Proper Music Distribution Limited – Terms and Conditions

1. INTERPRETATION:

1.1 Definitions. In these Conditions, the following definitions apply:
Additional Charge: means the cost of delivery or the cost of any additional packaging, courier, insurance, storage or any other charges that are in addition to the Price.
Account Numbers: means the Customer’s account code and delivery code provided by the Supplier.
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: means the terms and conditions set out in this document as amended from time to time in accordance with Condition 12.7.
Contract: means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: means any person, firm, or other entity placing an Order to purchase the Goods.
Dealer Price: the price by catalogue number for Goods, designated by Supplier and published by Supplier to Customers and similar record dealers from time to time by means of sales presenters, electronic product feeds and similar.
Goods: means the goods (or any part of them) that are offered for sale by the Supplier to the Customer.
Mint Condition: means the condition of the Goods is the same condition as the Goods were delivered by Supplier to Customer, undamaged, in their original packaging without anything attached e.g. stickers, security tags or similar.
Order: means the Customer’s order for any of the Goods.
Order Details: means the relevant Account Numbers, Delivery Location, despatch note date and number, quantity, catalogue number, artist, title, Price and format.
Price: means the Dealer Price of the Goods less any file discounts and any other discounts that have been previously agreed in writing between the parties.
Returns Authorisation: means the document issued by the Supplier to the Customer following an approved returns request which complies with Condition 4.1 below.
Supplier: means Proper Music Distribution Limited (a company incorporated and registered in England and Wales with company number 02807811).

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 e-mails.

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 Subject to clause 3.1, 3.2 and 3.3 below, the Contract shall be made when the Customer places an Order to the Supplier’s sales office in any of the following ways:

    (a) by telephone (e.g. 0870 444 0800); or
    (b) by fax (e.g. 0870 444 0801); or
    (c) by email (e.g. sales@propermusicgroup.com).

2.3 When placing an Order with the Supplier the Customer must reference their Account Numbers.
2.4 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.

3. AVAILABILITY, SUPPLY AND DELIVERY:
3.1 Each Order by the Customer constitutes a separate Contract, and for the avoidance of doubt, the Seller is not obliged to accept any Order received from any Customer, at any time (whether or not the Seller has accepted Orders from, or otherwise conducted business with, such Customer in the past).
3.2 Acceptance of the Customer’s Order is at the Seller’s sole discretion and is subject to the relevant Goods being available. The Seller reserves the right to refuse, at any time, any Order (or any part thereof) to which these Conditions apply on grounds of non-availability, or on any other grounds or basis, and the Seller shall incur no liability to the Buyer (or to any other party) in respect of any such refusal.
3.3 Any Order placed by the Customer with a value of £75 will not be shipped until the total amount for Orders placed with the Supplier exceeds £75 (unless the Customer accepts to pay any shipping charges for any Order of a value less than £75).
3.4 Saturday deliveries are sometimes available but this will incur an Additional Charge if the Order is for a value of £200 or less. The Customer should contact the Supplier’s relevant account handler for further information.
3.5 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the Supplier reasonably assumes (Delivery Location) as soon as reasonably possible after the Order has been accepted by the Supplier. If however the Customer places an Order by 3pm on a Business Day which is accepted by the Supplier, then the Supplier will reasonably endeavour to deliver the Goods the next Business Day but the time of delivery shall not be of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or 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.
3.6 With the Supplier’s prior written consent the Customer can alternatively collect the Goods from the Supplier’s premises at The New Powerhouse, Gateway Business Centre, Kangley Bridge Road, London, SE26 5AN (Collection Location) or such other location as may be advised by the Supplier prior to delivery within 3 Business Days of the Supplier notifying the Customer that the Goods are ready for collection.
3.7 The Supplier shall ensure that each delivery of the Goods is accompanied by a despatch note which shows the date of the Order, relevant Customer and Supplier reference numbers and the quantity of the Goods (including the code number of the Goods, where applicable)
3.8 Delivery and acceptance by the Customer of the Goods shall be completed immediately following the Goods’ delivery at the Delivery Location or when the Customer collects the Goods from the Collection Location.
3.9 Requests for proof of delivery to the Delivery Location should be emailed to customerservice@propermusicgroup.com within 5 days of delivery and must include the Account Numbers and delivery address, invoice number and date of Order.
3.10 If the Customer fails to take delivery of the Goods then (except where such failure or delay is caused by a Force Majeure Event) without prejudice to any other right or remedy available to the Supplier, the Supplier may:

    (a) Store the Goods until delivery takes place and charge the Customer for all related costs and expenses; or
    (b) Sell the Goods at the best price readily available and (after deducting all related costs and expenses) charge the Customer for any shortfall in the Price under the Contract.

3.11 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.

4. RETURNS, DAMAGED GOODS, SHORTAGES AND SENT-IN-ERRORS
4.1 Authorisation from the Supplier is required before any Goods are returned. All such return requests should be made in writing to customerservice@propermusicgroup.com or by post to our office. The request should contain the Order Details and the reason for the return.
4.2 Requests for returns which do not comply with 4.1 above will be rejected by the Supplier.
4.3 Once a return request has been accepted by the Supplier, then Supplier will issue the Customer with a Returns Authorisation.
4.4 Returned Goods will not be accepted by Supplier without a Returns Authorisation. Any Goods sent to Supplier without a relevant Returns Authorisation will be rejected.
4.5 All Goods (if rejected) by the Customer must be returned in Mint Condition within 1 month of issuing a Returns Authorisation. In the event that returned Goods are not received by Supplier in Mint Condition Supplier shall inform Customer and may provide general photographic evidence of the non-Mint Condition of the returned Goods. The Customer may then elect to have such Goods returned to Customer at Customers cost. If following the elapse of 15 days from the date Supplier has informed Customer of such non-Mint Condition Goods Customer has failed to request return of such Goods back to Customer, Supplier shall be entitled to destroy such Goods (Supplier may at Customers written request provide Customer with a certificate of destruction with respect thereof).
4.6 Once the returned Goods have been inspected by the Supplier and the Supplier confirms that all the Goods have been returned in Mint Condition, then a credit note will be issued to the Customer. For the avoidance of doubt if the Goods are not received
by the Supplier back from the Customer in Mint Condition then no credit note or refund for the Goods will be given to the Customer by Supplier in respect of such Goods.
4.7 In the event that upon delivery to Customer that Goods are damaged then the Customer shall notify the Supplier in writing to customerservice@propermusicgroup.com or by post within 3 days of delivery, specifying the Order Details and a description of the defective/damaged Goods. For the avoidance of doubt Conditions 4.1, 4.2, 4.3, 4.4, 4.5 and 4,6 above still apply for returns of defective/damaged Goods.
4.8 The Supplier will not be liable for damage to Goods unless the Customer establishes that the damage occurred when the Goods were in the control of the Supplier or its agents before delivery to the Delivery Location or whilst in the Collection Location. In any event, liability is expressly excluded in respect of damaged Goods where the Supplier has not been notified within 3 days of delivery in accordance with Condition 4.7 above.
4.9 Any claims for shortages of Goods or for Goods sent-in-error should be made in writing to the Supplier in writing to customerservice@propermusicgroup.com within 3 days of delivery, specifying the Order Details and a description of the shortage or Goods sent-in-error. For the avoidance of doubt Conditions 4.1, 4.2, 4.3, 4.4, 4.5 and 4,6 above still apply for returns of Goods sent-in-error.
4.10 The Supplier will reimburse the Customer for the reasonable pre-approved cost of packaging and carriage of returning the Goods in accordance with Conditions 4.7 and 4.9 or may at Supplier’s own election decide to arrange collection of the Goods from the Customer at a mutually agreed time.
4.11 Customers are accordingly strongly advised to inspect the Goods immediately on arrival at the Delivery Location or on collection from the Collection Location as the case may be.

5. RISK AND TITLE OF THE GOODS
5.1 The risk of damage to or loss of the Goods shall pass to the Customer on delivery to the Delivery Location, collection from the Collection Location or such other address provided by the Customer to the Supplier when the Order was placed.
5.2 Title to the Goods shall not pass until the Supplier receives payment in full (in cleared funds) of the Price and any Additional Charge for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
5.3 In the event of any of the circumstances described in Condition 7.2 below the Customer confirms that it will hold the Goods and each of them on a fiduciary basis as bailee for the Supplier and the Supplier may recover from the Customer the Goods remaining in Customer’s possession (including the right to enter any premises where the Goods are stored).
5.4 The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

    (a) it does so as principal and not as the Supplier’s agent; and
    (b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

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

    (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
    (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    (c) maintain the Goods in Mint Condition and keep them insured against all risks for the Price from the date of delivery or collection as the case may be;
    (d) notify the Supplier immediately if it becomes subject to any of the events listed in Condition 7.2; and
    (e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.

5.6 If before title to the Goods passes to the Customer the Goods are destroyed by an insured risk prior to being paid for by the Customer then the Customer shall receive the proceeds of any such insurance as trustee for the Supplier.
5.7 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 7.2, then, without limiting any other right or remedy the Supplier may have:

    (a) the Customer’s right to resell the Goods or deal with the Goods in any way ceases immediately; and
    (b) the Supplier may at any time:

      (i) require the Customer to deliver up all Goods in its possession which have not been resold; and
      (ii) 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.

5.8 The Customer shall not be entitled to pledge, encumber or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier but if the Customer does so then all monies owing to the Supplier by the Customer shall (without limiting any other right or remedy the Supplier may have) immediately become due and payable.

6. PRICE AND PAYMENT
6.1 The Supplier may, by giving notice to the Customer at any time before delivery or collection, increase the Price of the Goods and Additional Charges to reflect any increase in the cost of the Goods that is due to:

    (a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; 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.

6.2 The Price of the Goods 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.
6.3 The Supplier may in its sole discretion grant and vary credit limits. The Supplier will not supply the Goods in excess of the agreed limit without the consent of a director of the Supplier. The Supplier reserves the right to withdraw credit facilities or terminate any credit agreement with the Customer at any time.
6.4 The Supplier may invoice the Customer the Price and any Additional Charges for the Goods on or at any time after the completion of delivery or collection.
6.5 The Customer shall pay the Supplier’s invoice in full and in cleared funds on or before the deadline for payment indicated on the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
6.6 The Supplier’s invoices shall be payable in accordance with these Conditions, notwithstanding that delivery or collection may not have taken place and the property in the Goods may not have passed to the Customer. Time for payment of the Supplier’s invoice is of the essence.
6.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier reserves the right (to be exercised at the Supplier’s discretion at any time) to demand that the Customer pays interest on the overdue amount at the rate of 4% per annum above Supplier bank’s base rate from time to time. If demanded, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. If required by the Supplier, the Customer shall pay the interest together with the overdue amount.
6.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 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.

7. TERMINATION AND SUSPENSION
7.1 If the Customer becomes subject to any of the events listed in Condition 7.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
7.2 For the purposes of Condition 7.1, 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 or limited liability partnership) 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;
    (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 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;
    (e) (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
    (f) a person or other entity becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
    (g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
    (h) 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;
    (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 Condition 7.2(a) to Condition 7.2(h) (inclusive);
    (j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part 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.

7.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Condition 7.2(a) to Condition 7.2(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under a Contract on the due date for payment.
7.4 Notwithstanding the above, if the Customer fails to pay any amount due under the Contract on the due date for payment, the Supplier may sell or otherwise dispose of any Goods which are the subject of any order by the Customer, whether or not such Goods have been appropriated, and apply the proceeds of sale to the overdue payment or in reference to Condition 6.3 above, apply the proceeds of sale to the reduction in the excess over the maximum credit facility.
7.5 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
7.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
7.7 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
7.8 Unless otherwise agreed in writing by the Supplier, all Customer queries regarding any invoice or payments should be sent to its administration offices in writing to The New Powerhouse, Gateway Business Centre, Kangley Bridge Road, London, SE26 5AN or by email to accounts@propermusicgroup.com.

8. LIMITATION OF LIABILITY AND WARRANTIES
8.1 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.

8.2 Subject to Condition 8.1:

    (a) the Supplier warrants that the Goods will be of satisfactory quality at the time of delivery or collection as the case may be; and
    (b) 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
    (c) in the event of any claim being made by the Customer, the Customer shall give the Supplier a reasonable opportunity to inspect the Goods in the same condition as they were at the time of delivery or collection after the defect has been discovered; and
    (d) where the Customer makes any claim in respect of the Goods the Supplier shall be entitled to make good any shortage or non-delivery, replace or repair the Goods found to be damaged or defective free of charge, or at the Supplier’s discretion, refund the Price and any Additional Charges to the Customer whereby the Supplier will have no further liability to the Customer; and
    (e) in the event of a claim the Customer shall not withhold or delay payment in respect of any other Goods of which no claim has been made irrespective of whether those Goods form part of the same consignment; and
    (f) the Supplier shall not be deemed to be in breach of contract or have any liability to the Customer should it be unable to fulfil supply of the Goods in accordance with Condition 3; and
    (g) the Supplier shall have no liability under these Conditions if the Goods have not been paid for by the due date for payment in accordance with Condition 6.6; and
    (h) 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 lowest cost of replacing the Goods with the same or nearest comparable product at the time of the claim.

9. CUSTOMER’S OBLIGATIONS
9.1 The Goods shall only be disposed of by the Customer by outright sale. The Goods shall not be leased or offered for lease, copied, broadcast in public by the Customer, all rights being reserved to the copyright owner in relation to the Goods.
9.2 New releases – the Goods are not to be made available for sale or displayed or performed to the public until the notified release date.
9.3 If the Customer is registered with a music industry chart company then the Customer will use reasonable endeavours to procure that such chart company credits the Supplier as the distributor of the relevant Goods.

10. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
10.1 In these Conditions, the ‘intellectual property’ includes (without limitation) any patent, trade mark, service mark, copyright, works, design right, moral right, know-how or any other form of intellectual property, whether registered or unregistered and whether existing now or in the future, in any format or media whatsoever, in (or arising in respect of or in connection with) all Goods, designs or other written, printed or graphic materials or images supplied, or made available for inspection, by the Supplier to the Customer.
10.2 The Supplier or its licensors are the proprietors of the intellectual property under which the Goods are marketed and distributed and any infringement of the intellectual property may result in legal proceedings.
10.3 The Customer is prohibited from using any of the intellectual property, unless a written licence agreement is entered into between the Supplier and the Customer.
10.4 Should the Customer be convicted of an offence under the Copyright Designs and Patents Act 1988 or be held liable in civil proceedings directly or indirectly the infringement of copyright the Supplier reserves the right to terminate or suspend any Contract in accordance with these Conditions.
10.5 The Supplier and the Customer agree that they will each, at all times, keep strictly private and confidential any and all confidential information that they acquire from each other as a consequence of contracting with each other under these Conditions, except for disclosing any such information (i) which they may be (and then only to the extent they are) entitled or bound to disclose under compulsion of law or where requested by any regulatory agency or (ii) to their professional advisers where reasonably necessary for the performance of their professional services.

11. FORCE MAJEURE
Neither the Customer nor the Supplier 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. A Force Majeure Event means any event beyond a 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.

12. GENERAL
12.1 Assignment and other dealings.

    (a) The Supplier may at any time assign, transfer, mortgage, 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, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

12.2 Notices.

    (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 Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
    (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 3.5; if sent by pre-paid first class post or other next working day delivery service, at 9.00am 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 Condition shall not apply to the service of any proceedings or other documents in any legal action.

12.3 Severance.

    (a) 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 Condition shall not affect the validity and enforceability of the rest of the Contract.
    (b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.4 Waiver. A waiver of any right or remedy under the Contract or law 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 prevent or restrict the 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.
12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
12.6 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.7 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 in writing and signed by the Supplier.
12.8 Previous conditions. These Conditions replace the Supplier’s previous Terms of Trading.
12.9 Governing law. 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 the law of England and Wales.
12.10 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).