Terms of sale
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following definitions and rules of interpretation shall apply unless the context otherwise requires:
“Buyer” means the person, firm or company who places an Order for Products with Müller Wiseman;
“Code” means The Groceries Supply Chain Code of Practice as set out in The Groceries (Supply Chain Practices) Market Investigation Order 2009;
“Conditions” means the standard terms and conditions of sale set out in this document and includes any Primary Terms or special conditions agreed in writing by the Buyer and Müller Wiseman;
“Contract” means an Order for the Products which, if accepted by Müller Wiseman, will together with these Conditions and where applicable the Primary Terms, form the contract;
“Delivery Point” means the place where delivery of the Products is to take place under condition 4.2;
“Groceries” has the meaning set out in the Code;
“Group” means all entities in which Mr Theo Müller (or his successors in title) has a 50% or greater interest either directly or indirectly;
“Müller Wiseman” means Robert Wiseman & Sons Limited, a company incorporated under the laws of Scotland, with registered number SC87376, whose registered office is at 159 Glasgow Road, East Kilbride, Glasgow G74 4PA;
“Order” means an order placed by the Buyer on Müller Wiseman for the supply of Products whether by way of electronic data interchange (“EDI”) or otherwise (as amended from time to time in accordance with these Conditions);
“Primary Terms” means the written terms and conditions contained in the document entitled “Primary Terms” and attached hereto (if applicable);
“Product Recall” means the recall or withdrawal of Products howsoever caused which are in the direct possession or control of the Buyer; and
“Products” means the products which are the subject of an Order.
1.2 Reference to any statute or statutory provision or law includes a reference to the statute or statutory provisions amended and/or extended from time to time.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Headings are inserted for convenience and do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.2 all quotations, offers and tenders made and all Orders accepted by Müller Wiseman are subject to these Conditions to the exclusion of all other terms and conditions (including any terms, conditions or warranties which the Buyer purports to apply under any Order, confirmation, specification or other document and any failure to challenge such terms, conditions or warranties shall not imply acceptance by Müller Wiseman). If there is any conflict between Müller Wiseman’s quotation, or Order acknowledgement and these Conditions, such other terms in Müller Wiseman’s quotation or Order acknowledgement shall prevail (to the extent of the conflict or inconsistency only).
2.2 Any variation to these Conditions and any representations about the Products shall have no effect unless expressly agreed in writing and signed by an authorised representative of Müller Wiseman. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Müller Wiseman which is not set out in the Contract. Nothing in this condition 2.2 shall exclude or limit Müller Wiseman's liability for fraudulent misrepresentation.
2.3 The Buyer shall send Müller Wiseman non-binding indicative forecasts of its requirements for the Products from time to time.
2.4 Each Order or acceptance of a quotation for Products by the Buyer from Müller Wiseman shall be deemed to be an offer by the Buyer to purchase Products subject to these Conditions.
2.5 The Buyer must ensure that the terms of its Order and any applicable specification are complete and accurate and in accordance with such lead times as the parties agree from time to time.
2.6 Prices are quoted by Müller Wiseman on the basis of the exclusions and limitations of liability set out in these Conditions. If the Buyer wishes Müller Wiseman to consider accepting a higher limit of liability, the Buyer shall submit a written request to Müller Wiseman and Müller Wiseman may then quote a revised price taking account of the increased risks accepted by Müller Wiseman and any increased insurance premium to be borne by Müller Wiseman. Müller Wiseman shall not be under any obligation to agree to any higher limitation of liability requested by the Buyer.
2.7 Any quotation from Müller Wiseman is available for acceptance for a maximum period of 30 (thirty) days from its date and may be withdrawn by Müller Wiseman at any time by written or oral notice.
2.8 No Order placed by the Buyer or acceptance of a quotation from Müller Wiseman shall be deemed to be accepted by and binding on Müller Wiseman until a written acknowledgement of Order is issued by Müller Wiseman or (if earlier) Müller Wiseman delivers the Products to the Buyer at which point a Contract will come into existence.
2.9 Where a Contract is for the supply of Groceries the Code shall apply and be incorporated into the Contract. In the event of any conflict between the terms of the Code and the Contract, the Code shall prevail to the extent of the conflict or inconsistency only.
3.1 The quantity and description of the Products shall be as set out in Müller Wiseman’s quotation or acknowledgement of Order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by Müller Wiseman and any descriptions or illustrations contained in Müller Wiseman’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract and this is not a sale by sample.
4. DELIVERY OF THE PRODUCTS
4.1 The Buyer shall be responsible for ensuring the accuracy of the terms of any Order it submits or delivery note or related invoice for Products it accepts.
4.2 Unless otherwise agreed in writing by Müller Wiseman, delivery of the Products shall take place at the Buyer’s premises named in the Order.
4.3 Any dates and times specified by Müller Wiseman for delivery of the Products are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery of the Products shall be within a reasonable time.
4.4 Müller Wiseman may deliver the Products in instalments in which case each instalment shall be treated as a separate Contract governed by these Conditions. No delay in the delivery of any instalment of Products or any defect therein shall entitle the Buyer to terminate the remaining Contract.
4.5 Müller Wiseman will endeavour to comply with any reasonable requests by the Buyer for postponement of delivery of the Products but shall be under no obligation to do so. Where delivery of the Products is postponed, otherwise due to default by Müller Wiseman, then without prejudice to all other rights and remedies available to Müller Wiseman, the Buyer shall pay all costs and expenses incurred by Müller Wiseman as a result of any such delays.
4.6 The Buyer shall be responsible for obtaining all export and import licences (including payment of any duties) for the Products and shall be responsible for any delays due to such sums not being available.
4.7 If for any reason the Buyer fails to accept delivery of any of the Products when they are ready for delivery, or Müller Wiseman is unable to deliver the Products on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
(a) risk in the Products shall pass to the Buyer; and
(b) Müller Wiseman may store the Products until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or
(c) Müller Wiseman may sell the Products at the best price reasonably obtainable.
4.8 The Buyer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for unloading the Products. For the avoidance of doubt the Buyer shall bear the risk of all loss, damage or deterioration of Products during unloading.
4.9 Pallets, trolleys and other returnable containers remain the property of Müller Wiseman and must be returned undamaged or replaced if damaged and sent to Müller Wiseman at the Buyer’s expense at such time as agreed in writing between the parties, PROVIDED THAT if the Buyer and Müller Wiseman are both members of either the CHEP UK Limited pallet exchange scheme and/or of the Dairy UK Roll Container Repatriation Scheme then in relation to the pallets or trolleys as the case may be the parties shall act in accordance with that scheme.
5.1 The quantity of any consignment of Products as recorded by Müller Wiseman upon despatch from Müller Wiseman’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Müller Wiseman shall not be liable for any non-delivery of Products or shortages in Products (howsoever caused) unless written notice is given by the Buyer to Müller Wiseman within 5 (five) working days of the date when the Products would, in the ordinary course of events, have been received.
5.3 Any liability of Müller Wiseman for shortages in delivery or non-delivery of the Products shall be solely limited to replacing the shortage of Products or the non-delivered Products within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such shortage of Products or non-delivered Products.
6. RISK & TITLE
6.1 The risk of loss or damage or deterioration to the Products shall pass to the Buyer at the time of delivery as set out in condition 4.2, condition 4.7 and condition 4.8 and the Buyer is responsible for insuring the Products with a reputable insurer from the point at which risk passes to the Buyer, for their full value against its liabilities pursuant to these Conditions or any supply contract, to the satisfaction of Müller Wiseman and shall produce evidence of such insurance upon request of Müller Wiseman.
6.2 The Products shall remain the sole and absolute property of Müller Wiseman as legal and equitable owner and title to the Products shall not pass to the Buyer until such time as the Buyer shall have paid to Müller Wiseman the full price of the Products, together with all monies owed to Müller Wiseman pursuant to any other contractual arrangement between the parties, and until that time the Buyer acknowledges that it is in possession of the Products solely as bailee in a fiduciary capacity for Müller Wiseman, and:-
(a) the Buyer shall at its own cost procure that the Products are stored in good condition and kept identifiably separate whether on the Buyer’s or the third party premises;
(b) the Buyer may sell the Products in the ordinary course of its business but shall not otherwise (and shall not purport to) sell, mortgage or encumber or part with possession of the Products or allow any lien or encumbrance to arise over them.
6.3 Müller Wiseman shall not be liable for any loss of any kind to the Buyer arising from any damage to the Products occurring after the risk has passed to the Buyer however caused, nor shall any liability of the Buyer to Müller Wiseman be diminished or extinguished by reason of such loss.
6.4 Müller Wiseman may at any time inspect the Products and may recover the Products in respect of which title has not passed to the Buyer at any time and the Buyer irrevocably licenses Müller Wiseman, its officers, agents or authorised representatives to enter upon any premises where the Products are stored or where they are reasonably thought to be stored and repossess the same with or without vehicles for the purpose of satisfying itself that condition 6.5 is being complied with or recovering Products for which title has not passed to the Buyer.
6.5 Until such time as the title to the Products has passed to the Buyer, the Buyer shall possess the Products as fiduciary agent and bailee of Müller Wiseman and shall store the Products on its premises separately from its own goods or those of any other person and in a manner which makes them readily identifiable as the Products of Müller Wiseman.
7.1 Unless otherwise agreed by Müller Wiseman in writing, the price for the Products shall be the price set out in the Primary Terms or as otherwise notified to the Buyer in writing from time to time.
7.2 The price for the Products shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Products.
8.1 Subject to condition 8.4, payment of the price for the Products is due by payment in cash on delivery or (where agreed otherwise in writing) by BACS transfer in cleared funds in pounds sterling within such number of days of the date of the invoice as has been agreed. The time for payment shall be of the essence.
8.2 Müller Wiseman shall be entitled to submit its invoice with its delivery advice note, or at any time afterwards except where delivery has been postponed at the request of, or by the default of the Buyer, in which case Müller Wiseman may submit its invoice at any time after the Products are ready for delivery or would have been ready in the ordinary course but for the Buyer.
8.3 Where Products are delivered by instalments, Müller Wiseman may invoice each instalment or stage separately and the Buyer shall pay in accordance with these Conditions.
8.4 No disputes arising under the Contract nor any delays (other than delays acknowledged in writing by Müller Wiseman) shall interfere with prompt payment in full by the Buyer.
8.5 All payments payable to Müller Wiseman under the Contract shall become due immediately on its termination despite any other provision.
8.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless otherwise agreed in writing and signed by an authorised person of Müller Wiseman or where the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Müller Wiseman to the Buyer. No payment shall be deemed to have been received until Müller Wiseman has received cleared funds.
8.7 If the Buyer fails to pay any part of the price of the Products by the due date Müller Wiseman shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:
(a) to treat such failure as a repudiation of the whole Contract by the Buyer and to recover damages for such breach of Contract;
(b) to suspend any or all further deliveries and suspend any further production (including suspending any procurement activities related to the Products) under the Contract and under any contract or contracts in existence between Müller Wiseman and the Buyer without notice;
(c) to serve notice on the Buyer requiring immediate payment for all Products supplied by Müller Wiseman under this Contract and all other contracts with the Buyer whether or not payment is due;
(d) to charge interest on any amount outstanding from the due date for payment at the annual rate of 4% (four percent) above the base lending rate from time to time of National Westminster Bank Plc, such interest being charged as a separate, continuing obligation not merging with any judgement together with any statutory debt recovery costs.
9. RESALE OF PRODUCTS
9.1 It shall be the responsibility of the Buyer to ensure that the:
(a) Products are rotated so that the oldest stocks of Products are sold first;
(b) Products resold, remain in the containers in which they are supplied by Müller Wiseman and all labels, names, reference marks and numbers are not removed, altered or covered at any time; and
(c) Products are resold only from premises suitable for their storage, display and sale.
9.2 Müller Wiseman shall not be liable for any loss of any kind arising from the Buyer’s failure to fulfil obligations under condition 9.1.
9.3 Müller Wiseman will not give the Buyer credit for:-
(a) any Products delivered before the “best before date” (or “use by date”, as appropriate) on the grounds that the “best before date” (“or use by date”, as appropriate) of those Products has subsequently passed or is approaching; and/or
(b) any Products which have been tampered with, price marked or similarly disfigured.
9.4 The Buyer shall not remove any plaque or other label affixed to the Products referring any user thereof to Müller Wiseman’s Product information (statutorily required or otherwise).
9.5 If any item comprised in the Products is resold by the Buyer, the Buyer shall bring to the attention of its purchaser all Müller Wiseman’s instructions and / or recommendations for use packed by Müller Wiseman with the Products or which Müller Wiseman has otherwise notified to the Buyer.
10.1 Müller Wiseman warrants that (subject to the other provisions of these Conditions) upon delivery the Products shall be fit for human consumption and of satisfactory quality within the meaning of the Sale of Goods Act 1979.
10.2 If the Buyer suspects that the Products do not conform with the warranty in condition 10.1, the Buyer must retain for inspection by Müller Wiseman all such Products.
10.3 Müller Wiseman shall not be liable for a breach of the warranty in condition 10.1 unless:-
(a) the Buyer gives written notice to Müller Wiseman of the defect in the Products as soon as reasonably practicable, and, if the defect in the Product is as a result of damage in transit by the carrier, within 48 hours of the time of delivery of the Product and the rejection report is signed by the Buyer setting out full and accurate details of any defects. For the avoidance of doubt, it is hereby acknowledged and agreed that no right of rejection shall arise in respect of Products that are delivered in all material respects in accordance with the Müller Wiseman specification or any specification amended by Müller Wiseman to comply with any applicable statutory requirements; and
(b) Müller Wiseman is given a reasonable opportunity after receiving the notice of examining such Products and the Buyer (if asked to do so by Müller Wiseman) returns such Products to Müller Wiseman's place of business at Müller Wiseman's cost (subject to such costs being reasonable) for the examination to take place there.
10.4 Müller Wiseman shall not be liable for a breach of the warranty in condition 10.1 if:-
(a) the Buyer makes any further use of such Products after giving notice in accordance with condition 10.3; or
(b) the defect arises because the Buyer failed to follow Müller Wiseman’s oral or written instructions as to the storage and use of the Products or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Products without the written consent of Müller Wiseman.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Products do not conform with the warranty in condition 10.1 Müller Wiseman shall at its option:-
(a) repair or replace such Products (or the defective part); or
(b) refund the price of such Products at the pro rata Contract rate, provided that, if Müller Wiseman so requests, the Buyer shall, at Müller Wiseman’s expense, retain or return the Products or the part of such Products which are defective to Müller Wiseman; or
(c) require the Buyer to take such steps as Müller Wiseman considers necessary to make the Products confirm with such warranty; or
(d) pay the Buyer’s reasonable and proven administrative costs and expenses incurred in respect of Products which do not conform with such warranty.
10.6 If Müller Wiseman complies with condition 10.5 it shall have no further liability for a breach of the warranty in condition 10.1 in respect of such Products.
11. PRODUCT RECALL AND COMPLAINTS
11.1 In the unlikely event of a Product Recall, and if required by Müller Wiseman, the Buyer will enforce Müller Wiseman’s procedures (as notified to the Buyer) covering Product Recall, and will cooperate with Müller Wiseman to ensure that the Product Recall is dealt with promptly and effectively.
11.2 The Buyer will immediately report to Müller Wiseman any defect or possible defect in the Products which the Buyer should reasonably be aware of, and which could require a Product Recall, to ensure the safety of the Buyer’s customers.
11.3 Where Müller Wiseman initiates a Product Recall, it will reimburse the Buyer for its reasonable and proven administrative costs and expenses incurred in administering a Product Recall campaign relating to the Products.
11.4 Where the Buyer initiates a Product Recall, it will reimburse Müller Wiseman for all costs, expenses and losses related to the Product Recall.
11.5 Where Products are to be recalled as a consequence of a Product Recall the Buyer shall return all recalled Products in the Buyer’s possession to Müller Wiseman within 5 (five) working days, or where requested by Müller Wiseman: i) retain the Products for inspection by Müller Wiseman; or ii) destroy the recalled Products and provide a certificate of destruction.
11.6 Except to the extent required by law and without prejudice to condition 12, Müller Wiseman shall not be liable for any further costs or charges as a consequence of the Product Recall.
11.7 The Buyer shall not publish any notices or press releases associated with a Product Recall, without receiving Müller Wiseman’s prior written consent.
11.8 The Buyer shall maintain a proper and efficient procedure for reporting and dealing with consumer complaints but shall not settle any such complaints or otherwise compromise the position of Müller Wiseman in respect thereto without Müller Wiseman’s prior written consent. Full details of all such complaints must be referred to Müller Wiseman forthwith upon notification together with the packaging and/ or batch code of the relevant Products without which no complaint shall be considered.
12. MÜLLER WISEMAN’S LIABILITY
12.1 Subject to condition 4, condition 5, condition 9, condition 10 and condition 11, the following provisions in this condition 12 set out the entire financial liability of Müller Wiseman (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Conditions excludes or limits the liability of Müller Wiseman:
(a) for death or personal injury caused by Müller Wiseman’s negligence;
(b) for defective products under the Consumer Protection Act 1987;
(c) for any matter which it would be illegal for Müller Wiseman to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.4 Notwithstanding any other provision of these Conditions but without prejudice to condition 5.3, condition 10.5, condition 11.3, condition 12.2 and condition 12.3:
(a) Müller Wiseman shall have no liability whatsoever and whether arising in contract, tort (including negligence) breach or statutory duty or otherwise for any:- (i) pure economic loss; (ii) loss of profit; (iii) loss of business; (iv) loss of revenues; (v) loss of margin; (vi) loss of opportunity; (vii) depletion of goodwill or otherwise; or (viii) any indirect, special or consequential losses or damages whatsoever (howsoever caused) which arise out of or in connection with the Contract.
(b) Subject to condition 11, Müller Wiseman’s total liability in respect of any Product Recall shall be limited to the provision of replacement Products or where they are not available, credit on receipt of the recalled Products or proof of their destruction.
(c) Müller Wiseman shall not be liable under any liability, whether in contract, tort, deceit or otherwise, in respect of any claim, action or proceedings brought by the Buyer later than 1 (one) year following the date the cause of action arose.
13. BUYER’S INDEMNITY
13.1 The Buyer shall indemnify Müller Wiseman in respect of any and all damage, injury or loss occurring to any person or property and against all actions, suits, allegations, claims, demands, charges or expenses (including, but not limited to legal expenses) in connection therewith arising from the condition or use of the Products in the event and to the extent that the damage injury or loss shall have been occasion partly or wholly by the act, omission, negligence or carelessness of the Buyer or its employees, agents, servants or sub-contractors or by any breach of the Buyer of its obligations to Müller Wiseman hereunder.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Save as otherwise agreed in writing all intellectual property rights (whether registered or unregistered) in the Products and the manufacturing process shall remain the property of Müller Wiseman or its licensors. The Buyer shall not acquire any intellectual property rights, whether by licence or otherwise, relating to the Products or manufacturing processes in any way and may not copy or imitate the Products or do or omit to do, or permit any third party to do or omit to do, anything which may damage such intellectual property rights in any way.
15.1 Müller Wiseman may at any time assign, transfer, charge, sub-contract or deal in any other manner with any or all of its rights or obligations under the Contract.
15.2 The Buyer may not assign, transfer, charge, sub-contract or deal in any other manner with any or all of is rights or obligations under the Contract without the prior written consent of Müller Wiseman.
16.1 Müller Wiseman shall (without prejudice to any other rights or remedies available to it) be entitled to terminate the Contract without liability if:-
(a) the Buyer becomes bankrupt or shall be deemed to be unable to pay its debts for the purpose of Section 123 of the Insolvency Act 1986 or shall enter into an arrangement with its creditors or if a resolution shall be passed or proceedings commenced for the administration or liquidation of the Buyer or if a receiver or manager shall be appointed of all or part of the Buyer’s assets or undertaking or if anything analogous to the foregoing occurs under the laws of any jurisdiction or if Müller Wiseman reasonably anticipates that any of the foregoing events are likely to occur;
(b) if the Buyer commits or allows to be committed any breach of the Contract; or
(c) if there is a change in the majority ownership or control (whether directly or indirectly) of the Buyer.
17.1 The Buyer may not cancel the Contract without the prior written consent of Müller Wiseman, which if given (at Müller Wiseman’s sole discretion) shall be deemed to be on the express condition that the Buyer shall indemnify Müller Wiseman against any and all loss, damage, claims allegations, actions, charges or expenses (including, but not limited to legal expenses) arising out of such cancellation unless otherwise agreed in writing.
17.2 Products returned to Müller Wiseman without Müller Wiseman’s prior written consent will not be accepted for credit.
18.1 The Buyer shall keep as confidential all information disclosed to it by or on behalf of Müller Wiseman which could reasonably be considered as confidential. This shall include, but not be limited to, all information disclosed by Müller Wiseman which relates to manufacturing processes and know-how, sourcing information (both raw materials and suppliers of services) and all information relating to Müller Wiseman’s business which is not in the public domain. The Buyer shall not use any information so provided other than to enable it to perform its obligations under the Contract. All such information (and all copies thereof) shall be immediately returned to Müller Wiseman upon termination of the Contract.
19. FORCE MAJEURE
19.1 Müller Wiseman reserves the right, at its sole discretion, to defer the date of delivery or to cancel the Contract or reduce the volume of the Products ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Müller Wiseman including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, power shortages, machinery failure, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable raw materials, packaging or milk, provided that, if the event in question continues for a continuous period in excess of 90 (ninety) days, the Buyer shall be entitled to give notice in writing to Müller Wiseman to terminate the Contract.
20. ATTENDANCE ON SITE
20.1 The Buyer shall only be entitled to attend Müller Wiseman’s premises if the Buyer gives to Müller Wiseman reasonable notice and all information reasonably requested by Müller Wiseman regarding the purpose of the Buyer’s attendance and Müller Wiseman, at its sole discretion, confirms acceptance of such attendance to the Buyer in writing. The Buyer shall comply with all site rules and regulations and health and safety policies and procedures applicable to such premises whilst attending such premises. The Buyer shall indemnify Müller Wiseman and keep Müller Wiseman fully and effectively indemnified in respect of any and all claims or allegations made or proceedings taken against Müller Wiseman (and all associated costs and expenses, including, but not limited to, legal expenses incurred by Müller Wiseman) by any person, firm or company including employees of Müller Wiseman, or of the Buyer or of any contractor of the Buyer (or their personal representative), whether in respect of death, personal injury or damage to property arising directly or indirectly from the attendance at such premises.
20.2 Any information disclosed by Müller Wiseman to the Buyer during any such site visits shall be subject to the confidentiality obligations set out at condition 18.
21.1 Each right or remedy of Müller Wiseman under the Contract is without prejudice to any other right or remedy of Müller Wiseman whether under the Contract or not.
21.2 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 to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
21.3 Failure or delay by Müller Wiseman in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
21.4 Any waiver by Müller Wiseman of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
21.5 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) (in case of communications to Müller Wiseman) to its registered office or such changed address as shall be notified to the Buyer by Müller Wiseman; or
(b) (in the case of communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Müller Wiseman by the Buyer.
21.6 Communications shall be deemed to have been received:
(c) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
(d) if delivered by hand, on the day of delivery; or
(e) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
21.7 The Buyer shall not be entitled to hold itself as an agent or representative of Müller Wiseman nor shall the Buyer be entitled, in any way, to bind Müller Wiseman without the prior written consent of Müller Wiseman (any such consent to be signed by a director of Müller Wiseman)
21.8 Communications addressed to Müller Wiseman shall be marked for the attention of the Head of Legal.
21.9 Any Group company shall have the right to enforce the terms of the Contract in accordance with the Contract (Rights of Third Parties) Act 1999. Except as stated in this condition 21.9, the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person not a party to it.
21.10 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person who is not a party to the Contract.
21.11 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts unless the contract is performed exclusively in Scotland in which case it shall be governed by Scots law and any dispute or claim arising out of or in connection with it will be subject to the exclusive jurisdiction of the courts in Scotland.
24 January 2013
© 2013 Robert Wiseman & Sons Limited