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Terms and Conditions of Sale

Terms of Sale of Godfrey Syrett Limited (Terms)

1. Interpretation

Certain words and expressions used in, and principles of interpretation applicable to, these Terms are defined or set out below, and if there is a conflict or inconsistency between any provision contained in these Terms and any provision contained in an Order, except where provided to the contrary in the latter, the Order prevails to the extent of the conflict or inconsistency.  

1.1 Definitions:

In the Agreement, unless the context otherwise requires, the following definitions apply: 
“Additional Payment”  a payment charged for any additional work done under clause 2.4;
“Agreement” the agreement between Godfrey Syrett Limited (GSL) and the Customer comprised of an Order acknowledged by GSL under 2.5.3;
“Business Day” Monday to Friday excluding public and bank holidays in England and Wales;
“Confidential Information” in relation to the Customer or GSL, all information and trade secrets relating to its business or customers which come into the possession of the other party pursuant to this Agreement, whether orally, or in documentary, electronic or other form;

“Customer” the purchaser of the Goods under the Agreement, identified in the Order;

“Defective Goods” any Goods which do not meet the requirements of clause 12.1(Assurance of Quality);

“Design Freeze” no further changes shall be made to design after the date of Design Freeze. If no date is stated, this shall be 8 weeks prior to the commencement of any work.

“Event of Default” has the meaning given in clause 18.1 (Event of Default);

“Force Majeure Event”
a. acts of God, flood, drought, earthquake or other natural disaster;
b. epidemic or pandemic;
c. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d. nuclear, chemical or biological contamination or sonic boom;
e. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
f. collapse of buildings, fire, explosion or accident; 
g. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party)];
h. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
i. interruption or failure of utility service.

“Goods” the goods identified in the Order or their equivalent, or any of them;

“GSL” Godfrey Syrett Limited, a company registered in England and Wales (CN00751094) whose registered office is Planet Place, Newcastle upon Tyne, NE12 6DY;

“Owned” Products belong to GSL in relation to clause 9.2.2

“Insolvency Event” each and any of the following in relation to the Customer or GSL (being the “Relevant Party”):
a. any action (corporate or otherwise), legal proceedings or other procedure or step which is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Relevant Party (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of the Relevant Party or any of its assets; (iii) the enforcement of any security over any assets of the Relevant Party; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any material asset of the Relevant Party;
b. the Relevant Party is unable to pay its debts as they fall due or is insolvent; or
c. the Relevant Party enters into a composition or arrangement with its creditors or any class of them;

“Loss” and “Losses” in respect of any matter, event or circumstance all loss, damage, payments, costs and expenses (including without limit reasonable professional adviser fees);

“Order” a Purchase Order, in the form GSL requires, for the purchase of the Goods at the Price, placed by the Customer with GSL under clause 2.5.1 and 2.5.2;

“Price” the Price of individual Goods or Goods of a given description stated in the Order, and not the aggregate amount of all such Prices;

“Programme” an agreement between the parties setting out how and when any works shall be completed by GSL for the Customer;

“VAT” value added tax as provided for in the VATA and any other tax of a similar nature for the time being in force; and

“VATA” the Value Added Tax Act 1994.
1.2 References
References to:
1.2.1 “clauses” are to clauses of this Agreement;
1.2.2 a statutory provision includes a reference to any modification, consolidation or re-enactment of the provision from time to time in force and all subordinate instruments, orders or regulations made under it except that, as between the parties, no modification, consolidation or re-enactment shall apply for the purposes of this Agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, either party;

1.2.3 either party includes, where appropriate, persons deriving title under it;

1.2.4  “subsidiary” and “holding company” shall have the meanings given to them by section 1159 of the Companies Act 2006

1.2.5  “includes” or “including” shall be construed without limitation to the generality of the preceding words;

1.2.6 any document (including this Agreement) or a provision of it shall be construed as a reference to that document or provision as amended from time to time by agreement between the parties in accordance with this Agreement; and

1.2.7  “writing” includes any method of reproducing words in a legible and non-transitory form, excluding e-mail; and

1.2.8 the singular includes the plural and vice versa.
1.3 Headings
The headings are for convenience only and shall not affect the interpretation of the Agreement.
2 Orders
2.1 Promotional Material
2.1.1 Any prices, charges, samples, drawings, descriptions, or advertising of or relating to Goods available from GSL that are issued or published by GSL, including those contained in catalogues, brochures or on a website (“Promotional Material”), are for illustrative purposes only and the associated charges or prices are intended to act only as a guide.  Promotional Material shall not form part of the Agreement or any collateral contract.
2.1.2 GSL reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
2.1.3 GSL is not bound by, and hereby excludes liability for, any error in or omission from Promotional Material which is manifest or which ought reasonably to be considered apparent to the Customer, and the Customer undertakes not to rely on any such error or omission, or to enforce rights or bring any claim against GSL on the basis of the Promotional Material to the extent of such error or omission. 
2.1.4 GSL’s employees or agents are not authorised to make any statement or other representation concerning the Goods unless confirmed by GSL in writing.  The Customer hereby waives any claim for breach of any unconfirmed statement or representation which is not made fraudulently.
2.1.5 Any advice or recommendation given by GSL or its employees or agents to the Customer as to the storage, application or use of the Goods which is not confirmed in writing by GSL is followed or acted upon by the Customer entirely at the Customer’s risk.

2.2 Rejection of Customer terms

GSL is prepared to sell Goods or to enter into an agreement to sell Goods on the provisions of these Terms only, to the exclusion of any terms which the Customer purports to apply. No other Terms shall apply regardless of when supplied and Customer’s terms (whether in a purchase order or otherwise) shall not be incorporated.  For the avoidance of doubt, terms implied by trade, custom or a course of dealing with another party are excluded from this Agreement.

2.3 Quotations
2.3.1 A quotation does not constitute an offer that can be accepted by a Customer.  Where a Customer is in receipt of a quotation, the Customer must place an Order based on the quotation. Such Order will constitute an offer to GSL to purchase Goods.
2.3.2 Prices included within the quotation are based on information provided by the Customer. We reserve the right to adjust the quotation based on any increase to the cost of raw materials necessary to fulfil the Order (whether caused by inaccurate information provided by the Customer, or otherwise).
2.3.3 Our estimate is net of any main contractor’s discounts and is provided on the basis that the Customer shall not be entitled to retain any monies it owes to GSL because of non-payment or late payment to it by a Sub-contractor. A quotation is submitted on the basis that GSL shall not be subject to any liquidated damages, contractual penalties or performance bond.

2.4 Additional Payment
2.4.1 A payment equal to 2% of the value of the Order will be charged per week for any additional storage required beyond the agreed Programme.

2.4.2 Where the Customer:
a. cancels a fitter within 48 hours of the work due to be done; or
b. causes GSL to redeliver any Goods;
an Additional Payment will be charged by GSL to the Customer.

2.4.3 Where the Customer cancels the whole or part or an Order, GSL may (at its sole option) either attempt to resell any products it has already manufactured to fulfil the Order, or recycle such products. Should GSL resell such products, it shall charge the Customer for any shortfall between the price that the Customer would have been charged, and the actual value received for the resold goods. Where GSL fails to sell such products or decides to recycle them, the Customer shall pay to GSL the full amount of the Order. 

2.4.4 Any charges under 2.4.1 to 2.4.3 will be invoiced to the Customer in accordance with clause 8.1.

2.4.5 Additional Payments are payable for any variations to the Order in accordance with clause 5.
2.5 Ordering procedure
2.5.1 To purchase goods from GSL, the Customer shall complete and send to GSL in accordance with clause 2.5.2 an Order, which constitutes an offer from the Customer open for acceptance by GSL for a period of Thirty (30) Days, or such other period as the parties agree in writing (the “Offer Period”). The Order shall be in the form set out in clause 2.5.2.

2.5.2 The Order shall be sent via e-mail to sales@godfreysyrett.co.uk, or to GSL’s address at Planet Place, Killingworth, Newcastle NE12 6DY. 

2.5.3 Where GSL accepts the Order, it shall notify the Customer by sending them an acknowledgement of order (Acknowledgement) within the Offer Period, or such other period as the parties agree in writing.

2.6 Nature of Orders

Each Order acknowledged by GSL in accordance with clause 2.5.3 constitutes an Agreement, and each Agreement is separate from each other Agreement, except to the extent provided in the Agreement in question.
3 Sale and Purchase
3.1 Agreement to sell
Subject to the Agreement, GSL shall sell, and the Customer shall buy, the Goods.

3.2 Substitute goods
At any time before delivery of the Goods, GSL may substitute the Goods with goods of equivalent specification.  Such substitution will not provide the Customer with a right to terminate the Agreement.  

3.3 Relief events
3.3.1 GSL is discharged from performing the Agreement where:
a. clause 20 (Force Majeure) applies, which shall apply accordingly;
b. GSL has been provided with inaccurate, incomplete or misleading information; or
c. the Customer is in breach of the Agreement.
3.3.2 Where clause 3.3.1 applies, GSL shall notify the Customer as soon as reasonably practicable, and shall, at its sole discretion, use its reasonable endeavours to continue to perform the Agreement but shall not be liable for any failure to do so (including any delayed or defective performance); and 

3.3.3 Where clause 3.3.1 either (b) or (c) apply, the Customer shall reimburse GSL within Thirty (30) days in respect of all incremental costs incurred by GSL in performing the Agreement as a result. 

4 Amendments to specification

Where the Customer amends a specification, including where they state that a product is for a different purpose than originally specified, GSL reserves the right to amend any warranty given on the Goods. The Customer may not make any changes to the specification after Acknowledgement has been issued.

5 Change control

5.1 Where a written request for an amendment to an Order is received from the Customer by GSL (Change Control Note) GSL shall:

5.1.1 evaluate the Change Control Note and, as appropriate: request further information; or arrange for two copies of the Change Control Note to be signed by or on behalf of the Customer and return one of the copies to GSL; or notify the Customer of the rejection of the Change Control Note.
5.2 A Change Control Note signed by the Customer and by GSL shall constitute an Order.
5.3 Each Change Control Note shall contain:
5.3.1 the originator and date of the request;
5.3.2 the reason for the Change;
5.3.3 full details of the Change, including any specifications;
5.3.4 details of the likely impact, if any, of the Change on other aspects of this Agreement including other contractual issues and impact on the Price;
5.3.5 the date of expiry of validity of the Change Control Note; and
5.3.6 provision for signature by the Customer and GSL.

6 Programme
6.1.1 Where lifts are not available for use by GSL personnel at the Customer’s premises (or such lifts that are available are not suitable for moving the Goods or any equivalent required to install the Goods) GSL reserves the right to charge for any additional labour required.

6.1.2 Where the parties agree a Programme, such agreement must be recorded in writing.

6.1.3 Any design work, involved in the Programme must be signed off by GSL and the Customer not less than Eight (8) weeks prior to commencement of any work (Design Freeze).

6.1.4 The process of procurement and manufacture will only commence upon receipt of a jointly signed Agreement and achievement of Clause 6.1.3
7 Project specifics
7.1.1 Costs for design work shall be quoted on request.
7.1.2 Where waste traps are provided as part of any Orders, GSL are not responsible for their installation.
7.1.3 All detailed product design drawings and room layouts will be submitted by GSL for approval and must be signed off in writing by the Customer prior to the commencement of any bulk manufacturing.
7.1.4 Where any damage is caused to a Customer’s property by GSL during the installation of any products at the Customer’s premises, GSL shall not be held responsible, unless it is brought to the attention of the project manager and the matter is agreed between the parties (including where appropriate the level of compensation to be paid by GSL) within 48 hours of the damage occurring. Such damages shall not exceed 5% of the order value.

8 Price
8.1 Payment
8.1.1 Time of Payment is of the essence. 
8.1.2 The Price shall be set out in the Order, and the Customer shall pay the Price in full when due and without set-off or counterclaim in respect of any liability to GSL.  If no price is quoted, the Price will be that set out in the latest version of GSL’s price list as published from time to time.  

8.1.3 Unless otherwise stated in writing by GSL, all payments due under the Agreement are subject to the receipt by the payer of a valid value added tax invoice, and shall be paid within Thirty (30) Days after the date of the invoice. Payment shall be made to the bank account nominated in writing by GSL.

8.1.4 Any amount due to GSL is not to be taken to have been made or received for the purposes of the Agreement unless and until the amount is received in full by GSL in cash or cleared funds.

8.1.5 The Price is exclusive of VAT, which shall be added to the Price, and paid by the Customer in accordance with this clause 8.1 (Payment).
8.2 GSL may, by giving notice to the Customer at any time up to 30 Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

8.2.1 any factor beyond GSL’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or

8.2.2 any change to the Law; or 

8.2.3 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

8.2.4 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 Unless otherwise stated the price of the Goods excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

8.4 Default interest
If the Customer fails to pay any sum due and payable under the Agreement by the due date, interest at the rate of 4% above Bank of England’s rate from time to time shall accrue daily on the unpaid amount from the due date to the date of actual payment (after as well as before judgment).

9 Ownership
9.1 Passing of title

Ownership of the Goods only passes to the Customer upon GSL receiving payment in full of the Price in cleared funds, and all other amounts due to GSL from the Customer from time to time (and not before).

9.2 Retention of title and interim arrangements

9.2.1 Until ownership of the Goods passes to the Customer, or (if earlier) the Customer exercises its rights under clause 9.3 (Re-sale or use of the Goods) in relation to particular Goods (and, in that case, thereafter in relation to all (if any) other Goods), the Customer shall:

a. hold the Goods as GSL’s fiduciary bailee;
b. keep the Goods separate from all other goods held by the Customer and readily identifiable as the property of GSL;
c. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
d. maintain the Goods in a satisfactory condition, insured on GSL’s behalf for their full price against all risks; and
e. hold the proceeds of insurance referred to in clause 9.2.1(d) on trust for GSL and not mix them with any other money, nor pay the proceeds into an overdrawn account.

9.2.2 Where the Customer exercises its right under clause 9.3.1, any Goods not sold or used shall be held in accordance with clause 9.2.1(a) to (e) above.

9.2.3 GSL may at any time recover Goods or resell them until they are Owned by the Customer.

9.2.4 GSL is entitled by its employees or other representatives to enter the premises of the Customer where the Goods are stored (or where GSL has reasonable grounds to believe the Goods are stored) without notice to recover the Goods under clause 9.2.3 and the Customer shall at the request of GSL procure the right for GSL, its employees and representative to enter any premises of any third party where the Goods are stored for either or both of these purposes.

9.2.5 GSL is entitled by its employees or other representatives on giving at least three (3) business days’ prior written notice to enter the premises of the Customer to audit the Customer’s compliance with clause 9.2.1.
9.3 Re-sale or use of the Goods
9.3.1 The Customer may resell the Goods and pass Goods title to its customers.
9.3.2 Where the Goods are sold by the Customer before ownership of the Goods passes to the Customer:
a. the proceeds of sale which represent or are equivalent to the amount owed by the Customer to GSL in respect of the Goods shall be held by the Customer upon trust for GSL, and paid into a separate bank account designated for that purpose; and
b. GSL shall be entitled to trace the proceeds of sale into that bank account (or wherever the proceeds may in fact be located), and the Customer authorises GSL to make enquiries of its bankers (or otherwise as appropriate) relating to those proceeds.

10 Delivery
10.1 General
10.1.1 Subject to receipt of the Price (and not part only), and all amounts payable by the Customer (whether under the Agreement or otherwise) when due before delivery, GSL shall deliver the Goods, and the Customer shall take delivery of them, in accordance with the Order and this clause 10.
10.1.2 GSL shall notify the Customer of the day and date of delivery (Delivery Date) in the Order.  It is a condition of the Agreement that the Customer receives or arranges for the receipt of the Goods on the Delivery Date, and shall provide all necessary labour, materials and plant, prepare the site, and procure all licences and other authorisations required for GSL or the carrier (as appropriate) to effect delivery in accordance with this clause 10.  The Delivery Date may be re-arranged by GSL at any point prior to delivery. The Customer shall return to GSL or make available for collection by or on behalf of GSL all packaging of the Goods.

10.2 Method of delivery
10.2.1 Where the Order stipulates the method of delivery of the Goods, delivery shall take place on the Delivery Date or where no date is given then the earliest to occur of any one of the following, as appropriate to the provisions of the Order and Delivery Date shall be construed accordingly:
a. where the Goods are in the possession of GSL as at the date of the Order or will come into the possession of GSL before delivery, on GSL:
i. giving to the Customer, its nominee, or any other person having apparent authority to receive them on behalf of the Customer, custody of, or control over, the Goods, and in default of any such person being present at the relevant time, GSL may affect delivery by leaving the Goods at the delivery address identified in the Order, and in the absence of an address, at any premises of the Customer in the United Kingdom;
ii. agreeing in writing to hold the Goods on behalf of the Customer or its nominee; or
iii. giving any carrier engaged by GSL (acting reasonably) custody of, or control over, the Goods for the purposes of carriage to the Customer;
b. where the Goods are in the possession of the Customer as at the date of the Order or which are to come into the possession of the Customer before delivery, on the transfer of ownership of the Goods in accordance with clause 9. (Ownership); and
c. where the Goods are in the possession of a third party as at the date of the Order or will come into the possession of a third party before delivery, on the third party acknowledging with the consent of GSL that the Goods are held to the order of the Customer.
10.3 Time of delivery
10.3.1 Time of delivery is not of the essence.
10.3.2 Unless otherwise stated in the Order, the Delivery Date is an estimate only. GSL shall use its reasonable endeavours to make delivery no later than the Delivery Date. Where GSL cannot delivery on (or rearrange) the Delivery Date, GSL shall make reasonable endeavours to deliver the Goods within a reasonable time after the date of the Order.  

10.3.3 Where the Order stipulates the date or time for delivery, and the Goods are delivered no earlier than ten (10) Business Days before that date or time, the Customer shall nevertheless accept delivery.

10.3.4 The Customer may not postpone the delivery of the Goods except with the prior consent in writing of GSL. Any cost associated with any agreed change in Delivery Date shall be borne by the Customer.

10.3.5 GSL shall not be liable where it is not able to deliver the Goods due to the Customer’s actions or inactions including but not limited to as a result of impeded access or delay by the Customer, and GSL shall have no further obligation to the Customer in this event.
10.4 Instalments
10.4.1 The Goods shall be delivered in instalments, which shall be invoiced and paid for separately. The Agreement is a severable one, without affecting clause 16 (Termination for breach).
10.4.2 Time is of the essence for each separate payment where delivery is made in instalments.
10.4.3 Where delivery is made by instalments, title shall pass to the Buyer only upon payment being received in cleared funds for all instalments forming part of the Order. 

10.4.4 The size of each instalment shall be determined by GSL (acting reasonably).
10.5 Non-delivery due to GSL default
Subject to clause 18 (Limitation of Liability), where GSL fails to deliver the Goods as a result of an Event of Default, GSL’s liability is limited to the price incurred by the Customer in obtaining replacement goods of an equivalent or similar description and quality to the Goods at the lowest price, less an amount equal to the Price. The amount shall not exceed the order value.

10.6 Non-delivery other than due to GSL
Where and for so long as GSL is discharged from its obligation to deliver the Goods, or the Customer is in breach of clause 10.1 (Delivery: General), GSL may store the Goods, at the risk of the Customer, and GSL’s reasonable costs of doing so shall be added to (and form part of) the Price. Where Goods are stored in accordance with this clause for longer than six (6) months, GSL shall be free to dispose of or sell such Goods. The Customer will be liable for any shortfall.
10.7 Incoterms
GSL may incorporate Incoterms into the Agreement by specifying the relevant incoterm in the Acknowledgement. Where there is any conflict between the incoterms specified in the Acknowledgement and these Terms, the incoterms specified in the Acknowledgement will apply to the exclusion of the conflicting provision in these Terms.

11 Risk

Risk of loss or damage to the Goods passes to the Customer on delivery.

12  Quality
12.1 Assurance of quality

Subject to clause 12.2 (Exclusions), GSL undertakes that on the date of delivery and for any warranty period specified in the Order, the Goods shall be in accordance with the Order in all material respects, and otherwise free of material defects in materials and workmanship. Where the Goods are supplied via a third party, then the Customer acknowledges and agrees that the original manufacturer’s warranty shall apply. Product information is available on request.

12.2 Exclusions
12.2.1 GSL is not liable under clause 12.1 (Assurance of Quality) where a defect arises from any or all of the following:
a. fair wear and tear;
b. cuts, scratches, or damage caused by impacts or accidents;
c. indoor products that have been placed outdoors or in a humid environment;
d. use other than for the contracted use;
e. conformance with information, drawings or specifications supplied by or on behalf of the Customer, including where the Customer is supplied Goods adapted by GSL, despite GSL advising against such adaptations being made to the Goods;
f. alteration of the Goods (other than by or on behalf of GSL);
g. repair of the Goods (other than by or on behalf of GSL);
h. abnormal working conditions (including use in a 24/7 environment);
i. failure to follow or to follow fully GSL guides, guidelines or other of GSL’s instructions (whether oral or written) or maintenance requirements;
j. improper installation or connection (unless GSL carried out the installation and connection);
k. wilful damage, misuse, or negligence; and
l. changes made to ensure they comply with applicable statutory or regulatory requirements.

13 Acceptance
13.1 Duty to accept
13.1.1 Where the Goods meet the requirements of clause 12.1 (Assurance of quality), the Customer shall accept all of the Goods, including those which do not do so.
13.1.2 clause 13.1.1 applies to each instalment of the Goods and not to the aggregate of the instalments.
13.2 Acts or omissions constituting acceptance
Without affecting acceptance of the Goods in accordance with applicable law, and subject to clause 14 (Inspection), the Customer shall be taken to have accepted the Goods:
13.2.1 where the Customer asks for, or agrees to, their repair or replacement under clause 13.4 (Defective Goods); or
13.2.2 where the Goods are delivered to a third party under a sub-sale or other disposition by the Customer.
13.3 Rejection
13.3.1 Any right of the Customer to reject the Goods is subject to clause 13.4 (Defective Goods).
13.3.2 Where the Customer rejects Goods, the Customer shall in accordance with GSL’s instructions, and at the cost of GSL, return the rejected Goods to GSL, or make them available for collection by GSL.
13.4 Defective Goods
13.4.1 The Customer is entitled by notice to GSL, subject to being given a reasonable chance to examine the Goods, to require GSL to repair or replace Defective Goods, in which case the Customer shall in accordance with GSL’s instructions, or, at GSL’s option and cost, return the Defective Goods to GSL or make them available for collection by GSL.

13.4.2 GSL, at its sole discretion, may repair or replace Defective Goods, in which case the Customer shall in accordance with GSL’s instructions, make them available for collection by GSL or, at GSL’s option and cost, return the Defective Goods to GSL.

13.4.3 Subject to the Customer’s right to reject the Goods in accordance with this clause 13 (Acceptance), where Defective Goods are repaired or replaced under this clause 13.4 (Defective Goods), the Customer shall have no other claim in respect of a breach of clause 12.1 (Assurance of quality) by GSL in respect of defects revealed by the Customer’s inspection or which ought reasonably to have been revealed by that inspection.

13.4.4 The Agreement applies to repaired or replaced Goods as it applies to the Goods, and GSL shall acquire all right, title and interest in and to the original Goods to the extent replaced.

14 Inspection
14.1 Inspection period
The Customer has a reasonable period, not exceeding five (5) Business Days after delivery of the Goods, in which to inspect them against the requirements of:

14.1.1 clause 10 (Delivery); and

14.1.2 clause 12.1 (Assurance of Quality),
and to notify GSL of the inspection undertaken, and (as the case may be) any shortfall in delivery, any defects revealed, and whether the Goods are rejected in accordance with clause 13.3 (Rejection) or clause 13.4 (Defective Goods).

14.2 Consequences of failure to notify

In default of a notice under clause 14.1 (Inspection period) within the period to which clause 14.1 (Inspection period) refers, notifying GSL of:

14.2.1 any breach of clause 10 (Delivery), GSL is deemed to have complied with clause 10 (Delivery); or

14.2.2 any defects revealed by the inspection, the Customer is deemed to have accepted the Goods to the extent required by clause 13.1 (Duty to accept).

15 GSL’s remedies
15.1 Set-off
15.1.1 GSL is entitled from time to time without notice to the Customer both before and after demand to set-off against any amount:
a. held by GSL and paid by or on behalf of the Customer, whether under the Agreement or otherwise, including the Price; 
b. due to the Customer from GSL, whether in respect of any liability of GSL under or in connection with the Agreement or otherwise; or
c. any Losses incurred or sustained by GSL by reason of the breach of the Agreement by the Customer, or the negligence, fraud or wilful misconduct of the Customer.

15.1.2 Where GSL holds amounts paid by or on behalf of the Customer for more than one purpose, GSL is entitled to elect which amounts it exercises its rights of set-off against and the order in which it does so.
15.1.3 GSL shall account to the Customer for the balance (if any) of the Price or other amounts paid by the Customer after exercising GSL’s rights of set-off under clause 15.1.1.
15.2 Suspension or stoppage of the Goods in transit
Where the Customer fails to pay the Price in full on or before the due date, whether or not an Insolvency Event has occurred in relation to the Customer, GSL is entitled to suspend or stop the transmission, and resume possession, of all or any of the Goods until payment is received, and the costs of GSL doing so are for the Customer’s account.

15.3 Re-sale of the Goods

15.3.1 GSL is entitled to terminate the Agreement and re-sell the Goods (without being under a duty of care to the Customer in relation to the price of them) where the Customer:
a. fails to pay any of the Price in full when due;
b. fails to take delivery of the Goods in breach of clause 10.1.2 (General); or
c. rejects the Goods in breach of clause 13.1 (Duty to accept), and GSL shall give notice of its decision to re-sell the Goods (as appropriate) as soon as reasonably practicable.
the customer may be liable for any shortfall in the price of the products sold.

15.3.2 GSL may exercise its right of re-sale notwithstanding ownership of the Goods has passed to the Customer; pending resale by GSL, provided notice of GSL’s decision to do so has been given under clause 15.3.1, the Customer shall not deal with, agree to sell, sell, grant any charge or other encumbrance over or in respect of, or part with possession of, the Goods"
15.4 Measurement of damages
15.4.1 Subject to clause 15.4.2, the following kinds of Loss if established to have been sustained or incurred by GSL and caused by any breach of this Agreement by the Customer, any wilful misconduct, negligence or other tortious liability of the Customer in connection with this Agreement (including breach of statutory duty) or fraud by the Customer (each being a “Default”) is recoverable from the Customer by GSL:
a. losses arising from the storage or carriage of the Goods or retaking possession of the Goods;
b. loss of profit on the sale of the Goods to the Customer;
c. losses (including the cost of management time and the time of other staff) attributable to the investigation and rectification of the Default;
d. all Losses (including management time and time of other staff) wasted or rendered futile as a result of the Default.

15.4.2 Nothing in clause 15.4.1 entitles GSL:
a. to recover damages which would place GSL in a better position than if the Default had not occurred; or
b. where GSL has incurred or sustained Loss under more than one head of Loss referred to in clause 15.4.1, to recover damages under more than one head of Loss where under any applicable law GSL is required to elect which head of Loss to claim.
16 Termination
16.1 GSL may by giving notice to the Customer terminate the Agreement as from the date of expiry of the notice if the Customer commits a breach of this Agreement which, in the case of a breach capable of remedy, is not remedied within thirty (30) Days after GSL has given notice containing details of the breach, and requiring the breach to be remedied.
16.2 Without limiting its other rights or remedies, GSL may suspend provision of the Goods under the Contract or any other contract between the Customer and GSL if the Customer becomes subject to an Insolvency Event, or GSL reasonably believes that the Customer is about to become subject to an Insolvency Event, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
16.3 Without limiting its other rights or remedies, GSL may terminate the Contract 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.
16.4 On termination of the Contract for any reason the Customer shall immediately pay to GSL all of GSL’s outstanding unpaid invoices and interest.
16.5 Termination of this Agreement does not affect:
16.5.1 the rights or liabilities of the parties which have accrued on or before termination; and
16.5.2 the continuance in force of Clauses 15 (GSL’s remedies), 18 (Limitation of Liability) and 19 (Confidentiality), which survive termination of any Agreement.

17 Warranties

Each of GSL and the Customer represents, warrants and undertakes to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

18 Limitation of liability
18.1 Event of Default
This Clause 18 (Limitation of Liability) sets out the maximum liability of GSL in respect of the following (each being an “Event of Default”):
18.1.1 a breach by GSL of the Agreement; and

18.1.2 a tortious act or omission (including negligence), breach of statutory duty, or misrepresentation or misstatement, of GSL in connection with the Agreement,
and nothing in this Agreement shall affect the liability of GSL for death or personal injury, fraud or fraudulent misrepresentation, or any other liability to the extent it cannot be excluded or limited by law.

18.2 Financial limitation

GSL’s total financial liability for all Events of Default shall not exceed a maximum of value of 5% of the Value of the Order to which the loss relates.

18.3 Consequential Loss

In no event shall GSL be liable, whether for breach of contract, any tortious act or omission (including negligence) or otherwise, under or in connection with the Agreement for any Loss for which the Customer has assumed the risk under the Agreement, loss of profit, loss of reputation, loss of business, revenue or goodwill, anticipated savings, loss or damage to data, or for any consequential or indirect loss or damage, and regardless of whether the loss or damage would arise in the ordinary course of events, is reasonably foreseeable, is in the contemplation of the parties, or otherwise.

18.4 Exclusion of implied terms

All Warranties, Conditions or Terms not set out in this Agreement and which would otherwise be implied or incorporated into the Agreement by Statute, Common Law or otherwise (other than as to statutory interest, and title to goods) are hereby excluded except to the extent they may not be excluded or limited by Law.

18.5 No claims
18.5.1 The Customer undertakes that it shall not bring any claim against any individual employee or officer of GSL in respect of or relating to any Event of Default.

18.5.2 Each individual to which clause 18.5.1 refers is a beneficiary under that clause, and may enforce the benefit of it under the Contracts (Rights of Third Parties) Act 1999, except that the parties may rescind or vary clause 18.5.1 without the consent of the relevant individual.

18.6 Acknowledgement

18.6.1 The Price is determined on the basis of the exclusions from and limitations of liability contained in the Agreement. 

18.6.2 The Customer accepts that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that otherwise the amount of damages awardable to the Customer for an Event of Default of GSL may be disproportionately greater than the Price. 

18.6.3 GSL is willing to arrange for additional insurance cover to enable GSL to take on the burden of additional liability to the Customer provided that the Customer pay GSL a commensurately higher amount than the Price. 

18.6.4 If the Customer wishes GSL to obtain a quotation for additional insurance cover accordingly, the Customer shall notify GSL as soon as reasonably practicable after the date of the Order.

19 Confidentiality
19.1 Undertakings of confidentiality
19.1.1 Each party undertakes to the other in relation to the Confidential Information of the other:
a. to keep confidential all Confidential Information;
b. not to disclose Confidential Information without the other’s prior written consent to any other person except those of its employees who have a need to know the Confidential Information;
c. not to use Confidential Information except for the purposes of performing its obligations under this Agreement (and in particular not use Confidential Information to obtain a commercial, trading or any other advantage); and

d. to keep separate from all other information all Confidential Information in its possession or control.
19.1.2 The provisions of clause 19.1.1 shall not apply to Confidential Information to the extent that it is or was:
a. already in the possession of the other and free of any obligation of confidentiality on the date of its disclosure;
b. in the public domain other than as a result of a breach of this clause 19.1 (Undertakings of Confidentiality);
c. required to be disclosed:
i. pursuant to applicable law, or the rules of any exchange on which the securities of a party are or are to be listed; or
ii. in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice,
but only to the extent and for the purpose of that disclosure.

19.2 Damages not an adequate remedy
Each party acknowledges that Confidential Information is valuable and that damages might not be an adequate remedy for any breach of clause 19.1 (Undertakings of Confidentiality) and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of clause 19.1.

20 Force majeure
20.1 The following provision of this clause 20.1 shall apply where GSL is prevented, hindered or delayed from or in performing any of its obligations under the Agreement by a Force Majeure Event. 
20.2 GSL’s obligations under the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent GSL is so prevented, hindered or delayed.  Should GSL be unable to perform its obligations under this Agreement for a period of, due to an Event, GSL shall without liability and at its sole discretion be able to terminate this Agreement in written notice to the Customer. 
20.3 As soon as reasonably possible after commencement of the Force Majeure Event, GSL shall notify the Customer of the occurrence of the Force Majeure Event, the date of commencement of the Force Majeure Event, and the effect of the Force Majeure Event on its ability to perform its obligations under the Agreement, and shall:
a. use reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and
b. as soon as reasonably practicable after the cessation of the Force Majeure Event shall:
(i) notify the Customer of the cessation of the Force Majeure Event;
(ii) resume performance of its obligations under this Agreement; and
(iii) take all reasonable steps to recover any slippage.
21 Rights of third parties

Except as provided in this Agreement, this Agreement does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it, and does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.
22 General
22.1 Entire Agreement and Amendments
22.1.1 This Agreement constitutes the Entire Agreement between the parties relating to its subject matter, and supersedes all representations, including all pre- contract misrepresentations and misstatements negligently or innocently made, agreements, negotiations or understandings between the parties, except that this clause 22.1.1 does not affect the liability of either party for any fraudulent misrepresentation.

22.1.2 Each of the parties represents, warrants and undertakes that:
a. in entering into the Agreement, the party does not rely on any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in this Agreement; and
b. it shall not claim any remedy in respect of statements, representations, warranties or understandings made or repeated in this Agreement or in relation to this Agreement, other than breach of contract, and which shall be to the exclusion of any other remedy in respect of such statements, representations, warranties or understandings upon which it may have relied in entering into this Agreement, whether for misrepresentation or otherwise.

22.1.3 An amendment to the Agreement is ineffective unless it is in writing, expressly purports to amend the Agreement and is signed by both parties.
22.2 Remedies general
22.2.1 The rights and remedies of GSL provided by the Agreement are cumulative and (unless otherwise provided in this Agreement) are not exclusive of any rights or remedies of GSL provided by Law or in the Agreement.
22.2.2 The rights of the Customer under the Agreement are the Customer’s only rights relating to the subject matter of the Agreement, and are to the exclusion of any other rights of the Customer provided by Law other than the right to claim damages for breach of Contract.

22.3 Notices

Any notice to be given by either party to the other under this Agreement must be in writing addressed to that other party at its registered office or principal place of business or such other address as may have been notified for these purposes. Notices shall be delivered personally or sent by first class post. A notice is deemed to have been received if sent by prepaid first-class post, on the second working day after posting (excluding the day of posting). In proving service of the notice, it shall be sufficient to show that delivery by hand was made or that the envelope containing the notice was properly addressed and posted as a first-class pre-paid letter.

22.4 Waiver
Any failure or neglect by GSL to enforce any of the provisions of the Agreement shall not be construed nor deemed to be a waiver of GSL’s rights and does not affect the validity of the whole or part of this Agreement nor prejudice GSL’s rights; any waiver by GSL of its rights under this Agreement does not operate as a waiver in respect of any subsequent breach.

22.5 Invalidity
If any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or part, that provision shall to that extent be deemed not to form part of this Agreement and the legality, validity and enforceability of the remainder of this Agreement shall be unaffected.

22.6 Assignment and Sub-contracting
22.6.1 The Customer shall not without the prior written consent of the other assign, transfer, charge, dispose of, deal with or subcontract its rights or obligations under the Agreement.
22.6.2 GSL may assign its rights under the Agreement, including the right to receive the whole or part of the Price.
22.7 No Partnership
Nothing in this Agreement shall or shall be deemed to create a partnership between the parties.

22.8 Data Protection
22.8.1 Any personal data processed by GSL shall be processed in accordance with our privacy policy, which is available at www.godfreysyrett.co.uk.
22.9 Dispute Resolution
22.9.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (Dispute), then the parties shall follow the procedure set out in this clause:
a. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the employee of GSL and employee of the Customer shall attempt in good faith to resolve the Dispute;
b. if the employee of GSL and employee of the Customer are for any reason unable to resolve the Dispute within Fifteen (15) days of service of the Dispute Notice, the Dispute shall be referred to the senior management of GSL and the senior management of the Customer who shall attempt in good faith to resolve it; and
c. if the senior management of GSL and the senior management of the Customer are for any reason unable to resolve the Dispute within Fifteen (15) days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within Forty-five 45 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 45 days after the date of the ADR notice.

No party may commence any court proceedings under clause 22.1 (Jurisdiction) in relation to the whole or part of the Dispute until Ninety (90) days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.
22.9.2 If the Dispute is not resolved within Forty-five (45) days after service of the ADR notice, or the mediation terminates before the expiry of that 45 day period, the Dispute shall be finally resolved by in accordance with clause 22.1 (Jurisdiction) in this Agreement.
22.10 Governing law
This Agreement shall be governed by and construed in accordance with English Law.
22.11 Jurisdiction
The courts of England and Wales shall have exclusive jurisdiction to hear and determine any dispute, action or proceedings, which may arise out of or in connection with this Agreement.

July 2018, Revision B