Eraa (U.K.) Ltd T/A Loxta - Standard Terms & Conditions of Sale

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions. In these Conditions the following definitions apply:

 “Buyer” means the person, firm or company so described in the Order;

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any varied or special terms and conditions agreed in writing between Eraa and the Buyer;

“Confidential Information” means, in relation to Eraa, information which is disclosed to the Buyer by Eraa pursuant to or in connection with these Conditions (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such) and (but not by way of limitation) will include the Specification;

“Contract” means the contract of the sale and supply of the Goods and/or the supply and performance of the Services subject to these Conditions;

"Eraa” means Eraa (U.K.) Limited, incorporated and registered in England and Wales with company number 02186682 and whose registered office is at Eraa’s Premises;

“Eraa’s Premises” means Suite 202 Northlight Industries, Pendle Road, Brierfield, Lancs, BB9 5FL, UK;

“Force Majeure Event” has the meaning given in clause 13.1;

“Goods” means the Goods (including any instalment of the Goods or any part of them) described in the Order;

“Intellectual Property Rights” means:

any and all rights in any patents, trade marks, service marks, registered designs, other designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and e-mail addresses, unregistered trade marks and service marks, copyrights, database rights, know-how, rights in designs and inventions and patents;
rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
the right to sue for past infringements of any of the foregoing rights,

whether registered, unregistered etc and which subsist or will subsist now or in the future in any part of the world;

 “Loss” means any actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings or settlements and “Losses” shall be construed accordingly;

“Order” any written order of the Buyer for the supply of Goods and/or performance of the Services;

“Party” means a party to the Contract and “Parties” shall be construed accordingly;

“Price” means the Price of the Goods and/or the charge for the Services and where required, Tooling, as specified in the Proposal;

"Proposal” means Eraa’s quotation or proposal (whether in writing or given orally) to provide the Goods, Services and, where required, the Tooling, to the Buyer, which is based on the Specification and which incorporates these Conditions;

“Services” means the services described in the Order;

“Specification” includes any plans, drawings, data, chemical formula, product codes or process or other technical requirements relating to the Goods and/or Services; and

“Tooling” means all tools, machines, jigs, moulds, dies, samples, plants, equipment and/or measuring and testing devices (gauges) acquired by Eraa specifically and exclusively for the manufacturing and testing of Goods to be supplied to the Buyer.

1.2 Interpretation. In these Conditions the following rules of interpretation apply:

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

(b)  a reference to a party includes its personal representatives, successors or permitted assigns;

(c)  a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(d)  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;

(e)  reference to writing or written includes faxes and emails; and

(f)  unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

2. GENERAL BASIS OF SALE

2.1 These Conditions apply to all Contracts for sale of Goods and/or Services by Eraa to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are incorporated by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order, the Proposal and the Specification are complete and accurate.

2.3 No Order submitted by the Buyer will be deemed to be accepted by Eraa and no Contract will exist unless and until confirmed in writing by Eraa’s authorised representative, at which point the Contract on these Conditions will come into existence.

2.4 No variation to these Conditions will be binding unless agreed in writing between the authorised representatives of the Buyer and Eraa.

2.5 No Proposal for the Goods and/or Services shall constitute an offer. The Proposal shall only be valid for a period of 20 Business Days from its date of issue.

3. ORDERS AND SPECIFICATIONS

3.1 The Buyer acknowledges that all advice, instructions or recommendations given by or on behalf of Eraa rely on and are dependent upon the information, specifications, requirements and technical background given to Eraa by the Buyer.

3.2 The Buyer will be responsible to Eraa for ensuring the correctness and accuracy of the terms of any Order (including the Specification) submitted by the Buyer, and for giving Eraa any necessary information relating to the Goods and/or Services pursuant to sub-clause 3.1 or otherwise within a sufficient time to enable Eraa to perform the Contract in accordance with these Conditions.

3.3 The quantity, quality, description, functionality, facilities, functions, capacity and description of the Goods and/or Services will, subject as provided in these Conditions, be as specified in the Order, the Specification and/or as set out either in Eraa’s Proposal or any documents referred to in the Order.

3.4 The Buyer warrants that all component parts of the Specification are free from, or supplied with the full consent of the owners of any Intellectual Property Rights which may apply to them. In issuing any Specification, the Buyer warrants and represents that the Goods and/or Services do not breach the Intellectual Property Rights of any third party.

3.5 Any Specification supplied by Eraa to the Buyer in connection with the Contract, together with all Intellectual Property Rights in the Specification  unless they are the property of others, will be the exclusive property of Eraa.

3.6 To the extent that Eraa is required to undertake design works on behalf of the Buyer, the Buyer warrants that on approval of the same, the final product design does not conflict with the Intellectual Property Rights of any third party.

3.7 Eraa shall retain title to all Intellectual Property Rights relating to Tooling design, methods and materials/construction and nothing in these Conditions shall prevent Eraa from using the Tooling in connection with the sale of Goods to a third party.

3.8. Unless it has been purchased by the Buyer in accordance with these Conditions, all Tooling will be and remain the property of Eraa.

4. PRICE AND TERMS OF PAYMENT

4.1 Subject to any alternative arrangement that is agreed in writing in accordance with these Conditions, the Buyer will pay the Price upon formation of the Contract under Clause 2.3 in cleared funds to such bank as Eraa may from time to time nominate, without any set-off, counterclaim, withholding or deduction and time will be of the essence in this respect.

4.2 The Price is exclusive of any applicable value added tax (VAT), which the Buyer shall additionally be liable to pay to Eraa at the prevailing rate, subject to receipt of a valid VAT invoice.

4.3 Eraa reserves the right, by giving notice to the Buyer at any time before dispatch, to increase the Price to reflect any increase in the cost to Eraa which is due to a Force Majeure Event, any change in delivery dates, any change in quantities or the Specification which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Eraa adequate or accurate information or instructions. In this case, the Buyer reserves the right to purchase at the higher Price or to terminate the Contract, in which case Eraa reserves its right to continue to supply the Goods and/or Services at the lower Price.

4.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Eraa, Eraa will be entitled to:

4.4.1 terminate the Contract in accordance with clause 10;

4.4.2 suspend or delay delivery of the Goods and/or performance of the Services in the event that any sums are due to it; and

4.4.3 appropriate any payment made by the Buyer to such of the Goods and/or Services (or Goods and/or Services supplied under any  other Contract between the Buyer and Eraa) as Eraa may think fit (notwithstanding any purported appropriation by the Buyer);

4.4.4 charge interest on any overdue sum from the due date until payment is made in full, both before and after any judgment, at a rate of 8% per annum over the Bank of England’s base rate from time to time in force.

5. DELIVERY

5.1 Eraa shall ensure that:

5.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of dispatch, the type and quantity of the Goods (including the code number of the Goods where applicable) and special storage instructions (if any); and

5.1.2 if Eraa requires the Buyer to return any packaging materials to Eraa, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as Eraa shall reasonably request. Return of packaging materials shall be at Eraa’s expense.

5.2 Eraa shall deliver the Goods to the location set out in the Order or such other location as the parties may agree at any time after Eraa notifies the Buyer that the Goods are ready for delivery.

5.3 Unless otherwise expressly agreed in writing, delivery of the Goods shall be on the basis of EXW (Eraa’s Premises) (Ex Works – Incoterms 2020)

5.4 Eraa (or, where appropriate, the instructed carrier) shall use reasonable endeavours to deliver the Goods on the date specified within the Order. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Eraa 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 Eraa with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.5 If the Buyer fails to accept delivery of the Goods within three Business Days of Eraa notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Eraa’s failure to comply with its obligations under the Contract:

5.5.1 delivery of the Goods shall be deemed to have been completed at 9:00am on the third Business Day after the day on which Eraa notified the Buyer that the Goods were ready; and

5.5.2 Eraa shall store the Goods until delivery takes place and charge the Buyer for all related costs and expenses (including insurance).

5.6 If ten Business Days after the day on which Eraa notified the Buyer that the Goods were ready and the Buyer has not taken actual delivery of them, Eraa may resell or otherwise dispose of part or all of the Goods.

5.7 Eraa may deliver the Goods in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment. 

6. RISK AND TITLE

6.1 Risk in the Goods will pass to the Buyer in accordance with clause 5.3.

6.2 Title in the Goods will not pass to the Buyer until Eraa has received payment in full (in cash or cleared funds) for the Goods and any other goods that Eraa has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3 Until such time as the title in the Goods passes to the Buyer, the Buyer shall:

6.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as Eraa’s property;

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

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of Delivery;

6.3.4 notify Eraa immediately if it becomes subject to any of the events listed in clause 10.1.3 to clause 10.1.7; and

6.3.5 give Eraa such information relating to the Goods as Eraa may require from time to time.

6.4 Subject to any written agreement between the parties under clause 4.1, and subject to 6.5 below, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Eraa receives payment for the Goods. However, if the Buyer resells the Goods before that time:

        6.4.1  it does so as principal and not as Eraa’s agent; and

        6.4.2  title to the Goods shall pass from Eraa to the Buyer immediately before the time at which resale by the Buyer occurs.

6.5  If, before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 10.1 then, without limiting any other right or remedy Eraa may have:

        6.4.1  the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

        6.4.2  Eraa may at any time:

                    6.4.2.1 require the Buyer to deliver up all the Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

                    6.4.2.2 if the Buyer fails to do so promptly, enter the premises of the Buyer or any third party where the Goods are stored in order to recover them.

7. QUALITY

7.1 Unless otherwise agreed in writing or detailed within the Proposal or any applicable Specification, Eraa warrants that on Delivery, and for a period of 12 months from the date of Delivery (Warranty Period), the Goods shall:

7.1.1 provided that the Buyer is not in breach of its warranty contained at clause 3.4, conform with the Specification; and

7.1.2 be free from material defects in design, material and workmanship.

7.2 Subject to clause 7.3, if:

7.2.1 the Buyer gives notice in writing to Eraa during the Warranty Period within 5 Business Days of discovery that all or some of the Goods do not comply with the warranty set out in clause 7.1;

7.2.2 Eraa is given a reasonable opportunity of examining such Goods; and

7.2.3 the Buyer (if asked to do so by Eraa) returns such Goods to Eraa’s place of business at the Buyer’s cost,

Eraa shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

7.3 Eraa shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:

7.3.1 the Buyer fails to provide the required notice of the alleged non-compliance under clause 7.2.1

7.3.2 the Buyer makes any further use of such Goods after giving notice in accordance with clause 7.2

7.3.3 the defect arises because the Buyer failed to follow Eraa’s oral or written instructions as to storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

7.3.4 the defect arises as a result of the Buyer following any drawing, design or Specification supplied by the Buyer;

7.3.5 the Buyer alters or repairs such Goods without the written consent of Eraa;

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

7.3.7 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.4 Except as provided in this clause 7, Eraa shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.

7.5 Eraa will be under no liability under the above warranty set out in clause 7.1 if the total Price has not been paid by the due date for payment.

7.6 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.

7.7 These Conditions shall apply to any repaired or replacement Goods supplied by Eraa.

8. PROVISION OF SERVICES

8.1 Eraa shall supply the Services to the Buyer in accordance with the Specification in all material respects.

8.2 Eraa shall use reasonable endeavours to meet any performance dates specified within the Order, but such dates approximate only, and the time of performance is not of the essence. Eraa shall not be liable for any delay to perform the Services that is caused by a Force Majeure Event or the Buyer’s failure to provide Eraa with adequate instructions or any act or omission on behalf of the Buyer that is relevant to the supply of the Services.

8.3 Eraa warrants to the Buyer that the Services will be provided using reasonable care and skill.

9. CONFIDENTIALITY

9.1 The Buyer undertakes that, except as provided by sub-Clause 9.2 or as authorised in writing by Eraa, it will, at all times during the continuance of the Contract and after its termination:

9.1.1 keep confidential all Confidential Information;

9.1.2 not disclose any Confidential Information to any other party;

9.1.3 not use any Confidential Information for any purpose other than as contemplated by and subject to the Conditions;

9.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and

9.1.5 ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by the  Buyer, would be a breach of the provisions of sub-Clauses 9.1.1 to 9.1.4 above.

9.2 The Buyer may:

9.2.1 disclose any Confidential Information to:

9.2.1.1 any, agent, consultant, sub-contractor or supplier of the Buyer;

9.2.1.2 any governmental or other authority or regulatory body; or

9.2.1.3 any employee or officer of the Buyer or of any of the aforementioned persons, parties or bodies;

to such extent only as is necessary for the purposes contemplated by these Conditions and, in the case of clause 9.2.1.1 or clause 9.2.1.3, only with Eraa’s express written consent in writing, or, in the case of clause 9.2.1.2, as required by law. In each case the Buyer will first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-Clause 9.2.1.2 or any employee or officer of any such body) obtain and submit to Eraa a written confidentiality undertaking from the party in question. Such undertaking will be as nearly as practicable in the terms of this Clause 9, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and

9.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of  the Contract, or at any time after that date becomes, public knowledge through no fault of the Buyer. In making such use or disclosure, the Buyer must not disclose any part of the Confidential Information that is not public knowledge.

9.3 The provisions of this Clause 9 will continue in force in accordance with these Conditions, notwithstanding the termination of the Contract for any reason.

10. TERMINATION AND CONSEQUENCES

10.1 Eraa may forthwith terminate the Contract by giving written notice to the Buyer if:

10.1.1 any sum owing to Eraa by the Buyer under any of the provisions of the Contract is not paid within 7 days of the due date for payment;

10.1.2 the Buyer commits any other breach of any of the provisions of the Contract and, if the breach is capable of remedy, fails to remedy it within 14 days after being given written notice by Eraa giving full particulars of the breach and requiring it to be remedied;

10.1.3 an encumbrancer takes possession, or where the Buyer is a company, a receiver is appointed, of any of the property or assets of the Buyer;

10.1.4 the Buyer makes any voluntary arrangement with its creditors or being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);

10.1.5 the Buyer, being an individual or firm, has a bankruptcy order made against them or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under the Contract);

10.1.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Buyer; or

10.1.7 the Buyer ceases, or threatens to cease, to carry on business.

10.2 The right to terminate the Contract given by this Clause 10 will not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

10.3 Upon the termination of the Contract for any reason:

10.3.1 any sum owing by the Buyer to Eraa under any of the provisions of the Contract will become immediately due and payable;

10.3.2 any rights or obligations to which any of the Parties to the Contract may be entitled or be subject before its termination will remain in full force and effect where they are expressly stated to survive such termination;

10.3.3 termination will not affect or prejudice any right to damages or other remedy which either Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which either Party may have in respect of any breach of the Contract which existed at or before the date of termination;

10.3.4 subject as provided in this Clause 10, and except in respect of any accrued rights, neither Party will be under any further obligation to the other;

10.3.5 each Party will return to the other Party any materials in which the ownership has not been transferred to that other Party which have, for any reason, been provided for the purposes of the Contract; and

10.3.6 the Buyer will forthwith cease to use, either directly or indirectly, any Confidential Information, and will forthwith return to Eraa any documents in its possession or control which contain or record any Confidential Information.

11. LIMITATION OF LIABILITY

11.1 Save to the extent otherwise provided for:

11.1.1 Eraa shall have no liability or responsibility whatsoever for any Losses of whatever nature due to or arising through any cause beyond its reasonable control or for a Force Majeure Event;

11.1.2 Eraa shall have no liability or responsibility, whether by way of indemnity or by reason of any breach of the Contract or otherwise in contract, breach of statutory duty or misrepresentation or by reason of the commission of any tort (including but not limited to negligence) in connection with the Goods, Services and/or Tooling, for any of the Buyer’s loss of profit; loss of use of the Goods; loss of production or productivity; loss of contracts with any third party; any financial or economic loss; or Losses of an indirect, special or consequential nature; and

11.1.3 Eraa’s total liability to the Buyer for any Losses howsoever arising whether by reason of any breach of the Contract or otherwise in contract, breach of statutory duty or misrepresentation or by reason of the commission of any tort (including but not limited to negligence) shall not exceed the Price paid by the Buyer to Eraa in cleared funds under the Contract to which the liability relates.

11.2 For the avoidance of doubt, nothing in these Conditions limits or seeks to exclude Eraa’s liability for claims of death or personal injury caused by Eraa’s negligence, fraud or for any other liability for which it is not permitted to seek to limit or exclude by operation of law.

12. INDEMNITY

The Buyer will indemnify, keep indemnified and hold harmless Eraa, its sub-contractors, agents and employees from and against any and all Losses (including by not limited to any direct, indirect, special or consequential losses, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) howsoever arising and of whatsoever nature and whether in contract or in tort (including breach of third party Intellectual Property Rights, injury to or death of any person or persons or loss of or damage to any property) arising out of or in respect of the performance or non-performance by the Buyer of its obligations under the Contract if and to the extent that such Losses are caused or contributed to by the negligent acts or omissions of the Buyer or any persons for which the Buyer is otherwise legally liable.

13. FORCE MAJEURE

13.1 Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, 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, biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident and in the case of Eraa a failure of its suppliers or subcontractors (Force Majeure Event).

13.2 Eraa shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.

13.3 If a Force Majeure Event prevents, hinders or delays Eraa’s performance of its obligations for a continuous period of more than 30 days, Eraa may terminate the Contract immediately by giving written notice to the Buyer.

14. GENERAL

14.1 Assignment and Other Dealings

14.1.1 Eraa may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.1.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Eraa.

14.1.3 Eraa will be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or subcontractor will, for the purposes of the Contract, be deemed to be an act or omission of Eraa.

14.2 Relationship of the Parties

Nothing in the Contract will constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in these Conditions.

14.3 Third Party Rights

14.3.1 No part of these Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 will not apply to the Contract.

14.3.2 Subject to this Clause 14 these Conditions will continue and be binding on the transferee, successors and assigns of either Party as required.

14.4 Entire Agreement

14.4.1 These Conditions and the Contract contain the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

14.4.2 Each Party acknowledges that, in entering into the Contract, it does not rely on and shall have no remedies in respect of  any representation, assurance or warranty (whether made innocently or negligently) or other provision except as expressly provided in the Contract, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.

14.5 Notices

14.5.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.

14.5.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 14.5.1; if sent by pre-paid first class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

14.5.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

14.6 Waiver  

No failure or delay by either Party in exercising any of its rights under these Conditions will be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these Conditions will be deemed to be a waiver of any subsequent breach of the same or any other provision

14.7 Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

14.8 Multi-tiered Dispute Resolution Procedure

If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Contract, the Parties may at their discretion follow the procedure set out in this clause:

14.8.1 either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute; and

14.8.2 if the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the Parties who shall attempt in good faith to resolve it.

14.8.3 If the directors of the Parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Buyer is not registered in the United Kingdom, the parties will attempt to settle it by mediation.

14.8.4 The Parties shall have recourse to mediation in accordance with the International Chamber of Commerce (ICC) Mediation Rules (Rules), which Rules are deemed to be incorporated by reference into this clause.

14.8.5 If the Dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the Parties shall agree in writing, the Dispute shall be submitted to the International Court of Arbitration of the ICC whose seat shall be London and shall be finally settled under the Rules of Arbitration of the ICC (Arbitration Rules), by one or more arbitrators appointed in accordance with the Arbitration Rules. The Emergency Arbitrator Provisions under the Arbitration Rules shall not apply.

14.8.6 This clause 14.8 takes the form of an arbitration agreement and is governed by the law of England and Wales.

14.8.7 The language to be used in the mediation and in the arbitration shall be English.

14.8.8 If the directors of the Parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Buyer is registered in the United Kingdom, the Parties may commence court proceedings under clause 14.8 in relation to the whole or part of the Dispute.

14.9 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.

14.10 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 this Contract or its subject matter or formation.

v1.0 Dated 14/07/2021

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