ENVAIR LIMITED CONDITIONS OF SALE AND SUPPLY OF SERVICES
1.1 In these clauses the following words have the following meanings:
“the Buyer’ means the person(s), firm or company who purchases the Goods or Services from the Company;
“the Company” means Envair Limited; its servants or agents
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods and/or Services, incorporating these clauses; which shall override any terms and conditions put forward by the buyer
“Delivery Address” means the Buyer’s place of business or such other address as agreed in writing between the parties;
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them);
“Services” means any services provided in relation to installation and servicing of the Goods.
1.2 In these clauses references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these clauses references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these clauses headings will not affect the construction of these clauses.
2. Application of Terms
2.1 Subject to any variation under clause 2.3 the Contract will be on these clauses to the exclusion of all other terms and clauses (including any terms or clauses which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or clauses endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These clauses apply to all the Company’s sales and any variation to these clauses and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by a director of the Company. Nothing in this clause will exclude or limit the Company’s liability for fraudulent misrepresentation. These terms and conditions represent the entire agreement between the parties in relation to the Goods or Services and any prior representations by the Company (whether written or oral), and any negotiations and all guarantees warranties or conditions (including any conditions as to quality or fitness for any particular purpose) whether express or implied by statute common law or otherwise are excluded to the fullest extent permitted by law.
2.4 Each order for Goods or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods or Services subject to these clauses.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods or Services to the Buyer.
2.6 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order including any applicable specifications submitted by the Buyer and for giving the Company any necessary information relating to the Goods or Services within sufficient time to enable the Company to perform the contract in accordance with its terms.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Description and Specifications
3.1 The description of the Goods or Services shall be as set out in the Company’s quotation.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions
or illustrations contained in the Company’s
ENVOO I.S. 1796ST- I.DOC
catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They will not form part of this Contract. Weights measurements power duties capacities and other particulars are stated in writing by the Buyer in good faith as approximately correct but deviating there from shall not be made the basis of any claim against the Company unless precision on any matter has expressly stated to be a term of the contract.
3.3 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in in accordance with a specification submitted by the Buyer the Buyer shall indemnify the Company against all loss damages costs (including legal expenses) and expenses awarded against or incurred by the Company in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Buyer’s specification.
3.4 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements of where the Goods are to be supplied to the Company’s specification which do not materially affect their quality or performance. No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company 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 Company as a result of cancellation.
3.5 The Company reserves the right to charge a non refundable deposit as a condition of entering into the Contract.
3.6 In no case does the Company accept responsibility for the condition of any machinery plant or fittings which may be set to work in conjunction with the Goods to be supplied by the Company either present at installation or fitted subsequently.
3.7 Any performance figures given by the Company are based on the Company’s experience and are such as the Company expect to obtain on test. The Company accepts no liability if those figures are not obtained unless the Company specifically guarantees them in writing.
3.8 The Company accepts no responsibility for its products operating in accordance with specification unless the products have been commissioned by or under the supervision of the Company
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Delivery Address.
4.2 The Buyer will take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery. In the event of the Goods not being delivered ex works and where the contract is for supply and delivery the Company will make good any part of the Goods which are damaged in transit provided that written notice of claim is sent by the Buyer to the Company within Three working days of acceptance of the Goods and is actually received by the Company
4.3 The Company may deliver the Goods and/or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the Contract.
4.4 The failure of the Buyer to pay for any one or more of the said instalments of the Goods and/or Services on the due dates shall entitle the Company (at the sole option of the Company):
4.4.1 without notice to suspend further deliveries of the Goods and/or Services pending payment by the Buyer; and/or
4.4.2 to treat the Contract as repudiated by the Buyer.
4.5 Any dates specified by the Company for delivery of the Goods or Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.6 Subject to the other provisions of these clauses the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds  days.
4.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.7.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.7.2 the Goods will be deemed to have been delivered; and
4.7.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.8 The Buyer will provide at its expense at the Delivery Address adequate and appropriate equipment and manual labour for unloading the Goods.
4.9 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.10 The Buyer shall inspect the Goods immediately upon collection from the despatch point or upon taking delivery and shall notify the Company within three days of such collection or delivery in writing of any matter or thing by reason it alleges the Goods are not in accordance with the terms of contract. If the Buyer shall fail to give such notice the Goods shall be deemed to be in accordance with the contracts in all respect and the Buyer shall be bound to accept them and pay for the same.
5.1 The quantity of any consignment of Goods as recorded by the Company upon a despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within 7 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 Risk in and responsibility for the Goods shall pass to the Buyer once they are loaded onto transport at the Company’s address.
6.2 Ownership of the Goods or Services shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of.
6.2.1 the Goods or Services; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods or Services has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
6.3.5 hold the proceeds of the insurance referred to in clause 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following clauses:
6.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
6.4.2 any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods or Services shall terminate immediately if.
6.5.1 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 (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or 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
6.5.2 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/perform any of his/its obligations under the Contract or any other contract between the Company 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
6.5.3 the Buyer encumbers or in any way charges any of the Goods or Services.
6.6 The Company shall be entitled to recover payment for the Goods or Services notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Company shall be at liberty to cancel the contract immediately by notice in writing without compensation to the Buyer or give any such receiver or liquidator or any other person the option of carrying out the contract.
6.8 The Buyer grants the Company, 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.
6.9 Until such time as property in the Goods or Services has passed to the Buyer (and provided that the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and if the Buyer fails to do so forthwith the Company or its agents may enter the premises of the Buyer and take possession of any Goods in which property remains in the Company and remove and dispose of them as the Company thinks fit. The Company shall apply the proceeds of disposal (after deduction of all expenses) in discharge of the amount unpaid by the Buyer.
6.10 If the Company retakes possession of the Goods in accordance with sub-paragraph 6.8 above it shall be entitled to sell them for whatever price is available without reference to the Buyer and retain the proceeds provided always that if any payment on account has been made by the Buyer the Company shall return any surplus of proceeds of sale less repossession and disposal costs over the amount outstanding and unpaid.
6.11 The Company shall be subrogated to the Buyer’s rights against any debtor of the Buyer to the extent of any amount still remaining due to the Company in respect of the Goods and the Buyer shall forthwith at the request of the Company take such action and do such things as are necessary to give effect to the provisions aforesaid.
6.12 The Company has a lien and a right to hold (in its own or other factories warehouse or places) the Goods and any other materials or other tools supplied by the Buyer for all sums due on any account whatsoever by the Buyer to the Company which may exercise such lien by disposing of the Goods materials or tools on such terms as the Company may think fit after giving twenty-eight days notice to the Buyer. The expenses of maintaining and exercising and lien shall be a debt forthwith due from the Buyer to the Company.
7 Inspection of Testing
7.1 Where specifically agreed in writing the Company will endeavour to ensure that the Buyer is able at all reasonable times and on giving reasonable notice to the Company to inspect the Goods both during their manufacture and on completion and the Company will notify the Buyer in writing when it will be ready to conduct any test to which the Goods are required by the Contract to be put to by the Company.
7.2 If the Buyer fails to attend a test to be carried out at any reasonable time within 7 days of the date of such notice the Company shall be entitled to conduct such a test in the absence of the Buyer and it will be deemed to have been conducted in its presence.
7.3 The Buyer will pay the Company the costs on a full indemnity basis of any inspection or test required by the Buyer but not provided for in the Contract.
8 Supply of Services
8.1 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the written instructions of the Buyer.
8.2 The Company shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Company’s reasonable control.
9.1 Unless otherwise agreed by the Company in writing the price for the Goods and Services shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery. All prices quoted are ex-works and carriage will be charged in addition to this.Incoterms 1990 shall apply to the Contract.
9.2 The price for the Goods or services shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
9.3 The Company reserves the right by giving notice to the Buyer at any time to increase the price of
the Goods or Services to reflect any increase in the cost to the Company which is due to any
factor beyond control of the Company (such as without limitation any foreign exchange
regulation alteration of duties significant increase in the costs of labour and materials or other
cost of manufacture)by a change in delivery dates quantities or specifications for the Goods or
any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company
adequate information or instructions.
10.1 Payment of the price for the Goods or Services is due 30 days after the date of the invoice, unless
stated otherwise on the invoice.
10.2 Time for payment shall be of the essence.
10.3 No payment shall be deemed to have been received until the Company has received cleared funds.
10.4 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
10.5 The Buyer shall make all payments due under the Contract 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 Company to the Buyer.
10.6 If the Buyer fails to pay the Company, where the Buyer and the Company are acting in the course of a business, any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the Bank of England rate (applicable at the close of business on the day on which the debt falls due) plus 8% accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. As from November 2002 all businesses and the public sector will be able to claim interest from all businesses and the public sector.
10.7 For accounts where credit facilities have not been agreed payment will be made by the Buyer before the Goods are despatched.
10.8 In addition to any right or lien to which the Company may be entitled at law in the event of the Buyer’s insolvency the Buyer’s failure to pay for the Goods or the cancellation the Company shall be entitled to a general lien (with a right to sell as agent for the Buyer) over all of the Buyer’s Goods and the Buyer’s money in the hands of the Company pursuant to this Contract or any other contract between the Buyer and Seller.
11.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
11.2 The Company warrants that (subject to the other provisions of these clauses) upon delivery the Goods or Services will:
11.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1994;
11.2.2 be reasonably fit for any particular purpose for which the Goods or Services are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
11.3 The Company shall not be liable for a breach of any of the warranties in clause 11.2 unless:
11.3.1 the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 3 days of the time when the Buyer discovers or ought to have discovered the defect; and
11.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s] cost for the examination to take place there.
11.4 The Company shall not be liable for a breach of any of the warranties in clause 11.2 if.
11.4.1 the Buyer makes any further use of such Goods after giving such notice; or
11.4.2 the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
11.4.3 the Buyer alters or repairs such Goods without the written consent of the Company.
11.5 Subject to clauses 11.3 and 11.4, if any of the Goods or Services do not conform with any of the warranties in clause 11.2 the Company shall at its option repair or replace such Goods or Services(or the defective part) or refund the price of such Goods or Services at the prorata Contract rate provided that, if the Company so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which is defective to the Company.
11.6 If the Company complies with clause 11.5 it shall have no further liability for a breach of any of the warranties in clause 11.2 in respect of such Goods.
11.7 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the  month period.
12 Limitation of Liability
12.1 Subject to clause 11, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of.
12.1.1 any breach of these clauses; and
12.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, clauses and other terms implied by statute or common law (save for the clauses implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these clauses excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
12.4 Subject to clauses 12. 2 and 12. 3:
12.4.1 the Company’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 this Contract shall be limited to £[contract price]; and
12.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract. 13 Export Terms
13.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these terms, but if there is any conflict between the provisions of Incoterms and these terms, the latter shall prevail.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause  shall (subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstanding any other provision of these terms.
13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods to the country of destination and for the payment of any duties on them.
13.4 Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be delivered fob to the air or sea port of shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which are made after shipment, or in respect of any damage during transit.
13.6 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Buyer in favour of the Company and confirmed by a bank acceptable to the Company or, if the Company has agreed in writing on or before acceptance of the Buyer’s order to waive this requirement by acceptance by the Buyer and delivery to the Company of a bill of exchange drawn on the Buyer payable 30 days after sight to the order of the Company at such branch of a bank specified by the Company. .
13.7 The Buyer shall not offer the Goods for resale in any other country without express written consent of the Company or sell the Goods to any person if the Buyer knows or has reason to believe that the person intends to resell the Goods in any such country.
14.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.2 The Company may assign the Contract or any part of it to any person, firm or company.
15 Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.PROVIDED THAT in the event of the Buyer terminating the Contract pursuant to this clause, the Buyer makes payment in full (including profit) for all work done and materials used by the Company up until the date of such termination.
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 The Company shall be entitled to assign or sub-contract the whole or part of a contract with the Buyer whether for the supply of goods or services.
17 , Site Erection Installation and Commissioning
In cases where the Company’s prices include the cost of erection installing or commissioning part or all of the Goods (site Work) or when the Company contracts separately for site work the following conditions shall apply in addition to all the other terms and conditions of the Contract
17.1 Where work of attendant trades is required in connection with the Company’s site work the engagement of such attendant trades shall be the responsibility of the Buyer .The Buyer shall ensure that the Company’s progress is not impeded by delay in the Buyer obtaining such other trade services at proper times. For the purposes of this Clause attendant trades means builders electricians plumbers joiners masons excavators scaffolding contractors and the like of which shall be obtained by the Buyer. 17.2 If the Company is prevented from undertaking with the work or the Company’s men have to be
withdrawn and subsequently sent back to complete the work due to causes beyond the Company’s control a charge will be made by the Company to cover the additional expenses incurred
17.3 Notwithstanding that property in the Goods shall not pass until payment as hereinbefore provided the entire risk and responsibility for any loss or damage to any Goods after delivery to site and during erection shall be upon the Buyer who shall indemnify the Company in respect of any loss or damage.
17.4 When the Company’s employees are engaged on work on the Buyer’s premises the Buyer is responsible for providing the necessary water light heat power and other services at the Buyer’s expenses.
17.5 The Buyer shall be responsible for providing suitable access including temporary roadways to the site and on the site from the point of entry to the point of erection.
18.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
18.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
18.1.2 (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
18.2 Communications shall be deemed to have been received:
18.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
18.2.2 if delivered by hand, on the day of delivery;
18.2.3 if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
18.3 Communications addressed to the Company shall be marked for the attention of the Managing Director, Envair Ltd, York Avenue, Haslingden ,Rossendale, Lancs, BB4 4HX
19 Cancellation of the Contract
19.1 The Buyer may not cancel the Contract or any order which has been accepted by the Company except with the written consent of the Company and on terms that the Buyer shall indemnify the Company fully against all loss, (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
19.2 The Company may refuse to supply the Goods or Services in the event of the Buyer committing any breach of the Contract or any act of insolvency or if in the sole discretion of the Company it appears to the Company that the financial position of the Buyer has become unsatisfactory or impaired but such refusal shall not constitute cancellation of the Contract.
19.3 If performance by the Company of its obligations under the Contract shall be hindered or prevented by industrial dispute accident breakdown of machinery shortage of materials exports or import restrictions or any other cause whatsoever beyond the reasonable control of the Company the Company shall be entitled by notice in writing to the Buyer to terminate the Contract but without prejudice to the liabilities of either party accrued before the date of termination.
20 Law and Dispute Resolution
20.1 Theses clauses are governed by and are to be construed in accordance with English Law and the parties agree to submit to the exclusive jurisdiction of the English Courts.
20.2 If any disputes or differences arise between the parties under these clauses and/or the Contract such disputes or differences may be referred by the Buyer or the Company to a joint committee comprising an authorised representative to be appointed by each of the Company and the Buyer (“the Authorised Representatives”) for resolution. The Authorised Representatives will use their best endeavours to resolve the disputes or differences within (14) days of such disputes or differences having been referred to them.
20.3 If the Authorised Representatives are unable to resolve any disputes or differences which are referred to them within fourteen (14) days of such disputes or differences shall be referred to the managing directors of each of the Company and the Buyer for resolution (the “Managing Directors”). The Managing Directors will use their best endeavours to resolve the disputes or differences within (14) days of such disputes or differences having been referred to them.
20.4 If the Managing Directors are unable to resolve any disputes or differences which are referred to them within fourteen (14) days of such referral, then clause 20.1 shall apply and the disputes or differences shall be resolved through the English Courts.
21 Intellectual Property
21.1 Unless otherwise agreed in writing all intellectual property rights (“IPR”) in relation to the Goods or Services and their method of manufacture (for the avoidance of doubt to include any patent,utility,model,design right, registered design, know how, show how, trade or service works, rights in data bases, topography rights and any equivalent or similar right in any jurisdiction throughout the world including any application or the right to apply for any of the foregoing) shall vest in the Company and remain the property of the Company notwithstanding the purchase of the Goods or Services by the Buyer and the Buyer undertakes to enter into such agreement or deeds as the Company shall require to vest any such intellectual property rights as aforesaid..
21.2 The Company shall not in any circumstances be liable for any loss liability or expense suffered or incurred by the Buyer by reason of any use or resale of the Goods which constitute an alleged or actual infringement of a patent, design, copyright or trademark, foreign or domestic, vested in a third party.
22 “HIMALAYA” CLAUSE
No servant or agent or sub-contractor of the Company performing the whole or any portion of the contract or engagement shall in any circumstances whatsoever be under any liability whatsoever to the Buyer or the Buyer’s principal for any loss or damage or delay of whatsoever kind arising or resulting directly or indirectly from any act neglect or default on his part while acting in the course of or in connection with his employment and every exemption limitation and condition contained in these conditions shall apply to and shall be available to and shall extend to protect every such servant agent or sub-contractor as aforesaid. And for the purpose of this Clause the Company shall be deemed to be acting as agent on behalf of and for the benefit of all persons who are or maybe the Company’s servant agent or sub –contractor from time to time and all such parties shall to this extent be or be deemed to be deemed to be parties to the contract or engagement.
23 CONFIDENTIALITY The Buyer agrees and undertakes that it will keep confidential and will not disclose or use for any purpose (other than to perform its obligations under the Contract) any information of a confidential nature (including trade secrets and information of commercial value) which may be disclosed to the Buyer by or on behalf of the Company.Any plans drawings designs specifications and other IPR supplied to the Buyer by the Company shall at all times remain the property of the Company and shall be returned to the Company in immediately upon request.