TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES

FORFAR GALVANISERS LIMITED

 

1.             DEFINITIONS

 

1.1        In these Conditions:

            “Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in Edinburgh are open for business;

            “Company” means Forfar Galvanisers Limited, registered in Scotland with company number SC182499;

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Company;

“Contract” means the contract for the supply of Services between the Company and the Customer;

“Customer” means the person or firm who purchases the Services from the Company;

“Customer Goods” means goods belonging to a Customer which have been delivered to the Company so that Services may be performed on them;

“Force Majeure Event” has the meaning given to it in clause 14.1(a);

 

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

 

“Order” means the Customer’s order (whether in writing or otherwise) for the supply of Services by the Company;

“Parties” means the Company and the Customer, and “Party” shall be interpreted accordingly;

“Processed Goods” means Customer Goods which have had Services performed on them;

“Services” means the galvanising services, supplied by the Company to the Customer as set out in the Service Specification; and

“Service Specification” means the description for the Services provided in writing by the Company to the Customer.

 

2.         BASIS OF CONTRACT

2.1          The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.

2.2          The Order shall only be deemed to be accepted when the Company issues an acceptance (whether in writing or otherwise) of the Order at which point and on which date the Contract shall come into existence.

2.3          The Contract constitutes the entire agreement between the Parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.

2.4          Any samples, drawings, descriptive matter or advertising issued by the Company and any illustrations or descriptions of the Services contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5          These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6          Any quotation given to the Customer shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

 

3.     CUSTOMER’S OBLIGATIONS

3.1          The Customer shall:

(a)        ensure that the terms of the Customer consignment inventory are complete and accurate;

(b)        co-operate with the Company in all matters relating to the Services;

(c)        provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

(d)        obtain and maintain all necessary licences, permissions, and consents which may be required for the Services before the date on which the Services are to start;

(e)        consult with the Company’s technical staff on all aspects of design and fabrication to ensure ease and quality in processing of all Customer Goods;

(f)         ensure that Customer Goods are suitable for hot-dip galvanising in accordance with the specification for hot-dip galvanised coatings on iron and steel articles contained in ISO 1461:2009;

(g)        ensure that all Customer Goods are manufactured from ferrous raw materials and are new or mill-rust only;

(h)        clearly indicate when placing the Order any surface on the Customer Goods which does not require galvanising after first ascertaining that masking and protection is possible. An extra charge will be made for masking, but no guarantee can be made that such masking will completely eliminate the pick up of zinc.

 

3.2          The Customer shall ensure that, on delivery to the Company, all Customer Goods are in a suitable condition for the Services to be performed by the Company. Without limiting the generality of this clause, the Customer acknowledges that the following conditions apply in relation to the condition of the Customer Goods:

(a)        The Customer should remove all existing galvanised coatings, welding slag, paint, preservatives, oil, grease, varnish, heavy rust and scale, anti-splatter compounds, cutting fluids (including burnt on residues of anti-splatter compound and cutting fluids), unacceptable oil-based marking paints and crayons, or any other surface contaminant or material of whatsoever kind, that cannot easily be removed by the Company’s standard degreasing, pickling, and rinsing processes preparatory to galvanising.  Advice should be sought from the Company regarding suitable marking paints. The Company reserves the right to make an additional charge at its discretion for removing (by any method, including grit blasting) any of the aforementioned deposits, markings, contaminants or substances. Such additional charge shall adequately reflect the additional costs incurred by the Company in performing these services;

(b)        Fabrication assemblies must be of sufficient design and steel quality to withstand temperatures used during galvanising (up to 475 C) without distortion;

(c)        Castings shall have been abrasive blast cleaned by the fabricator or the Customer to remove all foundry sand and surface carbon;

(d)        Sufficient tolerance allowance shall be made on threaded components for increased thickness due to the galvanised coating to be made.  It is generally accepted that semi-killed silicon steels are more reactive with zinc than conventional mild and aluminium killed steels. In consequence, the Customer should be aware that in certain circumstances heavy coatings can ensue. It is the Customer’s responsibility to check its own tolerances;

(e)        Frames fabricated from channels and gussets on fabricated columns should have cropped corners to allow the free flow of zinc.  Fabrications may require suspension holes if there is no convenient point for attaching a hook.  If the Company considers it necessary to drill for suspension holes for such purpose it may do so, but any such drilling will be charged as an extra; and

(f)         If sealed compartments are immersed in a galvanising bath there is danger of violent explosion due to the expansion of air or vaporisation of unsuspected trapped liquids. Tanks, closed vessels, tubular components, sealed cavities, plates welded adjacent to each other and fabricated hollow sections MUST BE ADEQUATELY AND APPROPRIATELY DRILLED TO ALLOW FOR VENTING AND DRAINAGE. It is the Customer’s responsibility to drill as aforesaid.  If the Customer instructs the Company to carry out drilling the Company will do so at the cost of the Customer.

3.3          If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)        the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;

(b)        the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 3; and

(c)        the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.

 

4.             SUPPLY OF SERVICES AND DELIVERY OF PROCESSED GOODS

4.1          The Company shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

4.2          The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.

4.3          The Company warrants to the Customer that the Services will be provided using reasonable care and skill.

4.4          The Company shall ensure that:

(a)        each delivery of the Processed Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Company reference numbers, the type and quantity of the Processed Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Customer Goods which require to have Services performed on them and delivered; and

(b)        if the Company requires the Customer to return any packaging material to the Company, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.

4.5        Unless otherwise expressly agreed by the Company, the Customer shall collect the Processed Goods from the Company’s premises at Carseview Road,
Forfar, DD8 3BT or such other location as may be advised by the Company before delivery (Delivery Location) within three Business Days of the Company notifying the Customer that the Processed Goods are ready.

4.6        Delivery of the Processed Goods shall be completed on the completion of loading of the Processed Goods at the Delivery Location.

4.7        Any dates quoted for delivery of the Processed Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Processed Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Services and the delivery of the Processed Goods.

4.8          If the Customer fails to accept or take delivery of the Processed Goods within ten Business Days of the Company notifying the Customer that the Processed Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Processed Goods:

(a)        delivery of the Processed Goods shall be deemed to have been completed at 9.00 am on thetenth Business Day following the day on which the Company notified the Customer that the Processed Goods were ready; and

(b)        the Company shall store the Processed Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.9          If ten Business Days after the Company notified the Customer that the Processed Goods are ready for collection the Customer has not collected them, the Company may, upon giving to the Customer ten Business Days’ notice of its intention to do so (unless such Processed Goods shall in the meantime have been collected by the Customer), resell or otherwise dispose of part or all of the Processed Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Processed Goods or charge the Customer for any shortfall below the price of the Processed Goods, and the Customer shall be deemed to have consented to such sale or disposal.

4.10        The Customer shall not be entitled to reject the Processed Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Processed Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Processed Goods was delivered.

4.11        The Company may deliver the Processed Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.12        The Company reserves the right, at its discretion, to refuse to handle/process any material deemed by the Company to pose a risk to the health and safety of its employees and/or anyone else to whom it owes a duty of care.

 

5.             CHARGES AND PAYMENT

5.1          The price for the Services shall be the price quoted by the Company and is (unless otherwise agreed) based on the finished weight of the Processed Goods. The finished weight shall be determined by the Company’s weighing scales or weighbridge, and the weight as determined by such weighing mechanism shall be definitive evidence of the final weight of the Processed Goods.  The price is exclusive of all costs and charges of packaging, insurance, and transport of the Processed Goods, which shall be paid by the Customer when it pays for the Services.

5.2          The Company shall be entitled to charge the Customer for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.

5.3          The Company reserves the right to increase the price of the Services, by giving notice to the Customer at any time before delivery of the Processed Goods, to reflect any increase in the cost of the Services that is due to:

(i)        any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(ii)       any request by the Customer to change the delivery date(s);

(iii)      the Customer Goods not being a reactive steel product e.g. containing silicon, phosphorus etc;

(iv)      any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Services.

5.4          Unless otherwise agreed between the Company and the Customer, the Company shall invoice the Customer on or at any time after completion of delivery.

5.5          The Customer shall pay each invoice submitted by the Company:

(a)        within 30 days of the date of the invoice; and

(b)        in full and in cash or in cleared funds to a bank account nominated in writing by the Company, and

time for payment shall be of the essence of the Contract.

5.6          All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.7          Without limiting any other right or remedy of the Company, if the Customer fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of four per cent per annum above the then current Royal Bank of Scotland plc base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

5.8          The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

 

6.             LIEN AND RIGHT OF RESALE

6.1          The Company shall have a particular and general lien on all Customer Goods and Processed Goods for all monies (whether presently payable or not) payable by the Customer to the Company, and all debts and liabilities (whether or not the period for payment or discharge of the same shall have actually arrived) of the Customer to the Company under any contract. Such lien shall cover such goods and equipment whether or not the Company shall at the time of exercise of the lien have begun or completed performance of the Services.  The Company shall be entitled to refuse to deliver up any Processed Goods and/or Customer Goods at any time unless all charges accrued under this Contract and all other sums (if any) owed by the Customer to the Company under any contract shall have been previously paid.

6.2          Without prejudice to the Company’s other rights of action against the Customer for breach of the Customer’s payment conditions, if any sum due from the Customer under any contract shall not have been paid within 3 weeks after becoming due, the Company may, upon giving to the Customer 7 days’ notice of its intention so to do (unless such sums shall in the meantime have been paid), sell any or all of the goods in the Company’s possession on which the Company has a lien, and the Customer shall be deemed to have consented to such sale.  The net proceeds of such sale after payment of the costs of such sale shall be applied in or towards payment or satisfaction of the debts and liabilities in respect whereof the lien exists so far as the same are presently payable, any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon the goods prior to the sale) be paid to the Customer.

 

7.             INTELLECTUAL PROPERTY RIGHTS

7.1          All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.

7.2          The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.

7.3          The Customer warrants that any instruction furnished to the Company shall not be such as will cause the Company to infringe any Intellectual Property Rights in the execution of the Customer’s orders and the Customer agrees to indemnify the Company against any infringement or unauthorised use of Intellectual Property Rights arising out of use of the Customer Goods and it is specifically agreed that the performance of Services on the Customer Goods does not confer on the Customer any licence or rights under any Intellectual Property Rights which is the property of the Company.

 

8.             TITLE AND RISK

8.1          The risk in the Processed Goods and/or Customer Goods shall pass to the Customer on completion of delivery.

8.2          Title to the Processed Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:

(a)        the Services performed on the Processed Goods; and

(b)        any other services that the Company has performed for the Customer in respect of which payment has become due.

8.3          Until title to the Processed Goods has passed to the Customer, the Customer shall:

(a)        hold the Processed Goods on a fiduciary basis on behalf of the Company;

(b)        store the Processed Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;

(c)        not remove, deface or obscure any identifying mark or packaging on or relating to the Processed Goods;

(d)        maintain the Processed Goods in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;

(e)        notify the Company  immediately if it becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l); and

(f)         give the Company such information relating to the Processed Goods as the Company may require from time to time,

but the Customer may resell or use the Processed Goods in the ordinary course of its business.

8.4          If before title to the Processed Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l) or the Company  reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Processed Goods have not been sold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Processed Goods to the Company and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Processed Goods are stored in order to recover them.

 

9.             LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

9.1          Nothing in these Conditions shall limit or exclude the Company’s liability for:

(a)        death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)        fraud or fraudulent misrepresentation;

(c)        breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

(d)        defective products under the Consumer Protection Act 1987.

9.2          Subject to clause 9.1:

(a)        the Company shall under no circumstances whatever be liable to the Customer, whether in contract, negligence, breach of statutory duty, or otherwise, for:

(i)         any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;

(ii)        any loss or damage suffered by the Customer or by any third party as a result of a defect in the manufacture of the Customer Goods;

(iii)      any distortion or damage to the Customer Goods or Processed Goods resulting from the effect of heating during galvanising or for the cracking of basis materials caused by thermal expansion and contraction during processing;

(iv)      the formation of wet storage stain on Processed Goods occurring after the goods have left the Company’s premises; and

(v)       any loss or damage suffered by the Customer as a result of the Customer failing to comply with any of its obligations contained in these Conditions.

(b)        the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, negligence, breach of statutory duty, or otherwise, shall in no circumstances (except as expressly provided in these Conditions) exceed the price paid by the Customer for the Services.

9.3          The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

9.4          This clause 9 shall survive termination of the Contract.

 

10.  INDEMNITY

10.1      The Customer shall indemnify and keep indemnified and hold the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company, and from and against all actions, proceedings, claims or demands made against the Company, arising from any of the following:

(a)     as a result of any negligence or other breach of duty by the Customer including, but not limited to, any breach of these Conditions; or

(b)     as result of compliance or adherence by the Company with any instruction of the Customer in relation to the Customer Goods or the Services.

 

11.  QUALITY AND INSPECTION

11.1        The Company warrants that on delivery and for a period of twelve months from the date of delivery (Warranty Period), the Processed Goods shall be free from material defects in workmanship.

11.2        It is the responsibility of the Customer to inspect Processed Goods upon collection or delivery. The Company will notify the Customer when the Processed Goods are available for inspection.

11.3        In the event that the Company agrees in writing to carry out an inspection of the Processed Goods prior to delivery then the Company’s responsibilities shall be limited to:

(a)        carrying out a visual inspection of the previously agreed external parts of the Processed Goods; and

(b)        providing a written report identifying any defects apparent from the face of the Processed Goods at the time of the inspection.

The Customer acknowledges that the Company’s employees are not qualified to report or advise upon the integrity of the Processed Goods should any defects (such as cracking) be identified and it shall be the Customer’s responsibility to consider such report and to take such action as it considers necessary (if any) to rectify the defects unless such defect falls within the provisions of clause 11.4 below.

11.4        Subject to clause 11.5, if:

(a)        the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Processed Goods are defective in workmanship;

(b)        the Company is given a reasonable opportunity of examining such Processed Goods; and

(c)        the Customer (if asked to do so by the Company) returns such Processed Goods to the Company’s place of business at the Customer’s cost,

the Company shall, at its option, regalvanise the defective Processed Goods free of charge, or refund the price paid for the Services.

11.5        The Company shall not be liable for the Processed Goods’ failure to comply with the warranty in clause 11.1 if:

(a)        the Customer has not paid in full for the Services;

(b)        the Customer makes any further use of such Processed Goods after giving a notice in accordance with clause 11.4;

(c)        the defect arises because the Customer failed to follow good trade practice;

(d)        the defect arises because the Customer failed to comply with any of its obligations contained in these Conditions;

(e)        the defect arises as a result of the Company following any drawing, design, or specification supplied by the Customer; or

(f)         the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions including, without limitation, the use of materials and/or chemicals in the cleaning of the Processed Goods.

11.6        Except as provided in this clause 11, the Company shall have no liability to the Customer in respect of the Processed Goods’ failure to comply with the warranty set out in clause 11.1.

11.7        The terms of these Conditions shall apply to any regalvanised goods supplied by the Company under clause 11.4.

 

12.  TERMINATION

12.1        Without limiting its other rights or remedies, either Party may terminate the Contract with immediate effect by giving written notice to the other Party if:

(a)        the other Party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 20 days after receipt of notice in writing of the breach;

(b)        the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts;

(c)        the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

(d)        a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other Party with one or more other companies or the solvent reconstruction of that other Party;

(e)        the other Party (being an individual) is the subject of a bankruptcy petition or order;

(f)         a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(g)        an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other Party (being a company);

(h)        a floating charge holder over the assets of the other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i)         a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;

(j)         any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(b) to clause 12.1(i) (inclusive);

(k)        the other Party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

(l)         the other Party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

12.2        Without limiting its other rights or remedies, the Company may terminate the Contract:

(a)        by giving the Customer one month’s written notice;

(b)        with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

12.3        The Customer may terminate the Contract by giving the Company not less than one month’s written notice.

12.4        Without limiting its other rights or remedies, the Company shall have the right to suspend the supply of Services and all further deliveries of Processed Goods under the Contract or any other contract between the Customer and the Company if:

(a)        the Customer fails to make pay any amount due under this Contract on the due date for payment; or

(b)        the Customer becomes subject to any of the events listed in clause 12.1(b) to clause 12.1(l) (inclusive), or the Company reasonably believes that the Customer is about to become subject to any of them.

 

13.          CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

(a)        the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)        the accrued rights and remedies of the Parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(c)        clauses which expressly or by implication have effect after termination shall continue in full force and effect.

 

14.          GENERAL

14.1        Force majeure:

(a)        For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

(b)        The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.

(c)        If the Force Majeure Event prevents the Company from providing the Services for more than four weeks, the Company shall, without limiting its other rights or remedies, have the right  to terminate the Contract immediately by giving written notice to the Customer.

14.2        Assignation and subcontracting:

(a)        The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b)        The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.3        Notices:

(a)        Any notice or other communication required to be given to a Party under or in connection with the Contract shall be in writing and shall be delivered to the other Party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business.

(b)        Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such address, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

(c)        This clause 14.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under the Contract shall not be validly served if sent by e-mail.

14.4        Waiver and cumulative remedies:

(a)        A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

(b)        Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.

14.5        Severance:

(a)        If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)        If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

14.6        No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the Parties, nor constitute either Party the agent of the other Party for any purpose. No Party shall have authority to act as agent for, or to bind, the other Party in any way.

14.7        Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

14.8        Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.

14.9        Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Scots law, and the Parties irrevocably submit to the exclusive jurisdiction of the Scottish courts.