terms of business
1. DEFINITIONS AND INTERPRETATIONThe following definitions and rules of interpretation apply:
1.1. "Applicable Laws" means any and all:
1.1.1. statutes, legislation, statutory instruments, regulations, by-laws, rules, ordinances, guidance or subordinate legislation from time to time made or issued to which a party is subject;
1.1.2. common law and the law of equity as applicable to the parties;
1.1.3. binding court order, judgment or decree;
1.1.4. applicable industry code of practice, official guidance, generally accepted policy or standard which, in each case, is enforceable by law;
1.1.5. any instruction, policy, rule or order that is legally binding; or
1.1.6. in each case in so far as such law relates to a party, the performance of that party’s obligations under these Terms of Business or which apply to, concern or otherwise affect the receipt or provision (whichever is relevant) of the Services under these Terms of Business.
1.2. "Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.3. "Business Hours" means the period from 9.00 am to 5.00 pm on any Business Day.
1.4. "control" means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control: shall be construed accordingly.
1.5. "Confidential Information" means information disclosed, imparted or otherwise made known by the Disclosing Party to the Receiving Party (whether before or after the date of these Terms of Business) which is secret, confidential, technical and/or commercial and/or which otherwise relates to the Disclosing Party’s business including without limitation information containing or relating to data; formulae; business methods; manufacturing and software processes; objects of intellectual property rights, business plans and strategy information; methods of operation and various applications; products and services (including samples); software and hardware; performance systems; business processes; production and manufacturing techniques, methodologies and systems; designs; customer lists; photographs; drawings; specifications; product development concepts and any other material bearing or incorporating any information relating to their business or the Supplier’s products and services and any other information which could reasonably be considered to be of a confidential nature; but excludes information which:
1.5.1. the Receiving Party can prove by documentary evidence produced to the Disclosing Party, to the satisfaction of the Disclosing Party, that it was lawfully in its possession, free of any restrictions as to its use or disclosure; or
1.5.2. is or becomes generally available to the public other than as a result of its disclosure in breach of these Terms of Business or any other undertaking of confidentiality; or
1.5.3. the Receiving Party lawfully receives without any confidentiality obligations, from a third party who is not bound by confidentiality or otherwise prohibited from disclosing such information.
1.6. "Customer's Equipment" means any equipment, including tools, systems, cabling or facilities, provided by the Customer, its agents, subcontractors or consultants which is used directly or indirectly in the supply of the Services including any such items specified in a Quote.
1.7. "Customer Materials" means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services, including the items pursuant to clause 7.1.3.
1.8. "Customised Deliverables" means any Deliverables that the Supplier develops specifically for Customer and that are paid for by Customer, and agreed as Customised Deliverables between the parties in a Quote.
1.9. "Deliverables" means any output of the Services to be provided by the Supplier to the Customer as specified in a Quote.
1.10. "Delivery" means completion of delivery of an Order, in accordance with clause 13.2. or clause 13.6.1.
1.1.1. "Delivery Date" means the date specified for delivery of an Order.
1.12. "Delivery Location" means the Supplier’s premises as specified in the Quote.
1.13. "Disclosing Party" means the party which discloses or makes available, directly or indirectly, the Confidential Information.
1.14. "Effective Date" means the date of these Terms of Business.
1.15. "Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and related rights, moral 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, rights in computer software, 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.
1.16. ."Know-How" means all information not in the public domain including ideas, discoveries, inventions, data, techniques, designs, sketches and records.
1.17. "Milestone" means a date by which a part or all of the Services is to be completed, as set out in a Quote.
1.18. "Processing and process" have the meaning set out in section 1(1) of the Data Protection Act 1998.
1.19. "Order" means the order for Products submitted by the Customer under this Quote.
1.20. "Products" means the products set out in the Quote and, where the context requires, consignments of such products ordered by and supplied to the Customer.
1.21. "Receiving Party" means the Party which receives or obtains directly or indirectly the Confidential Information.
1.22. "Services" means the Services which are provided by the Supplier under a Quote.
1.23. "Quote Charges" means the sums payable for the Services as set out in a Quote.
1.24. "Specification" means the specification of the Products set out in Quote.
1.25. "Quote" (or “Quote”) means a detailed plan, agreed in accordance with clause 5, describing the services to be provided by the Supplier, the timetable for their performance and the related matters listed in the Quote set as provided on request.
1.26. "VAT" means value added tax chargeable under the Value Added Tax Act 1994.
1.27. "year" means 1 January to the following 31 December.
1.28. Clause, schedule and paragraph headings shall not affect the interpretation of these Terms of Business.
1.29. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.30. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.31. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.32. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms of Business and shall include all subordinate legislation made as at the date of these Terms of Business under that statute or statutory provision.
References to clauses and schedules are to the clauses and schedules of these Terms of Business; references to paragraphs are to paragraphs of the relevant schedule to these Terms of Business.
2. NATURE OF THESE TERMS OF BUSINESS
2.1. These Terms of Business establish a contractual framework around the ordering of the Services and Products by the Customer and the provision of those Services and Products by the Supplier.
2.2. Such contractual framework involves the ordering of the Services and Products through the use of Quotes.
2.3. The Agreement specifies the terms and conditions under which the Supplier shall supply the Services and Products to the Customer as further specified in the Quotes. The terms and conditions relating to a Quote shall incorporate all of the provisions of the Agreement except where expressly stated otherwise.
3. PRECEDENCE
3.1. In the event there is any conflict or inconsistency between the Agreement and any Quote(s), the terms of the Quote shall take precedence (unless expressly specified otherwise in a Quote).
4. COMMENCEMENT AND DURATION
4.1. These Terms of Business shall commence on the Effective Date and shall continue until both final invoice payment by the Customer and 30 days following delivery of the final Deliverables or Products by the Supplier to the Customer, unless terminated earlier in accordance with clause 14.
5. QUOTES
5.1. Once a Quote is agreed, no amendment shall be made to it except in accordance with clause 18.
6. SUPPLIER'S RESPONSIBILITIES
6.1. The Supplier shall:
6.1.1. exercise reasonable skill and due care in performance of the Services, and will perform the Services in a professional and workmanlike manner, consistent with applicable industry standards.
6.1.2. provide the Services and deliver the Deliverables to the Customer, in accordance with a Quote in all material respects;
6.1.3. use reasonable endeavours to meet any performance dates or Milestones specified in a Quote but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of these Terms of Business;
6.1.4. use reasonable endeavours to observe all health and safety and security requirements that apply at any of the Customer's premises and that have been communicated to it under clause 7.1.4, provided that it shall not be liable under these Terms of Business if, as a result of such observation, it is in breach of any of its obligations under these Terms of Business.
6.2. The Customer acknowledges that the Supplier’s Services are performed primarily in the fields of strategy and development and to the maximum extent permitted by Applicable Law, except as expressly so set out in this clause 6, the Supplier disclaims all implied warranties, including any implied warranty of satisfactory quality or fitness for a particular purpose, any implied warranty of non-infringement or implied obligation to indemnify for infringement, any implied warranty arising from course of performance, course of dealing, or usage of trade, and any statutory remedy.
7. CUSTOMER'S OBLIGATIONS
7.1. The Customer shall:
7.1.1. co-operate with the Supplier in all matters relating to the Services;
7.1.2. provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by the Supplier to perform the Services including any such access as is specified in a Quote;
7.1.3. provide to the Supplier in a timely manner all document, information, items and materials in any form (whether owned by the Customer or a third party) required under a Quote or otherwise reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete;
7.1.4. inform the Supplier of all health and safety and security requirements that apply at any of the Customer's premises;
7.1.5. ensure that all the Customer's Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
7.1.6. obtain and maintain all necessary licences and consents and comply with all Applicable Laws as required to enable the Supplier to provide the Services; and
7.1.7. comply with any additional responsibilities of the Customer as set out in the relevant Quote.
7.2. If the Supplier's performance of its obligations under these Terms of Business is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
8. NON-SOLICITATION
8.1. The Customer shall not, without the prior written consent of the Supplier, at any time from the date on which any Services commence to the expiry of six (6) months after the completion of such Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee of the Supplier in the provision of such Services.
8.2. Any consent given by the Supplier in accordance with clause 8.1. shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee.
9. CHARGES AND PAYMENT
9.1. In consideration of the provision of the Services by the Supplier, the Customer shall pay the Quote Charges.
9.2. The Quote Charges exclude the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
9.2.1. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services; and
9.2.2. the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services as such items and their cost shall be either set out in the Quote or approved by the Customer in advance from time to time.
9.3. The Supplier shall invoice the Customer for the Quote Charges at the intervals specified in the Quote. If no intervals are so specified, the Supplier may invoice the Customer at the end of each month for Services performed during that month.
9.4. The Customer shall pay each invoice submitted to it by the Supplier within seven (7) days of receipt to a bank account nominated in writing by the Supplier from time to time.
9.5. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under these Terms of Business on the due date:
9.5.1. the Customer shall pay interest on the overdue amount at the rate of 4% per annum above base rate of Barclays Bank PLC from time to time. 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; and
9.5.2. the Supplier may suspend part or all of the Services until payment has been made in full.
9.6. All sums payable to the Supplier under these Terms of Business:
9.6.1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
9.6.2. 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. Notwithstanding any other provisions of these Terms of Business, the parties agree and acknowledge that all Intellectual Property Rights which are owned by either party or licensed to it by a third party and which are in existence prior to the Effective Date or which are otherwise developed in the performance of these Terms of Business (other than in the development of Customised Deliverables) shall remain owned by that party or relevant third party owner (including in respect of the Customer, the Customer Materials) and nothing in these Terms of Business shall have the effect of transferring ownership of any such rights.
10.2. .Subject to payment of the Quote Charges, the Supplier shall grant (or shall procure the grant) to Customer of a non-exclusive licence to enable Customer to make use of the relevant Deliverables for its internal business purposes. Unless explicitly stated in the Quote, Customer shall not have a right to commercially exploit any licence granted by the Supplier to make use of the Deliverables.
10.3. In the event the Supplier develops any Customised Deliverables, Supplier hereby assigns its right, title and interest (including Intellectual Property Rights) in the Customised Deliverables to Customer (to the extent not held by Customer under clause 10.1).
10.4. If Supplier requires access to, or use of, any of the Customer’s software, systems, documents or other information to perform the Services (including any Customer Materials), the Customer will grant (or procure the grant from its third party licensors) the Supplier and its authorised agents and sub-contractors a limited, non-exclusive, non-transferable licence to use the relevant Intellectual Property Rights solely for the purpose of, and for the duration of, performing the relevant Services.
10.5. The Supplier retains all rights and title in Know-How developed by the Supplier during the provision of the Services to the Customer and nothing in these Terms of Business shall prevent the Supplier from using and developing this Know-How outside the scope of the Services, including for another customer.
11. CONFIDENTIALITY
11.1 The Receiving Party shall treat as confidential all Confidential Information of the Disclosing Party, shall not use such Confidential Information except as set out in these Terms of Business, and shall not disclose such Confidential Information to any third party. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information to prevent the disclosure of the Disclosing Party’s Confidential Information, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. Confidential Information shall only be disclosed to employees of the Receiving Party that have a need to know such information in connection with these Terms of Business, and have agreed to protect such information in accordance with the terms of these Terms of Business. The parties agree to hold each other's Confidential Information in confidence during the Term of these Terms of Business and for a period of five (5) years thereafter; provided, however, that with respect to security details, Supplier methodologies, reference manuals and other highly sensitive Confidential Information clearly identified as such at the time of disclosure by the Disclosing Party, the nondisclosure obligations set forth herein shall continue indefinitely.
11.2. In the event that any Confidential Information is required to be disclosed by Applicable Law, the responding party shall, to the extent permitted by Applicable Law, first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.
11.3. Each party shall use all reasonable commercial efforts, including the execution of proprietary non-disclosure agreements with employees, to enforce compliance with the provisions of this clause 11 by its directors, officers, employees, and any third party having access to the other party’s Confidential Information.
11.4. The parties agree to notify each other promptly in writing in the event that any unauthorised access, disclosure, distribution, possession, alteration, transfer, reproduction or use of the Confidential Information of the other party, or any portions thereof, is found. Each party shall have the right to take all legal action it deems necessary or advisable to minimise the consequences of such unauthorised use or disclosure of its Confidential Information.
11.5. Each party acknowledges that damages alone would not be an adequate remedy for the breach of any of the provisions of these Terms of Business. Accordingly, without prejudice to any other rights and remedies it may have, each Party shall be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this clause 11.
11.6. The above provisions of this clause 11 shall survive termination of these Terms of Business, however arising.
12. LIMITATION OF LIABILITY
12.1. Nothing in these Terms of Business shall limit or exclude:
12.1.1. either party’s liability for:
12.1.1.1. death or personal injury caused by its negligence;
12.1.1.2. fraud or fraudulent misrepresentation; or
12.1.1.3. any other liability which cannot be limited or excluded by Applicable Law; or
12.1.2. Customer’s payment obligations under these Terms of Business.
12.2. Subject to clause 12.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with these Terms of Business for:
12.2.1. any damage to property;
12.2.2. loss of profits;
12.2.3. loss of sales or business;
12.2.4. loss of agreements or contracts;
12.2.5. loss of anticipated savings;
12.2.6. loss of or damage to goodwill;
12.2.7. loss of use or corruption of software, data or information; and
12.2.8. any indirect or consequential loss.
12.3. Subject to clause 12.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with each Quote shall be limited to the Quote Charges paid by the Customer under the applicable Quote.
13. INDEMNITY
13.1. The Customer shall defend, indemnify and hold harmless the Supplier, its officers and employees against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with use or operation or design of the products.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate these Terms of Business and/or a Quote with immediate effect by giving written notice to the other party if:
14.1.1. the other party fails to pay any amount due under these Terms of Business on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;
14.1.2. the other party commits a material breach of any other term of these Terms of Business which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified in writing to do so;
14.1.3. the other party 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 of section 123 of the Insolvency Act 1986;
14.1.4. the other party 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 for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.1.5. an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.1.6. an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
14.1.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.1.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.1.9. a creditor or encumbrancer of the other party 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 other party's assets and such attachment or process is not discharged within fourteen (14) days;
14.1.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1.3 to clause 14.1.9 (inclusive);
14.2. Without affecting any other right or remedy available to it, the Supplier may terminate these Terms of Business with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under these Terms of Business on the due date for payment and remains in default not less than thirty (30) days after being notified to make such payment
15. CONSEQUENCES OF TERMINATION
15.1 On termination or expiry of these Terms of Business:
15.1.1. all existing Quotes shall terminate automatically;
15.1.2. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
15.1.3. the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
15.1.4. the following clauses shall continue in force: clause 1 (Interpretation), clause 8 (Non-solicitation), clause 10 (Intellectual property rights), clause 11 (Confidentiality), clause 12 (Limitation of liability), clause 15 (Consequences of termination), clause 19 (Waiver), clause 21 (Severance), clause 23 (Conflict), clause 28 (Dispute Resolution Procedure) and clause 29 (Governing Law and Jurisdiction).
15.2. Termination or expiry of these Terms of Business 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 the Agreement which existed at or before the date of termination or expiry.
16. FORCE MAJEURE
16.1. The Supplier shall have no liability to the Customer under these Terms of Business if it is prevented from or delayed in performing its obligations under these Terms of Business, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (‘Force Majeure Event’), provided that the Customer is notified of such an event and its expected duration.
16.2. If the Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than thirty (30) days, either party may terminate these Terms of Business by giving thirty (30) days written notice to the other party.
17. ASSIGNMENT AND OTHER DEALINGS
17.1. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms of Business.
17.2. The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under these Terms of Business, provided that the Supplier gives prior written notice of such dealing to the Customer.
18. VARIATION
No variation of these Terms of Business shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. WAIVER
19.1. A waiver of any right or remedy under these Terms of Business or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
19.2. A failure or delay by a party to exercise any right or remedy provided under these Terms of Business 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 these Terms of Business or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
Except as expressly provided in these Terms of Business, the rights and remedies provided under these Terms of Business are in addition to, and not exclusive of, any rights or remedies provided by law.
21. SEVERANCE
If any provision or part-provision of these Terms of Business 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 these Terms of Business.
22. ENTIRE AGREEMENT
22.1. These Terms of Business 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.
22.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms of Business. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms of Business.
23. CONFLICT
If there is an inconsistency between any of the provisions of these Terms of Business and the Quote, the provisions of these Terms of Business shall prevail.
24. NO PARTNERSHIP OR AGENCY
24.1. Nothing in these Terms of Business 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.
24.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25. THIRD PARTY RIGHTS
The parties hereby confirm that, notwithstanding any other provision of these Terms of Business, these Terms of Business shall not purport to confer on any third party any right to enforce any term of these Terms of Business for the purposes of the Contracts (Rights of Third Parties) Act 1999.
26. NOTICES
26.1. Any notice or other communication given to a party under or in connection with these Terms of Business shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case).
26.2. Any notice or communication shall be deemed to have been received:
26.2.1. if delivered by hand, on signature of a delivery receipt;
26.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
26.2.3. if sent by email, at 9.00 am on the next Business Day after transmission.
27. COUNTERPARTS
27.1. These Terms of Business may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
28. DISPUTE RESOLUTION PROCEDURE
28.1. If at any time a dispute arises out of or in connection with these Terms of Business, the relationship managers for both Customer and Supplier shall in the first instance meet in good faith with a view to resolving the dispute within a period of fifteen (15) Business Days from the day the dispute first arises.
28.2. Should the relationship managers not be able to resolve the dispute within fifteen (15) Business Days, then both parties shall refer the matter to the appropriate levels of senior management within their respective organisations for resolution.
28.3. If the relevant senior management of Customer and Supplier respectively are unable to resolve any dispute that is referred to them under clause 28.2 within ten (10) Business Days of the reference, then the parties will attempt to settle the dispute by mediation in accordance with the Model Mediation Procedure of the Centre for Dispute Resolution (“CEDR”) of London. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation either party must give notice in writing to the other party requesting mediation, and send a copy of the notice to CEDR. The mediation will start twenty (20) Business Days after the date of the notice unless the parties agree an earlier date. Subject to Clause 28.5, the parties agree not to commence any court proceedings in relation to the dispute until they have attempted to settle the dispute by mediation and that mediation has either terminated or failed.
28.4. Unless otherwise agreed in writing, the costs of any mediation carried out pursuant to this clause shall be shared equally between the parties provided that each party shall bear its own costs.
29. GOVERNING LAW AND JURISDICTION
29.1. This Agreement 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.
29.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.