Interpretation

• 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 Cirrus Containments Limited; its servants or agents“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goodsand/or Services, incorporating these clauses; which shall override any terms and conditions put forward by thebuyer“Delivery Address” means the Buyer’s place of business or such other address as agreed in writing betweenthe parties;“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including anypart 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 otherwiserequires, 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 singularinclude 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.

 

Application of Terms

• 2.1 Subject to any variation under clause the Contract will be on these clauses to the exclusion of all otherterms and clauses (including any terms or clauses which the Buyer purports to apply under any purchaseorder, 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 suchdocument 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 representationsabout the Goods or Services shall have no effect unless expressly agreed in writing and signed by a director ofthe Company. Nothing in this clause will exclude or limit the Company’s liability for fraudulentmisrepresentation. These terms and conditions represent the entire agreement between the parties in relationto the Goods or Services and any prior representations by the Company (whether written or oral), and anynegotiations and all guarantees warranties or conditions (including any conditions as to quality or fitness forany particular purpose) whether express or implied by statute common law or otherwise are excluded to thefullest 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 theBuyer 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 writtenacknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods or Servicesto the Buyer.

• 2.6 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any orderincluding any applicable specifications submitted by the Buyer and for giving the Company any necessaryinformation relating to the Goods or Services within sufficient time to enable the Company to perform thecontract in accordance with its terms.

• 2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatchesan 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.Cirrus Containments Ltd, Registered in England, Reg. No. 086012452.8 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 tocorrection without any liability on the part of the Company.3.

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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 descriptionsor illustrations contained in the Company’s catalogues or brochures are issued or published for the solepurpose of giving an approximate idea of the Goods or Services described in them. They will not form part ofthis Contract. Weights measurements power duties capacities and other particulars are stated in writing by theBuyer in good faith as approximately correct but deviating there from shall not be made the basis of any claimagainst 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 inaccordance with a specification submitted by the Buyer the Buyer shall indemnify the Company against all lossdamages costs (including legal expenses) and expenses awarded against or incurred by the Company insettlement of any claim for infringement of any patent copyright design trade mark or other industrial orintellectual property rights of any other person which results from the Company’s use of the Buyer’sspecification.

• 3.4 The Company reserves the right to make any changes in the specification of the Goods which are requiredto conform with any applicable safety or other statutory requirements of where the Goods are to be suppliedto the Company’s specification which do not materially affect their quality or performance. No order which hasbeen accepted by the Company may be cancelled by the Buyer except with the agreement in writing of theCompany and on terms that the Buyer shall indemnify the Company in full against all loss (including loss ofprofit), costs (including the cost of all labour and materials used) damages charges and expenses incurred bythe 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 theContract.

• 3.6 In no case does the Company accept responsibility for the condition of any machinery plant or fittingswhich may be set to work in conjunction with the Goods to be supplied by the Company either present atinstallation or fitted subsequently.

• 3.7 Any performance figures given by the Company are based on the Company’s experience and are such asthe Company expect to obtain on test. The Company accepts no liability if those figures are not obtainedunless the Company specifically guarantees them in writing.

• 3.8 The Company accepts no responsibility for its products operating in accordance with specification unlessthe products have been commissioned by or under the supervision of the Company

 

Delivery

• 4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the DeliveryAddress.

• 4.2 The Buyer will take delivery of the Goods within 7 days of the Company giving it notice that the Goods areready for delivery. In the event of the Goods not being delivered ex works and where the contract is for supplyand delivery the Company will make good any part of the Goods which are damaged in transit provided thatwritten notice of claim is sent by the Buyer to the Company within Three working days of acceptance of theGoods and is actually received by the Company

• 4.3 The Company may deliver the Goods and/or Services by separate instalments. Each separate instalmentshall 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 onthe 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 bythe 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 estimateand 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 orconsequential 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 anydelay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle theBuyer to terminate or rescind the Contract unless such delay exceeds [180] days.

• 4.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, orthe Company is unable to deliver the Goods on time because the Buyer has not provided appropriateinstructions, 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’snegligence);
  - 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 allrelated 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 andmanual 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 quantityaccepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them byreason 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 takingdelivery and shall notify the Company within three days of such collection or delivery in writing of any matteror thing by reason it alleges the Goods are not in accordance with the terms of contract. If the Buyer shall failto give such notice the Goods shall be deemed to be in accordance with the contracts in all respect and theBuyer shall be bound to accept them and pay for the same.

 

Non-Delivery

• 5.1 The quantity of any consignment of Goods as recorded by the Company upon a despatch from theCompany’s place of business shall be recorded, upon acceptance by the buyers representative followingdelivery, by a signed delivery note.

• 5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’snegligence) unless written notice is given to the Company within 7 days of the date when the Goods would inthe 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 areasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

 

Risk/Title

• 6.1 Risk in and responsibility for the Goods shall pass to the Buyer following safe delivery and acceptance ofthe goods (signed delivery note), at their premises

• 6.2 Ownership of the Goods or Services shall not pass to the Buyer until the Company has received in full (incash 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 anythird 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 behalffor their full price against all risks to the reasonable satisfaction of the Company. On request theBuyer 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 notmix 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 Buyershall 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 compositionwith his creditors, or otherwise takes the benefit of any statutory provision for the time being in forcefor 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 asolvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has areceiver and/or manager, administrator or administrative receiver appointed of its undertaking or anypart thereof, or a resolution is passed or a petition presented to any court for the winding up of theBuyer or for the granting of an administration order in respect of the Buyer, or any proceedings arecommenced 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/itsproperty or obtained against him/it, or fails to observe/perform any of his/its obligations under theContract or any other contract between the Company and the Buyer, or is unable to pay its debtswithin 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 thatownership 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 withoutcompensation to the Buyer or give any such receiver or liquidator or any other person the option of carryingout the contract.

• 6.8 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter anypremises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right topossession 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 Goodsare still in existence and have not been resold) the Company shall be entitled at any time to require the Buyerto deliver up the Goods to the Company and if the Buyer fails to do so forthwith the Company or its agentsmay enter the premises of the Buyer and take possession of any Goods in which property remains in theCompany and remove and dispose of them as the Company thinks fit. The Company shall apply the proceedsof 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 beentitled to sell them for whatever price is available without reference to the Buyer and retain the proceedsprovided always that if any payment on account has been made by the Buyer the Company shall return anysurplus 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 ofany amount still remaining due to the Company in respect of the Goods and the Buyer shall forthwith at therequest of the Company take such action and do such things as are necessary to give effect to the provisionsaforesaid.

• 6.12 The Company has a lien and a right to hold (in its own or other factories warehouse or places) the Goodsand any other materials or other tools supplied by the Buyer for all sums due on any account whatsoever bythe Buyer to the Company which may exercise such lien by disposing of the Goods materials or tools on suchterms as the Company may think fit after giving twenty-eight days notice to the Buyer. The expenses ofmaintaining and exercising and lien shall be a debt forthwith due from the Buyer to the Company.

 

Inspection of Testing

• 7.1 Where specifically agreed in writing the Company will endeavour to ensure that the Buyer is able at allreasonable times and on giving reasonable notice to the Company to inspect the Goods both during theirmanufacture and on completion and the Company will notify the Buyer in writing when it will be ready toconduct 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 suchnotice the Company shall be entitled to conduct such a test in the absence of the Buyer and it will be deemedto 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 theBuyer but not provided for in the Contract.

 

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 ofany 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.

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Price

• 9.1 Unless otherwise agreed by the Company in writing the price for the Goods and Services shall be the priceset out in the Company’s price list published on the date of delivery or deemed delivery. All prices quoted areex-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 inrelation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition whenit 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 ofthe Goods or Services to reflect any increase in the cost to the Company which is due to anyfactor beyond control of the Company (such as without limitation any foreign exchangeregulation alteration of duties significant increase in the costs of labour and materials or othercost of manufacture)by a change in delivery dates quantities or specifications for the Goods orany delay caused by any instructions of the Buyer or failure of the Buyer to give the Companyadequate information or instructions.

 

Payment

• 10.1 Payment of the price for the Goods or Services is due 30 days after the date of the invoice, unlessstated 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 upontermination 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 anamount 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 abusiness, any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company onsuch sum from the due date for payment at the Bank of England rate (applicable at the close of business onthe day on which the debt falls due) plus 8% accruing on a daily basis until payment is made, whether beforeor after any judgment. The Company reserves the right to claim interest under the Late Payment ofCommercial Debts (Interest) Act 1998. As from November 2002 all businesses and the public sector will be ableto 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 theGoods 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’sinsolvency the Buyer’s failure to pay for the Goods or the cancellation the Company shall be entitled to ageneral lien (with a right to sell as agent for the Buyer) over all of the Buyer’s Goods and the Buyer’s money inthe hands of the Company pursuant to this Contract or any other contract between the Buyer and Seller.

 

Quality

• 11.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to theBuyer 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 orServices 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 ifthe Buyer had made known that purpose to the Company in writing and the Company has confirmedin 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 ofany 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 ofdamage in transit) to the carrier, within 3 days of the time when the Buyer discovers or ought to havediscovered the defect; and
  - 11.3.2 the Company is given a reasonable opportunity after receiving the notice of examining suchGoods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s placeof 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 instructionsas 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 thewarranties in clause 11.2 the Company shall at its option repair or replace such Goods or Services (or thedefective part) or refund the price of such Goods or Services at the prorata Contract rate provided that, if theCompany so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goodswhich 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 thewarranties 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 beguaranteed on these terms for the unexpired portion of the [12] month period.

 

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 inrespect of.
  - 12.1.1 any breach of these clauses; and
  - 12.1.2 any representation, statement or tortuous act or omission including negligence arising underor in connection with the Contract.

• 12.2 All warranties, clauses and other terms implied by statute or common law (save for the clausesimplied 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 causedby 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 orcontemplated 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 orother claims for consequential compensation whatsoever (howsoever caused) which arise out of or inconnection with the Contract.

 

Export Terms

• 13.1 Unless the context otherwise requires, any term or expression which is defined in or given a particularmeaning by the provision of Incoterms shall have the same meaning in these terms, but if there is any conflictbetween 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 [13] shall(subject to any special terms agreed in writing between the Buyer and the Company) apply notwithstandingany other provision of these terms.

• 13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importationof 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 fobto the air or sea port of shipment and the Company shall be under no obligation to give notice under section32(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’spremises 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 anydamage during transit.

• 13.6 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by theBuyer in favour of the Company and confirmed by a bank acceptable to the Company or, if the Company hasagreed in writing on or before acceptance of the Buyer’s order to waive this requirement by acceptance by theBuyer and delivery to the Company of a bill of exchange drawn on the Buyer payable 30 days after sight to theorder 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 theCompany or sell the Goods to any person if the Buyer knows or has reason to believe that the person intendsto resell the Goods in any such country.

 

Assignment

• 14.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent ofthe Company.

• 14.2 The Company may assign the Contract or any part of it to any person, firm or company.

 

Force Majeure

• The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume ofthe Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in thecarrying 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 ornot relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay inobtaining supplies of adequate or suitable materials Provided that, if the event in question continues for acontinuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company toterminate the Contract.PROVIDED THAT in the event of the Buyer terminating the Contract pursuant to thisclause, the Buyer makes payment in full (including profit) for all work done and materials used by the Companyup until the date of such termination.

 

General

• 16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right orremedy 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 competentjurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to theextent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemedseverable and the remaining provisions of the Contract and the remainder of such provision shall continue infull force and effect.

• 16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will notbe 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 theBuyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the otherterms of the Contract.

• 16.5 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue ofthe 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 Buyerwhether for the supply of goods or services.

 

Site Erection

• Installation and CommissioningIn cases where the Company’s prices include the cost of erection installing or commissioning part or all of theGoods (site Work) or when the Company contracts separately for site work the following conditions shall applyin 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 engagementof such attendant trades shall be the responsibility of the Buyer. The Buyer shall ensure that the Company’sprogress is not impeded by delay in the Buyer obtaining such other trade services at proper times. For thepurposes of this Clause attendant trades means builders electricians plumbers joiners masons excavatorsscaffolding contractors and the like of which shall be obtained by the Buyer.

• 17.2 If the Company is preventedfrom undertaking with the work or the Company’s men have to bewithdrawn and subsequently sent back to complete the work due to causes beyond the Company’s control acharge 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 theentire risk and responsibility for any loss or damage to any Goods after delivery to site and during erectionshall 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 responsiblefor 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 andon the site from the point of entry to the point of erection.

 

Communications

• 18.1 All communications between the parties about this Contract must be in writing and delivered by hand orsent 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 asshall 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 itis a company) or (in any other case) to any address of the Buyer set out in any document which formspart 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 publicholidays) 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 transmissionand otherwise on the next working day.

• 18.3 Communications addressed to the Company shall be marked for the attention of the Managing Director,Cirrus Containments Ltd, York Avenue, Haslingden ,Rossendale, Lancs, BB4 4HX

 

Cancellation of the Contract

• 19.1 The Buyer may not cancel the Contract or any order which has been accepted by the Company exceptwith the written consent of the Company and on terms that the Buyer shall indemnify the Company fullyagainst 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 anybreach of the Contract or any act of insolvency or if in the sole discretion of the Company it appears to theCompany that the financial position of the Buyer has become unsatisfactory or impaired but such refusal shallnot constitute cancellation of the Contract.

• 19.3 If performance by the Company of its obligations under the Contract shall be hindered or prevented byindustrial dispute accident breakdown of machinery shortage of materials exports or import restrictions or anyother cause whatsoever beyond the reasonable control of the Company the Company shall be entitled bynotice in writing to the Buyer to terminate the Contract but without prejudice to the liabilities of either partyaccrued before the date of termination.

 

Law and Dispute Resolution

• 20.1 Theses clauses are governed by and are to be construed in accordance with English Law and the partiesagree to submit to the exclusive jurisdiction of the English Courts.

• 20.2 If any disputes or differences arise between theparties under these clauses and/or the Contract such disputes or differences may be referred by the Buyer orthe Company to a joint committee comprising an authorised representative to be appointed by each of theCompany and the Buyer (“the Authorised Representatives”) for resolution. The Authorised Representativeswill use their best endeavours to resolve the disputes or differences within (14) days of such disputes ordifferences having been referred to them.

• 20.3 If the Authorised Representatives are unable to resolve any disputes or differences which are referred tothem within fourteen (14) days of such disputes or differences shall be referred to the managing directors ofeach of the Company and the Buyer for resolution (the “Managing Directors”). The Managing Directors will usetheir best endeavours to resolve the disputes or differences within (14) days of such disputes or differenceshaving been referred to them.

• 20.4 If the Managing Directors are unable to resolve any disputes or differences which are referred to themwithin fourteen (14) days of such referral, then clause 20.1 shall apply and the disputes or differences shall beresolved through the English Courts.

 

Intellectual Property

• 21.1 Unless otherwise agreed in writing all intellectual property rights (“IPR”) in relation to the Goods orServices and their method of manufacture (for the avoidance of doubt to include anypatent,utility,model,design right, registered design, know how, show how, trade or service works, rights indata bases, topography rights and any equivalent or similar right in any jurisdiction throughout the worldincluding any application or the right to apply for any of the foregoing) shall vest in the Company and remainthe property of the Company notwithstanding the purchase of the Goods or Services by the Buyer and theBuyer undertakes to enter into such agreement or deeds as the Company shall require to vest any suchintellectual property rights as aforesaid..

• 21.2 The Company shall not in any circumstances be liable for any loss liability or expense suffered or incurredby the Buyer by reason of any use or resale of the Goods which constitute an alleged or actual infringement ofa patent, design, copyright or trademark, foreign or domestic, vested in a third party.

 

“HIMALAYA” CLAUSE

• No servant or agent or sub-contractor of the Company performing the whole or any portion of the contract orengagement shall in any circumstances whatsoever be under any liability whatsoever to the Buyer or theBuyer’s principal for any loss or damage or delay of whatsoever kind arising or resulting directly or indirectlyfrom any act neglect or default on his part while acting in the course of or in connection with his employmentand every exemption limitation and condition contained in these conditions shall apply to and shall beavailable to and shall extend to protect every such servant agent or sub-contractor as aforesaid. And for thepurpose of this Clause the Company shall be deemed to be acting as agent on behalf of and for the benefit ofall persons who are or maybe the Company’s servant agent or sub –contractor from time to time and all suchparties shall to this extent be or be deemed to be deemed to be parties to the contract or engagement.

 

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 (includingtrade 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 shallat all times remain the property of the Company and shall be returned to the Company in immediately uponrequest.