General Terms and Conditions (GTC) of UNTHA UK LIMITED
– these General Terms and Conditions are part of the contract for the sale of goods and services –
Updated: 2 May 2017
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10 OF THESE TERMS AND CONDITIONS
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods, including the Order Confirmation, the Pre-Contract Checklist, the TAF and any documents attached to them, and incorporating these Conditions.
Costs: has the meaning given in clause 8.3
Customer: the person or firm who purchases the Goods from the Supplier.
Customer Default: any act or omission of the Customer which results in the Supplier being prevented from or delayed in delivering the Goods and/or performing the Services, including those matters set out in clauses 4.5(b) to (g), or any breach by the Customer of any of its obligations pursuant to the Contract.
Force Majeure Event: any event beyond a party’s, or any holding company (as defined in s1159 Companies Act 2006) of any party’s, reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
Goods: the goods (or any part of them) set out in the Order Confirmation.
Initial Payment: has the meaning given in clause 8.5.
Normal Working Hours: 08:00 to 17:00 on Monday to Thursday and 08:00 to 15:30 on Friday, except for public holidays.
Order Confirmation: the document of the same name issued and signed by the Supplier to the Customer setting out the details of the Goods and Services.
Pre-Contract Checklist: the form completed by the Supplier and issued to the Customer, which sets out certain responsibilities of the Supplier and the Customer under the Contract.
Price: has the meaning given in clause 8.1.
Services: the services to be performed in relation to the Goods by the Supplier as set out in the Order Confirmation, or as otherwise agreed between the Supplier and the Customer in writing.
Specification: the specification setting out the details of the Goods, including any related plans and drawings, as set out in the Order Confirmation.
Supplier: UNTHA UK Limited (registered in England and Wales with company number 04545791)
TAF: the completed technical assessment form issued by the Supplier to the Customer.
Warranty Period: the period starting from the earlier of (i) completion of acceptance testing in respect of the relevant Goods; or (ii) 8 weeks after delivery of the relevant Goods, and ending 12 months later or upon the relevant Goods reaching 1800 operating hours (whichever is sooner).
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision
includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order Confirmation constitutes an offer by the Supplier to supply the Goods and/or Services in accordance with these Conditions. The Order Confirmation is based on information provided by the Customer, and the Customer is responsible for ensuring that the Order Confirmation is complete and accurate.
2.3 The Order Confirmation shall be deemed to be accepted when the Customer countersigns and returns the Order Confirmation to the Supplier, at which point the Contract shall come into existence on the terms set out in the Contract, and incorporating these Conditions.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 If there is any conflict between the provisions of any of the documents which constitute the Contract, the conflict shall be resolved by reference to the following descending order of priority:
(a) these Conditions;
(b) the Order Confirmation;
(c) the Pre-Contract Checklist; and
(d) the TAF.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier other than the Order Confirmation, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force. Any figures provided as to throughput capability of the Goods are illustrative only and are not binding, unless the Supplier has carried out adequate testing specifically for the Customer as detailed in the Order Confirmation, in which case those figures are only applicable to the particular type of throughput material used in the testing.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue unless agreed in writing by the Supplier.
3.1 The Supplier shall supply the Goods on the terms set out in the Contract.
3.2 The Supplier reserves the right to make any changes to the specification, design, materials or finishes of the Goods in order to ensure that they comply with applicable statutory or regulatory standards.
3.3 Notwithstanding clause 3.2 above, any variation to the specification, design, materials or finishes of the Goods which in the Supplier’s reasonable option does not adversely affect the suitability of the Goods for the purpose required by the Customer shall not constitute a breach of the Contract or impose any liability on the Supplier.
3.4 The Customer shall ensure that all items listed as “Critical Spares” in the Order Confirmation are stored at the Location and replacements are purchased from the Supplier following use at the Supplier’s standard prices from time to time.
3.5 The ownership of all copyright in any drawings of the Goods issued by the Supplier shall remain at all times with the Supplier.
4. DELIVERY OF THE GOODS
4.1 The Supplier shall deliver the Goods to the location set out in the Order Confirmation or such other location as the parties may agree in writing (Location).
4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Location.
4.3 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.4 Any dates quoted for delivery of the Goods in the Order Confirmation are approximate only, and may not be made of the essence by notice. Where a delay in delivery of the Goods is caused by a reason not listed in clause 4.5(a) to (f) below, the Supplier shall notify the Customer of any revised delivery date within a reasonable period of becoming aware of such delay.
4.5 Notwithstanding clause 4.4 above, the Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
(a) a Force Majeure Event;
(b) the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods;
(c) the Customer’s failure to allow sufficient access to the Location and other facilities as reasonably required to enable the Supplier or its employees or agents to deliver the Goods;
(d) the Customer’s failure to prepare the Location to allow for sufficient access to and egress from the Location for the delivery of the Goods by the Supplier, its employees, agents, consultants and sub-contractors;
(e) the Customer’s failure to obtain and maintain all necessary licences, permissions and consents which may be required for the delivery of the Goods before the date on which the Goods are to be delivered; or
(f) the Customer’s failure to perform any of its obligations as instructed by the Supplier, or set out in any document forming part of the Contract, including in respect of operational conditions, utility connections and air supply.
4.6 If there is a Customer Default:
(a) the Supplier shall without limiting its other rights or remedies have the right to delay delivery of the Goods or any instalment thereof until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s delay of delivery of the Goods; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default, including without limitation in relation to storage and insurance of the Goods.
4.7 If 3 Business Days after the day the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until the Customer is ready to accept them, and charge the Customer for all related costs and expenses (including insurance).
4.8 If 10 Business Days after the day the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5. SUPPLY OF SERVICES
5.1 The Supplier shall perform the Services for the Customer in accordance with the Contract in all material respects.
5.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
5.3 The Supplier shall perform the Services at the Location, and shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such instance.
5.4 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by the Supplier to perform the Services;
(c) ensure that the Customer’s premises (and related vehicular access and egress) are safe and comply with all health and safety legislation, best practices and other legal requirements from time to time in force;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to perform the Services, and ensure that such information is accurate in all material respects; and
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
(f) perform its obligations set out in the Pre-Contract Checklist and the Order Confirmation.
5.5 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed due to a Customer Default:
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations pursuant to this clause 5.5; and
(c) the Customer shall reimburse the Supplier on written demand for any costs, claims, liabilities, damages, expenses and losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6.1 Subject to the remaining provisions of this clause 6.1, the Supplier warrants that on delivery, and for the Warranty Period, the Goods shall:
(a) conform in all material respects with the description set out in the Order Confirmation;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Upon successful completion of the acceptance tests as described in the Order Confirmation, the Customer shall be deemed to have accepted that the Goods comply with clause 6.1 upon delivery.
6.3 Subject to clauses 6.4 and 6.5, if:
(a) the Customer notifies the Supplier by telephone or email during the Warranty Period and within 24 hours of discovery of the relevant issue, that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods or the relevant component to the Supplier’s place of business at the Customer’s cost and risk,
the Supplier shall, at its option, repair or replace the defective Goods or component within Normal Working Hours (unless agreed otherwise between the Customer and the Supplier). The provisions of these Conditions, including the warranties set out in clause 6.1, shall apply to any Goods that are repaired or replaced with effect from delivery of the repaired or replaced Goods.
6.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranties set out in clause 6.1 in any of the following events:
(a) the Customer makes any further use of the Goods after giving notice in accordance with clause 6.3;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods including as set out in the Pre-Contract Checklist and/or Order Confirmation, or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs the Goods without the written consent of the Supplier, and/or uses spare parts which are not manufactured by UNTHA;
(e) the defect arises as a result of damage to any of the Wear Spare Parts (as specified in the Order Confirmation), or other fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(g) the defect arises because the Customer used the Goods for any purpose other than that specified in the Order Confirmation;
(h) the Customer is in breach of any of its obligations under the Contract; or
(i) the Customer provides any incorrect and/or incomplete information to the Supplier, as shown in the TAF.
6.5 The Supplier may require the Customer to pay it such amount which the Supplier (acting reasonably) determines to be the price for any replacement part and/or labour required to repair or replace the defective Goods or component. Once payment has been received, the Supplier shall provide such repair or replacement. If the fault with the Goods is within the scope of the warranties set out in, and not excluded by any of the provisions of, this clause 6, the Supplier shall refund to the Customer the relevant amounts paid, except that the Supplier shall not refund any amounts paid in respect of labour or travel where the Goods are located outside of the United Kingdom.
6.6 Except as set out in these Conditions, the Supplier gives no warranties and makes no representations in relation to the Goods, and shall have no liability for their failure to comply with the warranties in clause 6.1, and all warranties and conditions (including the conditions implied by sections 13 to 15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery of the Goods.
7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
(g) not resell the Goods.
but the Customer may use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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.
8. PRICE AND PAYMENT
8.1 The price of the Goods and/or Services shall be the price set out in the Order Confirmation (Price).
8.2 The Supplier may, by giving notice to the Customer at any time up to 30 Business Days before the proposed delivery date (as set out in the Order Confirmation or otherwise agreed between the parties), increase the Price to reflect any increase in the cost of the Goods and/or Services that is due to:
(a) any factor beyond the Supplier’s control (including increases in taxes and duties, increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change any of the following after the Order Confirmation is issued and to which the Supplier in its discretion agrees: delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions, or caused by the Customer failing to pay an instalment of the Price on time.
8.3 The Price is exclusive of the costs and charges of packaging, insurance, export and transport of the Goods and any plant hire costs (Costs), which shall additionally be invoiced to and payable by the Customer. The Customer shall be responsible for payment of any import duties which are applicable upon delivery of the Goods to the Customer.
8.4 The Price is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.
8.5 The Customer will pay to the Supplier an initial payment of 30% of the Price, Costs and VAT thereon (or such other amount as may be specified in the Order Confirmation) (Initial Payment) within 10 Business Days of the date of the Order Confirmation, and the balance of the Price, Costs and VAT thereon by 14 days prior to the proposed date of dispatch of the Goods from Austria as specified in the Order Confirmation. The Supplier shall not be obliged to start performing the Contract until the Initial Payment has been received by the Customer in cleared funds, and the Supplier shall not be obliged to deliver the Goods to the Customer until payment for the Goods has been made in full. Accordingly, any delay in payment may delay delivery of the Goods.
8.6 Payment shall be made to the bank account nominated in writing by the Supplier. If the Customer pays by cheque, the Supplier may charge the Customer an additional amount equal to 2.% of the amount so paid, which shall be payable at the same time as the corresponding payment. Time of payment is of the essence for all sums due to the Supplier.
8.7 Without prejudice to clause 8.5, if the Customer has any query in relation to any invoice, it must raise this with the Supplier (including with full details of the query) no later than 14 days after the date of invoice.
8.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8.9 The Customer acknowledges that each order is manufactured to order, and that accordingly the Supplier incurs significant cost upon starting to process each order. Accordingly, the Initial Payment is non-refundable, including upon termination of the Contract.
9. CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its
debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) 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 (where the Customer is a company) where these events take place 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;
(c) (being a company) 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, 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;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) 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 its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or 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 Customer;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) 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 9.2(a)to clause 9.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 10
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1 the Supplier shall not be liable in contract, tort (including negligence) or otherwise howsoever for any claim (including without limitation a claim pursuant to an indemnity), damage, loss or costs in respect of:
(a) any direct loss of profit;
(b) any direct loss of anticipated savings;
(c) any indirect loss or damage howsoever caused including (without limitation):
(i) any indirect loss of profit;
(ii) loss of anticipated profit including loss of profit on contracts;
(iii) loss of anticipated savings;
(iv) loss of anticipated revenue;
(v) loss of opportunity;
(vi) loss of goodwill;
(vii) loss of reputation; and/or
(viii) loss of data,
and the parties agree that the sub-clauses of this clause 10.2 shall be severable.
10.3 Subject to clause 10.1, the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
12.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
12.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
12.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.