Mackay and Lynn Limited Terms and Conditions of Sale
DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Business Day” – means any day other than a Saturday, Sunday or bank holiday;
“Buyer” – means any person, firm, company or other legal entity who purchases Goods and/or Services from the Supplier;
“Company” – means Mackay and Lynn Limited, a company incorporated in Scotland (company number SC046812) and with its registered office at 18/7 Dryden Road Bilston Glen, Loanhead, Midlothian, EH20 9LZ
“Contract” – means the contract for the purchase and sale of the Goods and supply of the Services under these Terms and Conditions;
“Contract Price” – means the price stated in the Contract payable for the Goods;
“Delivery Date” – means the date on which the Goods are to be delivered as stipulated in the Customer’s order and accepted by the Supplier;
“Delivery Point” – means the place where delivery of the Goods is to take place under clause 8.1;
“Goods” – means the goods (including any instalment of the goods or any parts for them) which the Supplier is to supply in accordance with these Terms and Conditions;
“Month” – means a calendar month;
“Services” – means the Services to be provided to the Customer as set out in the specified schedule; and quotation;
“Specification” – means in relation to the Goods, the Supplier’s equipment design specification for the Goods or the equivalent third party specification for Goods of third party origin; or in relation to the Services, the Supplier’s documents detailing the requirements of the Services. Any other specifications or documents describing the requirements of or the performance of the Works are only part of the Contract if referenced on the Supplier’s sales order confirmation;
“Works” – Means Goods or Services or both as the context may require.
2. APPLICABILITY OF CONDITIONS
2.1 The Company shall supply and the Buyer shall purchase the Goods and Services in accordance with the quotation and sales order confirmation which shall be subject to these Terms and Conditions.
2.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.3 Each order or acceptance of a quotation for Works will be deemed to be an offer by the Buyer to purchase Works upon these Terms and Conditions. The Contract is formed when the order is accepted by the Company by way of a sales order confirmation. In the event of any conflict or inconsistency between these Terms and Conditions and sales order confirmation, the latter shall prevail. Subject to clause 2.4 no contract will come into existence until a sales order confirmation is issued by the Company.
2.4 Acceptance of delivery of the Goods or commencement of the performance of the Services will be deemed conclusive evidence of the Buyer’s acceptance of these Terms and Conditions, even in cases where there has been no sales order confirmation in terms of clause 2.3.
2.5 Save as set out in the Contract, these Terms and Conditions may not be varied or amended except in writing and signed by a duly authorised officer of each Party.
3.1 Unless fixed prices have been specifically agreed in writing by the Company notwithstanding any offer, quotation, tender price or price list, all prices are subject to alteration without notice and Goods will be invoiced at prices and, where applicable, exchange rates ruling at time of dispatch.
Unless otherwise agreed in writing all prices are strictly net of delivery charges, VAT and any other tax or duty which shall be added to the price payable by the Buyer.
3.2 The Company reserves the right, by giving written notice to the Buyer at any time before delivery or provision, to increase the price of the Goods and/or Services to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods and services which are requested by the Buyer, any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions, or to comply with the requirements of Clause 7.3.
3.3 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Buyer shall be additionally liable to pay to the Company.
4. TERMS OF PAYMENT
4.1 Accounts are payable by 20th day of the month following the month of invoice. Without prejudice to the Company’s rights, such payment shall be a condition precedent to any further deliveries.
4.2 Unless otherwise agreed in writing, the contract price shall be paid in Pounds sterling.
(Unless the Company’s offer specifies otherwise, if the Buyer is based overseas, payment shall be made by irrevocable letter of credit established in favour of the Company at the time of placing of the order by the Buyer or acceptance of the Company’s offer and confirmed by a first class British Clearing Bank acceptable to the Company and maintained valid for cash drawings against presentation of the Company’s invoice(s) until final contract payment but in any case for at least 3 months after scheduled completion of the contract taking into account any agreed extensions and the acceptance by the Company of the Buyer’s order is conditional upon such letter of credit being received with the order). (The Buyer agrees to arrange extension of such letter of credit for such period as may be requested by the Company from time to time).
4.3 No claim by the Buyer under warranty or otherwise shall entitle the Buyer to any deduction, retention or withholding of any part of any sums due for payment hereunder. The Buyer shall not be entitled to any set off or obligations within or between contracts with the Company.
4.4 All consular and bank charges and import and customs duties and taxes arising from or by virtue of the contract must be paid by the Buyer.
4.5 A surcharge of 3.5% will be levied if paying by credit card.
4.6 If the Buyer’s cheque is returned by the bank as unpaid for any reason, Buyer shall be liable for a “returned cheque” charge of £25.
4.7 No payment will be deemed to have been received until Company has received cleared funds.
4.8 All sums payable to Company under the Contract will become due immediately upon termination of the Contract.
4.9 All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
4.10 The Company may appropriate any payment made by the Buyer to the Company to such of the invoices for the Works as the Company thinks fit, despite any purported appropriation by Buyer.
4.11 If any sum payable under the Contract, or any other agreement between the Buyer and the Company, is not paid when due then, without prejudice to Company’s other rights under the Contract, the Company will be entitled to suspend deliveries of the Goods or performance of the Services until the outstanding amount has been received by the Company from the Buyer.
4.12 If any sum payable under the Contract is not paid when due then, without prejudice to the Company’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at four per cent per annum over Barclays Bank plc base rate from time to time.
4.13 Notwithstanding anything contained in the Contract to the contrary, in the event that there are withholding taxes imposed by the tax authorities in respect of payments due pursuant to the Contract, the Buyer shall be entitled to deduct and pay such withholding taxes to the said tax authorities on behalf of Company unless Company has previously provided Buyer with evidence satisfactory to the said tax authorities in the form of certification from its auditors/tax authorities that Company is not subject to tax on the relevant income. If any withholding taxes are deducted and paid to such tax authorities then the Buyer will provide to the Company within thirty days from the date of the Buyer’s payment to the Company the tax credit documentation necessary for the Company to receive a tax credit equal to the withholding tax. Where the Company has made reasonable efforts to reclaim the withholding tax but is unable to do so (in whole or in part), the Buyer shall pay such an amount to Company such that the net amount, after deduction of the withholding taxes that the Company has been unable to reclaim, is equal to the amount that the Company would have received from the Buyer had such withholding requirement not been applicable.
4.14 The Company is not obliged to accept orders from any buyer or customer who has not supplied the Company with references satisfactory to the Company. If at any time the Company is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods or services will be delivered or provided to the Buyer other than against cash payment and notwithstanding sub-Clause 7.2 of these conditions, all amounts owing by the Buyer to the Company shall be immediately payable in cash.
5. TIME FOR DELIVERY
5.1 Dates quoted for delivery are estimated only and not conditions of sale. No claim shall be made by the Buyer nor shall the Buyer refuse to accept delivery on the grounds of any failure to deliver on any particular date or dates.
6.1 Delivery shall be deemed to be effective when the Goods are unloaded at the delivery address nominated by the Buyer or his agent for delivery, save where the Goods are to be collected by the Buyer or his Agent, when the Goods are loaded onto the vehicle collecting them.
6.2 The Company reserves the right to deliver goods by instalments and in such event each instalment shall be treated as a separate contract provided that deliveries of further instalments may be withheld until the Goods or materials comprised in earlier instalments have been paid for in full.
7. QUANTITY ORDERED AND DELIVERED
7.1 Goods can only be supplied in the ‘standard pack or quantity’ or ‘minimum buying quantity’ shown in the Company price lists or in multiples thereof. The Company will use all reasonable endeavors to procure and deliver the quantity of Goods ordered but every contract and delivery is subject to the margins of tolerances (whether over or under the quantity stipulated) customary in the trade and no guarantee or warranty is given or implied on the part of the Company which
is incompatible with this provision.
7.2 All samples, drawings, data sheets descriptive matter, specifications (other than the Specification) and advertising issued by the Company (or the manufacturer of the Goods) and any descriptions or illustrations contained in the Company’s or manufacturer’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
7.3 The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
8. C & F AND CIF TERMS
8.1 C & F and CIF prices where appropriate will be based on the current rates of freight and insurance. Should any fluctuations in freight and insurance rates occur before completion of a contract the Company reserves the right to amend such prices effective from the date of such changes in rates. C & F prices will include cost and freight by direct routes to principle ports, airports or railheads in a Buyer’s territory relevant to the means of transport and at the Company’s discretion. CIF prices will, in addition to C & F terms, include insurance for breakage on the basis of CIF value plus 10%. Any additional insurance will be for the Buyer’s account. Cover notes will be issued for claims payable at destination and carrying an excess clause. It will be the Buyer’s responsibility to present the claim in accordance with the
provisions of these conditions.
9.1 Prices shown in quotations or contracts will include the cost of the Company’s normal packaging for destinations in the UK or for export unless stated otherwise. Any
other forms of packaging supplied at Buyer‘s request will be charged extra and will be non-returnable.
10. NON-ACCEPTANCE OF DELIVERY
10.1 If the Buyer refuses or fails to take or accept delivery of the Goods at the time specified, the Contract Price shall nevertheless be paid as if delivery has taken place.
10.2 The Company shall be entitled at its option to terminate the Contract with immediate effect to dispose of the Goods as the Company may determine and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure or to charge the Buyer for storage and other loss and expense reasonably incurred or suffered by the Company as a result of such refusal or failure but the Company shall not be bound to take any steps for the custody and care of such Goods or shall not be liable for any loss or damage suffered by the Buyer arising therefrom.
11 PASSING OF TITLE
11.1 The absolute legal and beneficial ownership in all Goods shall remain vested in the Company and shall not pass to the Buyer until the purchase price of the order of which they form part (each order being considered as a whole) and all other monies owing by the Buyer to the Company on any account shall have been paid in full by the Buyer to the Company.
11.2 Until such payment has been made, the Buyer shall hold the Goods sold as bailee of the Company and in a fiduciary capacity and shall not sell, dispose of, process or use the Goods except with the express written permission of the Company and on condition that if authorised to resell the Goods to a third party, the Buyer shall not mingle any proceeds of sale with any other monies and shall at all times keep them in a separate bank account and identifiable as the
Company’s monies and shall forthwith account to the Company for the proceeds of sale to the extent of the Buyer’s indebtedness to the Company.
11.3 Pending receipt of payment made in accordance with these conditions the Goods shall be set aside and stored separately from other Goods in the possession of the Buyer so as to be clearly and separately identifiable and the Buyer shall deliver them up to the Company at any time on demand.
11.4 In the event that the Buyer shall breach any of its obligations under these conditions or under any other agreement between the parties, the Company reserves the immediate right to repossess all or any of the Goods to which it has retained title aforesaid and thereafter to resell the same and for this purpose the Buyer hereby grants an irrevocable right of licence to the Company’s servants and agents to enter upon all or any of its premises with or without vehicles during business hours. This right shall continue to subsist notwithstanding the termination of the Contract for any reason and is without prejudice to any accrued rights of the Company hereunder or otherwise.
12. PASSING OF RISK
12.1 The risk in the Goods shall pass to the Buyer upon delivery. The Buyer shall insure the Goods with a reputable insurance company and if the same are damaged or destroyed, then such insurance monies as are payable shall be immediately paid by the Buyer to the Company to the extent of the indebtedness of the Buyer to the Company and without prejudice to any right of the Company to recover from the Buyer any balance of the purchase price remaining due under the Contract.
13.1 In the event of any loss or damage or delay to any Goods delivered at our risk to the Buyer or to his agent or otherwise to his order notice of the same shall be given to us in writing by the Buyer forthwith upon delivery (or, in the case of loss of any Goods, at the time when the Goods should have been delivered) and the Buyer shall at the same time take all necessary steps to notify the carrier in writing of any such loss damage or delay and where practicable shall enter a note of the same upon the carriers receipt. If by reason of the failure of the Buyer to give any such notice as provided above, the Company is precluded from making a recovery from
the carrier in respect of the loss damage or delay complained of then the Company shall not be liable for any claim by the Buyer in respect thereof and the Buyer shall be liable to pay for the Goods as though no such loss damage or delay had occurred.
14.1 The Company warrants that the Goods shall (be in conformity with the Specification) or (be within its usual tolerances as to quality and finish). The Company shall replace or at its option refund the purchase price as applicable to any Goods which do not in its sole opinion comply with this warranty, provided always that any claim under this warranty is made within 24 hours of commencement of the processing of the Goods or (if earlier) within 28 days of delivery of the Goods alleged to be defective.
14.2 It is the Buyer’s responsibility to determine whether the Goods are suitable for the contemplated use, whether or not such use is known to the Company.
14.3 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.4 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Company or any competent governmental or regulatory authority and the Buyer will indemnify the Company against any liability loss or damage which the Company might suffer as a result of the Buyer’s failure to comply with this condition.
15. DEFECTIVE GOODS
15.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Company within 7 (Seven) Business Days of such delivery, the Company shall at its option:
15.1.1 replace the defective Goods within 14 (Fourteen) Business Days of receiving the Buyer’s notice; or
15.1.2 refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Company shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as set out above.
15.2 No Goods may be returned to the Company without the prior agreement in writing of the Company. Subject thereto any Goods returned which the Company is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Company’s sole discretion the Company shall refund or credit to the Buyer the price of such defective Goods but the Company shall have no further liability to the Buyer.
15.3 The Company shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Company’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Company’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
15.4 Goods, other than defective Goods returned under sub-Clauses 15.1 or 15.2, returned by the Buyer and accepted by the Company may be credited to the Buyer at the Company’s sole discretion and without any obligation on the part of the Company.
15.5 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Company or any competent governmental or regulatory authority and the Buyer will indemnify the Company against any liability loss or damage which the Company might suffer as a result of the Buyer’s failure to comply with this condition.
16. EXCLUSION AND LIMITATION OF LIABILITY
16.1 The Buyer shall indemnify the Company against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Buyer, its agents or employees.
16.2 Where the Buyer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Buyer shall be joint and several obligations of such persons.
16.3 The Company shall not be liable to the Buyer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control.
16.4 Nothing in these Terms and Conditions excludes or limits the liability of the Company:
16.4.1 for death or personal injury caused by the Company’s negligence;
16.4.2 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
16.4.3 for fraud or fraudulent misrepresentation.
16.5 Subject to Clause 16.4 and the remaining provisions of this Clause 16, the Company’s total liability in contract, delict/tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price.
16.6 Except as provided in Clause 16.4, the Company will have no liability to the Buyer whatsoever in respect of:
16.6.1 pure economic loss, loss of profits, loss of business, loss of revenue, loss of contracts, loss of goodwill, loss of anticipated earnings or savings (whether direct, indirect, incidental or consequential) or
16.6.2 loss of use or value or damage of any data or equipment (including software), wasted management, operation or other time (whether direct, indirect, incidental or consequential) or
16.6.3 any special, indirect, punitive, incidental or consequential loss;
in each case howsoever caused arising out of or in connection with:
16.6.4 any of the works, or the manufacture or sale or supply, or failure or delay in supply, of the works by Company or on the part of the Company’s employees, agents or subcontractors;
16.6.5 any breach by the Company of any of the express or implied terms of the contract;
16.6.6 any use made or resale by the Buyer of any of the works, or of any product incorporating any of the works; or
16.6.7 any statement made or not made, or advice given or not given, by or on behalf of the Company.
16.7 Except as expressly set out in the Contract, the Company hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer, including without limitation, any warranty of merchantability or fitness for a particular purpose.
16.8 Each of the Company’s employees, agents and subcontractors may rely upon and enforce the exclusions and restrictions of liability in the contract in that person’s own name and for that person’s own benefit, as if the words “its employees, agents and subcontractors” followed the word “company wherever” it appears in those clauses save for each reference in clause 16.6.
16.9 The Buyer is solely responsible and liable for the proper legal disposal of all materials purchased from Company at the end-of-life cycle of such materials.
16.10 The Buyer acknowledges that the above provisions of this clause 16 (exclusion and limitation of liability) are reasonable and reflected in the price which would be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
17. CANCELLATION BY THE BUYER
17.1 The Buyer may, not later than 3 days before the scheduled delivery date, by written notice, cancel the order for Goods provided that the Buyer shall reimburse the Company for any costs incurred up to the date of receipt of the notice of such cancellation.
18. TERMINATION BY THE COMPANY
18.1 The Company shall (without prejudice to any of its other rights hereunder) be entitled to terminate any contract forthwith by written notice to the Buyer if the Buyer shall:
18.1.1 Become insolvent.
18.1.2 Fail to pay any amounts falling due (whether under these conditions or otherwise) to the Company within 30 days of the date payment is due.
18.1.3 Have a Receiver appointed.
18.1.4 Pass a resolution for winding-up (other than for purposes of reconstruction or amalgamation.
18.1.5 Commit a breach of any term of the contract or any other contract with the Company.
19. FORCE MAJEURE
19.1 If the commencement, continuation or complete performance by the Company of its obligations under this Contract is prevented, hindered, delayed or rendered uneconomic by reason of force majeure then the Company will be deemed not to be in breach of the Contract and shall not be responsible to the Buyer for any loss or damage incurred or sustained by the Buyer as a result. For the purpose of this condition, the term Force Majeure shall include any factor affecting the performance of this Contract attributable to acts, events, non-happenings, omissions or incidents beyond the reasonable control of the Company and, in particular, (but without limiting the generality of the foregoing), the following, namely: strikes, lock-outs, riots, civil revolution, war, state of national emergency of governmental action, trade dispute or labour disturbance, accident, break down of plant or machinery, difficulty or increased expense in obtaining workmen, materials or transport, fire, explosion, storm, flood, earthquake or other natural physical disaster or circumstances affecting the supply of the Goods (or the raw materials therefore) by a Company’s normal source of supply or the delivery of the Goods by the Company’s normal route or means of delivery.
20.1 The Buyer represents and warrants that it shall not, without the express prior written approval of the Company, resell the Goods in exactly the same condition in which they were supplied by the Company at the Delivery Point. The Company may make approval subject to such conditions as Company shall, in its discretion, deem appropriate, including but not limited to informing the Company of each occasion on which the Buyer resells the goods. For the purposes of this clause resale shall not include where the Buyer integrates such Goods or explicitly provides such Goods as part of a larger Buyer solution or system for onward sale.
21. IMPORT LICENCES
21.1 The Buyer’s order must specify the number, date of expiry and value of any necessary Import Licence.
22. CORRUPT PRACTICES
22.1 The Buyer represents and warrants that it understands the provisions of any relevant laws relating to the prevention of corruption and agrees to comply with them to the extent that they apply.
23.1 the Buyer agrees to indemnify, keep indemnified and hold harmless Company from and against:
23.1.1 all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), claims arising for death or personal injury, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Company incurs or suffers as a consequence of a direct or indirect breach of the contract or negligent performance or delay or failure in performance or wilful misconduct by the Buyer or its employees, agents or contractors. The foregoing indemnity shall not include any losses due solely to the negligence or wilful misconduct of the Company; and
23.1.2 any claims by third parties which are caused by or arise out of or in connection with:
188.8.131.52 any act or omission of the Company carried out pursuant to instructions of the Buyer; or
184.108.40.206 any breach by the Buyer of any terms of the contract;
220.127.116.11 by the Buyer’s customers or users of the works; and
18.104.22.168 arising from use of the works other than as specified in the specification.
24.1 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect. The Parties shall in such an event negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the illegal, invalid or unenforceable provision which as nearly as possible gives effect to their intentions as expressed in the Contract.
24.1.2 No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
24.1.3 The Company may assign, delegate, license, hold on trust or subcontract all or any part of its rights or obligations under the Contract.
24.1.4 The Contract is personal to the Buyer who may not assign, delegate, license, hold on trust or subcontract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
24.1.5 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
25.1 Any notice hereunder shall be deemed to have been given if sent by pre-paid, first class post, telex or facsimile to the party concerned at its last known address.
Notices sent by first-class post shall be deemed to have been given 7 days after dispatch and notices sent by telex or facsimile shall be deemed to have given on
the date of dispatch.
26.1 The intent of the Parties is to identify and resolve any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it (for the purpose of this clause, a Dispute) promptly. Each Party agrees to perform as follows:
26.1.1 to notify the other Party of any Dispute in reasonable detail as soon as possible after any Dispute arises;
26.1.2 to negotiate in good faith to seek to resolve the Dispute; and
26.1.3 if a Dispute is not resolved within thirty days of it arising, either Party shall be entitled to refer to and finally resolve such Dispute by an Alternative Dispute Resolution (“ADR”) technique recommended by the Centre for Effective Dispute Resolution (“CEDR”). If the Parties fail to settle the dispute within thirty (30) days following their agreement to involve CEDR or either Party refuses to submit to ADR, the dispute shall be referred to the exclusive jurisdiction of the Scottish courts.
26.2 This clause 26 will not prevent a Party (the “affected Party”) from:
26.2.4 seeking injunctive relief in the case of any breach or threatened breach by the other Party of any obligation of confidentiality or any infringement by the other Party of the affected Party’s Intellectual Property Rights;
26.2.5 commencing any proceedings where this is reasonably necessary to avoid any loss of a claim due to the rules on limitation of actions; or
26.2.6 commencing proceedings in the case of non-payment of an undisputed invoice.
27. LAW AND JURISDICTION
27.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of Scotland.