1. Definitions and interpretation
1.1 In these Conditions the following definitions apply:
|Affiliate||means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;|
|Bribery Laws||means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;|
|Business Day||means a day other than a Saturday, Sunday or bank or public holiday;|
|Conditions||means Mawdsleys’ terms and conditions of sale set out in this document;|
|Confidential Information||means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;|
|Contract||means the agreement between Mawdsleys and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order;|
|Control||has the meaning given to it in section 1124 of the Corporation Tax Act 2010;|
|Customer||means the person who purchases the Deliverables from Mawdsleys and whose details are set out in the Order;|
|Data Protection Laws||means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
|Deliverables||means the Goods or Services or both as the case may be;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving Mawdsleys’ or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;|
|GDPR||means the General Data Protection Regulation, Regulation (EU) 2016/679;|
|Goods||include but are not limited to pumps and motors, spare parts for pumps and motors, documentation and other physical material set out in the Order and to be supplied by Mawdsleys to the Customer;|
|Intellectual Property Rights||means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c)including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
|Location||means the address(es) for delivery of the Goods and performance of the Services as set out in the Order;|
|Mawdsleys||means Mawdsleys BER Limited, CRN: 05019792 whose registered office is Unit C 2 Kingsland Trading Estate St Philips, Bristol, United Kingdom, BS2 0JZ;|
|Order||means the Customer’s order for the Deliverables as set out in the Quote;|
|Personal Data||has the meaning given in the applicable Data Protection Laws from time to time;|
|Price||has the meaning given in clause 3.1;|
|Quote||means a quote detailing the Deliverables and the Price of the Deliverables to be supplied to the Customer;|
|Services||means the services set out in the Order and to be supplied by Mawdsleys to the Customer including but limited to strip surveys, servicing and maintenance of pumps and project work;|
|Specification||means the description or specification of the Deliverables set out or referred to in the Order; and|
|VAT||means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.|
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.2.3 a reference to a ‘party’ means either Mawdsleys or the Customer and includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time; and
1.2.11 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2. Application of these Conditions
2.1 These Conditions apply to and form part of the Contract between Mawdsleys and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Customer.
2.3 Each Order by the Customer to Mawdsleys shall be an offer to purchase the Deliverables subject to these Conditions. Mawdsleys may accept or reject an Order at its discretion.
2.4 Once in receipt of an Order Mawdsleys will provide to the Customer a Quote. Any Quote given by Mawdsleys shall not constitute an offer and is only valid for the period stated in the Quote.
2.5 An Order may be withdrawn or amended by the Customer at any time before acceptance by Mawdsleys. If Mawdsleys is unable to accept an Order, it shall notify the Customer promptly.
2.6 An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.6.1 Mawdsleys’ written acceptance of the Order; or
2.6.2 Mawdsleys delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.7 Rejection by Mawdsleys of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 Where the Customer is not a consumer, no terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that Mawdsleys otherwise agrees in writing.
2.9 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as set out in the Quote or, in default of such provision, shall be calculated in accordance with Mawdsleys’ scale of charges in force from time to time (Price).
3.2.1 The Prices are exclusive of:
in relation to:
(a) Goods: packaging, delivery and insurance
(b) Services: packaging, delivery and insurance
which shall be charged in addition at Mawdsleys’ standard rates, and
3.3 The Customer shall pay any applicable VAT to Mawdsleys on receipt of a valid VAT invoice.
3.4 Mawdsleys may increase the Prices at any time by giving the Customer not less than 14 Business Days’ notice in writing. In the event the price increase exceeds 10% of the Prices in effect immediately prior to the increase, Mawdsleys shall as part of its notice in writing, provide a new Quote to the Customer for the Price. If the Customer does not agree with the new Price contained in the Quote, the Customer may terminate the Contract by giving Mawdlseys not less than 7 Business Days’ notice, such notice to expire no earlier than the date on which the price increase was due to take effect. Upon termination the provisions of clause 17.4 shall apply.
3.5 Mawdsleys may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to Mawdsleys of supplying the relevant Deliverables which is due to any factor beyond the control of Mawdsleys. . If the Customer does not agree with the new Price, the Customer may terminate the Contract by giving Mawdlseys not less than 7 Business Days’ notice. Upon termination the provisions of clause 17.4 shall apply.
4.1 Mawdsleys shall invoice the Customer for the Deliverables at any time after delivery or performance (as the case may be) of the Deliverables.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
4.2.2 to the bank account nominated by Mawdsleys.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 Mawdsleys may, without limiting its other rights, charge interest on such sums at 3% a year above the base rate of the Bank of England from time to time in force, and
4.3.2 interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Delivery of Goods
5.1 The Goods shall be delivered by Mawdsleys to the Location on the date(s) specified in the Order unless the Customer indicates in the Order that it wishes to collect the Goods from Mawdsleys’ premises.
5.2 Goods to be delivered by Mawdsleys to the Location, shall be deemed delivered by Mawdsleys on arrivalof the Goods at the Location.
5.3 Goods to be collected by the Customer from Mawdsleys’ premises shall be deemed delivered by Mawdsleys when the Customer has collected the Goods. Goods will be available for collection between the hours of 7.30am to 4pm Monday to Friday by appointment.
5.4 Mawdsleys may deliver or perform the Goods in instalments. Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.5 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:
5.5.1 the date of the Order;
5.5.2 the relevant Customer details;
5.5.3 the product numbers and type and quantity of Goods in the consignment; and
5.5.4 any special instructions, handling and other requests.
5.6 Time is not of the essence in relation to the performance or delivery of the Goods. Mawdsleys shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.
5.7 Mawdsleys shall not be liable for any delay in or failure of performance caused by:
5.7.1 the Customer’s failure to: (i) make the Location available, (ii) prepare the Location in accordance with Mawdsleys’ instructions or (iii) provide Mawdsleys with adequate instructions for performance or delivery;
5.7.2 Force Majeure.
6. Performance of the Services and installation of parts
6.1 Mawdsleys’ will only install parts upon the specific request of the Customer. Such installation shall be carried out in accordance with any installation instructions contained in the Quote. Mawdsleys will ensure that the installation is performed with reasonable care and skill and to a reasonable standard which is consistent with best trade practice. Mawdsleys will also comply with all statutes and regulations in force from time to time relating to health, safety and welfare.
6.2 The Services shall be performed by Mawdsleys at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by Mawdsleys only on completion of the performance of the Services at the Location (Completion).
6.3 Following Completion of the Services, Mawdsleys shall provide a completion note to the Customer stating:
6.3.1 the categories, type and quantity of Services supplied; and
6.3.2 any special requests from the Customer.
6.4 Time of performance shall not be of the essence. Mawdsleys shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance. Any Services which do not have specified commencement or end dates shall be performed by Mawdsleys within a reasonable period of time.
6.5 Mawdsleys shall not be liable for any delay or failure in Completion of the Services caused by:
6.5.1 the Customer’s failure to: (i) make the Location available, (ii) prepare the Location in accordance with Mawdsleys’ instructions or (iii) provide Mawdsleys with adequate instructions for supply and Completion of the Services;
6.5.2 the Customer’s failure to supply the Customer Materials in a timely manner; or
6.5.3 Force Majeure.
Risk in the Goods shall pass to the Customer on delivery.
8.1 Title to the Goods shall pass to the Customer once Mawdsleys has received payment in full and cleared funds for the Goods.
8.2 Until title to the Goods has passed to the Customer, the Customer shall:
8.2.1 hold the Goods as bailee for Mawdsleys;
8.2.2 store the Goods separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting Mawdsleys’ interest on the policy;
8.2.5 ensure that the Goods are clearly identifiable as belonging to Mawdsleys;
8.2.6 not remove or alter any mark on or packaging of the Goods;
8.2.7 inform Mawdsleys immediately if it becomes subject to any of the events or circumstances set out in clauses 17.1.1 to 17.1.4 or 17.2.1 to 17.2.10; and
8.2.8 on reasonable notice permit Mawdsleys to inspect the Goods during the Customer’s normal business hours and provide Mawdsleys with such information concerning the Goods as Mawdsleys may request from time to time.
8.3 If, at any time before title to the Goods has passed to the Customer, the Customer informs Mawdsleys, or Mawdsleys reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 17.1.1 to 17.1.4 or 17.2.1 to 17.2.10, Mawdsleys may:
8.3.1 require the Customer at the Customer’s expense to re-deliver the Goods to Mawdsleys; and
8.3.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
9. Warranty for parts and other Goods
9.1 Mawdsleys warrants that for a period of twelve months from the date of delivery, any new Goods (i.e. Goods that have not been repaired by Mawdsleys) shall:
9.1.1 conform in all material respects to the Specification;
9.1.2 be free from material defects in design, material and workmanship;
9.1.3 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.4 be fit for purpose and any purpose held out by Mawdsleys.
9.2 Mawdsleys warrants that for a period of six months from the date of delivery, any repaired Goods shall:
9.2.1 conform in all material respects to the Specification;
9.2.2 be free from material defects in design, material and workmanship;
9.2.3 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.2.4 be fit for purpose and any purpose held out by Mawdsleys.
9.3 Any Goods supplied with a manufacturer warranty are subject to the manufacturer’s warranty only and the benefit of the warranty terms will be transferred to the Customer where appropriate. It is the Customer’s obligation to register such warranties with third party manufacturers in order to benefit from them.
9.4 Mawdsleys shall, at its option, correct, repair, remedy, re-perform or refund the Goods that do not comply with clauses 9.1 and 9.2, provided that the Customer:
9.4.1 serves a written notice on Mawdsleys not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
9.4.2 such notice specifies that some or all of the Goods do not comply with clauses 9.1 or 9.2 and identifying in sufficient detail the nature and extent of the defects; and
9.4.3 gives Mawdsleys a reasonable opportunity to examine the claim of the defective Goods.
9.5 The provisions of these Conditions shall apply to any Goods that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Goods.
9.6 Except as set out in this clause 9:
9.6.1 Mawdsleys gives no warranty and makes no representations in relation to the Goods; and
9.6.2 shall have no liability for their failure to comply with the warranty in clauses 9.1 or 9.2,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
10. Guarantee of workmanship
10.1 Mawdsleys guarantees the proper and complete execution of the Services in accordance with the specifications and instructions of the Customer and/or manufacturer of the Goods and good trade practice. This guarantee applies to workmanship only and not to parts or Goods. In the event of any defect arising in the Services by reason of poor workmanship within a period of 12 months of the date following completion of the Order, Mawdsleys shall rectify any and all such defects at no cost to the Customer.
10.2 However, the guarantee in clause 10.1 is subject to the following conditions and shall only be provided if:
10.2.1 the fault is not due to the Customer’s existing installation;
10.2.2 the work carried out under the Services has been properly kept, used, serviced and maintained in strict accordance with the manufacturers or Mawdsleys’ instructions and has not been modified accept with Mawdsleys’ consent;
10.2.3 the fault is not due to accidental or wilful damage, fair wear and tear or interference with or maintenance work by a third party;
10.2.4 the Customer makes no further use of works under the Services after the defect had been or ought to have been discovered.
10.3 If the Customer becomes aware of a defect the Customer must contact Mawdsleys within 5 working days of becoming aware of such defect.
11. Indemnity and insurance
11.1 The Customer shall indemnify, and keep indemnified, Mawdsleys from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Mawdsleys as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
11.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
12. Limitation of liability
12.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 12.
12.2 Subject to clauses 12.5, Mawdsleys’ total liability shall not exceed the Price.
12.3 Subject to clauses 12.5, Mawdsleys shall not be liable for consequential, indirect or special losses.
12.4 Subject to clauses 12.5, Mawdsleys shall not be liable for any of the following (whether direct or indirect):
12.4.1 loss of profit;
12.4.2 loss or corruption of data;
12.4.3 loss of use;
12.4.4 loss of production;
12.4.5 loss of contract;
12.4.6 loss of opportunity;
12.4.7 loss of savings, discount or rebate (whether actual or anticipated);
12.4.8 harm to reputation or loss of goodwill.
12.5 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
12.5.1 death or personal injury caused by negligence;
12.5.2 fraud or fraudulent misrepresentation;
12.5.3 any other losses which cannot be excluded or limited by applicable law.
13. Intellectual property
13.1 In consideration of the Price payable under these Conditions, Mawdsleys grants to the Customer a non-exclusive licence to use the Intellectual Property Rights in the Deliverables and all other materials created by Mawdsleys pursuant to these Conditions.
13.2 Except as expressly agreed above, no Intellectual Property Rights of either party are transferred or licensed as a result of these Conditions.
13.3 Subject to the foregoing, each party shall be entitled to use in any way it deems fit any skills, techniques or know-how acquired or developed or used in connection with these Conditions provided always that such skills, techniques or know-how do not infringe the other party’s Intellectual Property Rights now or in the future or disclose or breach the confidentiality of the other party’s Confidential Information.
14. Confidentiality and announcements
14.1 The Customer shall keep confidential all Confidential Information of Mawdsleys and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
14.1.1 any information which was in the public domain at the date of the Contract;
14.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
14.1.3 any information which is independently developed by the Customer without using information supplied by Mawdsleys; or
14.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
except that the provisions of clauses 14.1.1 to 14.1.3 shall not apply to information to which clause 14.4 relates.
14.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
14.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
14.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any provisions of clause 15.
15. Processing of personal data
15.1 Both parties shall at all times comply with all Data Protection Laws in connection with the processing of Personal Data and shall not by any act or omission cause Mawdsleys (or any other person) to be in breach of any of the Data Protection Laws. Nothing in this Contract relieves the Customer of any responsibilities or liabilities under Data Protection Laws.
15.2 Mawdsleys shall only process (and shall ensure its personnel only process) Personal Data in accordance with the obligations placed on it under Data Protection Laws, the terms of the Contract and the Customer’s written instructions from time to time except where otherwise required by applicable law (and in such a case shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). Mawdsleys shall immediately inform the Customer if any instruction relating to the Personal Data infringes or may infringe any Data Protection Law.
15.3 The Customer shall at all times implement and maintain appropriate technical and organisational measures to protect Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
16. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.
17.1 Mawdsleys may terminate the Contract at any time by giving notice in writing to the Customer if:
17.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
17.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
17.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after Mawdsleys has given notification that the payment is overdue; or
17.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
17.2 Mawdsleys may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
17.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
17.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if Mawdsleys reasonably believes that to be the case;
17.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
17.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
17.2.5 has a resolution passed for its winding up;
17.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
17.2.7 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
17.2.8 has a freezing order made against it;
17.2.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
17.2.10 is subject to any events or circumstances analogous to those in clauses 17.2.1 to 17.2.9 in any jurisdiction.
17.3 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle Mawdsleys to terminate the Contract under this clause 17, it shall immediately notify Mawdsleys in writing.
17.4 On termination or expiry of the Contract for any reason:
17.4.1 the Customer shall immediately pay all outstanding invoices of Mawdsleys;
17.4.2 Mawdsleys shall promptly invoice the Customer for all Deliverables delivered but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer;
17.4.3 the parties shall within five Business Days return any materials of the other party then in their possession or control; and
17.4.4 the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.
18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax or sent by electronic mail:
(a) (in case of communications to Mawdsleys) to its registered office or such changed address as shall be notified to Mawdsleys by the Customer; or
(b) (in the case of the communications to the Customer) to the registered office of the Customer or such other address as shall be notified to the Customer by Mawdsleys.
18.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first-class post, two Business Days after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
18.3 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 its 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
19. Cumulative remedies
The rights and remedies provided in the Contract for Mawdsleys only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
21. Further assurance
The Customer shall at the request of Mawdsleys, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
22. Entire agreement
22.1 The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
22.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
22.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, Mawdsleys.
24.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Mawdsleys’ prior written consent, such consent not to be unreasonably withheld or delayed.
24.2 Notwithstanding clause 24.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives Mawdsleys prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
25. Set off
25.1 Mawdsleys shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
25.2 The Customer shall pay all sums that it owes to Mawdsleys under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
26. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
27. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause Mawdsleys irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to Mawdsleys, the Customer acknowledges and agrees that Mawdsleys is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
28.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
28.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
29.1 No failure, delay or omission by Mawdsleys in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
29.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Mawdsleys shall prevent any future exercise of it or the exercise of any other right, power or remedy by Mawdsleys.
30. Compliance with law
The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
31. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.
32. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
33. Third party rights
33.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
34. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).