Dolphin's Terms and Conditions For the Supply of goods

These Conditions (together with the documents referred to) will govern the Contract formed between Dolphin and the Customer for the supply of the Goods, and shall apply 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.

1.  DEFINITIONS AND INTERPRETATION

• 1.1 Definitions:

• 1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
• 1.3 A reference to a party includes its personal representatives, successors and permitted assigns.
• 1.4 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
• 1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
• 1.6 A reference to writing or written includes email.

2.  ORDERS FOR GOODS AND BASIS OF CONTRACT

• 2.1 Any quotation for the Goods given by Dolphin shall not constitute an offer, and is only valid for a period of 30 calendar days from its date of issue, or as otherwise notified to the Customer in writing by Dolphin, and shall automatically expire after that date without further need for notice.
• 2.2 Any samples, drawings, descriptive matter or advertising produced by Dolphin and any descriptions or illustrations contained in Dolphin’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
• 2.3 Should the Customer wish to proceed with an order following receipt of a quotation from Dolphin, the Customer shall provide Dolphin with a written request to proceed based on the quotation (Order Request).  The Customer is responsible for ensuring that the details of the Order Request are complete and accurate before placing the Order Request, in particular the size, dimensions and quantity of the Goods detailed in the quotation.
• 2.4 The Order Request constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
• 2.5 The Order Request shall only be deemed to be accepted when Dolphin issues an Order Confirmation at which point the Contract shall come into existence.
• 2.6 Once an Order Request has been accepted by Dolphin as set out in clause 2.5, the Customer shall not be permitted to cancel or make any amendments to the Order without Dolphin’s prior written agreement.
• 2.7  Should Dolphin agree that the Customer may cancel or amend an Order, unless otherwise agreed in writing with Dolphin, the Customer shall remain liable for all costs and expenses incurred by Dolphin in fulfilling an Order.

3.  GOODS

• 3.1 The Goods are described in the Specification. The Customer acknowledges that specified dimensions are subject to a tolerance of +/- 13mm or as otherwise specified in the Specification.
• 3.2 Dolphin reserves the right to amend the Specification at any time if required by any applicable statutory or regulatory requirements or other commercial and/or operational reason, provided that the Goods do not materially function in any lesser way than the original specification.
• 3.3 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Dolphin 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 and other reasonable professional costs and expenses) suffered or incurred by Dolphin in connection with any claim made against the Dolphin for actual or alleged infringement of a third party’s rights including Intellectual Property Rights, arising out of or in connection with Dolphin’s use of the Specification. This Clause 3.3 shall survive termination of the Contract.

4.  DELIVERY

• 4.1 Dolphin shall deliver the Goods to the Delivery Location on the Delivery Dates or such other location and dates as the parties may agree in writing.
• 4.2 Delivery of the Goods shall be deemed completed when the Goods are placed at the Customer’s disposal at the Delivery Location.
• 4.3 Dolphin shall deliver the Goods in accordance with Ex Works (Incoterms 2020), or such other applicable Shipping Terms as may be stated in the Order Confirmation.
• 4.4 Dolphin shall ensure that:
  • 4.4.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the order reference number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
  • 4.4.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to Dolphin. The Customer shall make any such packaging materials available for collection at such times as Dolphin shall reasonably request. Returns of packaging materials shall be at Dolphin’s expense.
• 4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Dolphin shall not be liable for any delay in delivery of the Goods, including without limitation any delay caused by:
  • 4.5.1 a Force Majeure Event; or
  • 4.5.2 delay by any courier; or as a result of any intervention, inspection, seizure or holding by any customs authority; or
  • 4.5.3 any act or omission of the Customer, including without limitation the Customer’s failure to provide Dolphin with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
• 4.6 Delays in the delivery of an order shall not entitle the Customer to:
  • 4.6.1 refuse to take delivery of the order;
  • 4.6.2 claim damages; or
  • 4.6.3 terminate the Contract.
• 4.7 If the Customer fails to take or accept delivery of the Goods within three Business Days of Dolphin first attempting to deliver the Goods, then, except where failure or delay in delivering the Goods is caused by a Force Majeure Event which affects Dolphin, or due to Dolphin’s failure to comply with its obligations under the Contract in respect of the Goods:
  • 4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am the on the third Business Day after the day on which Dolphin first attempted to deliver the Goods; and
  • 4.7.2 Dolphin shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
• 4.8 Notwithstanding clause 4.7, where the Customer requests a delay and/or postponement to the Delivery Date which Dolphin agrees to in writing, Dolphin shall store the Goods and shall be entitled to charge the Customer for all related costs and expenses (including insurance) it incurs in storing the goods from the original Delivery Date agreed until actual delivery takes place.
• 4.9 If ten Business Days after the day on which Dolphin notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, Dolphin may:
  • 4.9.1 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; or
  • 4.9.2 re-stock the Goods with Dolphin’s supplier and charge the Customer in relation to all costs associated with such re-stocking.
• 4.10 Dolphin 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.
• 4.11 Unless otherwise agreed in the Shipping Terms, Dolphin shall have no liability to the Customer for any damage to or loss of the Goods whilst in transit to the Customer. Any damage to the Goods must be reported to Dolphin and the courier in writing by the Customer within three days of delivery.
• 4.12 In the event of non-delivery of the Goods, this must be reported to Dolphin and the courier in writing by the Customer within fourteen days of the date of advice of despatch.

5.  INSTALLATION (ALAVO PRODUCTS ONLY)

• 5.1 Where agreed to by Dolphin in the applicable Order Confirmation, Dolphin shall install the Goods at the location set out in the Order Confirmation (or as otherwise agreed in writing) as soon as may be reasonably practicable after the anticipated Delivery Date and in accordance with any timings set out in the Order Confirmation or as otherwise agreed by Dolphin in writing.
• 5.2 Dolphin shall use reasonable skill and care when installing the applicable Goods.
• 5.3 For the purposes of the Contract, the installation of the Goods will be deemed complete by Dolphin’s field engineer when they provide the Customer with a signed and dated certificate of installation, notwithstanding that further ancillary and/or related work may still need to be carried out by the Customer and/or the Customer’s sub-contractors. The date stated on the Dolphin installation certificate shall be the “Installation Date” for the purposes of the Contract.

6.  QUALITY OF GOODS AND THE DOLPHIN WARRANTY

• 6.1 In respect of each of the Goods, Dolphin provides to the Customer the applicable warranties set out in the Dolphin Warranty Document found here.
• 6.2 Except as provided for in the Dolphin Warranty Document, 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.  For the avoidance of doubt Dolphin does not make any warranty as to the Goods’ fitness for purpose and it is the Customer’s sole responsibility to satisfy itself that the Goods are fit for purpose.

7.  DEFECTIVE GOODS AND RETURNS

• 7.1 The parties agree that applicable terms of the Dolphin Warranty Document shall also apply in relation to defective Goods.

8.  TITLE AND RISK

• 8.1 The risk in the Goods shall pass to the Customer on completion of delivery in accordance with the Shipping Terms.
• 8.2 Title to the Goods shall not pass to the Customer until Dolphin receives payment in full (in cash or cleared funds) for the Goods and any other goods that Dolphin has supplied to the Customer 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.
• 8.3 Until title to the Goods has passed to the Customer, the Customer shall:
  • 8.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Dolphin’s property;
  • 8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  • 8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Dolphin’s behalf from the date of delivery;
  • 8.3.4 notify Dolphin immediately if it becomes subject to any of the events listed in clause 15.2.3 to clause 15.2.14; and
  • 8.3.5 give Dolphin such information as Dolphin may reasonably require from time to time relating to:
    • 8.3.5.1 the Goods; and
    • 8.3.5.2 the ongoing financial position of the Customer.
• 8.4 Subject to Clause 8.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Dolphin receives payment for the Goods. However, if the Customer resells the Goods before that time:
  • 8.4.1 it does so as principal and not as Dolphin’s agent;
  • 8.4.2 title to those Goods shall pass from Dolphin to the Customer immediately before the time at which resale by the Customer occurs; and
  • 8.4.3 the Customer shall account to Dolphin for the proceeds of sale.
• 8.5 At any time before title to the Goods passes to the Customer, Dolphin may:
  • 8.5.1 by notice in writing, terminate the Customer’s right under Clause 8.4 to resell the Goods or use them in the ordinary course of its business;
  • 8.5.2 require the Customer to deliver up to Dolphin all Goods in its possession that have not been resold, or irrevocably incorporated into another product, and, 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.

9.  CHARGES AND PAYMENT

• 9.1 The price of the Goods and any services to be provided by Dolphin shall be:
  • 9.1.1 the price set out in the Order Confirmation, or, if no price is quoted, the price set out in Dolphin’s published price list in force as at the date of delivery; and
  • 9.1.2 exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer; and
  • 9.1.3 payable in the currency as set out on the Order Confirmation.
• 9.2 Dolphin reserves the right to:
  • 9.2.1 increase the charges by giving notice to the Customer to reflect any increase the price of the Goods to reflect any increase in the cost of the Goods to Dolphin that is due to:
    • 9.2.1.1 any factor beyond the control of Dolphin (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    • 9.2.1.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or Delivery Location; or
    • 9.2.1.3 any delay caused by any instructions of the Customer in respect of the Goods or any failure of the Customer to give Dolphin adequate or accurate information or instructions in respect of the Goods.
  • 9.2.2 charge for any expenses and/or disbursements (including but not limited to: insurance charges; delivery charges; handling charges and storage charges) incurred in the provision of the Goods which are not specifically included in the Order Confirmation, on a “cost plus 15%” basis, plus applicable VAT.
• 9.3 Dolphin shall be entitled to invoice the Customer for the Goods on or at any time after issuing of the Order Confirmation.
• 9.4 The Customer shall pay each invoice submitted by Dolphin as specified in the Order Confirmation, and in any event:
  • 9.4.1 within 30 days of the date of the invoice, unless otherwise agreed in writing; and
  • 9.4.2 in full and in cleared funds to a bank account nominated in writing by Dolphin, and
  • 9.4.3 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 VAT and any other tax, levy, impost, duty or other charge or fee of a similar nature arising in connection with the Contract, which Dolphin will add to its invoices at the appropriate rate.  If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to Dolphin, the Customer shall increase the sum it pays to Dolphin by the amount necessary to leave Dolphin with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
• 9.6 If the Customer fails to make a payment due to Dolphin under the Contract by the due date, then, without limiting Dolphin’s remedies under clause 15, the Customer shall pay interest on the overdue sum at the rate set out in the Late Payment of Commercial Debt (Interest) Act 1998.  Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
• 9.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law.  Dolphin may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Dolphin to the Customer.

10.  INTELLECTUAL PROPERTY RIGHTS

• 10.1 The Customer acknowledges and agrees that Dolphin and/or its licensors own all Intellectual Property Rights in the Goods.  Except as expressly stated herein, the Contract does not grant the Customer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Goods.

11.  CONFIDENTIALITY

• 11.1 Dolphin and the Customer undertake that they shall not at any time use any confidential information of the other, including without limitation that which concerns their business, assets, affairs, customers, clients or suppliers, for any purpose other than to perform its obligations under or in connection with the Contract. Dolphin and the Customer shall not at any time disclose such information to any person except:
  • 11.1.1 to its employees, officers, representatives or advisers who strictly need to know such information for the purposes of exercising Dolphin’s and the Customer’s rights or carrying out its obligations under this Contract. Dolphin and the Customer shall ensure that such recipients comply with this clause 11; and
  • 11.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.  GOODS RECALL

• 12.1 If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any of the Goods from the market (Recall Notice) it shall immediately notify Dolphin in writing enclosing a copy of the Recall Notice.
• 12.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of Dolphin.
• 12.3 Any recall of the Goods shall only be carried out in strict compliance with Dolphin’s instructions about the process of implementing the withdrawal.

13.  LIMITATION OF LIABILITY

• 13.1 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
• 13.2  Nothing in this Contract limits any liability which cannot legally be limited, including liability for:
  • 13.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  • 13.2.2 fraud or fraudulent misrepresentation;
  • 13.2.3 any matter in respect of which it would be unlawful to exclude or restrict liability for;
  • 13.2.4 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); and
  • 13.2.5 defective products under the Consumer Protection Act 1987.
• 13.3 Subject to clause 13.2, Dolphin shall not be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
  • 13.3.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
  • 13.3.2 any loss or corruption (whether direct or indirect) of data or information;
  • 13.3.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
  • 13.3.4 any indirect or consequential loss or liability under or in relation to the Contact.
• 13.4 Subject to clause 13.2 and 13.3, Dolphin’s total liability under or in connection with this Contract, whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, shall be limited to the payment received by Dolphin from the Customer for the Goods under the Contract.
• 13.5 Dolphin has given commitments as to compliance of the Goods with relevant specifications in clauses 5 and 6.  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.
• 13.6 This clause 12 shall survive termination of the Contract.

14.  INDEMNITY

• 14.1 The Customer shall keep Dolphin indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature made by third parties (including for the avoidance of doubt any end users of the Goods) caused in whole or in part or arising out of any act or omission of the Customer in connection with the use, storage and/or sale of the Goods.

15.  TERMINATION

• 15.1 Dolphin may terminate this Contract in whole or in part without liability to the Customer at any time by giving the Customer not less than 30 days’ written notice.
• 15.2 Without limiting its other rights or remedies, Dolphin may terminate this Contract with immediate effect by giving written notice to the Customer if:
  • 15.2.1 the Customer fails to pay any amount due under this Contract on the due date for payment;
  • 15.2.2 the Customer commits a material breach of any term of this Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
  • 15.2.3 the Customer repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
  • 15.2.4 the Customer 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  • 15.2.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  • 15.2.6 the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
  • 15.2.7 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  • 15.2.8 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
  • 15.2.9 the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • 15.2.10 a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
  • 15.2.11 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within fourteen days;
  • 15.2.12 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.2.4 to clause 15.2.11 (inclusive);
  • 15.2.13 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
  • 15.2.14 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
  • 15.2.15 the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
  • 15.2.16 there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
• 15.3 Without affecting any other right or remedy available to it, Dolphin may suspend all further deliveries of Goods under the Contract or any other contract between the Customer and Dolphin if:
  • 15.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
  • 15.3.2 the Customer becomes subject to any of the events listed in clause 15.2.3 to clause 15.2.14; or
  • 15.3.3 Dolphin reasonably believes that the Customer is about to become subject to any of them.

16.  CONSEQUENCES OF TERMINATION

• 16.1 On termination of this Contract:
  • 16.1.1 the Customer shall immediately pay to Dolphin all of Dolphin’s outstanding unpaid invoices and interest and, in respect of Goods and/or services supplied but for which no invoice has been submitted, Dolphin shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
  • 16.1.2 the Customer shall return any Goods which have not been fully paid for. If the Customer fails to do so, then Dolphin 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.
• 16.2 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
• 16.3 Termination of the Contract, however arising, shall not affect any rights, remedies, obligations or 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 this Contract which existed at or before the date of termination.

17.  Except as expressly provided or excluded in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

18.  FORCE MAJEURE

Neither party shall be in breach of this Contract nor liable for any delay in performing, or failure to perform, any of its obligations under this Contract (excluding payment of money), if such delay or failure results from a Force Majeure Event.  In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Contract by giving 14 days’ written notice to the affected party.

19.  GENERAL

• 19.1 Assignment and other dealings
  • 19.1.1 Dolphin 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.
  • 19.1.2 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 Dolphin.
• 19.2 Notices
  • 19.2.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
    • 19.2.1.1 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
    • 19.2.1.2 sent by email to the address specified in the Order Confirmation.
  • 19.2.2 Any notice shall be deemed to have been received:
    • 19.2.2.1 if delivered by hand, at the time the notice is left at the proper address;
    • 19.2.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    • 19.2.2.3 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 19.2.2.3, 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.
  • 19.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
• 19.3 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 shall not affect the validity and enforceability of the rest of the Contract.
• 19.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
• 19.5 No partnership or agency. Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
• 19.6 Entire agreement
  • 19.6.1 This 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.
  • 19.6.2 Each party acknowledges that in entering into this 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 this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
• 19.7 Third party rights.
  • 19.7.1 Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
  • 19.7.2 The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.
• 19.8 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• 19.9 Dispute Resolution Procedure
  • 19.9.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (“Dispute”), then the parties shall follow the procedure set out below.
    • 19.9.1.1 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, the Operations Director of each party shall attempt in good faith to resolve the Dispute.
    • 19.9.1.2 If the Operations Director of each party are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the Managing Director of each party who shall attempt in good faith to resolve it.
    • 19.9.1.3 If the Managing Directors are for any reason unable to resolve the Dispute within 14 days of it being referred to them, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (“ADR notice”) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 21 days after the date of the ADR notice.
  • 19.9.2 The commencement of a mediation will not prevent the parties commencing or continuing court proceedings.
• 19.10 Governing law. This 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 laws of England.
• 19.11 Jurisdiction. Each party irrevocably agrees that the courts of England 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.