Terms & Conditions
These Terms and Conditions should be read carefully as they set out the basis on which the order for the sale of the Goods is made
1. DEFINITIONS AND INTERPRETATION
1.1. In these terms and conditions, the following words shall, except where the context requires otherwise, have the following meanings:-
“Business Day” means a day other than a bank or public holiday on which the banks in Edinburgh are open for business;
"Buyer" means the party referred to in the Invoice;
"Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;
"Contract" means the Invoice and/or Order Acknowledgement Form and the Conditions;
"Delivery Date" means the date notified by the Seller to the Buyer on which (a) the Goods will be delivered by the Seller to the Buyer, or (b) where agreed between the parties, the Goods will be delivered by the Seller to the Buyer’s nominated customer, or (c) where agreed between the parties, the Goods will be collected by the Buyer from the Seller's premises;
"Goods" means any goods specified in the Invoice and/or Order Acknowledgement Form (including any instalment of the goods or any parts of them) which the Seller is to supply to the Buyer in accordance with the Contract;
"Invoice" means the Seller's invoice for the Goods;
"Order Acknowledgement Form" means the Seller's order confirmation form for the Goods;
"Price" means the price payable for the Goods, as set out in the Invoice and/or Order Acknowledgement Form;
“Product Guarantee” means the guarantee provided by the Seller in respect of machine products, where such products comprise or are incorporated into the Goods, where such guarantee is registered with the Seller as provided in that guarantee;
"Quantity" means the quantity of the Goods to be sold by the Seller to the Buyer as set out in the Invoice and/or Order Acknowledgement Form;
"Seller" means DART Tool Group, the trading name of Serracon Limited, a company incorporated in Scotland with company number SC425064 and registered office at 1 Wheatfield Road, Dunnikier Business Park, Kirkcaldy, Fife KY1 3PD;
“Termination” means termination of the Contract, however arising.
1.2. In these Conditions:-
1.2.1. the singular includes the plural and vice versa;
1.2.2. references to gender include reference to all genders;
1.2.3. unless otherwise stated, references to Clauses and to Sub-Clauses are to the Clauses and to Sub-Clauses in these Conditions;
1.2.4. the headings in these Conditions are for reference only and shall not affect the construction or interpretation of these Conditions; and references to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended or re-enacted from time to time;
1.2.5. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
1.2.6 a reference to writing or written includes fax and e-mail; and
1.2.7. except where the context otherwise requires, any reference to another agreement or any deed or other instrument or document shall be construed as a reference to that other agreement, deed or other instrument or document as the same may have been, or may from time to time be, amended, varied, supplemented or novated.
2. BASIS OF SALE
2.1. The Seller shall sell and the Buyer shall purchase the Goods subject to the Conditions.
2.2. The Conditions, the Invoice and/or Order Acknowledgement Form shall apply to the Contract to the exclusion of any other terms and conditions.
2.3. No variation to the Conditions, the Invoice and/or Order Acknowledgement Form, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller, as notified by each party to the other party from time to time.
2.4. The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations not so confirmed.
2.5. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods not documented in writing and attached to these Conditions, the Invoice and/or Order Acknowledgement Form is followed or acted upon entirely at the Buyer's own risk, and the Seller shall not be liable for any such advice or recommendation.
2.6. Any typographical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction by the Seller without any liability on the part of the Seller.
2.7. The Seller shall have the right to refuse to accept any order for Goods made by the Buyer in the event that the Buyer proposes to use the Goods for purposes which are unlawful or which the Seller considers to be immoral, offensive, indecent or conflicts with the Christian Conscience of the Seller.
2.8. The Seller reserves the right to take credit references.
2.9 The Buyer warrants and represents that in entering into the Contract it does so on a business-to-business basis and not as a consumer.
3. ORDERS AND SPECIFICATIONS
3.1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order for Goods (including any applicable specification agreed between the parties) submitted by the Buyer whether in writing or otherwise, and for giving the Seller any necessary information relating to the Goods within a sufficient time period to enable the Seller to perform the Contract in accordance with its terms, and the Seller shall have no liability for any inaccuracy.
3.2. The Quantity, quality and description of and any specification for the Goods shall be set out in the Invoice and/or Order Acknowledgement Form.
3.3. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with the Buyer’s specification, the Buyer shall indemnify the Seller and hold the Seller harmless against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3.4. The Seller reserves the right to make any changes in the agreed specification which are required to conform with any applicable statutory or EU requirements or, which do not materially affect their quality or performance.
3.5. The Buyer may not cancel any order for Goods accepted by the Seller except with the Seller’s agreement in writing and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1. The Price shall be agreed between the parties and set out in the Invoice and/or Order Acknowledgement Form issued to the Buyer in respect of the Goods.
4.2. The Seller may , by giving reasonable notice to the Buyer at any time before delivery, increase the Price to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including foreign exchange fluctuation, currency regulation, increase in taxes, significant increase in the costs of labour, materials or other costs of manufacture), any change in the Delivery Date, Quantity or the specification for the Goods requested by the Buyer, or any delay caused by Buyer instructions or Buyer failure to give the Seller adequate information or instructions.
4.3. The Price shall be exclusive of any Value Added Tax, which the Buyer shall be required to pay to the Seller and shall be payable in pounds (£) sterling.
4.4. The Seller may charge for the costs of carriage of the Goods to the Buyer or Buyer’s nominated customer’s premises.
5. TERMS OF PAYMENT
5.1. The Seller may invoice the Buyer for the Price on or at any time after the Delivery Date, including where the Seller has attempted to deliver the Goods and the Buyer or the Buyer’s nominated customer has not accepted delivery of the Goods, unless the Goods are to be collected by the Buyer, in which event the Seller may invoice the Buyer for the Price at any time after the Seller has notified the Buyer that the Goods are ready for collection.
5.2. The Buyer shall pay the Price within 30 days of the last date of the month in which the Invoice was issued by the Seller unless agreed otherwise in writing by the Seller, and the Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and title in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence.
5.3. The Seller may require the Buyer to pay a deposit for the Goods at the time of ordering. The deposit shall be set off against the total sums due by the Buyer for the Goods, as set out in the Invoice and/or Order Acknowledgement Form.
5.4. If the Buyer does not pay such sums due in accordance with Clause 5.2 then, without prejudice to any other right or remedy available to the Seller, the Seller may :-
5.4.1. cancel the order for the Goods and/or suspend any further deliveries to the Buyer;
5.4.2. appropriate any prepayment made by the Buyer for the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit;
5.4.3. request the Buyer to return those Goods which it has received but has not paid for; and
5.4.4. charge the Buyer interest on the amount unpaid, at the rate of 8% per cent per annum above The Royal Bank of Scotland plc base rate from time to time plus compensation, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) and the parties agree this shall constitute a substantial remedy under the Late Payment of Commercial Debts (Interest) Act 1998.
5.5. If the Buyer does not pay cash, payment shall be deemed not to have been made until any cheque or bank draft has been cleared and the proceeds credited to the Seller's nominated bank account.
6.1. The Seller (or any third party appointed by the Seller) shall deliver the Goods to the Buyer’s premises or, where agreed between the parties, to (i) the Buyer’s nominated customer’s premises, or (ii) by the Buyer collecting the Goods from the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
6.2. The Seller will use reasonable endeavours to deliver the Goods by the Delivery Date but shall not be liable for any delay in such delivery, unless such delay is caused by the Seller’s act or omission, and delays in delivery shall not entitle the Buyer to refuse to take delivery of the Goods or terminate the Contract. Time for delivery shall not be of the essence. The Seller may deliver the Goods before the Delivery Date, upon giving reasonable notice to the Buyer.
6.3. Where the Goods are to be delivered in instalments, the Contract shall be construed as a single contract in respect of each instalment.
6.4. If the Seller does not deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's default, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer of similar goods to replace those not delivered over the Price.
6.5. If the Buyer has paid for any instalment of the Goods before delivery, the Buyer may recover the costs of those Goods which the Buyer has paid for in advance and the Seller has not delivered, unless such non-delivery is due to the Buyer's default.
6.6. If the Buyer or the Buyer’s nominated customer does not accept delivery of the Goods within a reasonable time period following the Delivery Date or does not give the Seller adequate delivery instructions before the Delivery Date (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:-
6.6.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2. 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 or charge the Buyer for any shortfall below the Price.
6.7. The Buyer must notify the Seller of any shortfall in the quantity of the Goods delivered within 48 hours from delivery, otherwise the Buyer will be deemed to have received the correct Quantity of Goods ordered.
From the date six months after the Goods were delivered and where the Goods or any part of the Goods have not been sold by the Buyer, the Buyer may request that the Goods or any part of the Goods are returned to the Seller and the Seller may at their sole discretion accept such request provided the relevant Goods or part of the Goods are in a re-sellable condition. If the Seller accepts such request, the parties shall agree a value in respect of the relevant Goods or part of the Goods and the Seller shall grant the Buyer a credit for that value.
8. RISK AND TITLE
8.1. Risk or damage to or loss of the Goods shall pass to the Buyer:-
8.1.1. in the case of Goods to be collected from the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2. in the case of the Goods to be delivered, at the time when the Seller has delivered the Goods.
8.2. Title in the Goods, and/or any materials incorporated therein shall remain with the Seller and shall not pass to the Buyer until (a) the Buyer has paid in full the sums due under the Contract to the Seller and (b) all debts howsoever arising and owed by the Buyer to the Seller have been settled in full. During such time as title in the Goods and/or materials incorporated therein remains with the Seller, the Buyer (including on behalf of its nominated customer) shall ensure the Goods and/or any materials incorporated therein are:
8.2.1. kept separate from the property of the Buyer and in such a way as to identify them as clearly belonging to the Seller, and shall take all steps necessary to ensure that the Buyer is not deemed to be the reputed owner of the Goods and/or any materials incorporated therein;
8.2.2. not mixed with other goods or altered in any way; and
8.2.3. adequately stored and maintained in a satisfactory condition.
8.3. Until title in the Goods passes and subject to Clause 8.2, the Buyer may resell (but may not deal in any other way with) the Goods to a third party and pass good title to that third party on the following terms:
8.3.1. the sale is in the ordinary course of the Buyer's business; and
8.3.2. the Buyer accounts to the Seller for the proceeds accordingly and shall make good any shortfall in the amount due to the Seller.
8.4. The Seller may seek a court injunction or interdict to prevent the Buyer from selling, transferring or otherwise disposing of the Goods and/or any materials comprised therein at any time.
8.5. If at any time payment of the sums due under the Contract is overdue, the Seller may by its employees, agents or representatives enter the Buyer's premises, the Buyer’s nominated customer’s premises or such other place where the Goods are being held without notice and repossess, sell, dispose of or otherwise deal with the Goods and/or any materials comprised therein, and the Buyer shall make no claim against the Seller in respect of such entry or disposal.
8.6. The Buyer has no authority from the Seller to enter into any contract or to make any representation whereby the Seller is rendered liable to any third party for any breach of such contract or the inaccuracy of any such representation, except to the extent (if any) that such authority is conferred by law regardless of the intentions or wishes of the Buyer or the Seller.
9. WARRANTIES AND LIABILITIES
9.1. Except as set out in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Contract.
9.2. Subject to the conditions of this Clause 9, the Seller warrants that the Goods will (i) correspond with the specification agreed between the parties at the time of delivery, (ii) be free from defects in material and workmanship for a period of 12 months from the Delivery Date or as otherwise agreed and (iii) be repaired or replaced in accordance with the Product Guarantee (where applicable).
9.2. Notwithstanding the terms of Clause 9.2, the Seller shall not be liable:-
9.3.1. in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
9.3.2. in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure by the Buyer to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval; and
9.3.3. under Clause 9.2 (or any other warranty, condition or guarantee including the Product Guarantee) if the total Price has not been paid by the due date for payment.
9.4. Where repair or replacement of the Goods, including but not limited to parts, materials or equipment comprised or incorporated into the Goods, may be required under the Product Guarantee, the Buyer or the Buyer’s nominated customer shall only be entitled to the benefit of the Product Guarantee (where applicable) where the Product Guarantee has been registered with the Seller as provided in the Product Guarantee.
9.5. Any Buyer claim based on any defect in the quality or condition of the Goods or their failure to correspond with the specification must (other than in relation to the Goods’ quantity, which shall be governed by Clause 6.7) be notified to the Seller within seven days from the date the Goods are delivered. If the Buyer accepts the Goods and does not notify the Seller within such seven day period of any defects or failure in the Goods, the Buyer may not reject the Goods, the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the Price as if the Goods accorded with the warranty at clause 9.2.
9.6. Where the Seller notifies the Seller of any valid claim in respect of any Goods based on defect in the Goods’ quality or condition or not corresponding with the specification in accordance with these Conditions, the Seller may at its sole discretion replace the Goods (or the part in question) free of charge or refund to the Buyer the Price (or a proportionate part of the Price), and the Seller shall have no further liability. The terms of this Contract shall apply to any replacement Goods supplied by the Seller.
9.7. Except in respect of death or personal injury, breach of the terms implied by section 12 of the Sale of Goods Act 1979, or any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability, the Seller shall not be liable to the Buyer by reason of any representation or warranty (unless fraudulent), or in contract, tort (including negligence), breach of statutory duty, or otherwise for any indirect, or consequential loss or damage (including for loss of profit, loss of business, loss or corruption of data, information or software, loss of business opportunity, loss of anticipated saving, loss of goodwill, special, indirect or consequential damage, or otherwise), costs, expenses or other claims for damages whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, for the loss of any data or other equipment or property and the entire liability of the Seller under or in connection with the Contract shall not exceed the Price, except as expressly provided in the Conditions. The Buyer acknowledges and agrees that the Price reflects the limitation of liability contained in this Contract.
10. FORCE MAJEURE
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control (including acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, 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, nuclear, chemical or biological contamination, or sonic boom, 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, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts, non-performance by suppliers or subcontractors, and/or interruption or failure of utility service).
11. INTELLECTUAL PROPERTY INDEMNITY
11.1. If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:-
11.1.1. the Seller is given full control of any proceedings or negotiations in connection with any such claim;
11.1.2. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
11.1.3. the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
11.1.4. the Buyer takes such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this Clause 11.
12.1. The Seller may terminate the Contract without affecting any other right or remedy available to it if: (a) the Buyer makes any voluntary arrangement with its creditors or any class of them or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has a receiver appointed over all or part of its assets; (b) the Buyer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or admits inability to pay its debts, or is deemed unable to pay its debts (or as having no reasonable prospect of so doing, in either case) within the meaning of section 123 of the Insolvency Act 1986; (c) 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 these events take place for the sole purpose of a scheme for a solvent amalgamation or the Buyer’s solvent reconstruction of the Customer; the Buyer is the subject of a bankruptcy petition or order; (d)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 10 Business Days; (e) the Buyer suspends or ceases, or threatens to suspend or cease, to carry on business; or (f) anything analogous to the events described in Clauses (a) to (e) happens to the Buyer in any jurisdiction; (g) the Buyer does not pay any undisputed amount due on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; (h) the Buyer's financial position deteriorates to such an extent that in the Seller’s opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; (i) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; (j) the Buyer commits a material breach of the Contract and that breach is irremediable or (if that breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so; and/or (k) the Buyer repeatedly breaches any these Terms or the Contract in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract.
12.2. On Termination:
12.2.1 without prejudice to any other right or remedy available to the Seller, the Seller may cancel the Contract or under any other contract between the parties without incurring any liability to the Buyer and suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary; and
12.2.2. the Buyer shall must immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
12.2.3 the Buyer shall pay for or at its option return all Goods not been fully paid for. If the Buyer does not do so, then the Seller may enter the Buyer's premises and take possession of such Goods. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
12.3 Termination shall not affect any of the parties' rights and remedies that have accrued as at Termination. Clauses expressly or by implication surviving Termination shall continue in full force and effect.
13. Each party shall use all reasonable precautions to safeguard information received from the other party relating to the purchase and sale of Goods. Access to such information will be restricted to employees, representatives, agents or sub-contractors of both parties who require it for the purpose of performing the Contract.
14. ASSIGNATION AND SUBCONTRACTING
The Buyer may not, without the Seller’s prior written consent, assign, transfer, charge or deal in any other similar manner with this Agreement or its rights or any part of them under this Agreement, subcontract any or all of its obligations under this Agreement, or purport to do any of the same. The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Any notice or communication required to be given by either party to the other may be given by hand or sent by first class recorded delivery post, to the address as may from time to time be notified in writing to the party giving such notice or other communication by the party to whom such notice or other communication is given. Notices shall be deemed given, in the case of notice given by hand or fax or email, on the date of delivery, or in the case of notice given by first class recorded delivery post, two business days after the date of posting. This clause 16 shall not apply to notice given in legal proceedings, arbitration or other dispute resolution proceedings.
16.1 For the purposes of this clause 16 the expressions ‘bribe’, ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that all that party’s personnel, all others associated with that party; and all that party’s subcontractors, uninvolved in performing the Contract so comply.
16.2 Without limitation to clause 16.1, neither party shall make or receive any bribe or other improper payment, or allow any such to be made or received on its behalf anywhere in the world, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf. The Buyer shall immediately notify the Company as soon as it becomes aware of a breach or possible breach by the Buyer of any of the requirements in this clause 16. Any Buyer breach of this clause 17 shall be deemed a material and irremediable breach of the Contract entitling the Seller to immediately terminate the Contract by notice pursuant to clause 12.1.
The Seller shall comply with the Modern Slavery Act 2015 (MSA) and its Slavery Policy. The Buyer undertakes, warrants and represents that: neither the Buyer nor any of its officers, employees, agents or subcontractors has: (a) committed an offence under the MSA (an MSA Offence); or (b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the MSA; or (c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the MSA; and that it shall comply with the MSA. The Buyer shall notify the Seller immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Seller obligations under this clause 17. Such notice must set out full details of the circumstances concerning the breach or potential breach of the Buyer’s obligations. Any Buyer breach of this clause 17 shall be deemed a material and irremediable breach of the Contract and shall entitle the Company to immediately terminate the Contract by notice pursuant to clause 12.1.
Except as expressly set out in this agreement, each party must pay all sums that it owes to the other party under the Contract free and clear without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
19 THIRD PARTY RIGHTS
Unless expressly stated otherwise, a person who is not a party to the Contract shall not have any rights under or in connection with it.
20. NO PARTNERSHIP
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.
21. EQUITABLE RELIEF
The Buyer recognises that any breach or threatened breach of the Contract may cause the Seller irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Seller, the Buyer acknowledges and agrees that the Seller is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
22. CUMULATIVE REMEDIES
The rights and remedies provided in the Contract for the Seller only are cumulative and not exclusive of any rights and remedies provided by law.
Failure or delay by either party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract nor will any single or partial exercise of any right, power, remedy or privilege preclude any other or further exercise of that or any other right, power, remedy or privilege.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable, it shall be deemed severable, and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
25. GOVERNING LAW AND JURISDICTION
The Contract shall be governed and construed in accordance with the laws of Scotland and the parties hereby submit to the exclusive jurisdiction of the Scottish courts.