Webmart Limited
General Conditions of Supply
1. DEFINITIONS:
“Goods” shall mean the work to be produced by the Supplier pursuant to this Contract. “Customer” shall mean the party that has placed the order for the Goods and/or Printing Services to be produced. References to the Supplier shall include its permitted assignees. References to Webmart and the parties hereto shall include their respective successors in title to substantially the whole of their respective undertakings. “Contract” means a contract incorporating these General Conditions of Supply and concluded by the Supplier despatching the Acceptance of Order Form (the “Acceptance”) to the Customer. “Printed Material” means the product of the Printing Services. “Printing Services” means the provision of printing and print finishing services by the Supplier to the Customer in a Contract.
2. ACCEPTANCE OF ORDER:
a) The Customer warrants that it is acting within the purposes of the Customer’s trade, business or profession and not as a consumer when it purchases Goods and/or Printing Services from the Supplier;
b) Each order or acceptance of an estimate for Goods or Printed Services by the Customer shall be deemed to be an offer by the Customer to buy the Goods and/or Printing Services subject to these conditions;
c) No Contract shall exist until the Supplier has despatched its Acceptance to the Customer;
d) All estimates provided by the Supplier are checked prior to their submission to the Customer, however, errors and/or omissions may occasionally occur. In the event of a mistake (for example interpretation, calculation, or typing) coming to light on receipt of an order, the Supplier shall submit an amended estimate for the Customer’s consideration and approval; and
e) The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
3. CONDITIONS:
This Agreement applies to all sales of Goods and/or Printing Services by the Supplier and override any differing conditions which may appear on the Customer’s order form or other document issued by the Customer and may be varied only with the Supplier’s consent in writing.
4. SUB-CONTRACTING AND ASSIGNMENT:
a) The Supplier may sub-contract any or all of its rights and obligations hereunder to any third-party supplier;
b) The Supplier may without the consent of the Customer assign the benefit and burden of its rights and obligations hereunder to any third party. No notice of any such assignments need be given to the Customer; and
c) The Customer shall not be entitled to assign any or all of its rights and obligations under this Contract or any part of it without the prior written consent of the Supplier.
5. AGENCY:
The Customer contracts as principal unless the Customer discloses in writing both that it is acting as agent and the identity of the principal before despatch by the Supplier of the Acceptance. The Customer shall remain liable for payment obligations related to any Contract under this Agreement, unless the Supplier, at the Supplier’s sole discretion, agrees otherwise in writing. Where such written agreement is obtained, the Customer warrants and represents it is fully authorised to act on behalf of its principal.
6. RAW MATERIAL FLUCTUATIONS:
Prices offered are subject to fluctuations in the availability, quality and cost of raw materials. Prices charged will be those ruling at the date of manufacture and will reflect any such fluctuations, including but not limited to fluctuations related to Brexit.
7. PRICES AND CHARGES:
a) All prices and charges are based on the Supplier’s current costs of production, including materials and overheads, and are (except where expressly agreed otherwise) subject to increase or decrease by the Supplier from time to time to take into account any rise or fall in such costs and overheads (including but not limited to costs related to Brexit);
b) All prices shall be exclusive of all costs and charges in relation to VAT, packaging, delivery, insurance and customs and excise duties, all of which amounts the Customer shall pay in addition, unless expressly agreed otherwise in writing in any estimate provided by the Supplier;
c) All charges authorised by any Contract and not specifically stated shall be at the Supplier’s standard rates from time to time; and
d) The Customer shall pay for any extras that it requests in writing, whether during production or otherwise.
8. OVERTIME:
If, as a result of any default by the Customer or of any delay in the supply to the Supplier of any copy or materials or of the supply of the Supplier of faulty or substandard copy or materials or faulty direct input it shall in the opinion of the Supplier become necessary, in order to meet delivery dates, to employ some or all of the Supplier’s or its subcontractors’ employees at overtime rates or incur other additional costs, or if expedited delivery shall be agreed with the like results, thereupon the Supplier shall be entitled to charge all overtime and other additional costs so incurred.
9. TAX:
All quotations and invoices shall be net of tax (unless otherwise expressly set out) and the Supplier shall be entitled to add to any quotation and invoice the amount of any purchase, sales, value added or other applicable tax payable.
10. PRELIMINARY WORK:
All preliminary work executed at the Customer’s request (whether or not experimental) will be charged to the Customer.
11. PROOFS
11.1. Where the Supplier supplies proofs to the Customer, the Customer shall be responsible for checking whether the proofs are in accordance with the specification set out in the estimate or as agreed by the Parties for the provision of the Printing Services or as otherwise agreed by the Supplier and the Customer. The Customer shall approve the proofs, and, after approval, any remaining errors, whether in:
a) the content or materials provided by the Customer;
b) the design or layout created, made or carried out by the Supplier; or
c) the application of the specification for the provision of the Printing Services (relating to such matters, for example, as the colours to be used, size, position, folding, etc), shall be the responsibility of the Customer and not the Supplier. The Supplier shall be entitled to use the approved proof as the basis for carrying out the remainder of the Printing Services. The Customer shall approve proofs within twenty-four (24) hours, unless a longer period is provided in the Acceptance.
11.2. The Customer acknowledges and accepts that: a) the colours used in a proof will not necessarily match those in the Printed Material; and b) such differences are caused by the use of different equipment, inks, paper and other technical factors in the proofing process, compared to those used in producing the Printed Material.
11.3. Prize draws, competitions, etc – The Supplier shall take reasonable care to prevent duplication of random numbers and serial numbers, but does not undertake to ensure that the numbers are correctly allocated, as the technology for printing number allocation is not always reliable. The Supplier shall have no liability for any duplication or for any other technical error outside its reasonable control, and the Customer shall take out its own insurance and provide within the competition rules for resolution, in case of error.
12. MATERIALS PROVIDED ELECTRONICALLY
12.1. If the Customer provides materials to the Supplier by electronic means (“Electronic Files”), the Supplier shall not be responsible for checking:
a) (where the materials consist of copy) the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or is formatted in accordance with any specification, layout or design or in accordance with any estimate or order;
b) (where the materials consist of artwork or layouts) whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or
c) (where materials are supplied as a file ready for reproduction (and then for the production of Printed Material)) any of the contents, layout or commands, markings, formatting or other matters.
12.2. For Materials submitted as Electronic Files:
a) The Customer acknowledges and agrees that:
i) the devices on which Electronic Files are stored (or on which they are submitted by the Customer) and
ii) the communication methods used by the Customer to transmit the Electronic Files to the Supplier may be subject to corruption or alteration which is not within the reasonable control or reasonable knowledge of the Supplier;
b) The Customer shall keep one or more copies as backup;
c) The Customer shall make available copies of the Electronic Files at dates and times that the Supplier reasonably requires; and
d) The Customer shall submit Electronic Files in the software programme, version and format that the Supplier notifies to the Customer from time-to-time(the “Supported Format”).
12.3. Where Electronic Files provided to the Supplier includes customer data, Customer, as the Data Controller warrants and represents the customer data is compliant with the Data Protection Act of 2018. Supplier, as the Data Processor, will automatically remove any Electronic Files from their customer portal sixty (60) calendar days after the Delivery.
12.4. Customer Data Health Check. Upon receipt of a customer’s third-party data. Webmart will assess the quality of said data by producing a free no obligation health check. The health check offers instant, actionable insights to enhance a customer’s data quality to ensure clean, accurate and well-structured data. The customer can opt out upon request.
12.5. Where the Customer wishes to provide copy, artwork, layouts or files ready for reproduction without further intervention by the Supplier, other than preparation to produce the Printed Material, the Supplier shall be entitled to assume that the materials are in the Supported Format.
13. DELIVERY AND PAYMENTS:
a) “Delivery” shall mean whichever is the first to occur of
(i) the Printed Material and/or Goods leaving the premises of the Supplier or subcontracted supplier; or
(ii) the Supplier giving notice to the Customer that the Printed Material and/or Goods are ready for collection. If the Customer is unable to collect the Printed Material and/or Goods as provided for in this clause 13 (a), then the Supplier shall be entitled to arrange storage, and/or transport of the Printed Material and/or Goods on the Customer’s behalf and at the Customer’s expense. All charges for such storage, transport and any insurance shall be payable by the Customer forthwith upon demand;
b) The Customer shall inspect and check the Printed Material and/or Goods immediately on Delivery and shall give notice in writing to the Supplier within three (3) working days of Delivery as to any alleged defect, together with details of the alleged defects. The Customer shall permit all such alleged defective Printed Material and/or Goods to be inspected by the Supplier. Failing such notice, the Printed Material and/or Goods shall be deemed to be in accordance with the Contract and the Customer shall be deemed to have accepted the Printed Material and/or Goods and therefore be liable to pay;
c) The time for Delivery shall be the time agreed in writing between the Supplier and the Customer or (if none) a reasonable time after the date of the despatch of the Acceptance, provided that the Customer shall not be entitled to reject by reason of late Delivery any Printed Material and/or Goods delivered after the time for Delivery, unless the Customer has provided the Supplier fifteen (15) working days written notice of their intention to do so and the Printed Material and/or Goods are not delivered within such time;
d) The Supplier shall use reasonable endeavours to complete the Printing Services and/or deliver the Goods by the date specified in the Acceptance. Time shall not be of the essence for:
(i) any dates or times when Printing Services and/or Goods are due to be performed;
(ii) the length of time that any part of the Printing Services and/or Goods will take to perform, as stated in a Contract, any estimate, any order, or as agreed by the Parties; or
(iii) any date or time the Printing Services and/or Goods will be completed by, as stated in a Contract, any estimate, any order, or as agreed by the Parties. The Supplier will inform the Customer of any significant delays to the Delivery of the Printing Services and/or Goods, within a reasonably practicable period;
e) The Supplier may charge or give credit pro rata for work delivered in excess of or less than the quantity ordered, up to a maximum of ten percent (10%) over or under, and such work shall constitute due performance of the obligation by the Supplier. Unless the Customer rejects any excess over ten percent (10%) within three (3) working days of Delivery, the same shall be treated as delivered under an independent contract on the same terms and conditions set out herein and the Customer shall pay for the same pro rata;
f) Each instalment of part-delivery delivered or to be delivered shall be deemed to be an independent contract subject to the terms set out herein;
g) Payment shall be made by the Customer in full, without deduction by way of set-off, counterclaim, discount or otherwise, within thirty (30) calendar days of the date of the Supplier’s invoice or other terms stated on the Acceptance. For the purpose of clause 26(a)(i) the final day of such thirty (30) calendar day period shall be the due date (as referred to in that clause). The Supplier shall have the right to charge interest at four percent (4%) per year above the base rate of Svenska Handelsbanken AB of Trinity Tower, 9 St Thomas More Street, London or such London clearing bank as is notified by the Supplier to the Customer from time to time, accruing daily and compounded annually, on every invoice overdue for payment, calculated from the date of the invoice until the date of payment, whether before or after judgment, and may suspend all its obligations hereunder until payment has been made in full. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
h) Time for payment shall be of the essence.;
i) No payment shall be deemed to have been received until the Supplier has received cleared funds;
j) All payments payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provisions;
k) The risk in the Printed Material and/or Goods shall pass to the Customer
(i) upon Delivery; or
(ii) where the Customer is unable to accept Delivery as contemplated by clause 13(a), upon the commencement of whichever is the first to occur of storage or transportation;
l) Upon any suspension of work at the request of the Customer or delay through any default of the Customer, the Supplier shall be entitled to payment in respect of all work then carried out (whether or not delivered) and all materials ordered; and
m) If the Customer does not make a payment by any due date or the date stated in an invoice or as otherwise provided in a Contract, the Supplier shall be entitled to require the Customer to pay in advance for any Goods and/or Printing Services (or any part of them) which have not yet been performed.
14. PROPERTY
14.1. Ownership of the Printed Material and/or any Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
a) the Printed Material and/or any Goods; and
b) all other sums which are or which become due to the Supplier from the Customer on any account.
14.2. Until ownership of the Printed Material and/or any Goods has passed to the Customer, the Customer shall:
a) hold the Printed Material and/or any Goods on a fiduciary basis as the Supplier’s bailee;
b) store the Printed material and/or any Goods (at no cost to the Supplier) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Printed Material and/or any Goods; and
d) maintain the Printed Material and/or any Goods in good condition and keep them insured on the Supplier’s behalf for their full price against all risks, to the reasonable satisfaction of the Supplier. On request, the Customer shall produce the policy of insurance to the Supplier.
14.3. The Customer may resell the Printed Material and/or any Goods before ownership has passed to it solely on the following conditions:
a) any sale shall be effected in the ordinary course of the Customer’s business; and
b) any such sale shall be a sale of the Supplier’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
14.4. The Customer’s right to possession of the Printed Material and/or any Goods shall terminate immediately, if any of the events referred to in clauses 26 (a) or 26 (b) occurs in relation to the Customer.
14.5. The Supplier shall be entitled to recover payment for the Printed Material and/or any Goods notwithstanding that ownership of any of the Printed Material and/or any Goods has not passed from the Supplier.
14.6. The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Printed Material and/or any Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
15. LIEN:
The Supplier shall have a general lien on all property of the Customer in the Supplier’s possession (whether or not paid for) for any sums owed. The Customer hereby irrevocably appoints the Supplier as its exclusive sales agent in relation to such property and, in the event that, after having given seven (7) calendar days’ notice in writing to the Customer, any sums remain outstanding, the Supplier as such agent may dispose of such property as it sees fit at the best price reasonably obtainable in the circumstances, and shall apply the proceeds towards payment of the sums owed; the balance shall be payable to the Customer.
16. LIABILITY:
a) The Supplier’s liability to the Customer in respect of
(i) any breach of its contractual obligations arising under a Contract and
(ii) any representation, statement or tortious act or omission, including negligence arising under or in connection with a Contract (hereafter an “Event of Default”), shall be limited to a sum equal to the Supplier’s charges for the Contract or that part of it so affected, provided that where the Customer shows the same to have resulted from the negligence (as defined in The Unfair Contract Terms Act 1977) of the Supplier, the Supplier’s liability for death or personal injury shall be unlimited;
b) Subject to clause 16(a), the Supplier shall not be liable to the Customer in respect of any Event of Default for loss of profits, business, contracts, revenue, goodwill, production and anticipated savings or any type of special, indirect or consequential loss howsoever caused (including loss or damage suffered by the Customer as a result of any action brought by a third party), even if such loss was reasonably foreseeable in the contemplation of the Supplier or if the Supplier had been advised of the possibility of the Customer incurring the same;
c) The Customer hereby agrees to afford the Supplier not less than thirty (30) calendar days in which to remedy an Event of Default hereunder;
d) The Supplier shall be excluded from any other liability, whether arising under this Contract or otherwise, and without prejudice to the generality of the forgoing shall be under no liability for negligence (other than in respect of death or personal injury) or in respect of any advice given;
e) If and to the extent that a court of competent jurisdiction decides that the Supplier shall be liable for any matter other than that contemplated by clause 16(a), the liability of the Supplier in that case shall be limited to a sum equal to the Supplier’s charges for the work or that part of it so affected; and
f) The Supplier shall not be liable howsoever in respect of any failure, delay or defect in the work or default caused by the supply or specification of unsuitable, faulty or sub-standard material by the Customer.
17. EXCLUSIONS:
Except as expressly stated herein, all conditions, warranties, representation and/or undertakings, express or implied, statutory or otherwise, are excluded. Nothing in this Agreement excludes liability for fraud.
18. CUSTOMER PROPERTY:
If the Supplier shall hold or work on property of the Customer or any third party, it shall have no liability for any damage to or loss of such property, whether caused by negligence or otherwise, and the Customer shall indemnify the Supplier in respect thereof. If the Supplier shall hold any such property for more than one year, it may give notice to the Customer requiring removal thereof and may dispose of the same if not removed within thirty (30) calendar days of such notice.
19. MATERIALS SUPPLIED:
a) The Supplier may reject any paper, printed sheets, signatures or other materials supplied or specified by the Customer or the resulting product of any direct input provided by or on behalf of the Customer (the “Materials”), if in the Supplier’s opinion it is unsuitable, substandard or of defective quality. Any additional cost incurred thereby, or if the Materials are found to be unsuitable at any stage during or after production, shall be charged by the Supplier. Such supply or specification must be within a reasonable time prior to production and of an adequate quantity to allow for normal spoilage; and
b) The Customer shall indemnify the Supplier against any liability which it may incur as the direct or indirect result of the Customer supplying or specifying Materials (for use in the production of the Goods) which are defective, substandard or unsuitable, and the Customer agrees that the Supplier shall not be responsible to the Customer in respect of any defective work arising therefrom.
20. STANDING MATTER:
Any Material used by the Supplier in production shall remain its exclusive property. Type may be taken down and lithographic, photogravure and other work destroyed, and electronically stored origination material may cease to be stored immediately on completion of the work, unless instructions to the contrary in writing are given by the Customer and accepted by the Supplier, in which case rent or other appropriate storage fee shall be charged by the Supplier.
21. ILLEGAL MATERIAL:
21.1. If, in the reasonable opinion of the Supplier, the Supplier considers that any Materials provided to the Supplier by or on behalf of the Customer:
a) are defamatory;
b) contain, express or indicate illegal racist or otherwise discriminatory opinions;
c) contain any designs, images, graphics or photographs which are illegally racist or otherwise discriminatory;
d) are illegal or contain illegal content;
e) infringe or breach the intellectual property rights of a third party; or f) are used outside the provisions of any licence that the Customer may have to use those Materials, then the Supplier shall not be required to supply any Printing Services in relation to such Materials or any Printed Material based on them.
21.2. The right not to provide any Printing Services shall also apply where carrying them out would involve the creation, design, layout, production or reproduction of copy, designs, artwork or images (in any format) which fall into one of the categories set out in clauses 21.1 (a) to (f). The Supplier may refuse to print any work if in its opinion it contains matter likely to result in civil or criminal proceedings. Any work seized or ordered to be destroyed or made the subject of any injunction shall thereupon be deemed to have been delivered to the customer, and the Supplier shall be paid for the same and for all work carried out on or before the date of such seizure order or injunction, as if so delivered.
22. INDEMNITY:
The Customer shall indemnify and hold harmless the Supplier from and against all Claims and Losses arising from loss, damage, liability, injury to the Supplier, its employees and third parties, infringement of third party intellectual property, or third party losses or liability by reason of the provision of Printing Services or supply of Printed Material which falls into one or more of the categories in clauses 21.1 (a) to (f) or arising out of any information supplied to the Customer by the Supplier, its employees or Suppliers, or supplied to the Supplier by the Customer within or without the scope of this Agreement. “Claims” shall mean all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise) and “Losses” shall mean all losses, including without limitation financial losses, damages, legal costs and other expenses of any nature whatsoever. The Supplier shall be entitled to legal costs on an indemnity basis.
23. SET-OFF:
a) The Customer hereby covenants to indemnify and keep indemnified the Supplier from and against any claims, costs, damages and expenses whatsoever and any reduction in value of the assets or increase in the liabilities of any of them arising from or in consequence of or in connection with any failure by the Customer or any member of the Customer’s Group to duly and punctually perform all their obligations pursuant to this Contract or any other contract, agreement, lease, right or arrangement whatsoever (a “Relevant Transaction”);
b) The Supplier shall not be obliged to pay any sum to the Customer (or any member of the Customer’s Group) pursuant to a Contract or any Relevant Transaction if, and for so long as, the Customer (or any member of the Customer’s Group) is in default of making payment to the Supplier under any Contract or under a Relevant Transaction;
c) Without prejudice to clause 23 (b), the Supplier may set-off any amount owed by it to the Customer or any member of the Customer’s Group against any liability owed to it by the Customer or any member of the Customer’s Group (whether such liability be actual or contingent, liquidated or unliquidated, ascertained or unascertained);
d) If an obligation to make payment is unliquidated or unascertained, the Supplier may in good faith set-off the amount it estimates (in good faith) will be the amount of such obligation once it becomes liquidated or ascertained. “Customer’s Group” shall include all subsidiaries (as defined in the Companies Act 1985) of the Customer’s ultimate parent undertaking; and
e) Nothing in this clause shall be effective to create a charge or security interest. This clause shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
24. FORCE MAJEURE:
Neither party shall be in breach of this Contract if there is any total or partial failure of performance by it of its duties and obligations under a Contract occasioned by any Act of God, fire, flood, power failure, reduction of power supplied, mechanical failure, lack or shortage of materials (not being due to the wilful default of the party), act of government or state (which for the avoidance of doubt shall include Brexit), war, civil commotion, insurrection, embargo, strike, lockout, industrial dispute or action taken by the party or any other person, firm or company in connection therewith, and any other reason beyond the control of either party. If either party is unable to perform its duties and obligations under a Contract as a direct result of the effect of one of such reasons, such parties shall give written notice to the other of such inability, stating the reason in question. The operation of the Contract shall be suspended during the period (and only during the period) in which the reason continues. Forthwith upon the reason ceasing to exist, the party relying upon it shall give written advice to the other of this fact. If the reason continues for a period of more than ninety (90) calendar days, the party not claiming relief under this clause 24 shall have the right to terminate the relevant Contract upon giving thirty (30) days’ written notice of such termination to the other party.
25. CUSTOMER’S DEFAULT:
If the Customer shall be in default under a Contract or any other contract with the Supplier, or any subsidiary thereof, or if the Supplier has reason to believe that the Customer will be unable or unwilling to discharge its obligations to the Supplier as they arise, then the Supplier may:
a) Cease work without any liability for any default thereby caused; and
b) Give notice thereof to the Customer, whereupon the Customer shall pay forthwith for all Printing Services and/or Goods under this or any other contract with the Customer (whether or not payment would otherwise be due) and a proper charge for all Goods used or Printing Services provided and work carried out prior to cessation of work as aforesaid.
26. TERMINATION:
a) The Supplier can terminate any Contract and/or the Agreement if the Customer fails to make any payment within three (3) working days of the due date set out on an invoice;
b) Either party may terminate a Contract at any time by providing written notice to the other party where one or more of the following two events occurs:
(i) if the other party fails to remedy a material breach of the Agreement within twenty (20) working days of being notified of such breach in writing; or
(ii) if the party enters into liquidation, whether compulsory or voluntary (other than for the purpose of amalgamation or reconstruction), or compounded with or enters into a scheme of arrangement for the benefit of its creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of debt or has a petition for an administration order presented in relation to it; and c) Where a Contract for the printing of a periodical publication is not expressed to be for a fixed period, such Contract may be terminated by either party by written notice to the other as follows: (i) Thirteen (13) weeks (publication at monthly intervals or less); or (ii) twenty-six (26) weeks (publication at more than monthly intervals).
27. REMEDIES:
Termination of this Contract for whatsoever cause shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum of money owing by the other.
28. NOTICES:
Notices shall be deemed to be served when delivered or posted to the last known address of the party to be served.
29. GOVERNING LAW AND JURISDICTION:
This Agreement and Contract shall be governed by and construed in accordance with the laws of England, and all disputes arising in connection with the contract shall be submitted to the exclusive jurisdiction of the English courts.
30. HEADINGS:
The headings shall not affect the meaning or interpretation of this Agreement.
31. SEVERANCE:
If and insofar as any part or provision of this Agreement or Contract is or becomes void or unenforceable, it shall be deemed not to be or never to have been or formed a part of this Agreement or Contract and the remaining provisions of this Agreement and Contract shall continue in full force and effect. The parties shall meet to discuss the void and unenforceable provisions and shall substitute therefore lawful and enforceable provision which so far as possible results in the same economic effects.
32. ENTIRE AGREEMENT:
32.1. The making, execution and delivery of this Agreement and Contract have been induced by no representations, statements, warranties or agreements other than those herein expressed. Unless expressly agreed otherwise in writing between the Supplier and the Customer this Agreement and Contract embodies the entire agreement of the parties and there are no other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. This Agreement shall not be modified, amended or varied except in writing signed by duly authorised representatives or the parties.
32.2. Nothing in this clause shall limit or exclude any liability for fraud.
33. WAIVER:
No failure or delay on the part of either party hereto to exercise any right or remedy under this Agreement shall be construed or operated as a waiver thereof nor shall any party’s exercise of any right or remedy preclude the further exercise of such right or remedy as the case may be.
34. MEDIATION:
34.1. If any dispute arises out of the Agreement, the parties will attempt to settle it by negotiation. A party may not commence mediation proceedings until fifteen (15) working days after it has made a written offer to the party to negotiate a settlement to the dispute.
34.2. If the parties are unable to settle any dispute by negotiation within fifteen (15) working days of the written offer to negotiate has passed, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (“CEDR”) Model Mediation Procedure.
34.3. To initiate mediation, a party must give notice in writing to the other party to the dispute requesting mediation and a copy of the request must also be sent to CEDR.
34.4. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
34.5. No party may commence any court proceedings/arbitration in relation to any dispute arising out of the Agreement until they have attempted to settle it by mediation and that mediation has been terminated.
34.6. The law of the arbitration or mediation is English Law and all costs will be shared equally between the parties.
35. THIRD PARTY RIGHTS:
A person who is not a party to this Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.