Terms & Conditions for the sale of goods to business customers  
 
Your attention is drawn in particular to clause 8. 
 
 
1. DEFINITIONS & INTERPRETATION 
 
1.1 Definitions:  
  
 Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are 
open for business. 
  
 Business Hours: the period from 7:00am to 5:00pm on any Business Day. 
  
 Buyer: the person or firm who purchases the Goods from the Seller. 
  
 Collection Location: has the meaning given in clause 4.2. 
  
 Conditions: the terms and conditions set out in this document as amended from time to time in accordance with 
clause 13.4. 
  
 Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance 
with these Conditions. 
  
 Buyer: the person or firm who purchases the Goods from the Seller. 
  
 Delivery Location: has the meaning given in clause 4.2. 
  
 Force Majeure Event: any event, circumstance or cause not within a party's reasonable control, including: 
  
 (a)  acts of God, flood, drought, earthquake or other natural disaster; 
 (b)  epidemic or pandemic; 
(c)  terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, 
imposition of sanctions, embargo, or breaking off of diplomatic relations; 
 (d)  nuclear, chemical or biological contamination or sonic boom; 
(e)  any law or action taken by a government or public authority, including imposing an export or import 
restriction, quota or prohibition, or failing to grant a licence or consent; 
 (f)  collapse of buildings, fire, explosion or accident; 
(g)   any labour or trade dispute, strikes, industrial action or lockouts; 
(h)  non-performance by manufacturers, suppliers or subcontractors;  
(i)  interruption or failure of utility service. 
  

Goods: the goods (or any part of them) set out in the Order. 
  

Guarantee: the guarantee set out on the Trade Account application form attached and the provisions of clause 12 
provided by the Guarantor as identified on the Trade Account application, subject to these Conditions. 
  
Guaranteed Obligations: all present and future payment obligations and liabilities of the Buyer due, owing or 
incurred under the Trade Account to the Seller (including, without limitation, under any amendment, supplement or 
restatement of the Trade Account, or in relation to any new or increased limits or utilisations). 
 
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of 
savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs 
(calculated on a full indemnity basis) and professional costs and expenses).

Order: in the Buyer's purchase order form, the Buyer's written acceptance of the Seller's quotation, or provided 
verbally over the telephone or in person, as the case may be. 

Rights: any Security or any other right or benefit whether arising by way of set-off, counterclaim, subrogation, 
indemnity, proof in liquidation or otherwise and whether from contribution or otherwise. 

Security: any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of 
security or other security interest securing any obligation of any person or any other agreement or arrangement 
having a similar effect. 

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing 
by the Buyer and the Seller.  

Seller: Specialised Lighting Company Limited, registered in England and Wales with company number 07259654, and trading as Whitefield Electrical

1. 1. Interpretation:

1. 1. 1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1. 1. 2. A reference to a party includes its personal representatives, successors and permitted assigns.

1. 1. 3. A reference to an amendment includes a novation, supplement or variation (and amend and amended shall be construed accordingly);

1. 1. 4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders;

1. 1. 5. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.

1. 1. 6. A reference to a determination means, unless the contrary is indicated, a determination made at the discretion of the person making it (and determine shall be construed accordingly)

1. 1. 7. A reference to a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation.

1. 1. 8. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
      9. Save as expressly provided otherwise, a reference to writing or written excludes fax but includes email and electronic communication by text message and a text-based message via WhatsApp.

1. Basis of contract

1. 1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

1. 2. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer must ensure that the terms of the Order and any applicable Specification are complete and accurate.

1. 3. The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point and on which date the Contract shall come into existence.

1. 4. The Buyer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.

1. 5. Any samples, drawings, descriptive matter or advertising produced by or on behalf of the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
   6. Any quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for the  period of time stated on the quotation, but in any event no longer than one calendar month.

2. Goods

1. 1. The Goods are described in the Seller's digital or printed catalogue as modified by any applicable Specification.

1. 2. The Buyer shall indemnify the Seller against all Losses incurred by the Seller as a result of any claim that the Seller's use of the Specification infringes the intellectual property rights of any third party. This clause 3.2 shall survive termination of the Contract.

1. 3. The Seller reserves the right to amend the Specification if required by any applicable law or regulatory requirement, and shall notify the Buyer in any such event.

3. Delivery

1. 1. The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the type and quantity of the Goods.

1. 2. The Seller shall deliver the Goods to the location set out in the Order (which must be an address in the UK) or such other location as the parties may agree in writing (Delivery Location) at any time after the Seller notifies the Buyer that the Goods are ready, or (if requested in your Order or by subsequent agreement between the parties in writing) the Buyer shall collect the Goods from the Seller's premises at 65 Sunny Bank Road, Bury BL9 8ES or such other location as may be advised by the Seller in writing prior to delivery (Collection Location) within five (5) Business Days of the Seller notifying the Buyer that the Goods are ready.

1. 3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location or the collection of the loading of the Goods by the Buyer (or a third party on the instructions of the Buyer) at the Collection Location (as the case may be).

1. 4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

1. 5. If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall not be liable for any failure to deliver the Goods that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

1. 6. If the Buyer fails to take or accept delivery of the Goods, or fails to collect the Goods (as the case may be) within five (5) Business Days of the Seller notifying the Buyer that the Goods are ready for delivery or collection, then, except where such failure is caused by a Force Majeure Event or the Seller's failure to comply with its obligations under the Contract in respect of the Goods:

1. 1. 1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the [third] Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and

1. 1. 2. the Seller shall store the Goods until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Buyer for all related costs and expenses (including insurance).

1. 7. If fifteen (15) Business Days after the date on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken or accepted actual delivery of them, or collected them (as the case may be), the Seller may resell or otherwise dispose of part or all of the Goods and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, charge the Buyer for any shortfall below the price of the Goods.

1. 8. If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice in writing from the Buyer that the wrong quantity of Goods was delivered, the Seller shall make a pro rata adjustment to the invoice for the Goods.

1. 9. The Seller may deliver the Goods by instalments, which it shall invoice and which the Buyer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

4. Quality AND MANUFACTURER’S GUARANTEE

1. 1. The Seller warrants that on delivery the Goods shall:

1. 1. 1. conform in all material respects with their description and/or the Specification; and
      2. be free from material defects in design, material and workmanship; and
      3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

1. 2. Subject to clause 5.3, if:

1. 1. 1. the Buyer gives notice in writing to the Seller within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

1. 1. 2. the Seller is given a reasonable opportunity of examining such Goods; and

1. 1. 3. the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost,

the Seller shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in clause 5.1, repair or replace the defective Goods, or refund the price of the defective Goods in full (if and to the extent such price has already been paid).

1. 3. The Seller shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:

1. 1. 1. the Buyer makes any further use of such Goods after giving notice in accordance with clause 5.2;

1. 1. 2. the defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;

1. 1. 3. the defect arises as a result of the Seller following any drawing, design or specification supplied by or on behalf of the Buyer;

1. 1. 4. the Buyer alters or repairs such Goods without the written consent of the Seller;

1. 1. 5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

1. 1. 6. the Goods differ from their description, orany Specification, as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

1. 4. Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

1. 5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

1. 6. These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.

1. 7. Some Goods may come with a manufacture’s guarantee.  If so, please refer to the manufacture’s guarantee provided with the Goods for details of the applicable terms and conditions.

5. Title and risk

1. 1. The risk in the Goods shall pass to the Buyer on completion of delivery or collection, as the case may be.

1. 2. Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and any applicable delivery charges.
   3. Until title to the Goods has passed to the Buyer, the Buyer shall:

1. 1. 1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;

1. 1. 2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

1. 1. 3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

1. 1. 4. notify the Seller immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and

1. 1. 5. give the Seller such information as the Seller may reasonably require from time to time relating to the Goods and the Buyer's ongoing financial position.

1. 4. At any time before title to the Goods passes to the Buyer, the Seller may require the Buyer to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored, to recover them. The Buyer shall procure entry to any such third party's premises if requested to do so by the Seller.

6. Price and payment

1. 1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Seller's price list in force as at the date of delivery.

1. 2. The Seller may, by giving notice in writing to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

1. 1. 1. any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

1. 1. 2. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

1. 1. 3. any delay caused by any instructions of the Buyer or failure of the Buyer to give or delay by the Buyer in giving the Seller adequate or accurate information or instructions.

1. 3. The price of the Goods:

1. 1. 1. excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and

1. 1. 2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.

1. 4. The Seller may invoice the Buyer for the Goods on or at any time after the completion of delivery pursuant to clause 4.3.

1. 5. The Buyer shall pay each invoice submitted by the Seller within 30 days of the end of the month in which the invoice is dated (or, in the case of any invoice dated January, within 28 days of the end of that month) or in accordance with any credit terms agreed in writing by the Seller, and in full and in cleared funds to a bank account nominated in writing by the Seller.  (For example, unless otherwise agreed in writing by the Seller, an invoice dated any day in April must be paid within 30 days of 30^th April).  Time for payment shall be of the essence of the Contract.

1. 6. If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then without limiting the Seller's remedies under clause 9, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 8% a year above The Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.  (For provisions relating to interest applicable under a Guarantee (if any), please see clause 12.6, clause 12.7 and clause 12.8).
   7. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. Limitation of liability

1. 1. References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.

1. 2. Nothing in the Contract limits any liability for:

1. 1. 1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation;
      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
      4. defective products under the Consumer Protection Act 1987;
      5. any liability that cannot legally be limited; or
      6. the Buyer's payment obligations under the Contract.

1. 3. Subject to clause 8.2, the Seller's total liability to the Buyer shall not exceed 100% of the total price paid or payable for the Goods by the Buyer.

1. 4. Subject to clause 8.2, the following types of loss are wholly excluded:

1. 1. 1. loss of profits (including loss of anticipated savings);
      2. loss of sales or business;
      3. loss of agreements or contracts;
      4. loss of use or corruption of software, data or information;
      5. loss of or damage to goodwill; and
      6. indirect or consequential loss.

1. 5. This clause 8 shall survive termination of the Contract.

8. Termination

1. 1. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:

1. 1. 1. the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of it being notified in writing to do so;

1. 1. 2. the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

1. 1. 3. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

1. 1. 4. the Buyer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

1. 2. Without limiting its other rights or remedies, the Seller may suspend supply of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in 9.1(b) to clause 9.1(d), or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.

1. 3. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.

1. 4. On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller's unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which the Buyer shall pay immediately on receipt.

1. 5. Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

1. 6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

9. Force majeure

The Seller shall not be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event.  If the period of delay or non-performance continues for 30 days, the Seller may terminate the Contract by giving not less than 7 days' written notice to the Buyer.

10. TRADE ACCOUNTS

1. 1. If the Buyer applies to open a trade account with the Seller (Trade Account) by completing the form attached, the Seller will advise the Buyer verbally or in writing whether the application has been accepted or rejected.

1. 2. The Seller may, at its sole discretion, suspend or cancel the Trade Account at any time, or amend the credit limit available on the Trade Account.

1. 3. If the amount outstanding on the Buyer’s Trade Account reaches over 95% of the designated credit limit for the time being, the Buyer shall pay such amount to the Seller as the Seller requires to reduce the outstanding balance of the credit limit, such payment to be made in respect of the oldest invoice first.  Such payment shall be made with 7 days of notification by the Seller to the Buyer that over 95% of the designated credit limit on the Trade Account has been reached.

1. 4. At any time where the amount outstanding on the Buyer’s Trade Account is at more than 100% of the designated credit limit for the time being, the Seller may, at its sole discretion, withhold making any delivery of any Goods, or require payment in full in advance of delivery.

1. 5. The Seller may, at its sole discretion, require a personal guarantee to be provided by a specified natural person as a condition of providing a Trade Account.  That natural person must complete and sign the declaration on the relevant Trade Account application form before the Trade Account comes into effect, and is referred to in Conditions and the Contract as the ‘Guarantor’.

11. GUARANTEE

Seller protections:

1. 1. This Guarantee is and shall at all times be a continuing security and shall cover the ultimate balance from time to time owing to the Seller by the Buyer in respect of the Guaranteed Obligations.

1. 2. The liability of the Guarantor under this Guarantee shall not be reduced, discharged or otherwise adversely affected by:

1. 1. 1. any intermediate payment, settlement of account or discharge in whole or in part of the Guaranteed Obligations;

1. 1. 2. any variation, extension, discharge, compromise, dealing with, exchange or renewal of any right or remedy which the Seller may now or after the date of this Guarantee have from or against any of the Buyer and any other person in connection with the Guaranteed Obligations;

1. 1. 3. any act or omission by the Seller or any other person in taking up, perfecting or enforcing any Security, indemnity, or guarantee from or against the Buyer or any other person;

1. 1. 4. any termination, amendment, variation, novation, replacement or supplement of or to any of the Guaranteed Obligations including, without limitation, any change in the purpose of, any increase in or extension of the Guaranteed Obligations and any addition of new Guaranteed Obligations;

1. 1. 5. any grant of time, indulgence, waiver or concession to the Buyer or any other person;

1. 1. 6. the insolvency, bankruptcy, liquidation, administration or winding up, or any incapacity, limitation, disability, discharge by operation of law or change in the constitution, name or style, of the Buyer, the Seller or any other person;

1. 1. 7. the death or incapacity (whether mental or physical) of the Guarantor, or any notice of their death or incapacity;

1. 1. 8. any invalidity, illegality, unenforceability, irregularity or frustration of any actual or purported obligation of, or Security held from, the Buyer or any other person in connection with the Guaranteed Obligations;

1. 1. 1. any claim or enforcement of payment from the Buyer or any other person;

1. 1. 10. any act or omission which would not have discharged or affected the liability of the Guarantor had they been a principal debtor instead of a guarantor; or

1. 1. 11. any other act or omission except an express written release by deed of the Guarantor by the Seller.

1. 3. The Seller shall not be obliged, before taking steps to enforce any of its rights and remedies under this Guarantee, to:

1. 1. 1. take any action or obtain judgment in any court against the Buyer or any other person;

1. 1. 2. make or file any claim in a bankruptcy, liquidation, administration or insolvency of the Buyer or any other person; or

1. 1. 3. make demand or enforce or seek to enforce any claim, right or remedy against the Buyer or any other person.

1. 4. The Guarantor warrants to the Seller that they not taken, exercised or received, and shall not take, exercise or receive, any Rights from or against the Buyer, its liquidator, an administrator, a co-guarantor or any other person in connection with any liability of, or payment by, the Guarantor under this Guarantee but:

1. 1. 1. if any such Right is taken, exercised or received by the Guarantor, that Right and all monies at any time received or held in respect of that Right shall be held by the Guarantor on trust for the Seller for application in or towards the discharge of the Guaranteed Obligations under this Guarantee; and

1. 1. 2. on demand by the Seller, the Guarantor shall promptly transfer, assign or pay to the Seller all other Rights and all monies from time to time held on trust by the Guarantor under this clause 12.4.

1. 5. This Guarantee is in addition to and shall not affect nor be affected by or merge with any other judgment, Security, right or remedy obtained or held by the Seller from time to time for the discharge and performance of the Buyer of the Guaranteed Obligations.

Interest:

1. 6. The Guarantor shall pay interest to the Seller after as well as before judgment at the annual rate which is 8% above the base rate of the Bank of England on all sums demanded under this Guarantee from the date of demand by the Seller or, if earlier, the date on which the relevant damages, losses, costs or expenses arose in respect of which the demand has been made, until, but excluding, the date of actual payment.

1. 7. Interest under clause 12.6 shall accrue on a day-to-day basis and be calculated by the Seller on such terms as the Seller may from time to time determine and shall be compounded on the last Business Day of each month.

1. 8. The Seller shall not be entitled to recover any amount in respect of interest under both this Guarantee and any arrangements entered into between the Buyer and the Seller in respect of any failure by the Buyer to make any payment in respect of the Guaranteed Obligations.

Costs:

1. 9. The Guarantor shall, promptly on demand, pay to, or reimburse, the Seller, on a full indemnity basis, all fees, costs, charges, losses, liabilities and expenses (including, without limitation, legal and other professional fees and printing and out-of-pocket expenses) and any taxes thereon incurred by the Seller in connection with:

1. 1. 1. the preservation, exercise or enforcement of any rights under or in connection with this Guarantee or any attempt to do so;

1. 1. 2. any amendment, extension, waiver or consent (or any proposal for any of these) under or in connection with this Guarantee;

1. 1. 3. any discharge or release of this Guarantee, or any stamping or registration of this Guarantee.

Representations and warranties:

1. 10. The Guarantor makes the representations and warranties set out in clause 12.11 to clause 12.25 inclusive to the Seller on the date of this Guarantee and they are deemed to be repeated by the Guarantor on each day whilst this Guarantee is still subsisting by reference to the facts and circumstances existing at the time of repetition.

1. 11. The Guarantor:

1. 1. 1. has the capacity to execute, deliver and perform their obligations under this Guarantee and the transactions contemplated by them;

1. 1. 2. is not dead or, by reason of illness or incapacity (whether mental or physical), incapable of managing their own affairs; and

1. 11. 3. has not been and is not the subject of an order, and has not had and does not have a deputy appointed in respect of them, under section 16 of the Mental Capacity Act 2005.
   12. The entry into, delivery and performance of the obligations in this Guarantee do not and will not contravene or conflict with any law or regulation or judicial or official order applicable to the Guarantor or any agreement or instrument binding on the Guarantor or their assets or constitute a default or termination event (however described) under such agreement or instrument.

1. 13. The Guarantor has obtained all required or desirable authorisations (including any consent, approval, resolution, licence, exemption, filing, notarisation or registration) to enable them to enter into, deliver and comply with their obligations under this Guarantee and to make this Guarantee admissible in evidence in England and Wales. Any such authorisations are in full force and effect.

1. 14. Subject to any general principles of law limiting obligations, the Guarantor's obligations under this Guarantee are legal, valid, binding and enforceable.

1. 15. No litigation, arbitration or administrative proceedings are taking place or pending or, to the best of the Guarantor's knowledge and belief (after due and careful enquiry), have been threatened against them or any of their assets which might reasonably be expected to have a material adverse effect on the ability of the Guarantor to perform their obligations under this Guarantee.

1. 16. None of the Guarantor's assets is entitled to immunity on any grounds from any legal action or proceeding (including, without limitation, suit, attachment prior to judgment, execution or other enforcement).

1. 17. No event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination thereof, would constitute) a default or termination event (however described) under any agreement or instrument which is binding on the Guarantor or to which any of their assets is subject which has or is reasonably likely to have a material adverse effect on the Guarantor's ability to perform their obligations under this Guarantee.

1. 18. The Guarantor's payment obligations under this Guarantee rank at least pari passu with all existing and future unsecured and unsubordinated obligations, except for those mandatorily preferred by law generally.

1. 19. The Guarantor:

1. 1. 1. has not suspended, or threatened to suspend, payment of their debts, is not unable to pay their debts as they fall due, has not admitted inability to pay their debts and is not deemed either unable to pay their debts or as having no reasonable prospect of so doing, in either case within the meaning of section 268 of the Insolvency Act 1986;

1. 1. 2. has not commenced negotiations with all or any class of their creditors with a view to rescheduling any of their debts, and has not made a proposal for or entered into any compromise or arrangement with their creditors; and

1. 1. 3. is not the subject of a bankruptcy petition, application or order.

1. 20. No person has become entitled to appoint a receiver over any of the assets of the Guarantor, and no receiver has been appointed over any of the assets of the Guarantor.

1. 21. No creditor or encumbrancer has attached or taken possession of, and no distress, execution, sequestration or other such process has been levied or enforced on or sued against, any of the Guarantor's assets.

1. 22. No event has occurred and no proceeding has been taken in any jurisdiction to which the Guarantor is subject which has an effect equivalent or similar to any of the events mentioned in clause 12.19 to clause 12.21 inclusive.

1. 23. The choice of English law as the governing law of this Guarantee will be recognised and enforced in the jurisdiction of the Guarantor's domicile and any judgment obtained in England and Wales in relation to this Guarantee will be recognised and enforced in that jurisdiction.

1. 24. The Guarantor is not required under the law of their domicile to make any deduction for, or on account of, tax from any payment they  may make under this Guarantee.

1. 25. Under the law of the Guarantor's domicile it is not necessary to file, record or enrol this guarantee with any court or other authority in that jurisdiction or pay any stamp, registration or similar taxes in relation to this guarantee.

Accounts:

1. 26. The Seller may place to the credit of a suspense account any monies received under or in connection with this Guarantee in order to preserve the rights of the Seller to prove for the full amount of all its claims against the Buyer or any other person in respect of the Guaranteed Obligations.

1. 27. The Seller may at any time and from time to time apply all or any monies held in any suspense account in or towards satisfaction of any of the monies, debts and liabilities that are the subject of this Guarantee as the Seller, in its absolute discretion, may conclusively determine.

1. 28. If this Guarantee ceases for any reason whatsoever to be continuing, the Seller may open a new account or new accounts in the name of the Buyer.

1. 29. If the Seller does not open a new account or new accounts in accordance with clause 12.28 it shall nevertheless be treated as if it had done so at the time when this Guarantee ceased to be continuing, whether by termination, calling in or otherwise, in relation to the Buyer.

1. 30. As from the time of opening or deemed opening of a new account or new accounts, all payments made to the Seller by or on behalf of the Buyer shall be credited or be treated as having been credited to the new account or accounts and shall not operate to reduce the amount for which this Guarantee is available at that time, nor shall the liability of the Guarantor under this Guarantee be in any manner reduced or affected by any subsequent transactions, receipts or payments.

Discharge conditional:

1. 31. Any release, discharge or settlement between the Guarantor and the Seller in relation to this Guarantee shall be deemed conditional on no right, Security, disposition or payment given or made to the Seller by the Guarantor, the Buyer or any other person in respect of the Guaranteed Obligations being avoided, reduced or ordered to be refunded under or pursuant to any enactment or law relating to breach of duty by any person, insolvency, bankruptcy, winding up, administration, protection from creditors generally or receivership or for any other reason.

1. 32. If any right, Security, disposition or payment referred to in clause 12.31 is avoided, reduced or ordered to be refunded, the Seller shall be entitled subsequently to enforce this Guarantee against the Guarantor as if the release, discharge or settlement referred to in clause 12.31 had not occurred and such right, Security, disposition or payment had not been given or made.

Payments and set-off:

1. 33. All sums payable by the Guarantor under this Guarantee shall be paid in the currency in which the Guaranteed Obligations are payable in full, without set-off, counterclaim or condition, and free and clear of and without any deduction or withholding whatsoever, provided that, if the Guarantor is required by law or regulation to make such deduction or withholding, they shall pay to the relevant authority the full amount of the deduction or withholding and pay to the Seller such additional amount as is necessary to ensure that the net full amount received by the Seller after the required deduction or withholding is equal to the amount that the Seller would have received had no such deduction or withholding been made.

1. 34. The Guarantor shall not and may not direct the application by the Seller of any sums received by the Seller from the Guarantor under any of the terms of this Guarantee.

1. 35. The Seller may at any time set off any liability of the Guarantor to the Seller against any liability of the Seller to the Guarantor, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this guarantee.

1. 36. The Seller is not obliged to exercise its rights under clause 12.35.  If it does exercise those rights it will promptly notify the Guarantor of the set-off that has been made.

Evidence of amounts and certificates

1. 37. Any certificate, determination or notification by the Seller as to a rate or any amount payable under this Guarantee shall, in the absence of manifest error, be conclusive evidence of the matter to which it relates.

Election to affirm:

1. 38. No election to affirm this Guarantee by the Seller shall be effective unless it is in writing (which for the purposes of this clause 12.38 excludes email).

For provisions relating to assignment and other dealings, please see clause 13.1.

12. General

1. 1. Assignment and other dealings.

1. 1. 1. The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. 

1. 1. 2. The Seller may at any time, without the consent of the Guarantor, assign any of its rights or transfer any of its obligations, under the Guarantee (if any) and may disclose to any actual or proposed assignee or transfers any information in its possession that relates to the Guarantee and the Guarantee that the Seller considers appropriate.

1. 1. 3. The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Seller.

1. 1. 4. The Guarantor (if any) may not assign any of their rights, or transfer any of their rights or obligations, under the Guarantee or enter into any transaction which would result in any of those rights or obligations passing to another person.

1. 2. No partnership or agency. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party as the agent of the other party, or authorise any party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

1. 3. Entire agreement.  The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

1. 4. Variation. No variation of the Contract shall be effective unless it is in writing (which for the purposes of this clause 13.4 excludes email) and signed by the parties (or their authorised representatives).

1. 5. Waiver.  A waiver of any right or remedy is only effective if given in writing (which for the purposes of this clause 13.5 excludes email) and shall not be deemed a waiver of any subsequent right or remedy.  A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.  No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

1. 6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 13.6, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

1. 7. Notices.

1. 1. 1. Any notice given to a party under or in connection with the Contract shall be in writing (which for the purposes of this clause 13.7 excludes email) and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).

1. 1. 2. Any notice shall be deemed to have been received:

1. 1. 1. 1. if delivered by hand, at the time the notice is left at the proper address; or

1. 1. 1. 2. 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.

1. 1. 3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

1. 1. 4. For the avoidance of doubt, a notice given under or in connection with this agreement is not valid if sent by fax or email.

1. 8. Rights and remedies. The rights and remedies provided under the Contract are cumulative and are in addition to, and not exclusive of, any rights and remedies provided by law.

1. 9. Third party rights. Save as expressly provided otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.  Notwithstanding any term of the Contract, the consent of any person who is not a party to it is not required to rescind or vary it at any time.

1. 10. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

1. 11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.