Mac’s Trucks Sale of Vehicles Terms & Conditions
Parties
(1) Mac’s Truck Sales Limited, is a company incorporated and registered in England and Wales with company number 03149885, whose registered office is at Alexander Park, Crosland Road, Huddersfield, England, HD3 3ZA (Seller/us/we/our). We operate the website https://macstrucks.co.uk.
(2) The company listed in the Order Form to which this agreement relates (Buyer/you/your)
Agreed terms
- Interpretation
1.1 Definitions:
Authorised Representative: means any of the people listed in the Quote as an “Authorised Representative” for the purposes of this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.00 am to 5.00 pm on any Business Day.
Chassis: the load bearing, underlying, foundational and structural framework of the Equipment.
Collection Date: the date for the Equipment to be collected, as will be set out in an Order Form (or otherwise notified to you). The Collection Date shall be an approximate date and any initial date agreed shall be superseded by a date subsequently agreed between the parties in writing for collection of the Equipment. We reserve the right to change the Collection Date at our discretion without incurring any liability to you.
Collection Location: Mac’s Truck Sales Limited’s premises at Alexander Park, Crosland Road, Huddersfield, England, HD3 3ZA (or any other location we specify in writing from time to time).
Delivery Date: the date for the Equipment to be delivered, as will be set out in an Order Form (or otherwise notified to you) if you have opted for the Equipment to be delivered. The Delivery Date shall be an approximate date and any initial date agreed shall be superseded by a date subsequently agreed between the parties in writing for delivery of the Equipment. We reserve the right to change the Delivery Date at our discretion without incurring any liability to you. A delivery will incur costs which will be confirmed in writing.
Delivery Location: the address for delivery of the Equipment, as will be set out in an Order Form if you have opted for the Equipment to be delivered.
Deposit: a non-refundable sum (as set out in the Order Form) payable by the Buyer towards the Price (which is to be paid prior to us signing the Order Form).
Equipment: the equipment, details of which are set out in the Order Form and in the Specification.
Order Form: the order form accompanying this agreement that sets out the Equipment that is to be purchased along with the Specification, Price and Deposit (amongst other things).
Part-Exchange Debt: has the meaning set out at clause 4.7.4.
Part-Exchange Estimate: an estimate of the part-exchange value of the Buyer’s vehicle(s), which shall be set out in the Order Form. The Part-Exchange Value shall be calculated in accordance with the provisions of clause 4.7.
Part-Exchange Value: the final and actual part-exchange value of the Buyer’s vehicles(s) which: (i) has been determined by the Seller following inspections carried in out accordance with clause 4.7; and (ii) will be deducted from the Price.
Personnel: all employees and agents of the Seller.
Price: the price payable for the Equipment as set out in the Order Form.
Quote: a quotation provided by the Seller setting out the Price of the Equipment, which shall be valid for a period of 30 (thirty) days from the date that it is issued by the Seller.
Storage and Insurance Costs: costs which the Buyer shall pay to the Seller to cover the costs of storing and insuring the Equipment following a failed delivery or collection (in accordance with the provisions of clauses 5 or 6). The costs payable shall be a fixed daily charge of £20 plus VAT, accruing daily and being invoiced weekly for each day following failed delivery or collection.
Specification: the specifications of the Equipment that is agreed in writing by both parties and which shall be set out in the Order Form, which shall include the accessories which are to be included.
VAT: value added tax chargeable in the UK.
1.2 Interpretation:
1.2.1. 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.
1.2.2. Any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3. A reference to writing or written excludes fax but not email.
1.2.4. In the event of any conflict between this agreement and an Order Form, this agreement shall take precedence unless otherwise specified.
- Placing an order
2.1 Please contact our sales team to place an order. Our order process is as follows:
2.1.1. You shall be provided with a Quote and a Specification for the Equipment that you wish to purchase. If, following review of the Quote and Specification for the Equipment, you wish to complete the purchase, your confirmation and acceptance of the Quote and Specification shall be deemed an offer by you to purchase the Equipment from us subject to the terms of this agreement. A Quote for the Equipment given by us shall not constitute an offer made by us to you to purchase the Equipment.
2.1.2. Following receipt of your offer to purchase the Equipment, we will confirm your order by providing you with an Order Form, which both parties shall subsequently sign (subject to payment and receipt of the Deposit in accordance with clause 4.1). You may also be asked to provide proof of funds before we present you with the Order Form for signature, and we reserve the right to reject your offer if we feel that you do not have sufficient funds to purchase the Equipment.
2.1.3. A legally binding contract between you and us shall come into existence (whereby you agree to buy, and we agree to sell, the Equipment) following signature by both parties of the Order Form. The Order Form shall be subject to the terms of this agreement, and this agreement shall apply to the exclusion of all other terms and conditions.
2.2 Please check the Specification and the Order Form carefully before signing the Order Form. You are responsible for ensuring that the Specification and Order Form are complete and accurate. We accept no responsibility (and shall have no liability whatsoever) for any errors or omissions in either the Specification or the Order Form once the Order Form has been signed and a contract created. For the avoidance of doubt, we shall not be required or obliged to accommodate any requests that you may make to amend the Specification or Order Form once it has been signed, and in the event that we do accommodate any such requests (that being at our total discretion), we reserve the right to make any such changes to the Specification or Order Form conditional on: (i) changes to the agreed Price; and (ii) changes to the agreed Delivery Date or Collection Date (as applicable).
- Equipment and specifications
3.1 Subject to clause 3.4, the Equipment that is to be provided under the terms of this agreement shall conform, in all material aspects, to the Specification as agreed between the parties. As confirmed in clause 2.2 above, you are required to check the Specification carefully before signing the Order Form to ensure that it meets your requirements.
3.2 The images of the Equipment on our site are for illustrative purposes only. Any images, descriptive matter or advertising that we produce, and any descriptions, images or illustrations contained on our website (or in our catalogues or brochures), are produced for the sole purpose of giving an approximate idea of the Equipment. They shall not form part of this agreement, nor shall they have any contractual force.
3.3 Our Personnel are not authorised to make any representations concerning the Equipment or Specification, unless any such representation is confirmed by an Authorised Representative of ours. In entering into this agreement, you acknowledge and accept that you do not rely on any such representations which have not been expressly confirmed by an Authorised Representative of ours in writing.
3.4 We reserve the right to amend the Specification (without your prior agreement) if required by any applicable statutory or regulatory requirement, or if any part of the Specification is found to be impossible or impractical to implement or if the Specification is found to be unworkable.
3.5 We reserve the right to cease manufacturing or working on the Equipment, and to refuse to delivery or allow collection of the Equipment, in the event that payment of the Price is not received in accordance with the provisions of clause 4.1.
- Price, payment and part-exchange
4.1 You shall make payment of the Price to us as follows:
4.1.1. A non-refundable Deposit shall be payable before the Order Form is signed. We shall issue you with an invoice for the Deposit prior to signature of the Order Form, and we shall not sign the Order Form until the Deposit is paid and received in full;
4.1.2. The outstanding amount of the Price (the total less the Deposit already paid and received) shall be payable in full on or before the date which is 4 (four) weeks before the Delivery Date or Collection Date (as may be applicable). We shall issue you with an invoice for the Price (less the Deposit already paid and received) plus VAT at the prevailing rate (if applicable) either on (or prior to) the date which is 4 (four) weeks before the Delivery Date or Collection Date; and
4.1.3. Payment of both the Deposit and the Price shall be made in accordance with the provisions of clause 4.1.1 and 4.1.2, in cleared funds to the bank account that we nominate in writing in our invoice.
4.2 The Price of the Equipment does not include delivery charges if you have chosen to have the Equipment delivered. In the event that the Equipment is to be delivered, the delivery charges shall be confirmed in the Order Form and those charges shall be payable in addition to the Price.
4.3 If you fail to make a payment due under the terms of this agreement by the due date (as set out in clause 4.1), then you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.4 The time for payment is of the essence. Payment will only be complete when we actually receive the funds to cover the Price in cleared funds.
4.5 We reserve the right to amend the Price of the Equipment at any time before delivery or collection to reflect increases in the cost that we incur in providing the Equipment. By way of example, amendments to the Price shall be allowed where an amendment is brought about as a result of any factors or changes which increase the cost of providing the Equipment (which are beyond our control) including, but not being limited to: (i) foreign exchange rate fluctuations; (ii) changes to taxes (including but not limited to value added tax (VAT)); (iii) changes to currency regulations; (iv) changes to shipping/distribution costs; (v) alteration of duties; (vi) increases in the costs of labour: (vii) increases in the cost of materials; or (viii) other changes to the costs or requirements of manufacturing the Equipment.
4.6 We may agree, at our discretion, to part-exchange any vehicles that you own as part of your purchase of the Equipment. In the event that we agree a part-exchange of any existing vehicles that you own, you will be provided with a Part-Exchange Estimate which shall provisionally be deducted from the Price, subject to final determination of the Part-Exchange Value in accordance with the provisions of clause 4.7 below.
4.7 The procedure for part-exchanging your vehicle(s) (and determining the Part-Exchange Value of any vehicle(s) which are to be part-exchanged) is as follows:
4.7.1. Prior to signing an Order Form, you shall inform us of your intention to part-exchange any vehicle(s) as part of your purchase of the Equipment. So that we may determine the Part-Exchange Estimate, you shall provide us with: (i) details of the make, model, year, milage and condition of the vehicle(s); and (ii) any further information about the vehicle(s) that we may require to determine the Part-Exchange Estimate.
4.7.2. We will then provide you with a Part-Exchange Estimate, which shall be provisionally deducted from the Price subject to final determination of the Part-Exchange Value in accordance with the provisions of this clause 4.7. You hereby warrant that the information provided to us under clause 4.7.1 above is both true and accurate information about the vehicle(s) which you are seeking to part-exchange. You also acknowledge and accept that the Part-Exchange Estimate may be affected if you continue to use the vehicle(s) or if relevant paperwork is missing (and by way of example, continued use of the vehicle(s) adding milage and wear and tear and missing paperwork as required under clause 4.7.3 may impact the Part-Exchange Value of the vehicle(s)).
4.7.3. Following either the Delivery Date or Collection Date (as may be applicable, by which time you will have given us title and possession of any vehicle(s) to be part-exchanged), or any earlier date where you have provided us with title and possession the vehicle(s) which are to be part-exchanged, we shall undertake inspections and tests on the part-exchanged vehicles in order to determine the Part-Exchange Value. You hereby acknowledge and accept that the Part-Exchange Value of any vehicle(s) which are to be part exchanged shall be the full and final determination of their actual value and only the Part-Exchange Value of the vehicle(s) shall be deducted from the Price.
When providing us with title and possession of the vehicle(s) which are to be part-exchanged, you shall also provide us with the following (without limitation and as may be applicable): (i) V5C vehicle logbook; (ii) full service history/paperwork; (iii) full MOT history/paperwork; (iv) paperwork required to show compliance with relevant regulations including (but not being limited to) paperwork required under regulations such as the Lifting Operations and Lifting Equipment Regulations (LOLER); (v) any paperwork in relation to finance arrangements with third-parties that apply to the vehicle(s), including a settlement letter and confirmation of the finance providers consent to the part-exchange; and (vi) any other documentation that we may request as part of the part-exchange arrangements.
4.7.4. Following determination of the Part-Exchange Value, if there is a difference between the Part-Exchange Estimate and the Part-Exchange Value (the result of which means that you have paid less than the Price that should have been payable for the Equipment) then we shall notify you of that fact and for the avoidance of doubt, we reserve the right to: (i) treat the difference as a sum that is payable by you as a debt (the “Part-Exchange Debt”); (ii) demand payment of the Part-Exchange Debt within 30 days in the event that you have already made payment of the Price on the basis of the Part-Exchange Estimate.
4.7.5. In the event that you have already made payment of the Price on the basis of the Part-Exchange Estimate, you shall pay the Part-Exchange Debt within a period of 7 days, such payment being made in cleared funds to the bank account that we nominate in writing in our notice to you. In the event that you have not already made payment of the Price, the Price shall be adjusted to account for the Part-Exchange Value.
4.8 In the event that we agree to part-exchange any vehicle(s) which are subject to finance arrangements with third parties, we shall under no circumstances be responsible for settlement of the finance arrangements which have been made with a third party. You are wholly responsible for: (i) obtaining the consent of the finance company with regard to the proposed part-exchange (and providing us with confirmation of such consent); and (ii) settling any outstanding amount due as a result of the finance arrangement. You hereby indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by us arising out of or in connection with any issues, notifications, claims or liabilities arising in relation to any third party finance company who had any interest in or to any vehicle(s) which you have part-exchanged under the terms of this agreement.
- Delivery, if the Equipment is being delivered to you
5.1 In the event that you have opted for the Equipment to be delivered, then subject to receipt of payment in accordance with clause 4.1, we shall deliver the Equipment to the Delivery Location on the Delivery Date during Business Hours. You are obliged to accept delivery of the Equipment on the Delivery Date. We may use a third party to deliver the Equipment if we deem that to be appropriate. For the avoidance of doubt, we shall not deliver the Equipment in the event that the Price has not been paid and received as at the Delivery Date.
5.2 If you fail to take delivery of the Equipment when due, then we will return the Equipment to our premises and we will charge Storage and Insurance Costs from the Delivery Date until delivery is completed. The Storage and Insurance Costs shall be invoiced weekly from the Delivery Date until delivery is completed. You hereby acknowledge and accept that the Storage and Insurance Costs are fair and reasonable to cover our expenses in storing and insuring the Equipment following a failed delivery.
5.3 If 14 (fourteen) days after the Delivery Date delivery has not been completed in accordance with clause 5.5, we may, at our total discretion, resell or otherwise dispose of part or all of the Equipment. This shall not affect our entitlement to charge Storage and Insurance Costs in accordance with clause 5.2 for the time that we remain in possession of the Equipment following failed delivery.
5.4 The Delivery Date specified is approximate only, and the time of delivery is not of the essence for us (but it shall be for you in relation to your obligation to accept delivery of the Equipment on the Delivery Date). We shall not be liable for any delay in delivery of the Equipment that is caused by:
5.3.1. events, circumstances or causes beyond our reasonable control; or
5.3.2. your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the sale of the Equipment.
5.5 Delivery is complete at the point that you accept the keys for the Equipment after the Equipment has arrived at the Delivery Location.
- Collection, if the Equipment is being collected by you
6.1 In the event that you have opted to collect the Equipment, then subject to receipt of payment in accordance with clause 4.1, we shall make the Equipment available for collection at the Collection Location on the Collection Date during Business Hours. You are obliged to collect the Equipment on the Collection Date. For the avoidance of doubt, you shall not be entitled to collect the Equipment in the event that the Price has not been paid and received as at the Collection Date.
6.2 If you fail to collect the Equipment when due, then we will charge Storage and Insurance Costs from the Collection Date until collection is completed. The Storage and Insurance Costs shall be invoiced weekly from the Collection Date until collection is completed. You hereby acknowledge and accept that the Storage and Insurance Costs are fair and reasonable to cover our expenses in storing and insuring the Equipment following a failed collection.
6.3 If 14 (fourteen) days after the Collection Date collection has not been completed in accordance with clause 6.5, we may, at our total discretion, resell or otherwise dispose of part or all of the Equipment. This shall not affect our entitlement to charge Storage and Insurance Costs in accordance with clause 6.2 for the time that we remain in possession of the Equipment following failed collection.
6.4 The Collection Date specified is approximate only, and the time for collection is not of the essence for us (but it shall be for you in relation to your obligation to collect the Equipment on the Collection Date). We shall not be liable for any delay in collection of the Equipment that is caused by:
6.3.1. events, circumstances or causes beyond our reasonable control; or
6.3.2. your failure to provide us with adequate collection instructions or any other instructions that are relevant to the sale of the Equipment.
6.5 Collection is complete at the point that you accept the keys for the Equipment at the Collection Location.
- Title and risk
7.1 The risk of damage to or loss of the Equipment shall pass to you on completion of delivery or collection (as set out in clauses 5.5 and 6.5, as may be applicable).
7.2 The title to the Equipment shall pass to you only on receipt in full (in cash or cleared funds) of the Price (which shall be payable in accordance with the provisions of clause 4.1). For the avoidance of doubt, you shall not be entitled in any circumstances to delivery of (or to collect) the Equipment until title has passed under the provisions of this clause 7.2.
7.3 Notwithstanding the provisions of clause 7.2, in the event that delivery or collection has taken place without full payment being received (and therefore title has not passed in accordance with clause 7.2), we may recover Equipment from you. You hereby irrevocably permit us (and our Authorised Representatives and Personnel, along with any third party we may instruct), to enter any of your premises (including with vehicles), to recover any Equipment in which title has not passed to you.
- Manufacturer’s warranties and our warranties
8.1 In relation to Equipment that is new and in circumstances where that specific Equipment benefits from the manufacturer’s warranty (in relation to the Chassis of the Equipment only and not in relation to any parts manufactured, created or fitted by us), then to the extent that the benefit of any warranties made by the manufacturer can be assigned to you we shall, if so requested by you and at your cost, assign the rights under the manufacturer’s warranty to you following the Delivery Date or Collection Date (as may be appliable and subject to payment and receipt of the Price). Following the assignment, you shall be entitled to the manufacturer’s warranties in relation to the Equipment as they may be applicable. Any notification of a warranty claim under this clause 8 must be made in writing by email to the Seller’s email address stated at clause 11.6.1(ii). You will be required to deliver the Equipment to us for inspection and any warranty work following the issue by us of a log number via our warranty department.
8.2 In relation to Equipment that is not new (where it does not benefit from the manufacturer’s warranty) we provide a warranty that the Chassis, gearbox and engine shall be of satisfactory quality for a period of 1 (one) month following the Delivery Date or Collection Date (as may be applicable and subject to payment and receipt of the Price in full). For the avoidance of doubt, this warranty does not extend to any parts, materials or equipment contained beyond the Chassis, gearbox and engine of the Equipment nor to any parts manufactured, created or fitted by us.
8.3 If you give us notice in writing by email sent to the Seller’s email address stated at clause 11.6.1(ii) within 1 (one) month of the Delivery Date that the Chassis, gearbox or engine of the Equipment is not of satisfactory quality or is defective then we shall undertake relevant repairs free of charge at our convenience, provided that you deliver the Equipment to us for inspection and any warranty work following the issue by us of a log number via our warranty department. Repair under this warranty is conditional upon: (i) you not making any further use of the Equipment after giving us notice; (ii) neither you (nor any third party) altering or repairing the Equipment without our written consent; or (iii) the defect not arising as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
8.4 Except as expressly stated in this agreement, we do not give any representations, warranties or undertakings in relation to the Equipment. Any representation, condition or warranty which might be implied or incorporated into this agreement by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Equipment is suitable for your purposes.
8.5 Under no circumstances shall we be liable, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, loss of earnings, loss of sales or business, cost of a hire vehicle, loss of agreements or contracts, loss of anticipated savings, loss of (or damage to) goodwill, wasted expenditure or any direct, indirect or consequential loss arising under or in connection with your rights (and any warranty) as set out in this clause 8.
- Limitation of liability
9.1 Nothing in this agreement shall limit or exclude the Seller’s liability for:
9.1.1. death or personal injury caused by its negligence, or the negligence of its Personnel (as applicable);
9.1.2. fraud or fraudulent misrepresentation;
9.1.3. 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); or
9.1.4. any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1. we shall under no circumstances be liable to you, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, loss of earnings, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of (or damage to) goodwill, wasted expenditure or any indirect or consequential loss arising under or in connection with the agreement (including any arising as a result of the Buyer’s rights under the warranties set out in clause 8 above); and
9.2.2. our total liability to you for all other losses arising under or in connection with the agreement, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall be limited to the Price of the Equipment.
- Termination
10.1 Without limiting our other rights or remedies, we may terminate the agreement with immediate effect by giving written notice to you if:
10.1.1. you fail to pay any amount due under this agreement on the due date for payment;
10.1.2. you commit a material breach of any term of the agreement (the material nature of any breach being determined at our sole discretion);
10.1.3. you repeatedly breach any of the terms of this agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with you having the intention or ability to give effect to the terms of this agreement;
10.1.4. you take or have taken against you (other than in relation to a solvent restructuring) any step or action towards entering bankruptcy, administration, provisional liquidation or any composition or arrangement with your creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of your assets, or you enter a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 10.1.4;
10.1.5. you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of your business; or
10.1.6. your financial position deteriorates so far as to reasonably justify the opinion that you no longer have the ability to give effect to the terms of this agreement.
10.2 In the event that we terminate this agreement in accordance with clause 10.1, you shall pay all of the costs that we have incurred under the terms of this agreement as at the time of termination (including any costs incurred in relation to manufacturing the Equipment). We shall notify you of the costs which are payable upon termination, and you shall pay such costs as if they were a debt within 14 (fourteen) days of termination. You hereby indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by us arising out of or in connection with termination of this agreement in accordance with this clause 10.2.
10.3 Termination of the agreement, however arising, shall not affect any of our rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination.
10.4 For the avoidance of doubt, you shall not be entitled to terminate this agreement once an Order Form has been signed except with our prior written approval. In the event that we provide written approval to terminate this agreement, you shall pay all of the costs that we have incurred under the terms of this agreement as at the time of termination (and we will notify you of those costs prior to termination). You hereby indemnify us against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by us arising out of or in connection with termination of this agreement in accordance with this clause 10.4.
10.5 Any provision of the agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect. For the avoidance of doubt, clause 9 shall survive termination for whatever reason.
- General
11.1 Force majeure. The Seller shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. Events outside of the Seller’s control shall include (but shall not be limited to): (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions and any consequential effects, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) collapse of buildings, fire, explosion or accident; (vi) non-performance by suppliers or subcontractors; and (vii) interruption or failure of utility service. If the period of delay or non-performance continues for 2 (two) months’, the Buyer may terminate this agreement by giving 7 days’ written notice to the Seller.
11.2 Entire agreement.
11.2.1. This agreement, the Specification and the Order Form constitutes the entire agreement between the parties.
11.2.2. Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement, the Specification or the Order Form. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.3 Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
11.4.1. waive that or any other right or remedy; or
11.4.2. prevent or restrict the further exercise of that or any other right or remedy.
11.5 Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this agreement is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.6 Notices.
11.6.1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the following addresses (or an address substituted in writing by the party to be served):
Seller: [email protected]
Buyer: to the Buyer’s generally used email address.
11.6.2. Any notice shall be deemed to have been received:
11.6.2.1. if delivered by hand, at the time the notice is left at the proper address;
11.6.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
11.6.2.3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
11.6.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.7. Confidentiality
11.7.1. Each party undertakes that it shall not disclose to any person (through any means of disclosure, including social media platforms) any information relating to the operation of this agreement (including any after sales service) nor any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or any member of its group), except as permitted by Clause 11.7.2.
11.7.2. Each party may disclose the other party’s confidential information:
11.7.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11.7; and
11.7.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.7.3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.8. Third party rights. No one other than a party to this agreement shall have any right to enforce any of its terms.
11.9. Counterparts. This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
11.10. Governing law. This 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.
11.11. Jurisdiction. 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 this agreement or its subject matter or formation.
This agreement has been entered into on the date that the Order Form is signed by both parties.