1. Definitions and Interpretation:
1.1 The following definitions and rules of interpretation apply in the Contract.
“Acknowledgment of Order” – a written document, issued by MBS, to the Buyer, confirming that the Buyer’s order for Goods has been accepted by MBS;
“Bespoke Goods” – means any Goods which have been specially manufactured or altered in any way to meet the requirements of the Buyer. This shall include (but not be limited to) incorporating the Goods into other Goods or materials. MBS shall (acting reasonably) decide whether any Goods are Bespoke Goods.
“Buyer” – a person who has agreed to purchase Goods from MBS;
“Charges” – has the meaning given in clause 11.1;
“Collection Site” – any site notified by MBS to the Buyer where the Goods are to be collected by the Buyer in accordance with this Contract;
“Contract” – the contract between MBS and the Buyer for the supply of Goods under these conditions;
“Delivery Site” – a site specified by the Buyer where the Goods are to be unloaded;
“Force Majeure Event” – any circumstances beyond MBS’s control including, but not limited to, acts of God, war, strikes, lockouts or any other industrial action, fire, flood, drought, tempest, freezing temperatures, insect or fungicidal attack, or MBS’s failure to procure materials or articles required for the performance of the Contract in circumstances where MBS has taken reasonable endeavours to obtain such materials or articles;
“Goods” – the goods (including any instalment of the Goods) which MBS is to supply or has supplied under these clauses; and
“MBS” – Manchester Brick Specialists Limited registered in England and Wales with company number 08756309 and whose registered office is at 34 Bury New Road, Prestwich, Manchester, M25 OLD;
“Risk Transfer Date” – the date and time when risk in the Goods transfers to the Buyer in accordance with clause 13.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to “written” or “writing” includes fax and email.
2. Formation of contract
2.1 The Contract shall come into existence and take effect if and when MBS issues the Acknowledgment of Order to the Buyer and shall remain in full force and effect until either:
2.1.1 the parties have discharged all their obligations under it (at which point it shall expire); or
2.1.2 it is terminated in accordance with these clauses.
2.2 A quotation given by MBS shall not constitute an offer. MBS reserves the right to withdraw or amend a quotation at any time.
2.3 These terms apply to all dealings between the parties to the exclusion of any other terms that the Buyer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing unless agreed in writing by a director of MBS.
3. Buyer’s obligations
3.1 The Buyer shall pay the Charges for the Goods in accordance with clauses 11 and 12.
3.2 The Buyer warrants that it has complied with all laws, regulations and official requirements applicable in the UK, and has lawfully obtained all necessary licences, permits and consents necessary for the supply to it, and use by it, of the Goods.
3.3 The Buyer shall be fully liable for any instructions, specification or information provided by it to MBS and shall ensure that such information, specification or instruction:
3.3.1 will not cause MBS to produce Goods that are not fit for the purpose for which the Buyer intends to use the Goods; and
3.3.2 is complete and accurate and does not contain any errors.
3.4 Any advice given by MBS is given in good faith, but it is for the Buyer to assess whether the Goods (or quantities) are suitable for their requirements and MBS will have no liability in that regard.
3.5 The Buyer shall comply with any instructions given by MBS (including, but not limited to, any storage instructions or any installation instructions set out in a relevant method statement supplied to the Buyer by MBS).
4. Company’s Obligations
4.1 MBS warrants that:
4.1.1 the Goods are free from material defects at the Risk Transfer Date; and
4.1.2 where it agrees to provide Goods in accordance with a specification provided by the Buyer (and only when it has provided such agreement in writing), the Goods shall conform in all material respects with that specification.
4.2 MBS gives no warranty in relation to the Goods other than as set out in clause 4.1.
4.3 Save as set out in clause 4.1, and without prejudice to the generality of clauses 4.2 and 4.3, MBS does not give any warranty (and excludes any warranty, term or condition that would otherwise be implied) as to the quality of the Goods or their fitness for any purpose, even if such purpose has been made known to MBS.
4.4 Any samples, drawings or advertising produced by MBS and any illustrations contained in MBS’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force. Sale is by description not by sample.
4.5 The Buyer acknowledges and agrees that due to the nature of the Goods, there may be a natural variation in the finish of the Goods and MBS will have no liability for any such variation.
4.6 MBS will use reasonable endeavours to pass on any manufacturer’s guarantee to the Buyer but shall not be obliged to do so and shall not have any liability under such guarantee.
5. Collection and delivery generally
5.1 Subject to clause 8.5:
5.1.1 MBS may provide an estimate of when Goods will be ready for collection or will be delivered. MBS shall not be in breach of the Contract if any Goods are not ready for collection or are not delivered in accordance with that estimate.
5.1.2 time shall not be of the essence in respect of any indicated, agreed or estimated collection or delivery date.
5.1.3 Delivery is deemed to have been made once the goods have been delivered to (or made available at) the agreed location by MBS.
6. Collection
6.1 This clause 6 applies unless MBS has agreed to deliver the Goods, in which case clause 7 applies.
6.2 Once MBS has informed the Buyer that the Goods are available for collection the Buyer may collect the Goods at any time during the usual business hours of the Collection Site (as may be amended from time to time) so long as it gives at least 24 hours prior notice to MBS. The Buyer must collect the Goods within 14 days of being advised that the Goods are available for collection, failing which MBS may recover in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), storage costs, damages, charges and expenses incurred by MBS as a result of cancellation.
6.3 For the avoidance of doubt, collection and delivery may be made by installments.
6.4 Collection is deemed to have been made once the goods have been collected by the Buyer.
7. Delivery by the MBS
7.1 MBS may agree to deliver the Goods to the Delivery Site (subject to the Buyer agreeing MBS’s charges for this service), in which case MBS shall attempt to deliver the Goods to the Delivery Site at any reasonable time on a working day. MBS shall not have any obligation to give any notice before attempting any delivery.
7.2 Where MBS has agreed to deliver Goods on a certain day, MBS shall use its reasonable endeavours to deliver Goods on that day but shall not be in breach of the Contract if it delivers, or attempts to deliver, the Goods before or after the agreed date.
7.3 This clause 7.3 shall not apply to Goods which are bricks and are delivered on lorry-mounted cranes (where MBS shall be responsible for unloading the Goods). The Buyer is responsible for unloading the Goods at its risk and expense and using its labour. The Buyer shall ensure that Goods are unloaded expeditiously and that unloading commences as soon as the Goods arrive at or near the Delivery Site. MBS may charge the Buyer £100 per hour for time spent waiting at the Delivery Location caused by the Buyer being in breach of this clause 7.3.
7.4 If the Buyer refuses delivery or is not present to take delivery, MBS may at its option:
7.4.1 unload the Goods itself at the Buyer’s cost and leave them on or outside the Delivery Site (in which case MBS will be deemed to have fulfilled its obligation to transport the Goods to the Delivery Site);
7.4.2 treat the order as cancelled and claim indemnification under clause 16.1.3; or
7.4.3 redeliver the Goods at a mutually agreed date. MBS shall be entitled to charge for any attempted re-delivery and for storing the Goods until they are successfully unloaded at the Delivery Site.
7.5 MBS will be entitled to perform or make delivery of Services and/or Goods by instalments and to invoice the Customer for each instalment performed or despatched. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
7.6 MBS shall deliver to a good hard surface on or near the Delivery Site completely accessible by a good hard road.
7.7 MBS shall have no obligation to deliver if:
7.7.1 it believes that it would be unsafe, unlawful or unreasonably difficult to do so;
7.7.2 the Buyer is not present to take delivery; or
7.7.3 the premises (or the access to them) are unsuitable for the delivery vehicle.
7.8 Should clause 7.7 apply, then MBS shall be entitled to;
7.8.1 charge for any attempted re-delivery and for storing the Goods until they are successfully unloaded at the Delivery Site; or
7.8.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.9 Extra charges shall be made if the Goods are delivered on pallets. If the Buyer returns (at its expense and risk) the pallets to MBS in the same condition as they were when they left MBS’s control, MBS will credit the Buyer’s account accordingly.
7.10 If the Buyer fails to provide a signature on a receipt note, delivery having been duly made, notification in writing to the Buyer by MBS following delivery shall be deemed to be conclusive evidence that the delivery was made in accordance with the Contract.
7.11 MBS may deliver up to 10% more or less than the quantity ordered and the price will be adjusted accordingly.
8. Buyer’s Remedies
8.1 The Buyer may reject any of the Goods which do not conform to the Contract in a material way provided that notice of rejection is given to MBS in writing setting out the reasons for rejection:
8.1.1 in the case of a defect that is reasonably apparent on a visual inspection at the Risk Transfer Date, within seven business days of the Risk Transfer Date; and
8.1.2 in the case of any other defect, within 6 months of the Risk Transfer Date (provided that notice is given within three business days of the defect becoming reasonably apparent on normal visual inspection).
MBS shall have no liability if the defect is due to unreasonable care and/or storage of Goods, fair wear or tear and neither shall MBS have any liability for any use of any Goods after the Buyer has notified MBS that it believes the Goods are defective.
8.2 Following notification under clause 8.1 the Buyer shall ensure that MBS’s representatives have a reasonable opportunity to examine the Goods and delivery documentation at the Buyer’s premises or other location where the Goods are held.
8.3 Where MBS agrees that any of the Goods do not conform to the Contract in a material way, MBS will (at its discretion) repair or replace the Goods with Goods that do conform to the Contract within a reasonable period of time. The non-conforming Goods shall be returned by the Buyer within ten working days of request by MBS. MBS shall act reasonably when deciding whether or not the Goods conform to the Contract in a material way.
8.4 At the Buyer’s request, MBS shall reimburse the Buyer’s reasonable costs in returning any Goods to MBS which MBS has agreed to repair or replace.
8.5 Unless the provision of the Goods are subject to a Force Majeure Event, if MBS fails to deliver within 42 days of any estimated delivery date, or if the Goods are not ready for collection from the Collection Site 42 days after MBS estimated that they would be ready for collection, the Buyer may (by informing MBS in writing) cancel the Contract, however the Contract shall not be cancelled if MBS receives the Buyer’s notice after the Goods have been dispatched by MBS’s supplier.
8.6 Where the Contract is cancelled under clause 8.5, the Buyer shall remain liable to pay for any Goods already received by it.
8.7 The absence of any written notice served in accordance with clause 8.1 or 8.5, shall be conclusive evidence in any proceedings that MBS has fully discharged all its obligations under the Contract and in particular that the Goods were in conformity with the Contract in all respects.
8.8 Subject to clause 8.9, the remedies referred to in this clause 8 shall be the Buyer’s only remedies in respect of any Goods not conforming with the Contact.
8.9 The remedy referred to in clause 8.5 shall be the Buyer’s sole remedy in respect of late delivery or delay.
9. Cancellation and return of goods
9.1 Subject to clauses 8.5 and 20.2, the Buyer may not cancel any order following its acceptance by MBS, other than with MBS’s written agreement.
9.2 Where MBS agrees that an order may be cancelled (other than under clause 8.5):
9.2.1 the indemnity set out in clause 16.1.2 shall apply; and
9.2.2 in respect of any Goods to be returned to MBS, those Goods must be returned to MBS at the Buyer’s expense and in the same condition as they were at the Risk Transfer Date.
9.3 If the order is cancelled the Buyer shall pay for all stock (finished or unfinished) that MBS may then hold (or to which it is committed) for the order.
10. Design and specification
10.1 MBS reserves the right to make non-material changes in the specification of the Goods.
10.2 The Buyer is responsible for the final approval of drawings, quantities and colour as well as the design and supply of supports and restraints unless otherwise stated in writing.
10.3 The Buyer agrees that it is responsible for the specification of any Goods, that it has the skills and expertise to ensure that the specification of any Goods will meet its needs and will be fit for the purpose for which the Buyer intends to use them.
10.4 MBS may, from time to time, provide information about third parties who may be able to provide services in connection with Goods. The Buyer shall make its own arrangements with any such supplier and MBS shall have no obligation (whether under this Contract or otherwise) in respect of any such services.
11. Price
11.1 In consideration of the Goods, and subject to clauses 1.1 and 11.4:
11.1.1 the Buyer shall pay the price notified by MBS to the Buyer (“the Charges”);
11.1.2 if no such price for the Goods has been provided, the price shall be that listed in MBS’s published price list at the date of MBS’s Acknowledgment of Order; and
11.1.3 any other sums payable or paid by the Buyer to MBS in accordance with, arising out of or in connection with the Contract shall also be “Charges”.
11.2 The price quoted excludes delivery (unless otherwise stated) and any VAT or other duties.
11.3 Rates of tax and duties on the Goods will be those applying at the time of delivery.
11.4 At any time before the Risk Transfer Date, MBS may adjust the Charges to reflect any increase in its costs of supplying the Goods.
11.5 In the event that the price of Goods has increased then, the Buyer may inform MBS that it does not wish to purchase the Goods at that new price and MBS may (at its option):
11.5.1 cancel the order for those Goods; or
11.5.2 supply the Goods at the price previously quoted.
12. Payment terms
12.1 Subject to clause 12.2, payment is due no later than the end of the month after the Risk Transfer Date unless otherwise agreed in writing.
12.2 Payment for any Bespoke Goods is due within 30 days from when the Buyer requests that MBS produces or makes available those Bespoke Goods.
12.3 If the Buyer fails to pay MBS in full on the due date:
12.3.1 MBS may suspend or cancel all or any outstanding orders with the Buyer;
12.3.2 MBS may withdraw any discount offered to the Buyer;
12.3.3 the Buyer must pay MBS interest at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall be:
12.3.3.1 calculated (on a daily basis) from the date of MBS’s invoice until payment;
12.3.3.2 compounded on the first day of each calendar month; and
12.3.3.3 before and after any judgment (unless the court orders otherwise).
12.4 If the Buyer has an approved credit account, MBS may withdraw it or reduce the Buyer’s credit limit or bring forward the Buyer’s due date for payment. MBS may do any of these at any time without notice.
12.5 All amounts due from the Buyer to MBS under the Contract shall be paid in full without any deduction or withholding (other than any deduction or withholding of tax as required by law), and the Buyer shall not be entitled to claim set-off or to counterclaim against MBS in relation to the payment of the whole or part of any such amount.
12.6 While the Buyer owes money to MBS, MBS has a lien on any of the Buyer’s property in MBS’s possession.
12.7 Without prejudice to any other rights MBS may have, in the event that collection of sums due from the Buyer to MBS is referred to a lawyer, debt recovery agent or other person, or if proceedings are brought to collect such sums or to enforce the rights of MBS, the Buyer shall pay all costs, commissions, administration charges and fees incurred by MBS as a result of collection, including such costs and fees incurred in any Appeal or Proceedings and in executing on any Judgment.
13. Risk
13.1 Where the Goods are to be collected from the Collection Site, they are at the Buyer’s risk from the earlier of:
13.1.1 the Buyer collecting the Goods;
13.1.2 the expiry of the 14 day period referred to in clause 6.2; or
13.2 Where MBS is to deliver the Goods, they are at the Buyer’s risk from when the Goods arrive at a Delivery Site for the first time.
14. Title of Goods
14.1 Title to the Goods shall not pass to the Customer until the earlier of:
14.1.1 MBS receives payment in full (in cash or cleared funds) for the Goods and any other goods that MBS has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums;
14.1.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 14.3; and
14.1.3 MBS notifying the Supplier that title to the Goods has passed (in which case title shall pass at the time of such notice).
14.2 Until title to the Goods has passed to the Customer, the Customer shall:
14.2.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the MBS’s property;
14.2.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
14.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
14.2.4 notify MBS immediately if it becomes subject to any of the events listed in clause 17.4 to 17.15; and
14.2.5 give MBS such information as the Supplier may reasonably require from time to time relating to:
14.2.5.1 the Goods; and
14.2.5.2 the ongoing financial position of the Customer.
14.3 Subject to clause 14.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the MBS receives payment for the Goods. However, if the Customer resells the Goods before that time:
14.3.1 it does so as principal and not as MBS’s agent; and
14.3.2 title to the Goods shall pass from MBS to the Customer immediately before the time at which resale by the Customer occurs.
14.4 At any time before title to the Goods passes to the Customer, MBS may:
14.4.1 by notice in writing, terminate the Customer’s right under clause 14.3 to resell the Goods or use them in the ordinary course of its business; and
14.4.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
15. Liability
15.1 In this clause 15, a reference to MBS’s liability for something is a reference to any liability whatsoever which MBS might have for it, its consequences, and any direct, indirect or consequential loss, damage, costs or expenses resulting from it or its consequences, whether the liability arises under the Contract, in tort or otherwise, and even if it results from MBS’s negligence or from negligence for which MBS would otherwise be liable.
15.2 MBS is not in breach of the Contract, and does not have any liability for anything, to the extent that its apparent breach or liability is attributable to the Buyer’s breach of the Contract.
15.3 Subject to clause 15.5 MBS shall not have any liability for:
15.3.1 any indirect or consequential loss or damage;
15.3.2 any loss of business, rent, profit or anticipated savings whether direct or indirect unless it has expressly assumed such liability;
15.3.3 its failure to deliver Goods within the time specified in clause 8.5 if the Buyer subsequently accepts delivery of those Goods;
15.3.4 anything done by any third party / supplier referred to in clause 10.4;
15.3.5 any workshop drawings given to the Buyer in accordance with clause 10;
15.3.6 the Buyer’s failure to provide MBS with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
15.3.7 any loss caused by any specification or information provided by the Buyer being inaccurate or incomplete or containing any errors or inaccuracies;
15.3.8 any damage to goodwill or reputation;
15.3.9 any delay, loss of opportunity, or loss of business;
15.3.10 loss, theft, damage or destruction to any equipment, tools, machinery, vehicles or other equipment used in connection with the Goods or brought onto any premises of MBS or the Collection Site.
15.3.11 any loss, damage, costs or expenses suffered or incurred by any third party.
15.4 Subject to clause 15.5, MBS’s total liability shall be limited to a sum equal to the Charges.
15.5 Nothing in the Contract restricts MBS’s liability for:
15.5.1 death or personal injury resulting from negligence for which it is responsible;
15.5.2 its fraud (including fraudulent misrepresentation); or
15.5.3 any other liability, to the extent that the liability cannot be restricted by law.
16. Indemnity
16.1 The Buyer shall indemnify MBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by MBS arising out of or in connection with:
16.1.1 the Buyer’s breach or negligent performance or non-performance of the Contract;
16.1.2 MBS agreeing to cancel the Buyer’s order for Goods in accordance with clause 9;
16.1.3 the Buyer refusing to take delivery or not being present to take delivery in accordance with clauses 7.3 and 7.4; and
16.1.4 to the extent that the Goods are to be produced in accordance with a specification supplied by the Buyer, any claim made against MBS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with MBS’s use of the specification.
17. Termination
17.1 Without limiting its other rights or remedies, MBS may terminate the Contract with immediate effect by giving written notice to the Buyer if:
17.2 the Buyer breaches clause 12;
17.3 the Buyer commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of receipt of written notice of the breach;
17.4 the Buyer 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 or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
17.5 the Buyer 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 the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
17.6 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 Buyer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
17.7 the Buyer (being an individual) is the subject of a bankruptcy petition order;
17.8 a creditor or encumbrancer of the Buyer 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;
17.9 an application is made to court, or an order is made, for a moratorium or 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 Buyer (being a company);
17.10 a floating charge holder over the assets of the Buyer (being a company) has become entitled to appoint or has appointed an administrative receiver;
17.11 a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer;
17.12 the Buyer becomes the subject of administration or an administration order (in each case whether or not the out of court procedure is used);
17.13 any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.4 to clause 17.12 (inclusive);
17.14 the Buyer suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
17.15 the Buyer (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.
18. Consequences of termination
18.1 On expiry or termination of the Contract or any part of it for any reason the following shall apply:
18.1.1 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;
18.1.2 the following clauses shall survive expiry or termination and shall continue in full force and effect: clauses 1 (Definitions and interpretation), 2 (Formation of contract), 3 (Buyer’s obligations), 10 (Design and specification), 11 (Price), 12 (Payment terms), 14 (Title), 15 (Liability), 16 (Indemnity), 18 (Consequences of termination), 19 (Waiver and variations), 20 (Force majeure), 21 (General) and any other clause which expressly or by implication has effect after expiry or termination shall continue in full force and effect;
18.1.3 MBS shall become entitled to exercise its rights under clause 14; and
18.1.4 all sums shall become immediately due and payable, notwithstanding any credit terms previously in effect.
19. Waiver and variations and authority
19.1 Any waiver or variation of the Contract shall not be binding unless:
19.1.1 made (or recorded) in writing;
19.1.2 signed on behalf of each party (in the case of MBS, by a director of MBS); and
19.1.3 expressly stating an intention to vary the Contract.
19.2 MBS shall not be bound by any of the following unless agreed by a director of MBS in writing:
19.2.1 any variation to the Contract;
19.2.2 any admission that MBS has breached any of its obligations under the Contract;
19.2.3 any agreement to cancel the Buyer’s order for Goods; or
19.2.4 any refund or credit note.
20. Force Majeure
20.1 If, as a result of a Force Majeure Event, MBS is unable to perform (or is delayed in performing) its obligations under the Contract (or able to perform them only at unreasonable cost), the following shall apply:
20.1.1 MBS may cancel or suspend performance of its obligations to the Buyer at any time without liability (and in the event of a suspension, the time for performance shall be extended accordingly);and
20.1.2 the Buyer shall not be liable to pay for any Goods which MBS has been unable to provide because of the Force Majeure Event (unless and until MBS resumes provision of the Goods where MBS has not cancelled the Contract in respect of those Goods).
20.2 If a Force Majeure Event prevents MBS from providing any of the Goods for a continuous period of more than three months, the Buyer may, by serving written notice on MBS, cancel the Contract in respect of those Goods.
21. General
21.1 The Contract shall be construed and be subject to English law. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation (provided that MBS shall be entitled to seek injunctive relief in any relevant jurisdiction).
21.2 If the Buyer is more than one person, each person is jointly and severally liable for the Buyer’s obligations under the Contract.
21.3 If any court or 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 to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected, unless that would fundamentally frustrate the parties’ original intentions, in which case it shall terminate immediately.
21.4 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, unless that would inadvertently frustrate the parties’ original intentions, in which case it shall terminate immediately.
21.5 All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of the Contract or any other contract between MBS and the Buyer and the Buyer has not relied on them in entering into any contract.
21.6 Any notice by either MBS or the Buyer which is to be served under the Contract may be served by leaving it at or by delivering it to (by signed for delivery, first class post or by fax) the other’s registered office or principal place of business. All such notices must be signed.
21.7 No person other than MBS and the Buyer shall be a party to the Contract.
21.8 A person who is not a party to the Contract shall not have any rights under it and shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
21.9 It is not the parties’ intention to confer any benefit on any third party as a result of the Contract.
21.10 The Contract constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
21.11 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in the clauses or set out in any document referred to in the clauses. Each party agrees that it’s only liability in respect of those representations and warranties that are set out in the Contract (whether made innocently or negligently) shall be for breach of contract.
21.12 Nothing in the clauses limits either party’s liability for fraudulent misrepresentation.
21.13 The Buyer shall not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of MBS.
21.14 MBS may assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of MBS.
