TERMS AND CONDITIONS OF SALE
1) Definitions and interpretation
1.1. In these conditions of sale ("Conditions") (unless the context otherwise requires), the following words and phrases shall have the following meanings:
"Applicable Laws" means all applicable law, statute, bye law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), guidance or industry code of practice, rule of court or directives, delegated or subordinate legislation in force from time to time
"Background Intellectual Property" means any IPR owned by the Buyer or the Company prior to the date of the Contract or IPR which is created by a party independently to the Contract;
"Buyer" means the individual, corporation or other legal entity that has submitted an Order to the Company;
"Company" Vitritech Limited (company number 07257861) with its registered office at Northfield Road, Rotherham, S60 1RR
"Commercial Terms" means the Order acknowledgement or terms issued with the conditions setting out details of the Products, the Specification, the Price, Delivery date and other commercial terms;
"Conditions" means these terms and conditions of sale;
"Contract" has the meaning given to it in condition 3;
"Contract Documents" means, in relation to each contract for the sale of Products by the Company to the Buyer (a) the Commercial Terms and the Conditions (b) any Order acknowledgement, advice, dispatch note or other delivery documentation or invoice given by the Company to the Buyer in respect of the contract and (c) any other document expressly accepted by the Company in writing as forming part of the contract, and ‘Contract Document’ shall mean any one of them;
"Delivery" means completion of delivery of an Order in accordance with condition 7;
"Delivery Location" means the location specified for delivery as set out in the Contract Documents;
"Incoterms" means Incoterms 2020; being the international rules for the interpretation of trade terms devised by the International Chamber of Commerce as the same may be amended from time to time;
"Intellectual Property Rights" or "IPR" means all patents, rights to inventions, copyright, trade and service marks, business and domain names, know-how and trade secrets, goodwill rights in designs, database rights, 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;
"Losses" means 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 and other reasonable professional costs and expenses);
"Order" means the Buyer’s expressed desire, whether oral or written, to procure Products from the Company;
"Products" means all of the products or materials that the Buyer desires to purchase from the Company;
"Specification" means the description or specification for the Products as may be provided by the Company in the Order acknowledgement or the Commercial Terms to the Buyer from time to time; and
"Working Day" means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory holiday in England.
1.2 In these Conditions (unless the context otherwise requires):
1.2.1 construction of these Conditions shall ignore the headings (all of which are for reference only);
1.2.2 any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision;
1.2.3 if these Conditions are translated into any language other than English and there is any conflict or ambiguity between the English language version and the other version(s) the English version shall prevail;
1.2.4 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made form time to time under that statute or statutory provision and any comparable and applicable legislation in any other jurisdiction;
1.2.5 unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in the Contract but if there is any conflict between the provisions of Incoterms and the Contract, the latter shall prevail;
1.2.6 a reference to writing or written includes email; and
1.2.7 any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
2) General
2.1 Where any quotations are given by the Company these shall not be binding on the Company until an Order has been placed by the Buyer and accepted by the Company. All quotations provided by the Company shall be without obligation and can be revoked or amended by the Company at any time. Unless withdrawn by the Company, a quotation will remain valid for the period stated therein, or when no period is stated, for 30 days only after its date.
2.2 All Contracts for the sale of Products that are the subject of the Order are entered into by the Company subject only to these Conditions and to the exclusion of all guarantees, warranties and conditions (including any guarantees, warranties or conditions set out or referred to in any other purchasing or tender documents of the Buyer) whether expressed or implied by statute common law or otherwise except insofar as they are not inconsistent with these Conditions or insofar as such exclusion shall be prohibited by law. Accordingly these Conditions are the sole terms and conditions that will govern the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing
2.3 No amendment to these Conditions shall have any effect unless approved in writing by a director or other authorised employee of the Company.
2.4 For the purposes of the Contract, the parties hereto are independent contractors and nothing contained in the Contract shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint venturers. Each party agrees that it shall have no power or right to bind or obligate the other party, nor shall either party hold itself out as having such authority.
3) Acceptance
All Orders are subject to acceptance by the Company in its sole discretion and as evidenced by the earlier of a written order acknowledgement or delivery of the Products and a contract for the sale of Products ("Contract") will only come into effect upon the earlier of acceptance in writing by the Company of the Order or delivery of the Products.
4) Cancellation
4.1 Orders confirmed by the Company cannot be cancelled except with the written consent of the Company.
4.2 Subject to the other provisions of these Conditions and without prejudice to any other rights or remedies that the Company may have, the Buyer agrees that if the Buyer postpones or cancels any Order placed with the Company prior to the scheduled date of delivery of the Products stipulated in the Order in whole or in part for whatever reason then upon notice of such postponement or cancellation the Company shall be entitled to charge for all the work actually performed by the Company in accordance with the Contract including all non-cancellable costs and expenses incurred and irrevocably committed to by the Company including but not limited to the cost of resources and facilities dedicated to or otherwise set aside for the performance of the anticipated Order and any other specific costs incurred on behalf of the Buyer provided always that the Company shall take all reasonable actions to mitigate any such costs and expenses.
4.3 The Buyer shall pay any costs of expenses incurred by the Company in accordance with condition 4.2 within 30 days of the date of the invoice in respect of the same
5) Prices
5.1 The price and/ or price basis for the Products shall be as stated in the Contract Documents and is based on the cost to the Company of raw materials, fuel and power, transport and labour and other costs at the date of acceptance of the Order.
5.2 Unless otherwise stated in the Contract Documents all prices contained in the Contract Documents are Ex-Works (Incoterms 2020) exclusive of Value Added Tax or any other taxes or assessments now or hereafter imposed or levied by or under law, rule or regulation concerning the Products sold or their manufacture or sale.
5.3 Any special tests or inspections requested by the Buyer will be subject to additional charge.
5.4 All prices are in Sterling unless otherwise agreed. Quotations in a currency other than Sterling are based on the rate of exchange at the time of quoting.
5.5 In the event that the Buyer requests a delay in the date of the delivery of the Order under the Contract Documents and the Company agrees to that request the Company shall be entitled to revise its stated prices in the Contract Documents in line with the Company's standard charging rates then in existence at the date of the notification of the delay to the original Order delivery date.
6) Samples
6.1 If the Buyer delivers, ships or mails substances, samples, materials or documents to the Company, or requests that the Company delivers, ship or mail substances, samples, materials or documents to the Buyer or to third parties, then the expense and risk of loss or damage for such deliveries, shipments or mailings shall be borne by the Buyer. The Buyer accepts that the Company disclaims any liability for the actions or omissions of third-party delivery services or carriers
6.2 In order for the Company to comply with the Health and Safety at Work Act 1974 and any applicable regulations, the Buyer shall provide the Company with all information available to it regarding known or potential hazards associated with the use of any substances supplied to the Company and that the Buyer shall comply with all current legislation concerning the shipment of the substances to the Company by land, air or sea.
7) Payment
7.1 Unless different payment terms are stated in the Contract Documents payment should be made by the Buyer within 30 days of receipt of an invoice from the Company. In the case of instalment contracts payment will be made within this time in respect to delivery of each instalment.
7.2 All amounts due under the Contract shall be paid without abatement, counterclaim, deduction or setoff unless otherwise agreed by the Company.
7.3 Whenever reasonable grounds for insecurity arise with respect to due payment by the Buyer, the Company may require different terms of payment from those specified in these Conditions or the Contract and may demand assurance of the Buyer’s payment including payment in advance of delivery. Any such demand may be oral or written and the Company may, upon the making of such demand, stop production and suspend shipments. If, within the period stated in such demand, the Buyer fails or refuses to agree to such different terms of payment or fails or refuses to give adequate assurance of due payment, the Company may, at its option, treat such failure or refusal as a repudiation of the portion of the Contract which has not been fully performed, or may resume production and may make shipment under reservation of possession or of a security interest and may demand payment against tender of documents of title.
7.4 If any payment is not made by the Buyer on or before the date for payment, the Company reserves the right to charge interest on the amount outstanding at the rate of five percent over base rate of Lloyds Bank Plc prevailing from day to day from the due date for payment until the day payment is received by the Company. Such interest shall run from day to day and shall accrue after as well as before and judgement and shall be compounded monthly on the amount overdue until payment thereof.
7.5 Time of payment by the Buyer shall be of the essence of the Contract.
7.6 The Company shall, in respect of all unpaid debts from the Buyer, have a general lien on all Products and property of the Buyer (whether or not paid for), in the possession of the Company. The Company shall be entitled, upon expiration of 14 days' notice, to dispose of such Products or property as it thinks fit and to apply the proceeds towards such debts.
8) Delivery and delays
8.1 The Buyer agrees that any delivery dates specified in the Commercial Terms or the Order acknowledgement provided by the Company, are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. The Company shall use reasonable efforts to fulfill the relevant Order in accordance with the estimated shipping date provided by the Company. The Company shall not be responsible for any delays caused by third parties in fulfilling all or part of any Contract nor liable for any losses or damages resulting from any delays. No delay shall entitle the Buyer to reject any delivery or further installment or part of the Contract of any other Order from the Buyer. Should expedited delivery be agreed and necessitate additional costs, such costs and additional expenses shall be paid by the Buyer.
8.2 The passing of risk in the Products shall be as provided in the applicable Incoterm specified in the relevant Contract but if no such term is specified risk in the Goods, subject to the provisions of condition 8.3 shall pass at the time when the Products leave the premises of the Company or in the event of the Products being delivered directly from a warehouse or other despatch point not being part of the premises of the Company then risk in the Products shall pass when the Products are delivered from the warehouse or despatch point as the case may be into the charge of the carrier.
8.3 If the Company is responsible for transportation of the Products then:
8.3.1 liability for damage or loss in transit occurring at any time prior to the passing of risk will be accepted by the Company only if the Buyer has provided sufficient evidence of the damage or loss and has reserved rights as necessary against carriers, port authorities, bailees or other parties concerned; and
8.3.2 the liability of the Company shall be satisfied by replacing the Products damaged or lost in transit as soon as is conveniently possible, or at its option refunding the purchase price, or a fair proportion thereof (if paid), so that it shall in no way be liable for any consequential or indirect loss or damage suffered by the Buyer.
8.4 The Company reserves the right to deliver Products by instalments and invoice instalments separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in any instalment will not entitle the Buyer to cancel any other instalment. If the Buyer shall make default in payment of any monies payable to the Company in relation to any delivery or any pre-payment under a contract for delivery by instalments then the Company shall be entitled within its discretion summarily to terminate the then outstanding balance of the Contract by serving notice to that effect upon the Buyer.
8.5 Where the Contract provides for the Buyer to collect Products from the Company's warehouse it must do so within 3 Working Days of notification that the Products are ready for collection. If the Buyer fails to collect the Products then (i) delivery of the Products shall be deemed to have been completed at 5.00 p.m. on the third Working Day after the day on which the Company notified the Buyer that the Products were available for collection and the Company shall be entitled to raise an invoice for such Products and (ii) the Company will store the Products until Delivery takes place and will be entitled to charge the Buyer for all related costs and expenses.
8.6 If five Working Days after the day on which the Company notified the Buyer that the Products were available for collection the Buyer has not collected them, the Company shall, at its option, be entitled to (i) deliver the Products to the Buyer at any location where the Buyer conducts business and to charge the Buyer for storage and delivery; or (ii) resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Products or charge the Buyer for any shortfall below the price of the Goods.
8.7 Title shall not pass in the Products until the earlier of (i) the Buyer shall have paid in full the purchase price for the Products and all other monies (if any) payable and due to the Company under the Contract and any contract for Products previously supplied to the Buyer and (ii) the Buyer resells the Products in the normal course of business, in which case title to the Products shall pass to the Buyer immediately before the time at which resale by the Buyer occurs. Until title to the Products passes to the Buyer, the Buyer shall hold the Products as fiduciary agent and bailee, and shall keep the Products separate from those of the Buyer and any other third party, and properly store, protect, insure and identify the Products as the Company's property. Until such time as the property in the Products passes to the Buyer (and provided the Products are still in existence and have not been resold) the Company shall be entitled, subject to any of the events listed in condition 12.1 having occurred or if the Buyer has defaulted in payment of monies due to the Company, to require the Buyer to deliver up the Products to the Company and, if the Buyer fails to do so when requested, to enter upon any premises of the Buyer or any third party where the Products are stored and repossess the Goods.
8.8 If before title to the Products passes to the Buyer the Buyer becomes subject to any of the events listed in condition 12.1 then, without limiting any other right or remedy the Company may have, the Buyer's right to resell the Products or use them in the ordinary course of its business shall cease immediately.
8.9 The Buyer must check the Products immediately on receipt and any transport or other visible damages must be noted on the transport document before it is signed in receipt of Goods and reported to the Company without delay.
8.10 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of equivalent description and quality in the cheapest market available, less the price of the Goods.
9) Quality and suitability
9.1 The Buyer will at all times determine the suitability of the Products for its intended use and the Company makes no representation or warranty that the Products are fit for any intended use made known to the Company by the Buyer. The warranties set out in condition 10 are the only warranties given by the Company in respect of the Products and no other warranties of any kind, whether statutory, written, oral express, or implied (including warranties of fitness for a particular purpose or satisfactory quality) shall apply.
9.2 All defects, damages or shortages must be notified to the Company by the Buyer within seven days of receipt of Goods. Thereafter liability will only be accepted by the Company in respect of latent defects.
9.3 The Company reserves the right to over-or under-deliver the quantities of the Products ordered by a margin of up to 5% by weight. Chemical composition and analysis, quantities and sizes will be in accordance with the Contract specification. Unless otherwise specifically agreed all tests, and inspections, whatsoever required by the Buyer will be subject to additional charges. Unless specifically requested by the Buyer, tests of chemical composition shall be based only on XRF results which shall be final. All tests and inspections (whether or not being a test of chemical composition) shall take place under the Company’s standard testing arrangements. All tests are subject to analytical tolerances.
9.4 In the event of a dispute as to analysis of any Products supplied under a Contract the matter will be referred to an independent analyst to be agreed between the parties and in default to be nominated by the President for the time being of the London Chamber of Commerce. Such analyst shall act as expert and not arbitrator and his findings (in the absence of patent error) will be final and binding on both parties. The costs of analysis shall be borne by the party in default or apportioned pro rata in the event of partial fault being established.
9.5 If any of the Products shall be found to be of defective quality or not in accordance with agreed specification then the Company will at its option either replace the Products at its expense or refund to the Buyer the sale price of the Goods, provided that if requested the Buyer will without delay, at the expense of the Company, return the Products that are the subject of complaint to the Company if the relevant Products are still in existence. The liability of the Company will be satisfied by replacing the defective Products or refunding to the Buyer the sale price of the Products and this shall be the Buyer's sole remedy. The Company shall in no event be liable for loss of profit, damage to plant or any consequential or special loss or damage sustained by the Buyer.
9.6 The Company will not accept the return of any Products without its prior agreement. Any Products which are authorised to be returned will remain at the risk of the Buyer during transportation.
10) Warranties
10.1 Any information provided by the Company in relation to the composition of the Products which is not set out in writing within the Commercial Terms Order, the agreed Specification or these Conditions is provided to the best of the Company's knowledge but the Company makes no representation or warranty as to the accuracy of such information and shall not be responsible for any losses or costs suffered by the Buyer arising as a result of the Buyer's reliance on such information.
10.2 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.
10.3 The Company warrants that on delivery the Goods, will conform in all material respects to the agreed description and specification included in the Contract Documents, be free from material defects in materials and workmanship when used properly and stored in accordance with the directions for the Goods' use. The Company shall not be liable for the failure of the Products to comply with this warranty if , if the Buyer makes further use of the Products after having discovered the defect, or the defect arises as a result of the Company following any design or specification supplied by the Buyer.
11) Liability
11.1 The Buyer shall indemnify the Company on a full indemnity basis against all action, claims or demands by third parties, howsoever arising, directly or indirectly, in connection with the use, functioning, performance or state of the Products following delivery of the Products to Buyer except where such claims relate to death or personal injury caused by the Company's negligence, or the negligence of its employees.
11.2 Subject to the provisions of condition 11.6 under no circumstances will the Company be liable for any consequential or indirect damages; or for any loss of profits, loss of goodwill, costs of capital, loss due to interruption of business, or loss of anticipated savings, in each case whether direct or indirect. The Company's total liability to the Buyer 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 price of the Goods.
11.3 The Company's liability in relation to the supply of Products which are based upon designs, constructions or specification made available by the Buyer are limited to the actual manufacture of the Products in accordance with such design, construction or specification.
11.4 To the extent that the Products are to be manufactured in accordance with designs, constructions or specification supplied by the Buyer, the Buyer shall indemnify the Company against all Losses suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Company's use of such designs, constructions or specifications.
11.5 The Buyer shall indemnify the Company against all Losses suffered or incurred by the Company arising or in connection with any claim made against the Company by a third party for any infringement or alleged infringement of any third-party intellectual property rights of any kind whatsoever by the use of the Products by the Buyer.
11.6 Nothing in these Conditions shall limit or exclude the Company's liability for (i) death or personal injury caused by its negligence, or the negligence of its employees (ii) fraud or fraudulent misrepresentation; or (iii) any other liability which may not be excluded or limited by law.
11.7 The Company shall not be liable to the Buyer nor be deemed to have breached the Contract for errors, delays or other consequences arising from the Buyer's failure to provide documents, materials or information or to otherwise cooperate with the Company in order for the Company to timely and properly perform its obligations under the Contract Documents.
12) Termination
12.1 The Company may terminate a Contract and/or any individual purchase Order in whole or in part at any time by written notice with immediate effect by giving written notice to the Buyer if the Buyer breaches any material obligation under a Contract or (i) suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning given to those terms by the Insolvency Act 1986; (ii) enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them; (iii) a meeting is convened, a petition presented, an order made, an effective resolution passed, or notice is given for the Buyer's winding up or dissolution (other than for the sole purpose of amalgamation and reconstruction) (iv) has a petition or other form of application is presented or made at court for the making of an administration order or the appointment of an administrator of the Buyer or an administrator of the Buyer is appointed or notice of intention to appoint such an administrator is given or filed at court; (v) has a receiver or administrative receiver appointed of it or of the whole or any part of its assets or appoints or has an administrator appointed of it; or (v) suffers any event or takes any step analogous to the events or steps in condition 12.1(i) to (v) inclusive in any jurisdiction other than England and Wales.,
12.2 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
12.3 Provisions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13) Force majeure
13.1 The Company will not be liable for delays in fulfilling any Contract or failure in the performance of any of its obligations caused by anything beyond the reasonable control of the Company, including, but not limited to, strikes, lockouts, epidemics, staff shortages, late arrival of raw materials, breakdowns, accidents, fires, wars, insurrections, riots, accidents, terrorist acts, war, shortages of materials, fuel or power, fires, floods, or other acts of God, acts or omissions of the Buyer or delays in transportation or lack of transportation facilities.
13.2 In the event of any such circumstances causing a delay in delivery then the Company shall be entitled to serve written notice of such circumstances on the Buyer and should the situation prevail for a period exceeding ninety days from the date of such notice then either party shall be entitled within a further period of ten days to cancel the Contract or that part of the Contract still outstanding.
14) Anti-bribery and corruption
14.1 The Buyer shall not offer or use, directly or indirectly, any money, property or anything of value received by the Buyer under or pursuant to the Contract to influence improperly or unlawfully any decision, judgement, action or inaction of any official, employee or representative of any government or agency or instrumentality thereof, or any government owned or partially owned government entity, or any other person or entity, in connection with or relating to the subject matter of the Contract or any supplement hereto.
14.2 No payment shall or transaction shall be made or entered into in connection with the Contract that is illegal, improper or is intended to unduly or improperly influence any third party, including without limitation by means of extortion, any kickback or bribery.
14.3 Without prejudice to the generality of the forgoing the Buyer shall, and shall ensure that all of its employees and any persons performing services on its behalf shall, fully comply with the Bribery Act 2010. If the Buyer or any person performing services on its behalf breaches the terms of this provision, the Company may immediately terminate the Contract without any liability.
15) Trade compliance
15.1 The Company is committed to acting in compliance with all applicable trade compliance regulation, including sanctions and export control laws. The Buyer shall not cause the Company to violate any such laws. The Buyer warrants that it will comply with all Applicable Laws including import and export laws and regulations and with all applicable export and import licenses and their provisos. Each party acknowledges that in no event shall the Company be obligated to take any action that the Company believes, in good faith, would cause it to be in violation of any laws, regulations, rules, decrees or directives applicable to the Company or Buyer.
15.2 The Buyer shall not directly or indirectly supply the Products to any third party that is targeted by international sanctions measures.
15.3 The Company's supply of Products to the Buyer is conditional upon the Company securing any necessary export authorisation or licence.
15.4 If any breach of this condition 15 is suspected or known by the Buyer, they must notify the Company immediately.
16) Assignment
The Buyer shall not assign, transfer, mortgage, charge, declare a trust over or deal in any way with all or any part of the benefit of, or its rights or benefits under, a Contract without the prior written consent of the Company (which consent shall not be unreasonably withheld or delayed).
17) Intellectual property
17.1 No right title or interest in and to any development or invention conceived or developed by the Company in the course of performing the Contract or any other Intellectual Property Rights are transferred to the Buyer.
17.2 The Buyer hereby grants to the Company a royalty free, non-exclusive, non-transferable right to use the its Intellectual Property to the extent provided to the Company and necessary to carry out the Contract, and solely to carry out the supply of the Products under this Contract. The Buyer Background Intellectual Property shall at all times remain the sole and exclusive property of the Buyer.
18) ConfidentiIality
18.1 Each party (the 'Disclosing Party') may from time to time during the term of the Contract, disclose or make available to the other party (the 'Receiving Party') certain proprietary or non-public information including, without limitation, trade secrets, know-how, formulas, samples and business information (collectively 'Confidential Information'). Confidential Information shall exclude information which the Receiving Party can demonstrate by reasonably detailed written documentation:
18.1.1 was independently developed by the Receiving Party without access to or use of the Disclosing Party's Confidential Information; and/or
18.1.2 became known to the Receiving Party, without restriction, from a source (having a right to disclose such information) other than the Disclosing Party without breach of the Contract; and/or
18.1.3 was in the public domain at the time it was disclosed or enters the public domain through no act or omission of the Receiving Party; and/or
18.1.4 was rightfully known by the Receiving Party, without restriction, at the time of disclosure.
18.2 Confidential Information shall include any information disclosed under any confidentiality agreement entered into by the parties prior to or after the commencement of the Contract.
18.3 The Receiving Party shall not use the Confidential Information of the Disclosing Party except for the purpose of exercising its rights or carrying out its obligations under the Contract and shall not disclose the Confidential Information of the Disclosing Party, except as expressly authorized in the Contract or in writing by the Disclosing Party.
18.4 Without limiting the generality of the foregoing, any samples provided by one party to the other and products made there from may be used solely by the Receiving Party for the purpose of exercising its rights or carrying out its obligations under the Contract and the Receiving Party shall not, without the prior written consent of the Buyer, chemically analyze, disassemble, sell, show or give the samples, or products made therefrom, to any third party. All written information and samples submitted by the Disclosing Party to the Receiving Party and all copies, shall be and/or remain the property of the Disclosing Party and shall be returned to the Disclosing Party promptly upon its request.
18.5 Neither Party shall, without the prior written consent of the other, disclose any Confidential Information to anyone but its officers, employees, agents and subcontractors who have entered into confidentiality agreements sufficient to prohibit further unauthorized use or disclosure by such persons of the Confidential Information.
18.6 The provisions of this condition 18 shall survive the termination and expiry of the Contract for 10 years from termination or expiry of the Contract.
19) Entire agreement
19.1 The Contract will constitute the entire agreement between the parties and will supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party confirms that it has not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party unless that warranty, statement, representation, understanding or undertaking is expressly set out in the Contract.
19.3 Neither party shall be entitled to the remedies of rescission or damages for misrepresentation arising out of, or in connection with, any agreement, warranty, statement, representation, understanding or undertaking whether or not it is set out in the Contract.
20) Notices
20.1 Any notice, approval, request, authorisation, direction or other communication required to be served under the Contract shall be in writing and may be served personally to a director of the Company or by registered letter and shall be deemed to have been served in the case of personal delivery: upon delivery, in the case of post: within two days (UK) and within seven days (outside the UK).
20.2 Unless otherwise notified to the other party, the notice address shall be the address for the parties shall be as set out in the Contract.
20.3 This condition does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
21) 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 deleted of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
22) Third parties
A person who is not party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of such Contract. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
23) Waiver
The rights and remedies provided by any Contract may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by the Buyer shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of a Contract or of a default under a Contract shall not constitute a waiver of any other breach or default and shall not affect the other terms of such Contract.
24) Variation
No variation or alteration of any of the provisions of a Contract or these Conditions shall be effective unless it is in writing and signed by or on behalf of each party.
25) Dispute resolution governing law and jurisdiction
25.1 If a dispute arises out of or in connection with any Contract including any non-contractual disputes or claims or any question regarding its existence, validity or termination ("Dispute") and any non-contractual disputes or claims, then without prejudice to condition 25.3 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, the Company and the Buyer shall attempt in good faith to resolve the Dispute;
25.2 If the Company and the Buyer are for any reason unable to resolve the Dispute within forty five (45) days of service of the Dispute Notice, and the Dispute relates to Products that have been exported from the United Kingdom such Dispute shall be referred to and finally resolved by arbitration under the Rules of Arbitration and Conciliation of the International Chamber of Commerce, which rules are deemed to be incorporated by reference into this condition. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London. The language to be used in the arbitral proceedings shall be English. Where the Dispute relates to any other matter the Company or the Buyer may refer the matter to the courts in accordance with condition 25.4.
25.3 Where any payment is due to the Company, the Company shall be entitled to recover such monies through either the provisions of condition 25.1 or through the courts.
25.4 Each Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any Contracts between the Buyer and the Company. Subject to the provisions of this condition 25.4 each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales.