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Terms and Conditions of Sale

The Customer's attention is particularly drawn to the provisions of clause 12.

  1. Interpretation

1.1       Definitions. In these Conditions, the following definitions apply:

Business Day

means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

CellNass

means the cellular pathology archive management service provided by the Supplier.

Commencement Date

has the meaning set out in clause 2.2.

Conditions

means these terms and conditions as amended from time to time in accordance with clause 15.7.

Contract

means the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer

means the person or firm who purchases the Goods and/or Services from the Supplier.

Delivery Location

has the meaning set out in clause 4.1.

Directives

means all applicable laws, regulations and codes relating to the import, distribution, use, storage, traceability and vigilance in respect of the Goods including without limitation:

i)      The In Vitro Diagnostic Medical Devices Directive 98/79/EC; and

ii)     Council directive 93/42/EEC of 14th June 1993 concerning medical devices.

Force Majeure Event

has the meaning given to it in clause 14.1.

Goods

means the goods (or any part of them) set out in the Order.

Goods Specification

means the specification for the relevant Goods.

Intellectual Property Rights

means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.

Manufacturers’ Warranties

means warranties given by any third party manufacturer in relation to any Goods manufactured by such third parties.

Order

means the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.

Quality/Regulatory Audit

means a quality or regulatory audit carried out by either party of the other party’s premises, manufacturing plant or other facilities to establish compliance with any applicable legislation or quality standards.                                                                 

Services

means Cellnass and any other services which the Supplier agrees to provide to the Customer.

Supplier

Means Cellpath Ltd registered in England and Wales with company number 01831261.

Warranty Period

means the warranty period specified by Cellpath in relation to each type of Goods manufactured by Cellpath.

1.2       In these Conditions, the following rules apply :

1.2.1          a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2          a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.3          a reference to a statute or statutory provision is a reference to such statute or statutory 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;

1.2.4          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; and

1.2.5          a reference to writing or written includes faxes and e-mails.

1.2.6          Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction.

  1. Basis of contract

2.1       The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

2.2       The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3       The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.4       Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.5       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.

2.6       Any quotation given by the Supplier shall not constitute an offer, and is only valid for the period  specified on the quotation.

2.7       All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

  1. Goods

3.1       The Supplier reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements and/or the order to incorporate updated design and specifications.

  1. Delivery of Goods

4.1       The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

4.2       Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location  or the completion of loading of the Goods at the Delivery Location, as applicable.

4.3       Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods.

4.4       The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.5       The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

  1. Quality of Goods

5.1       The Supplier warrants that on delivery, and for the relevant Warranty Period, Goods which have been manufactured by the Supplier shall:

5.1.1          conform in all material respects with their description;

5.1.2          be free from material defects in design, material and workmanship; and

5.1.3          be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2       Subject to clause 5.3, if:

5.2.1          the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and

5.2.2          the Supplier is given a reasonable opportunity of examining such Goods; and

5.2.3          the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3       The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:

5.3.1          the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

5.3.2          the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

5.3.3          the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;

5.3.4          the Customer alters or repairs such Goods without the written consent of the Supplier;

5.3.5          the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

5.3.6          the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4       Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.5       The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.

5.6       Where Goods are manufactured by a third party, the Supplier shall use its reasonable endeavours to pass on the benefit of any Manufacturers’ Warranties to the Customer.

  1. Title and risk

6.1       The risk in the Goods shall pass to the Customer on completion of delivery.

6.2       Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3       Until title to the Goods has passed to the Customer, the Customer shall: 

6.3.1          store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property; 

6.3.2          not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3          maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;

6.3.4          notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.10; and

6.3.5          give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4       If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.10, then, without limiting any other right or remedy the Supplier may have:

6.4.1          the Customer's right to use the Goods in the ordinary course of its business ceases immediately; and

6.4.2          the Supplier may at any time:

6.4.2.1      require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

6.4.2.2      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.

  1. Supply of Services

7.1       The Supplier shall use all reasonable endeavours to meet any performance dates for the provision of the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.2       The Supplier 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 event.

7.3       The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

  1. Customer's obligations

8.1       The Customer shall:

8.1.1          ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;

8.1.2          co-operate with the Supplier in all matters relating to the Services;

8.1.3          provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as and when reasonably required by the Supplier to provide the Services;

8.1.4          provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; 

8.2        If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

8.2.1          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;

8.2.2          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 as set out in this clause 8.2; and

8.2.3          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.

  1. Charges and payment

9.1       The price for Goods and (where applicable) the Services shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's price list applicable as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.

9.2       The Supplier reserves the right to increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:

9.2.1          any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

9.2.2          any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

9.2.2          any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.

9.3       In respect of Goods, the Supplier shall invoice the Customer on or at any time after acceptance of the Order. In respect of Services, the Supplier shall invoice the Customer quarterly in arrear.

9.4       The Supplier reserves the right to require payment with Order. Where credit terms have been agreed, the Customer shall pay each invoice submitted by the Supplier:

9.4.1          within 30 days of the date of the invoice; and

9.4.2          in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

9.5       All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (or similar tax or any tax that replaces such sales taxes) chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, 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 Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.6       If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate 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.

9.7       The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

  1. Intellectual property rights

10.1     All Intellectual Property Rights in or arising out of or in connection with the Goods and/or the Services shall be owned by the Supplier.

  1. Confidentiality

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.

  1. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1     Nothing in these Conditions shall limit or exclude the Supplier's liability for:

12.1.1       death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

12.1.2       fraud or fraudulent misrepresentation; or

12.1.3       any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

12.2     Subject to clause 12.1:

12.2.1       the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ; and

12.2.2       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 relevant Goods.

12.3     The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

12.4     The Supplier is not liable for:

12.4.1       non-delivery, unless the Customer notifies the Supplier of the claim within 7 working days of the scheduled date of delivery; or

12.4.2       shortages in the quantity of Products delivered unless the Customer notifies the Supplier of a claim within 7 working days of receipt of the Goods; or

12.4.3       damage to or loss of all or part of the Goods in transit (where the Goods are carried by the Supplier’s own transport or by a carrier on behalf of the Supplier), unless the Customer notifies the Supplier within 7 working days of receipt of the Goods or the scheduled date of delivery, whichever is the earlier.

12.5     This clause 12 shall survive termination of the Contract.

  1. Termination

13.1     Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.1.1       the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

13.1.2       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;

13.1.3       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;

13.1.4       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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

13.1.5       the other party (being an individual) is the subject of a bankruptcy petition or order;

13.1.6       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 its assets and such attachment or process is not discharged within 14 days;

13.1.7       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 other party (being a company);

13.1.8       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 13.1.2 to clause 13.1.7 (inclusive);

13.1.9       the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

13.1.10     the other party'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.

13.2     Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

13.3     Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.7, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

13.4     On termination of the Contract for any reason: 

13.4.1       the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

13.4.2       the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

13.4.3       clauses which expressly or by implication have effect after termination shall continue in full force and effect.

  1. Force majeure

14.1     For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport 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 subcontractors.

14.2     The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

14.3     If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than  twelve weeks, the Supplier shall, without limiting its other rights or remedies, have the right  to terminate this Contract immediately by giving written notice to the Customer.

  1. General

15.1     Assignment and other dealings.

15.1.1       The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

15.1.2       The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

15.2     Notices.

15.2.1       Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

15.2.2       A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission. If deemed receipt would occur in the place of deemed receipt on a Saturday or Sunday or a public holiday when banks are not open for business, receipt is deemed to take place at 9.00am on the day when business next starts in the place of receipt.

15.2.3       The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action

15.3     Severance.

15.3.1       If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

15.4     Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15.5     No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

15.6     Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

15.7     Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

15.8     Anti-Bribery compliance. The Customer shall:

15.8.1       comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

15.8.2       not engage in any activity or conduct which would constitute an offence under the Bribery Act 2010 if such conduct or activity had been carried out in the UK.

15.8.3       have and shall maintain in place its own policies and procedures to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;

15.8.4       promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this Contract;

The Customer shall be responsible for the actions of any of its employees, agents or subcontractors and shall be directly liable to the Supplier for any breach by such persons of any of the Relevant Requirements.

Breach of this clause 15.8 shall be deemed a material breach of these Conditions.

15.9     Compliance with laws and regulations.

15.9.1       The Customer is responsible for obtaining, at its own cost, such import licences, registrations and other consents in relation to the Products as are required from time to time and, if required by the Supplier, shall make those licences and consents available to the Supplier prior to the relevant shipment of Goods.

15.9.2       The Customer shall comply with all applicable laws, codes and regulations relating to the import, distribution, use, storage, traceability and vigilance in respect of the Goods and including but not limited to the Directives.

15.9.3       The Customer shall allow the Supplier, at reasonable times and on reasonable notice access to its premises, facilities and records relating to the Goods in order to carry out Quality/Regulatory audits.

15.9.4       The Customer undertakes to maintain appropriate, up to date and accurate records in relation to all Medical Devices and/or In Vitro Diagnostic goods purchased from the Supplier including details of batch, lot or serial numbers, delivery dates and (where applicable) details of any third party to whom such Goods have been sold (“Records”). The Customer shall retain such Records (and make them available for inspecton on the Supplier’s request) for a minimum period of six years after the expiry of the lifetime of the relevant Product.

15.9.5       Within 24 hours of it becoming aware of any actual, threatened or suspected complaint, claim or potential liability in relation to any Goods or Services, the Customer shall provide written details of the matter to the Supplier.

15.9.6       Unless required by law, the Customer may not undertake any recall or withdrawal of any Goods from the market without the written permission of the Supplier and then only in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal. In the event that the Supplier implements a product recall, the Customer shall at the Supplier’s cost give such assistance as the Supplier may require for the purpose of recalling as a matter of urgency any Goods from the retail or wholesale market.

15.9.7       The Customer shall indemnify and hold harmless the Supplier and its officers and employees from any claim, action, liability, loss, cost, damage or expense arising out of or in connection with any default or breach by the Customer of this claue 15.

15.10  Dispute Resolution Procedure.

15.10.1 If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:

15.10.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Sales Manager of the Supplier and Purchasing Manager of the Customer shall attempt in good faith to resolve the Dispute;

15.10.1.2 if the Sales Manager of the Suppler and Purchasing Manager of the Customer are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Managing Director of the Supplier and the Managing Director of the Customer who shall attempt in good faith to resolve it; and

15.10.1.3 if the Managing Director of the Supplier and the Managing Director of the Customer are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. To initiate the mediation, a party must serve notice in writing (ADR Notice) to the other party to the Dispute, requesting a mediation. The mediation will start not later than 30 days after the date of the ADR notice. The mediation will take place in Newtown, Powys and the language of mediation shall be English, and in accordance with the laws of England and Wales.

15.10.2 No party may commence any court proceedings under clause 15.12 in relation to the whole or part of the Dispute until 30 days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay.

15.10.3 if the dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 15.12.

15.11  Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

Where applicable, the international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with these Conditions, these Conditions shall prevail.

15.12  Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).