The Customer's
attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1.
Interpretation
The
following definitions and rules of interpretation apply in these Conditions.
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.
Commencement Date:
has the meaning given in clause 2.2.
Conditions: these
terms and conditions as amended from time to time in accordance with clause 17.8.
Contract: the
contract between Safetyflex and the Customer for the supply of Goods and/or Services
in accordance with these Conditions.
Control: has the
meaning given in section 1124 of the Corporation Tax Act 2010, and the
expression change of control shall be construed accordingly.
Customer: the person
or firm who purchases the Goods and/or Services from Safetyflex.
Data Protection Legislation:
the UK Data Protection Legislation and any other European
Union legislation relating to personal data and all other legislation and
regulatory requirements in force from time to time which apply to a party
relating to the use of personal data (including, without limitation, the
privacy of electronic communications).
Delivery Location:
has the meaning given in clause 4.2.
Deposit: 50% of
the price of the Goods as set out in Safetyflex’s written acceptance of the
Order.
Force Majeure Event:
has the meaning given to it in clause 16.
Goods: the goods (or
any part of them) set out in the Order.
Goods Specification:
any specification for the Goods, including any relevant plans or drawings, that
is agreed in writing by the Customer and Safetyflex.
Intellectual Property Rights:
patents, rights to inventions, copyright and related rights, trade marks and
service marks, business names and domain names, rights in get-up and trade
dress, goodwill and the right to sue for passing off or unfair competition,
rights in designs, database rights, rights to use, and protect the
confidentiality of, confidential information (including know-how and trade
secrets), and all other intellectual property rights, in each case whether
registered or unregistered and including all applications and rights to apply
for and be granted, renewals or extensions of, and rights to claim priority
from, such rights and all similar or equivalent rights or forms of protection
which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for the supply of Goods and/or
Services, as set out in the Customer's written acceptance of Safetyflex's
quotation.
Safetyflex: Safetyflex
Barriers Limited registered in England and Wales with company number 07187542.
UK Data Protection
Legislation: all applicable data protection and privacy legislation in
force from time to time in the UK including the General Data Protection
Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy
and Electronic Communications Directive (2002/58/EC)
(as updated by Directive 2009/136/EC) and the Privacy and Electronic
Communications Regulations 2003 (SI 2003/2426) as amended.
1.2
Interpretation:
(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 successors
and permitted assigns.
(c)
A reference to a statute or statutory provision is
a reference to it as amended or re-enacted. A reference to a statute or
statutory provision includes all subordinate legislation made under that
statute or statutory provision.
(d)
Any words following the terms including, include, in particular, for example or any similar expression
shall be construed as illustrative and shall not limit the sense of the words,
description, definition, phrase or term preceding those terms.
(e)
A reference to writing or written
includes email.
2.
Basis of
contract
2.1
The Order constitutes an offer by the Customer
to purchase Goods in accordance with these Conditions.
2.2
The Order shall only be deemed to be accepted
when Safetyflex issues written acceptance of the Order at which point and on
which date the Contract shall come into existence (Commencement Date).
2.3
Any samples, drawings, descriptive matter or
advertising issued by Safetyflex and any descriptions of the Goods contained in
Safetyflex's catalogues or brochures are issued or published for the sole purpose
of giving an approximate idea of the Goods described in them. They shall not
form part of the Contract or have any contractual force.
2.4
These Conditions apply to the Contract to the
exclusion of any other terms that the Customer seeks to impose or incorporate,
or which are implied by law, trade custom, practice or course of dealing.
2.5
Any quotation given by Safetyflex shall not
constitute an offer, and is only valid for a period of 30 Business Days from
its date of issue.
3.
Goods
3.1
The Goods are described in the Goods
Specification.
3.2
To the extent that the Goods are to be
manufactured in accordance with a Goods Specification supplied by the Customer,
the Customer shall indemnify Safetyflex against all liabilities, costs,
expenses, damages and losses (including any direct, indirect or consequential
losses, loss of profit, loss of reputation and all interest, penalties and
legal costs (calculated on a full indemnity basis) and all other professional
costs and expenses) suffered or incurred by Safetyflex arising out of or in
connection with any claim made against Safetyflex for actual or alleged
infringement of a third party's intellectual property rights arising out of or
in connection with Safetyflex's use of the Goods Specification. This clause 3.2 shall survive termination of
the Contract.
3.3
Safetyflex reserves the right to amend the Goods
Specification if required by any applicable statutory or regulatory
requirement, and Safetyflex shall notify the Customer in any such event.
4.
Delivery of
Goods
4.1
Safetyflex shall ensure that each delivery of the Goods is accompanied by a delivery note which
shows the date of the Order, the type and quantity of the Goods (including the
code number of the Goods, where applicable), special storage instructions and
installation instructions for the Goods.
4.2
Unless otherwise agreed in writing, the Customer
shall collect the Goods from Safetyflex's premises at Unit C Boston Place,
Foleshill, Coventry, CV6 5NN (Delivery Location) within three Business Days of Safetyflex
notifying the Customer that the Goods are ready. Safetyflex shall notify the Customer in
writing prior to delivery if any specialist lifting equipment is required to
load the Goods.
4.3
Delivery of the Goods shall be completed on the
completion of loading of the Goods at the Delivery Location.
4.4
When Safetyflex issue written acceptance of the
Order, it shall notify the Customer of an expected date of delivery from
receipt of the Customer’s Deposit, based on the lead times provided by its
suppliers of the raw materials required for the manufacture of the Goods. Any dates quoted for delivery of the Goods
are approximate only, and the time of delivery is not of the essence. Safetyflex
shall not be liable for any delay in delivery of the Goods that is caused by a
Force Majeure Event or the unavailability of raw materials from suppliers or
the Customer's failure to provide Safetyflex with adequate delivery
instructions or any other instructions that are relevant to the supply of the
Goods.
4.5
If Safetyflex fails to deliver the Goods, its
liability shall be limited to the costs and expenses incurred by the Customer
in obtaining replacement goods of similar description and quality in the
cheapest market available, less the price of the Goods. Safetyflex shall have
no liability for any failure to deliver the Goods to the extent that such
failure is caused by a Force Majeure Event or the unavailability of raw
materials from suppliers or the Customer's failure to provide Safetyflex with
adequate delivery instructions for the Goods or any relevant instruction
related to the supply of the Goods.
4.6
If the Customer fails to take delivery of the
Goods within five Business Days of Safetyflex notifying the Customer that the
Goods are ready, then except where such failure or delay is caused by a Force
Majeure Event or by Safetyflex's failure to comply with its obligations under
the Contract in respect of the Goods:
(a)
delivery of the Goods shall be deemed to have
been completed at 9.00 am on the fifth Business Day following the day on which Safetyflex
notified the Customer that the Goods were ready; and
(b)
Safetyflex shall store the Goods until delivery
takes place, and charge the Customer for all related costs and expenses
(including insurance).
4.7
If 2 months after the day on which Safetyflex
notified the Customer that the Goods were ready for delivery the Customer has
not taken delivery of them, Safetyflex may resell or otherwise dispose of part
or all of the Goods and, after deducting reasonable storage and selling costs,
account to the Customer for any excess over the price of the Goods or charge
the Customer for any shortfall below the price of the Goods.
4.8
Safetyflex may deliver the Goods by instalments,
which shall be invoiced and paid for separately. Each instalment shall
constitute a separate contract. Any delay in delivery or defect in an
instalment shall not entitle the Customer to cancel any other instalment.
5.
Quality of
Goods
5.1
Safetyflex does not warrant that the Goods will
be fit for the Customer’s particular purpose.
The Customer must rely on its own expert advice on the number and type
of goods needed for its own purposes.
5.2
Safetyflex warrants that on delivery, and for a
period of 12 months from the date of delivery (warranty period), the Goods shall:
(a)
conform in all material respects with their
description and the Goods Specification; and
(b)
be free from material defects in design,
material and workmanship.
5.3
The Customer shall inspect the Goods within 5 Business
Days of delivery and notify Safetyflex promptly of any damage or fault apparent
from such inspection.
5.4
Subject to clause 5.5, Safetyflex shall, at its
option, repair or replace the defective Goods, or refund the price of the
defective Goods in full if:
(a)
the Customer gives notice in writing within a
reasonable time of discovery and within [10] Business Days of delivery in
respect of damage or faults apparent from inspection on delivery that some or
all of the Goods do not comply with the warranty set out in clause 5.2;
(b)
Safetyflex is given a reasonable opportunity of
examining such Goods; and
(c)
the Customer (if asked to do so by Safetyflex)
returns such Goods to Safetyflex's place of business at [the Customer's] cost.
5.5
Safetyflex shall not be liable for the Goods'
failure to comply with the warranty in clause 5.2 if:
(a)
the Customer makes any further use of such Goods
after giving a notice in accordance with clause 5.4;
(b)
the defect arises because the Customer failed to
follow Safetyflex's oral or written instructions as to the storage,
installation, commissioning, use or maintenance of the Goods or (if there are
none) good trade practice;
(c)
the defect arises as a result of Safetyflex
following any drawing, design or Goods Specification supplied by the Customer;
(d)
the Customer alters or repairs such Goods
without the written consent of Safetyflex;
(e)
the defect arises as a result of fair wear and
tear, wilful damage, negligence, or abnormal working conditions; or
(f)
the Goods differ from the Goods Specification as
a result of changes made to ensure they comply with applicable statutory or
regulatory standards.
5.6
Except as provided in this clause 5, Safetyflex shall have no liability to the Customer in respect of the
Goods' failure to comply with the warranty set out in clause 5.2.
5.7
The terms of these Conditions shall apply to any
repaired or replacement Goods supplied by Safetyflex.
6.
Title and risk
6.1
The risk in the Goods shall pass to the Customer
on completion of delivery.
6.2
Title to the Goods shall not pass to the
Customer until the earlier of:
(a)
Safetyflex receiving payment in full (in cash or
cleared funds) for the Goods in which case title to the Goods shall pass at the
time of payment of all such sums; and
(b)
the Customer reselling the Goods, in which case
title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3
Until title to the Goods has passed to the
Customer, the Customer shall:
(a)
store the Goods separately from all other goods
held by the Customer so that they remain readily identifiable as Safetyflex's
property;
(b)
not remove, deface or obscure any identifying
mark or packaging on or relating to the Goods;
(c)
maintain the Goods in satisfactory condition and
keep them insured against all risks for their full price on Safetyflex's behalf
from the date of delivery;
(d)
notify Safetyflex immediately if it becomes
subject to any of the events listed in clause 14.1(b) to clause 14.1(d); and
(e)
give Safetyflex such information relating to the
Goods as Safetyflex may require from time to time.
6.4
Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of
its business (but not otherwise) before Safetyflex receives payment for the
Goods. However, if the Customer resells the Goods before that time:
(a)
it does so as principal and not
as Safetyflex’s agent; and
(b)
title to the Goods shall pass from Safetyflex to
the Customer immediately before the time at which resale by the Customer
occurs.
6.5
If before title to the Goods passes to the
Customer the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(d), then, without limiting any other right or remedy Safetyflex may
have:
(a)
the Customer's right to resell Goods or use them
in the ordinary course of its business ceases immediately; and
(b)
Safetyflex may at any time:
(i)
require the Customer to deliver up all Goods in
its possession which have not been resold, or irrevocably incorporated into
another product; and
(ii)
if the Customer fails to do so promptly, enter
any premises of the Customer or of any third party where the Goods are stored
in order to recover them.
7.
Supply of
Services
7.1
If required Safetyflex will inspect the
Customer’s installation of the Goods to ensure that they have been installed in
accordance with Safetyflex’s instructions.
7.2
The price and payment terms of carrying out any
inspection shall be agreed between the parties from time to time.
7.3
Safetyflex warrants to the Customer that any
inspection will be provided using reasonable care and skill.
8.
Customer's
obligations
8.1
The Customer shall:
(a)
ensure that the terms of the Order and any
information it provides in the Goods Specification is complete and accurate;
(b)
co-operate with Safetyflex in all matters;
(c)
provide Safetyflex, its employees, agents,
consultants and subcontractors, with access to the Customer's premises, office
accommodation and other facilities as reasonably required by Safetyflex to carry
out any inspection;
(d)
provide Safetyflex with such information and
materials as Safetyflex may reasonably require in order to carry out any
inspection and ensure that such information is complete and accurate in all
material respects; and
(e)
comply with all applicable laws,
including health and safety laws.
8.2
If Safetyflex's performance of any of its
obligations under the Contract is prevented or delayed by any act or omission
by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a)
without limiting or affecting any other right or
remedy available to it, Safetyflex shall have the right to suspend delivery of
the Goods or performance of any inspection until the Customer remedies the
Customer Default, and to rely on the Customer Default to relieve it from the performance
of any of its obligations in each case to the extent the Customer Default
prevents or delays Safetyflex's performance of any of its obligations;
(b)
Safetyflex shall not be liable for any costs or
losses sustained or incurred by the Customer arising directly or indirectly
from Safetyflex's failure or delay to perform any of its obligations as set out
in this clause 8.2; and
(c)
the Customer shall reimburse Safetyflex on
written demand for any costs or losses sustained or incurred by Safetyflex
arising directly or indirectly from the Customer Default.
9.
Charges and
payment
9.1
The price for Goods shall be
the price set out in the Order or as varied by agreement in writing between the
parties.
9.2
If the Customer wishes Safetyflex to arrange for
Goods to be delivered other than at the Delivery Location, Safetyflex shall
arrange for such carriage and the costs of insurance and transport for the
Goods shall be payable by the Customer.
9.3
Unless otherwise agreed in writing, in respect
of Goods, Safetyflex shall invoice the Customer for the Deposit on acceptance
of the Order. The balance of the price
of the Goods shall be invoiced prior to their delivery.
9.4
The Customer shall pay:
(a)
the invoice for the Deposit within 7 Business Days
of the date of the invoice and in any event, Safetyflex shall not commence
production of the Goods or order the raw materials for their production from
its suppliers until it has received the Deposit in full in cleared funds to a
bank account nominated in writing by it; and
(b)
the invoice for the balance of the price of the
Goods within 5 Business Days of the date of the invoice and in
any event the Customer shall not be entitled to take delivery of the Goods
until such invoice has been settled in full in cleared funds to a bank account
nominated in writing by it; and
time for payment shall be of the essence of the
Contract.
9.5
All amounts payable by the Customer under the
Contract are exclusive of amounts in respect of value added tax chargeable from
time to time (VAT).
Where any taxable supply for VAT purposes is made under the Contract by Safetyflex
to the Customer, the Customer shall, on receipt of a valid VAT invoice from Safetyflex,
pay to Safetyflex such additional amounts in respect of VAT as are chargeable
on the supply of the services or Goods at the same time as payment is due for
the supply of the services or Goods.
9.6
If the Customer fails to make a payment due to Safetyflex
under the Contract by the due date, then, without limiting Safetyflex's
remedies under clause 14 (Termination), the Customer 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 9.6 will accrue each day at 4% a year above the Bank of England's base
rate from time to time, but at 4% a year for any period when that base rate is
below 0%.
9.7
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).
10.
Intellectual
property rights
10.1
All Intellectual Property Rights in or arising
out of or in connection with the Goods and any services (other than
Intellectual Property Rights in any materials provided by the Customer) shall
be owned by Safetyflex.
11.
Data
protection
11.1
Both parties will comply with all applicable
requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a
party's obligations or rights under the Data Protection Legislation.
12.
Confidentiality
12.1
Unless otherwise agreed in writing, each party
undertakes that it shall not at any time disclose to any person any
confidential information concerning the business, affairs, customers, clients
or suppliers of the other party, except as permitted by clause 12.2.
12.2
Each party may disclose the other party's
confidential information:
(a)
to its employees, officers, representatives,
subcontractors or advisers who need to know such information for the purposes
of carrying out the party's obligations under the Contract. Each party shall
ensure that its employees, officers, representatives, subcontractors or
advisers to whom it discloses the other party's confidential information comply
with this clause 12; and
(b)
as may be required by law, a court of
competent jurisdiction or any governmental or regulatory authority.
12.3
Neither party shall use the other party's
confidential information for any purpose other than to perform its obligations
under the Contract.
13.
Limitation of
liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1
Safetyflex has obtained product and public
liability insurance cover in respect of its own legal liability for individual
claims not exceeding £10,000,000 per claim. The limits and exclusions in this
clause reflect the insurance cover Safetyflex has been able to arrange and the
Customer is responsible for making its own arrangements for the insurance of
any excess loss.
13.2
The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the
Contract including liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
13.3
Neither party may benefit from the limitations
and exclusions set out in this clause in respect of any liability arising from
its deliberate default.
13.4
Nothing in the Contract limits any liability
which cannot legally be limited, including but not limited to liability for:
(a)
death or personal injury caused by negligence;
(b)
fraud or fraudulent misrepresentation; and
(c)
breach of the terms implied by section 12 of the
Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act
1982 (title and quiet possession).
13.5
Subject to clause 13.4 Safetyflex will under no
circumstances whatsoever be liable to the Customer, whether in contract, tort
(including negligence), breach of statutory duty or otherwise, arising under or
in connection with the Contract for:
(a)
any loss of profit, sales, business or revenue;
(b)
loss of business opportunity;
(c)
loss of anticipated savings;
(d)
loss of goodwill; or
(e)
any indirect or consequential loss.
13.6
Subject to clause 13.4 and 13.5 Safetyflex’s total liability to the Customer in respect of all other
losses arising under or in connection with the Contract, whether in contract,
tort (including negligence), breach of statutory duty or otherwise, shall in no
circumstances exceed the higher of:
(a)
the price of the Goods; and
(b)
the amount actually received by Safetyflex as a
result of a claim made by it pursuant to its insurance in respect of such
breach.
13.7
Safetyflex has given commitments as to
compliance of the Goods with the specifications in clause 5. In view of these commitments, the terms implied by sections 13 to 15
of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods
and Services Act 1982 are, to the fullest extent permitted by law, excluded
from the Contract.
13.8
This clause 13 shall survive termination of the Contract.
14.
Termination
14.1
Without affecting any other right
or remedy available to it, either party may terminate the Contract with
immediate effect by giving written notice to the other party if:
(a)
the other party commits a
material breach of its obligations under the Contract and (if such breach is
remediable) fails to remedy that breach within 30 days after receipt of notice
in writing to do so;
(b)
the other party 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), 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;
(c)
the other party suspends, or threatens to suspend, or ceases
or threatens to cease to carry on all or a substantial part of its business; or
(d)
the other party's financial position deteriorates to such an
extent that in the terminating party's opinion the other party's capability to
adequately fulfil its obligations under the Contract has been placed in
jeopardy.
14.2
Without affecting any other right or remedy available to it, Safetyflex
may terminate the Contract with immediate effect by giving written notice to
the Customer if:
(a)
the Customer fails to pay any amount due under the Contract
on the due date for payment; or
(b)
there is a change of Control of the Customer.
14.3
Without affecting any other right or remedy
available to it, Safetyflex may suspend all further deliveries of Goods under
the Contract or any other contract between the Customer and Safetyflex if the
Customer fails to pay any amount due under the Contract on the due date for
payment, the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(d), or Safetyflex reasonably believes that the Customer is about to
become subject to any of them.
14.4
On termination of this Contract for any reason
whatsoever, all sums paid to Safetyflex by the Customer under this Contract
shall be returned to the Customer, except that Safetyflex shall be entitled to
payment on a quantum meruit basis for all work done before termination and
Safetyflex shall be entitled to retain from such refund any non-refundable costs
it has incurred in ordering any raw materials for the Goods from its suppliers,
provided that Safetyflex takes all reasonable steps to mitigate the amounts so
due.
15.
Consequences
of termination
15.1
On termination of the Contract:
(a)
the Customer shall immediately pay to Safetyflex
all of Safetyflex's outstanding unpaid invoices and interest and, in respect of
Services and Goods supplied but for which no invoice has been submitted, Safetyflex
shall submit an invoice, which shall be payable by the Customer immediately on
receipt;
(b)
the Customer shall return all of Safetyflex
Materials and any Deliverables or Goods which have not been fully paid for. If
the Customer fails to do so, then Safetyflex may enter the Customer's premises
and take possession of them. Until they have been returned, the Customer shall
be solely responsible for their safe keeping and will not use them for any
purpose not connected with this Contract.
15.2
Termination of the Contract shall not affect any
rights, remedies, obligations and liabilities of the parties that have accrued
up to the date of termination [or expiry], including the right to claim damages
in respect of any breach of the Contract which existed at or before the date of
termination.
15.3
Any provision of the Contract that expressly or
by implication is intended to have effect after termination shall continue in
full force and effect.
16.
Force majeure
Neither party shall be in breach
of the Contract nor liable for delay in performing or failure to perform, any
of its obligations under the Contract if such delay or failure result from
events, circumstances or causes beyond its reasonable control, including any
delay in the provision of raw materials for the production of Goods from
Safetyflex’s suppliers (a Force Majeure
Event).
17.
General
17.1
Assignment
and other dealings
(a)
Safetyflex 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.
(b)
The Customer 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 Safetyflex.
17.2
Notices.
(a)
Any notice given to a party under or in
connection with the Contract shall be in writing and shall be:
(i)
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); or
(ii)
sent by email to info@safetyflexbarrierss.com or
to the email address of the Safetyflex sales representative set out in
Safetyflex’s quotation.
(b)
Any notice shall be deemed to have been
received:
(i)
if delivered by hand, on signature of a delivery
receipt [or at the time the notice is left at the proper address; and
(ii)
if sent by pre-paid first-class post or other
next working day delivery service, at 1.00 pm on the second Business Day after
posting or at the time recorded by the delivery service; and
(iii)
if sent by email, at the time of transmission,
or, if this time falls outside business hours in the place of receipt, when
business hours resume. In this clause 17.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not
a public holiday in the place of receipt.
(c)
This clause 17.2 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.
17.3
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 17.3 shall not affect the validity and enforceability of the rest of the
Contract.
17.4
Waiver.
A waiver of any right or remedy under the Contract or by law is only effective
if given in writing and shall not be deemed a waiver of any subsequent right or
remedy. A failure or delay by a party to exercise any right or remedy provided
under the Contract or by law shall not constitute a waiver of that or any other
right or remedy, nor shall it prevent or restrict any 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.
17.5
No
partnership or agency. Nothing in the Contract is intended to, or shall be
deemed to, establish any partnership or joint venture between the parties,
constitute either party the agent of the other, or authorise either party to
make or enter into any commitments for or on behalf of the other party.
17.6
Entire
agreement.
(a)
The Contract constitutes the entire agreement
between the parties and supersedes and extinguishes all previous agreements,
promises, assurances, warranties, representations and understandings between
them, whether written or oral, relating to its subject matter.
(b)
Each party acknowledges that in entering into
the Contract it does not rely on, and shall have no remedies in respect of any
statement, representation, assurance or warranty (whether made innocently or
negligently) that is not set out in the Contract. Each party agrees that it
shall have no claim for innocent or negligent misrepresentation based on any statement
in the Contract.
(c)
Nothing in this clause shall limit or exclude
any liability for fraud.
17.7
Third
party rights.
Unless it expressly states
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.
17.8
Variation.
Except as set out in these Conditions, no variation of the Contract shall be
effective unless it is agreed in writing and signed by the parties (or their
authorised representatives).
17.9
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.
17.10 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 the Contract or its subject matter or
formation.
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