1.1.In these Conditions the following definitions apply:
|Affiliate||means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;|
|Business Day||means a day other than a Saturday, Sunday or bank or public holiday in England, when banks in London are open for business;|
|Company||means REG Group Ltd, registered in England & Wales (Company Number: 10671288), whose registered address is at Kingsway House, 23a Marlborough Road, Lancing, Lancing Business Park, West Sussex, BN15 8TR or any subsidiary company or agent authorised by them. Growtivation and Beauxfort are trading names of REG Group Ltd;|
|Conditions||means these terms and conditions and any special terms and conditions agreed in writing by the Company;|
|Confidential Information||means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;|
|Contract||includes these Conditions and any documents referred to within these Conditions;|
|Control||has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly;|
|Documentation||means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Goods;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including, but not limited to, an act of God, fire, flood, epidemic, pandemic, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Company’s or its suppliers’ workforce, but excluding the Purchaser’s inability to pay or circumstances resulting in the Purchaser’s inability to pay.|
|Goods||means the goods and related accessories, spare parts and Documentation and other physical material set out in the Order and to be supplied by the Company to the Purchaser;|
|Location||means the address or addresses for delivery of the Goods as set out in the Order or such other addresses as notified by the Company to the Purchaser prior to the delivery;|
|Order||means any order placed by the Purchaser through the Website, by telephone or using such other means as the Company may permit from time to time for the purchase of the Goods from the Company on these Conditions;|
|Purchaser||means the person or persons, firm or company purchasing from the Company;|
|Specification||means any description or Documentation provided by the Company for the Goods and their packaging;|
|VAT||means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods|
|Websites||means https://www.growtivation.com/, https://www.beauxfort.com, or such URL as the Company may specify from time to time.|
1.2. The headings are inserted for convenience only and shall not affect the construction of this Contract.
1.3. Words importing one gender include all other genders and wording importing the singular include the plural and vice versa.
1.4. Any obligation by a part not do an act or thing shall include an obligation not to permit or suffer such act or thing to be done by another person.
2.0 The Contract
2.1. All Orders are accepted subject to these Conditions.
2.2. By submitting an Order for and/or purchasing any Goods, the Purchaser indicates their acceptance of these Conditions.
2.3. No terms and conditions endorsed on, delivered with, or contained in the Purchaser’s order, correspondence or other document shall form part of the Contract except to the extent that the Company otherwise agrees in writing.
2.4. All Orders shall be placed in accordance with these Conditions and are subject to the Company’s acceptance of the Order.
2.5. The Company reserves the right to accept or refuse any Order, at its discretion, without liability to the Purchaser.
2.6. The Contract is formed when the Company accepts the Purchaser’s Order in accordance with clause 2.7. The processing of the Purchaser’s payment and acknowledgement of receipt of the Order (whether by email, telephone or otherwise) does not constitute legal acceptance of the Purchaser’s Order.
2.7. Unless the Company has notified the Purchaser that the Order has been refused by the Company or the Order is cancelled by the Purchaser, the Order shall be deemed accepted on the earlier of:
2.7.1. the Company’s written acceptance of the Order;
2.7.2. the Company dispatching the Goods or notifying the Purchaser that the Goods are available for collection (as the case may be).
2.8. The purchaser warrants that the individual placing the Order or signing documents on the Purchaser’s behalf has full authority and capacity to enter into and bind the Purchaser to perform obligations under the Contract.
2.9. The Purchaser acknowledges that it does not rely upon the skill, judgement, representations or advice of the Company or of its employees or agents in determining the suitability, fitness (general or specific) of the Goods. The Company shall have no liability if the Goods are not suitable for a particular purpose or particular requirements of the Purchaser whether or not any particular purpose or requirements of the Purchaser are made known to the Company.
3.0 Buying goods from the company
3.1. Unless otherwise agreed in writing by the Company, any descriptions, sizing, weights, capacities, Specifications, dimensions, measurements, images and illustrations in the Company’s literature, catalogues, Websites, samples or other media are intended merely to present a general idea of the Goods and shall not constitute a sale by description or sample nor shall they be deemed to constitute representations.
3.2.The Company does not guarantee that the images, appearance and other detailing that appear on the Company’s Websites, catalogues and other media will exactly reflect the colour, appearance or detailing of the physical Goods (or their packaging). The Company shall not be held liable for any variations in colour, appearance or detailing of the Goods (or their packaging) or problems arising in connection with such variations.
3.3. The Company reserves the right to correct any typographical or clerical errors appearing in the confirmation of order or in price lists, discount structures, quotations and proposals.
3.4. The Purchaser will ensure that all the information it provides to the Company is accurate, adequate and complete.
3.5. The Purchaser will be responsible for notifying the Company of any regulations, rules, guidance and other requirements which apply to the Purchaser but the Purchaser shall at all times remain responsible for compliance with the same.
4.0 Price and payment
4.1. The price for the Goods shall be as set out in the Order or, where no such provision is set out, shall be calculated in accordance with the Company’s scale of charges in force from time to time (the Price).
4.2. Unless otherwise agreed by the Company, the Prices are exclusive of:
4.2.1. packaging, delivery, insurance, shipping carriage, and all other related charges or taxes which shall be charged in addition at the Company’s standard rates, and
4.2.2.VAT (or equivalent sales tax).
4.3. The Company reserves the right to alter prices without notice.
4.4. The Company shall invoice the Purchaser for the Goods, partially or in full, at any time following acceptance of the Order.
4.5. The Purchaser shall pay the Price within 30 days after the end of the month in which the Company becomes entitled to invoice the Purchaser, unless otherwise agreed by the Company.
4.6. The Purchaser shall pay all invoices:
4.6.1. in full without deduction or set-off, in cleared funds; and
4.6.2. to the bank account nominated by the Company.
4.7. The time of payment of the price shall be of the essence of the Contract.
4.8. Payment shall not be delayed if there is pending settlement of any claim against the Company or the Purchaser is waiting for a credit note to be issued for any Goods whether related to the due payment or not.
4.9. Where sums due under the Contract are not paid in full by the due date, the Company may, without limiting its other rights:
4.9.1. charge interest (after as well as before any Judgement) on the outstanding balance at a rate of 8% per annum above the base rate of HSBC from time to time in force, and interest shall accrue on a daily basis until payment in full is made;
4.9.2. terminate or suspend the contract;
4.9.3. terminate any credit account facilities;
4.9.4. require payment in advance; and
4.9.5. use a third party to collect the outstanding amount with all costs borne by the Purchaser.
The Company may, at the Company’s discretion, set and vary credit limits from time to time and withhold all further supplies if the Purchaser exceeds such credit limit.
6.1. The Goods shall be delivered by the Company, or its nominated carrier, to the Location on the date(s) specified in the Order.
6.2. The Goods shall be deemed delivered on arrival only of the Goods at the Location, at the point the Goods are collected by the Purchaser, or upon the Company notifying the Purchaser that the Goods are ready for collection, whichever is the earliest.
6.3. The Company may deliver the Goods in instalments. Any delay or defect in an instalment shall not entitle the Purchaser to cancel any other instalment.
6.4. The Purchaser shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
6.5. Delivery dates and times are estimates only and the time of delivery shall not be of the essence.
6.6. The Company shall not be liable for any non-delivery or late delivery of Goods caused by:
6.6.1. the Purchaser’s failure to make the Location available;
6.6.2. the Purchaser’s failure to prepare the Location in accordance with the Company’s instructions or as required for delivery of the Goods;
6.6.3. the Purchaser’s failure to provide the Company with adequate instructions for delivery;
6.6.4. the Company’s inability to access the Location;
6.6.5. Force Majeure.
6.7. The Company may charge the Purchaser additional fees or expenses for re-delivery due to any of the events listed in clauses 6.6.1 to 6.6.4.
6.8. If the Purchaser fails to accept delivery of the Goods the Company shall store the Goods pending delivery, and the Purchaser shall pay all costs and expenses incurred by the Company in doing so.
6.9. If 5 Business Days following the due date for delivery or collection of the Goods, the Purchaser has not taken delivery of or collected the Goods, the Company may resell or otherwise dispose of the Goods without any obligation or liability to the Purchaser, except as provided in clauses 6.8.1 and 6.8.2. The Company shall:
6.9.1. deduct all storage charges at the Company’s then-applicable rates and reasonable costs of resale; and
6.9.2. invoice the Purchaser for any shortfall of the resale price below, the Price paid by the Purchaser for the Goods.
6.10. The Purchaser shall inspect the Goods immediately on delivery thereof and shall within 24 hours from such delivery give notice to the Company in writing of any shortage on delivery or damage in transit or any matter or thing by reason whereof the Purchaser may allege that the Goods are not in accordance with the Order. If the Purchaser shall fail to give such notice or the Purchaser or its representatives have signed a document to say the correct quantity of Goods were received in good condition (or words to that effect), the Goods shall be deemed to be in all respects in accordance with the contract and the Purchaser shall be deemed to have accepted the Goods accordingly.
7.1. The Company warrants that the Goods will, at the time of delivery be of satisfactory quality for the purposes of the Sale of Goods Act 1979.
7.2. The Company shall not be liable for any failure of the Goods to comply with clause 7.1:
7.2.1. where such failure arises from fair wear and tear, accidental or willful damage, negligence, or abnormal working conditions;
7.2.2. to the extent caused by the Purchaser’s failure to follow the Company’s or any manufacturer’s specifications, requirements or instructions in relation to the Goods, including any instructions on installation, operation, storage and maintenance;
7.2.3. to the extent caused by misuse or alteration of the Goods;
7.2.4. to the extent that such failure results from the Goods being combined with a foreign object or third party product or material;
7.2.5. where the Purchaser uses any of the Goods after notifying the Company that they do not comply with clause 7.1.
7.3. Except as set out in this clause 7:
7.3.1. the Company gives no warranties and makes no representations in relation to the Goods;
7.3.2. the Company shall have no liability for their failure to comply with the warranty in clause 7.1
and all warranties and conditions (including the conditions implied by ss 13 -15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7.4. In the case of Goods not manufactured by the Company, where the Company has obtained a warranty from the manufacturer, the Company will pass on to the Purchaser to the extent that it is able any benefits obtainable under any warranty given by the Company’s supplier provided that the Products have been accepted and paid for. The Purchaser shall be responsible for complying with the terms and conditions of the manufacturer’s warranty.
7.5. Some of the Company’s Goods come with a warranty. To review the Company’s warranty terms and conditions, confirm the length of a warranty or activate a warranty, please access the below hyperlinks or contact the Company.
8.0 Returns and cancellations
8.1. Credit will only be issued on returns if the delivery note number is quoted and the Goods are deemed to be in good resaleable condition by the Company or its representatives. A restocking handling and carriage charge will be charged by the Company to the Purchaser.
8.2. Special order or non-stock items are non-returnable. If special order or non-stock items ordered:
8.2.1. are no longer required by the Purchaser;
8.2.2. are surplus to requirements; or
8.2.3. the order is cancelled by the Purchaser
the Purchaser shall pay in full the Price for the Goods by the due date, notwithstanding that the Goods may not have been received or collected by the Purchaser or delivered by the Company.
8.3. No Order which has been accepted by the Company may be cancelled by the Purchaser except with the agreement in writing of the Company and on terms that the Purchaser shall indemnify the Company in full against all loss (including loss of profit) costs damages charges and expenses incurred by the Company as a result of cancellation.
9.0 Risk and title
9.1. Risk in the Goods shall pass to the Purchaser on delivery in accordance with clause 6.2. Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Purchaser until the Company receives payment in full of the Price of the Goods and all other sums then due from the Purchaser to the Company.
9.2. Until such time as the property in the Goods passes, the Purchaser shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep them separate from others and properly stored, insured and identified as the Company’s property. The Purchaser shall be entitled, however, to resell or use the Goods in the ordinary course of its business but shall hold as the Company’s fiduciary agent and bailee, and account to the Company for, the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds and shall keep all such proceeds separate from any other monies or property and identified as the Company’s property.
9.3. Until such time as the property in the Goods passes (and provided they have not been resold), the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises where the Goods are stored and repossess them. The Purchaser shall not be entitled to pledge or in any way encumber any of the Goods which remain the Company’s property.
10 Limitation of liability
10.1. The extent if the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in clause 10.
10.2. Subject to clauses 10.4 and 10.5, the Company’s total liability shall not exceed the sum of £5,000 or the total amount paid by the Purchaser for Goods ordered in the 12 months preceding the event giving rise to the Company’s liability, whichever is lower.
10.3. Subject to clauses 10.4 and 10.5, the Company shall not be liable for consequential, indirect or special losses.
10.4. Subject to clauses10.4 and 10.5, the Company shall not be liable for any of the following (whether direct or indirect):
10.4.1. loss of profit;
10.4.2. loss of revenue;
10.4.3. loss or corruption of data;
10.4.4. loss or corruption of software or systems;
10.4.5. loss or damage to equipment;
10.4.6. loss of use;
10.4.7. loss of production;
10.4.8. loss of contract;
10.4.9. loss of commercial opportunity;
a) loss of savings, discount or rebate (whether actual or anticipated);
b) harm to reputation or loss of goodwill; and/or
c) wasted expenditure.
10.5. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
10.5.1. death or personal injury caused by negligence;
10.5.2. fraud or fraudulent misrepresentation;
10.5.3. any other losses which cannot be excluded or limited by law
11 Buying as a consumer
11.1. Where the Purchaser is buying Goods from the Company as a consumer (as defined in section 2(3) of the Consumer Rights Act 2015) these additional terms and conditions in clauses 11.1 to 11.17 will apply. The Consumer Rights Act 2015 gives the Purchaser certain legal rights (also known as ‘statutory rights’).
11.2. The terms and conditions in this clause 11 apply only to Purchaser who are buying the Goods as a Purchaser. If Purchasers are buying from the Company as a business, the terms and conditions in this clause 11 will not apply.
11.3. Where the Purchaser orders Goods from the Company, other than when it visits the Company’s premises to place an Order, the Purchaser will have the right to cancel the Order within 14 days of the Company delivering the Goods to the Purchaser.
11.4. Where the Purchaser orders Goods from the Company, other than when it visits the Company’s premises to place an Order, the Purchaser will have the right to cancel the Order within 14 days of the Company delivering the Goods to the Purchaser.
11.5. To exercise the right to cancel under clause 11.3, the Purchaser must inform the Company of its decision to cancel the Order in writing.
11.6. If the Purchaser cancels the Order, the Company will reimburse to the Purchaser all payments received, with the exception of any special delivery charges (such as any crane offloading charges and large load delivery costs). The Company will reimburse this no later than 14 days after the Company has received the Goods back or after the Purchaser has notified the Company that it wants to cancel the Order where no Goods have been delivered to the Purchaser yet.
11.7. If the Goods have been delivered, the Company will collect the Goods from the Purchaser, and the Purchaser will have to bear the direct cost of the collection. This amount will be deducted from any refund that the Company pays to the Purchaser. The cost of collection will be the same amount that the Company have charged the Purchaser for delivery.
11.8. The Company will be entitled to deduct any diminished value of the Goods resulting from the Purchaser’s handling of the Goods (other than what is necessary for the Purchaser to establish the nature, characteristics and functioning of the Goods).
11.9. If the Goods that the Purchaser orders from the Company are bespoke items, the Purchaser will not have the right to cancel the Order unless the Company agrees in writing that the Purchaser may do so.
11.10 If the Purchaser cancels the Contract, The Company will reimburse to the Purchaser all payments received from the Purchaser, including the costs of delivery (except for the supplementary costs arising if the Purchaser choses a type of delivery other than the least expensive type of standard delivery offered by the Company).
11.11. The Company may make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by the Purchaser.
11.12. The Company will make the reimbursement using the same means of payment as the Purchaser used for the initial transaction, unless the Purchaser has expressly agreed otherwise; in any event, the Purchaser will not incur any fees as a result of the reimbursement.
11.13. The Company may withhold reimbursement until the Company has received the Goods back or the Purchaser has supplied evidence of having sent back the Goods, whichever is the earliest.
11.14. The Goods that the Company provides to the Purchaser must be as described, fit for purpose and of satisfactory quality. The Company is under a legal duty to supply the Purchaser with Goods that are in conformity with the
11.15. Nothing in this contract affects the Purchaser’s legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’). The Purchaser may also have other rights in law.
11.16. The Purchaser should contact the Company if the Goods supplied under the Contract are faulty.
11.17. Except for any legal responsibility that the Company cannot exclude in law (such as for death or personal injury) or arising under applicable laws relating to the protection of the Purchaser’s personal information, the Company is not legally responsible for any:
11.17.1. losses that were not foreseeable to the Purchaser and to the Company when the Contract was formed;
11.17.2. losses that were not caused by any breach on the Company’s part;
11.17.3. business losses; or
11.17.4. losses to non-consumers.
12 Data protection
12.1. In this clause 12 the terms ‘Controller’, ‘Data Subject, ‘Personal Data’, ‘Data Processing’ and ‘Processor’ shall have the meanings given to them in data protection laws as updated an amended from time to time and ‘Process’ and ‘Processing’ shall be construed accordingly. The Company and the Purchaser shall each process personal data in order to perform their respective obligations under the Contract (“the common data”). The Company and the Purchaser acknowledge that the factual arrangement between them dictates the role of each party in respect of the data protection laws but, in most instances, the Company and the Purchaser shall each be a Controller of the common data in common with the other.
12.2. In respect of the common data, the Company and the Purchaser shall each comply with their respective obligations under all data protection laws, use all reasonable efforts to assist the other to comply with such obligations as are respectively imposed on each party by the data protection laws and ensure that all fair processing notices have been given and/or applicable consents obtained and are sufficient in scope to enable the other party to process the common data as required in order to obtain the benefit of its rights and to fulfil its obligations under this contract in accordance with the data protection laws.
13 Confidentiality and announcements
13.1. The Purchaser shall keep confidential all Confidential Information of the Purchaser and of any Affiliate of the Purchaser and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
13.1.1. any information which was in the public domain at the date of the Contract;
13.1.2. any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
13.1.3. any information which is independently developed by the Purchaser without using information supplied by the Company or by any Affiliate of the Company; or
13.1.4. any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
13.2. This clause 13 shall remain in force in perpetuity.
13.3. The Purchaser shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
14 Force Majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.
15.1. The Company may terminate the Contract or any other contract which it has with the Purchaser at any time by giving notice in writing to the Purchaser if:
15.1.1. the Purchaser commits a material breach of the Contract and such breach is not remediable;
15.1.2. the Purchaser commits a material breach of the Contract which is not remedied within 14 Business Days of receiving written notice of such breach;
15.1.3. the Purchaser has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 30 days after the date that the Purchaser has given notification to the Purchaser that the payment is overdue; or
15.1.4. any consent, licence or authorisation held by the Purchaser is revoked or modified such that the Purchaser is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
15.2. The Company may terminate the Contract at any time by giving notice in writing to the Purchaser if the Purchaser:
15.2.1. stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.2.2. is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Company reasonably believes that to be the case;
15.2.3. becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.2.4. becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
15.2.5. becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
15.2.6. becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
15.2.7. has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.2.8. has a resolution passed for its winding up;
15.2.9. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.2.10. is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
15.2.11. has a freezing order made against it;
15.2.12. is subject to any recovery or attempted recovery of items supplied to it by a Company retaining title to those items;
15.2.13. is subject to any events or circumstances analogous to those in clauses 15.2.1 to 15.2.13 in any jurisdiction.
15.3. The Company may terminate the Contract any time by giving notice in writing to the Purchaser if the Purchaser undergoes a change of Control.
15.4. If the Purchaser becomes aware that any event has occurred, or circumstances exist, which may entitle the Company to terminate the Contract under this clause 15, it shall immediately notify the Company in writing.
15.5. Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Company at any time up to the date of termination.
a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service or by airmail at its registered office (if a company) or its principal place of business (in any other case) or by email to an address used by the receiving party in connection with the Order or the Contract (or the performance of any part of it) or otherwise notified by the receiving party.
b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by airmail, at 9:00 am on the fifth Business Day after posting; and if sent by email, at the time of transmission, or, if this time falls outside of business hours in the place of receipt, when business hours resume. In this clause 16.1(b), business hours means 07:30am to 4:30pm on a Business Day.
16.2. Cumulative remedies: The rights and remedies provided in the Contract for the Purchaser only are cumulative and not exclusive of any rights and remedies provided by law.
16.3. Further assurance: The Company shall at the request of the Purchaser, and at the Company’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
16.4. Entire agreement
a) The parties agree that the Contract and any documents entered into pursuant to it constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
b) Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
c) Nothing in these Conditions purports to limit or exclude any liability for fraud.
16.5. Variation: No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
a) The Company may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Purchaser’s prior written consent, which it may withhold or delay at its absolute discretion.
b) The Purchaser may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.
16.7. Set off
a) The Purchaser shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Company under the Contract or under any other contract which the Purchaser has with the Company.
b) The Company shall pay all sums that it owes to the Purchaser under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
16.8. No partnership or agency: The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
16.9. Equitable relief: The Purchaser recognises that any breach or threatened breach of the Contract may cause the Company irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Company, the Purchaser acknowledges and agrees that the Company is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
a) If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
b) If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
a) No failure, delay or omission by the Purchaser in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
b) No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Purchaser shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Purchaser.
c) A waiver of any term, provision, condition or breach of the Contract by the Purchaser shall only be effective if given in writing and signed by the Purchaser, and then only in the instance and for the purpose for which it is given.
16.12. Third party rights
a) Except as expressly provided for in clause 16.13 (b), a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
b) Any Affiliate of the Purchaser shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
16.13. Governing law: The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
16.14. Jurisdiction: The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).