties. When or where delivery shall take place and the time that risk shall pass in respect of all other contracts shall be determined by clauses 4 and 5 of these Conditions.

11.2 Any provisions contained in these Conditions relating to the delivery (save those provisions (or part

thereof) which state when or where delivery shall take place) shall apply to both International Contracts and Contracts.

11.3 For the avoidance of doubt and notwithstanding any presumptions raised by the use of any

Incoterm, in the case of an International Contract, title in the Goods shall pass in accordance with clause 8 of these Conditions.

11.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Incoterm governing the International Contract shall be Ex-Works.

11.5 Unless otherwise agreed in writing, the price of the Goods shall in the case of an International

Contract, be calculated on an Ex-works basis and the Seller shall be entitled to charge the cost of the carriage, insurance, freight, tax and duty incurred by the Seller in delivering the Goods to the Buyer irrespective of the price for the total Goods ordered and the Buyer shall be liable to pay the same to the Seller.

11.6 Unless otherwise agreed in writing by the Seller, payment for the Goods shall be made by

irrevocable letter of credit opened by the Buyer in favour of the Seller in a form acceptable to the Seller and confirmed by a first class London Bank.

12. WARRANTIES AND LIABILITY

12.1 Subject to the Conditions set out below the Seller warrants that:-

12.1.1 The Services will be provided using reasonable care and skill;

12.1.2 The Goods will conform with any applicable specification and will be free from defects in design, material and workmanship under normal use for a period of 3 months from the date of delivery and in the case of the Goods being Machinery for a period of 6 months from the date of delivery unless otherwise agreed between the parties and in addition the Buyer shall have the benefit of the Seller’s standard equipment warranty (a copy of which is available on request);

PROVIDED THAT the Seller shall have no liability for breach of the warranties in this clause 12.1 if:

12.1.3 the Buyer makes any further use of the Goods after giving notice pursuant to clause 11.2;

12.1.4 the defect arises because the Buyer failed to follow the Seller’s (or the manufacturer’s) instructions (whether oral or in writing) as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

11.1.5 the Buyer modifies or repairs the Goods without the written consent of the Seller.

12.2 The Seller shall have no liability for breach of the warranties in clause 12.1 unless:

12.2.1 the Buyer notifies the Seller in writing of the defect within the warranty period referred to in clause 12.1 or, where the defect is as a result of damage in transit to the carrier, within 10 days of the time when the Buyer discovers or ought to have discovered the defect; and

12.2.2 the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s costs for the examination to take place there.

12.3 The Buyer shall not be entitled to reject the Goods where the alleged defect or breach of contract is

so slight that it would be unreasonable for the Buyer to reject the Goods.

12.4 Subject to clauses 12.2 and 12.3, if any of the Goods do not conform with the warranties in clause

12.1 the Seller shall at its own option replace or repair the Goods (or the defective part in question)

or correct the Service free of charge, or refund to the Buyer the price of the Goods (or a proportionate part of the price), provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense return the Goods (or the part of such Goods which is defective) to the Seller and the Seller shall have no further liability to the Buyer for a breach of the warranties in clause 12.1 in respect of such Goods.

12.5 Clauses 12.6 to 12.8 set out the entire financial liability of the Seller (including any liability for the

acts or omissions of its employees, agents, consultants, and subcontractors) to the Buyer in respect of:

12.5.1 any breach of the Contract;

12.5.2 any use made (or resale) by the Buyer of the Goods or the Services or any part of them; and

12.5.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

12.6 Subject as expressly provided in these Conditions, all warranties conditions or other terms implied by

statute or common law are, to the fullest extent, permitted by law excluded from the Contract.

12.7 Nothing in these Conditions limits or excludes the liability of the Seller:

12.7.1 for death or personal injury resulting from negligence;

12.7.2 for any damage or liability incurred by the Buyer as a result of fraud or fraudulent misrepresentation by the Seller; 

12.7.3 under section 2(3) Consumer Protection Act 1987; or

12.7.4 for any other matter which it would be illegal for the Seller to exclude or attempt to exclude its liability.

12.8 Subject to clauses 12.6 and 12.7:

12.8.1 the Seller shall not be liable to the Buyer for any direct, indirect, special or consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with the Contract; and

12.8.2 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the greater of the (a) the price paid under Contract or (b) any sums recoverable under an insurance policy the Seller has in place.

13. BUYER'S WARRANTIES

13.1 The Buyer warrants that it shall not remove or modify any safety devices on the Machinery without

the Seller’s prior written approval.

13.2 The Buyer shall co-operate with the Seller in all matters relating to the Services.

13.3 The Buyer shall provide the seller, its employees, agents, consultants and subcontractors, with access to the Buyer's premises, office accommodation and other facilities or the site where the Services are to be performed as reasonably required by the Supplier to provide the Services.

13.4 The Buyer warrants that the load bearing capacities of any floor, wall, ceiling or other structure are sufficient for withstanding the load of the Machinery and the Seller shall have no responsibility or liability in relation thereto.

13.5 The Buyer warrants that all facilities for the installation and operation of the Machinery such as

electricity gas, water and compressed air shall promptly be made available to the Seller upon request free of charge to enable the Seller to install the Machinery in one continuous operation. The Buyer further warrants that where the Seller is prevented from performing the Services due to any delay in the provision of the aforementioned facilities, the Buyer shall pay an additional reasonable sum to the Seller to reflect the increased costs in performing the Services.

13.6 The Buyer warrants that the site at which the Services are to be performed by the Seller and all

equipment employed on it shall comply with all statutory or regulatory requirements relating to the health and safety of persons gaining entry to the site.

13.7 If for any reason when the Seller attends the site to perform the Services, the site or equipment

employed on it do not, in the Sellers reasonable opinion, comply with the statutory and regulatory requirements referred to at clause 13.6 above, the Seller at its option may:-

13.7.1 Elect to carry out the Services but may charge the Buyer for any costs it incurs in preparing the site to satisfy such statutory and regulatory requirements;

13.7.2 Elect to remain on site whilst the Buyer takes the necessary steps so that the site complies with the statutory and regulatory requirements. The Seller shall charge for such waiting time at the rates specified in the quotation (or if none then its current rate) for waiting time; or

13.7.3 Elect to leave the site and return at some time in the future on a date to be agreed to the parties by which time the Buyer will ensure that the site complies with the statutory and regulatory requirements. The Seller may charge for its wasted time in accordance with the rate specified in the quotation (or if none then its current rate) for wasted time.

13.8 Where the Seller has submitted a quotation prior to site inspection, the Seller reserves the right to

withdraw from any such quotation or other responsibility if, in the Seller’s sole opinion, access to or the condition of the site is unsuitable or unsafe for the Services to be performed.

14. TERMINATION

14.1 Without prejudice to any other rights or remedies which the Seller may have, the Seller may

terminate the Contract without liability to the Buyer immediately on giving notice to the Buyer if:

14.1.1 the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default for a period of not less than seven days after being notified in writing to make such payment; or

14.1.2 the Buyer commits a breach of any of the terms of the Contract (other than a term relating to payment of amounts due under the Contract) and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

14.1.3 the Buyer 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

14.1.4 the Buyer (being a body corporate) convenes a meeting of its 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 Buyer or notice of intention to appoint an administrator is given by the Buyer 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 Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

14.1.5 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or

14.1.6 the Seller reasonably apprehends that any of the events mentioned in clauses 14.1.3. 14.1.4 and 13.1.5 above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

14.2 On termination of the Contract for any reason:

14.2.1 the Seller shall be entitled to cancel all Contracts between the Seller and the Buyer and suspend any further deliveries or performance under all Contracts without any liability to the Buyer;

14.2.2 the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;

14.2.3 the Seller shall be entitled to forfeit and retain any deposit or other payment received from or paid on behalf of the Buyer; and

14.2.4 the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

14.3 On termination of the Contract (however arising), clauses 12, 13, 14 and 16.6 of these Conditions

shall survive and continue in full force and effect.

15. FORCE MAJEURE

The Seller shall have no liability to the Buyer under the Contract if it is prevented from, or delayed in

performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

16. ASSIGNMENT

16.1 The Seller may at any time assign the Contract (or any part of it) to any person, firm or company.

16.2 The Buyer shall not be entitled to assign the Contract (or any part of it) without the prior written

16.3 consent of the Seller.

17. GENERAL 

17.1 Any notice required or permitted to be given by either party to the other under these Conditions

shall be in writing addressed to that other party at his registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

17.2 If any provision of these Conditions is held by any competent authority to be invalid or

unenforceable in whole or in part, the validity of the other provisions of these Conditions shall remain in full force and effect.

17.3 No waiver by the Seller of any breach of, or any default under, any provision of the Contract by the

Buyer shall be considered as a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

17.4 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.

17.5 Each right or remedy of the Seller under the Contract is without prejudice to any other right or

remedy of the Seller whether under the Contract or not.

17.6 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or

formation (including non-contractual disputes or claims) shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English Courts.

17.7 This Contract constitutes the entire agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. The Contract may only be varied or modified in writing under the hands of the parties or their authorised representatives.

17. BREXIT TRIGGER, RENEGOTIATION AND TERMINATION CLAUSE

18.1 Right to renegotiate or terminate. If at any time after Brexit a Brexit Trigger Event occurs which has or is likely to have an Adverse Impact on a party, the impacted party may:

(a) require the other party to negotiate an amendment to this agreement to alleviate the Adverse Impact, in accordance with Clause 18.5; and

(b) if renegotiation fails, terminate this agreement in accordance with Clause 18.6.

18.2 Brexit. Brexit means the UK ceasing to be a member state of the European Union.

18.3 Brexit Trigger Events. A Brexit Trigger Event means any of the following events if directly caused by Brexit or any discussions, proposals, negotiations or any other steps taken by the UK government or a body in any other jurisdiction in anticipation of or related to preparation for Brexit:

(a) Change in Law: a change in the Law or a new requirement to comply with any existing Law or existing Law ceasing to apply to a party. For these purposes, Law means any legal provision a party must comply with including any law, stature, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, enforceable EU right within the meaning of section 2 of the European Communities Act 1972, bye-law, regulation, order, mandatory guidance or code of practice, judgment of a court of law, or requirement of any regulatory body, whether in the UK or elsewhere;

(b) Trade tariff: in any jurisdiction, the imposition of, or a change to, a duty, tax or levy imposed on imports or exports of the Goods or any raw materials or components used by the Supplier to manufacture the Goods or any products into which the Goods are to be incorporated or in conjunction with which the Goods are to be commercially exploited;

(c) Licence or consent: in any jurisdiction, the loss of, a change to or the imposition of a new requirement for any licence or consent required by a party to perform the agreement or to commercially exploit the goods

(d) Currency Fluctuation: a change of more than 2% to the rate of exchange of sterling against Euro, since the price for the Goods was last agreed. The rate of exchange for these purposes shall be the daily spot exchange rate published by the Bank of England;

(e) Other change: a change to the business or economic environment in which a party operates which is not caused by Clause 18.3(a) to Clause 18.3(c) above or by any fluctuation in currency exchange rates.

18.4 Adverse Impact. An Adverse Impact means any one of the following:

(a) an adverse impact on a party’s ability to perform the agreement in accordance with its terms and the Law;

(b) an increase in the costs incurred by a party in performing the agreement of at least 5% since the price for the Goods was last agreed;

(c) the price of the Goods under this agreement is at least 10]% lower than the market value for similar products or services (an impact on the Supplier);

(d) the price of the Goods under this agreement exceeds the market value for similar products or services by at least 10% (an impact on the Customer).

18.5 Renegotiation. The impacted party may initiate a negotiation under Clause 18.1(a) by a notice (Brexit Notice) giving reasonable details of the relevant Brexit Trigger Event and Adverse Impact. Either party may, at any time, serve a new Brexit Notice, but a party cannot serve more than one Brexit Notice for the same impact. On delivery of a Brexit Notice:

(a) the parties shall meet within 14 days of the date of the Brexit Notice and as reasonably necessary thereafter to discuss in good faith amendments to this agreement;

(b) the affected party shall promptly comply with all reasonable requests made by the other party for additional information and documents relating to the Adverse Impact suffered and the Brexit Trigger Event relied on, always provided that information so disclosed shall be a party’s confidential information;

(c) any amendments to this agreement shall be recorded in writing, signed by the parties.

18.6 Termination. If the parties fail to agree a variation in accordance with Clause 18.5 within 30 days of the date of the Brexit Notice, the party serving the Brexit Notice may, without affecting any other right or remedy available to it, terminate this agreement by giving the other party not less than 30 days and not more than 60 days written notice.

18.7 Performance after a Brexit Notice. After delivery of a Brexit Notice, until this agreement is varied under Clause 18.5 or terminated, the parties shall, unless prohibited by law, continue to comply with the terms of this agreement, save that the party that served the Brexit Notice need only use reasonable endeavours to comply with its obligations insofar as they are affected by the relevant Adverse Impact.

18.8 Overlap with other rights and obligations. Save as expressly provided in this clause [18], neither a Brexit Trigger Event nor an Adverse Impact shall terminate or alter (or give any party a right to terminate or alter) this contract, or invalidate any of its terms or discharge or excuse performance under it. If there is an inconsistency between the provisions of this clause and any other provision of this agreement, the provisions of this clause shall prevail.