Terms & Conditions of Sale

1.                INTERPRETATION

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

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause13.8.

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions.

Customer: the person who purchases the Goods and/or Services from the Supplier.

Dangerous Goods: means those substances and articles the carriage of which is prohibited by the provisions of the European Agreement Concerning the International Carriage of Dangerous Goods by Road (ADR) as applied in the United Kingdom, or authorised only under the conditions prescribed in accordance therewith.

Force Majeure Event: has the meaning given in clause12.

Goods:  the goods (or any part of them) to be supplied by the Supplier to the Customer as set out in the Order.

Order: the Customer's order for the Goods and/or Services.

Services: the services to be supplied by the Supplier to the Customer as set out in the Order or otherwise agreed between the Supplier and the Customer.

Special Conditions: any special conditions contained in the Order or otherwise agreed in writing by the Supplier and the Customer.

Specification: any specification for the Goods and/or Services set out in the Order or as otherwise agreed between the Customer and the Supplier.

Supplier: Harbro Limited, a company registered in Scotland with company number SC230773 and having its registered office at Markethill Road, Turriff, Aberdeenshire, AB53 4PA.

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 and the Special Conditions (if any) apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2              The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.

2.3              The Order shall only be deemed to be accepted when the Supplier issues an acceptance (whether oral or written) of the Order at which point the Contract shall come into existence.

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

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

2.6              A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 days from its date of issue unless otherwise stated on a quotation.

 

3.                GOODS

3.1              To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification.

3.2              To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer and/or using materials to be supplied by the Customer and/or suppliers nominated by the Customer, the Supplier will have no liability for any defects in the Goods due to defects in such materials or defects in the Specification.

3.3              The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

 

4.                DELIVERY OF GOODS

4.1              The Supplier shall ensure that:

(a)          each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(b)          if the Supplier requires the Customer (or should the Customer have the option) to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall at its expense return to the Supplier such packaging materials empty, securely closed, externally clean and in a good condition (unless otherwise agreed by the Supplier).

 

4.2              If the Contract provides that the Supplier is to deliver the Goods to the Customer at a location other than the Supplier’s premises, the following shall apply:-

(a)          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;

(b)          Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location;

(c)          Any dates quoted for delivery 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 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;

(d)          If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses reasonably incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 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 or any other instructions that are relevant to the supply of the Goods;

(e)          If the Customer fails to accept delivery of the Goods, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:

(i)          the Supplier may submit an invoice notwithstanding that delivery has not taken place; and

(ii)           the Supplier may store the Goods until actual delivery takes place, and charge the  Customer for all related costs and expenses (including insurance); and

(iii)         if within 10 Business Days after the day on which the Supplier first attempted to deliver the Goods to the Customer the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods specified in the Contract;

(f)           The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered; and

(g)          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.

4.3              If the Contract provides that the Customer is to collect the Goods from the Supplier’s premises, the following shall apply:-

(a)          The Customer shall collect the Goods from the location set out in the Order or such other location as the parties may agree (Collection Location) within 3 Business Days of the Supplier notifying the Customer that the Goods are ready or earlier as agreed between the Supplier and the Customer;

(b)          Delivery of the Goods shall be completed on the completion of loading of the Goods at the Collection Location;

(c)          Any dates quoted for delivery 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 that is caused by a Force Majeure Event, the Customer’s failure to collect the Goods or the Customer's failure to provide the Supplier with adequate instructions or any other instructions that are relevant to the supply of the Goods;

(d)          If the Supplier fails to make the Goods available for collection by the Customer, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to make the Goods available for collection to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate instructions or any other instructions that are relevant to the supply of the Goods;

(e)          If the Customer fails to collect the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready or on the agreed collection date, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:

(i)          the Supplier may submit an invoice notwithstanding that delivery has not taken place; and

(ii)           the Supplier may store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and

(iii)         If within 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for collection or 10 Business Days after the agreed collection date the Customer has not collected the Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods specified in the Contract;

(f)           The Customer shall not be entitled to reject the Goods if the Supplier makes available for collection up to and including 10% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was made available for collection; and

(g)          The Supplier may make available the Goods for collection 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.

4.4              The Supplier shall not be liable for:

(a)          Non-delivery of the Goods or loss of all or part of the Goods in transit (where the Goods are to be delivered in accordance with clause 4.2), unless the Customer notifies the Supplier of any claim within 21 days of the date of the notice of despatch by the Supplier to the Company:

(b)          Shortages in the quantity of the Goods delivered in excess of those permitted by clauses 4.2 (f) or 4.3 (f), unless the Customer notifies the Supplier of a claim within 7 days of receipt of the Goods; or

(c)          Damage to all or part of the Goods in transit (where the Goods are to be delivered in accordance with clause 4.2), unless the Customer notifies the Supplier within 7 days of receipt of the Goods.

 

5.                SUPPLY OF SERVICES

5.1              The Supplier shall supply the Services to the Customer in accordance with the Order or as otherwise agreed between the Supplier and the Customer in all material respects.

5.2              The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order or as otherwise agreed between the Supplier and the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

5.3              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.

 

6.                CUSTOMER’S OBLIGATIONS

6.1              The Customer shall:

(a)          ensure that the terms of the Order and any information it provides in the Specification or otherwise are complete and accurate;

(b)          co-operate with the Supplier in all matters relating to the Services;

(c)          provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;

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

(e)          prepare the Customer’s premises and any other premises for supply of the Services;

(f)           obtain and maintain all necessary licenses, permissions and consents which may be required before the date on which the Services are to start; and

(g)          where the Services comprise road haulage:-

(i)            warrant that it is either the owner of any consignment to be delivered by the Supplier or is authorised by such owner to accept these Conditions on such owner’s behalf;

(ii)           disclose the existence of any Dangerous Goods to the Supplier and if the Supplier agrees to accept them in the performance of the Services, ensure that the Dangerous Goods are classified, packed, marked, labelled and documented in accordance with all applicable rules and regulations;

(iii)         ensure that any consignment to be delivered by the Supplier is properly packed, labelled and addressed; and

(iv)         ensure that the place of delivery is safe and has adequate access and unloading facilities and a person there to take delivery of the consignment.

6.2              If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):

(a)          the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services and/or delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b)          the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in clause 6.2; and

(c)          the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

 

7.                QUALITY OF GOODS

7.1              The Supplier warrants that on delivery, and for a period of 90 days from the date of delivery (warranty period), the Goods shall:

(a)          conform in all material respects with their description and any applicable Specification;

(b)          be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

(c)          be fit for any purpose held out by the Supplier.

7.2              Subject to clause 7.3, if:

(a)          the Customer gives notice in writing to the Supplier 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 7.1;

(b)          the Supplier is given a reasonable opportunity of examining such Goods; and

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

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

7.3              The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 7.1 in any of the following events:

(a)          the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;

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

(c)          the defect arises as a result of the Supplier following any Specification supplied by the Customer;

(d)          the defect arises as a result of the addition of any materials supplied by the Customer and/or any suppliers nominated by the Customer;

(e)          the Customer alters such Goods without the written consent of the Supplier;

(f)           the defect arises as a result of the Goods being kept beyond their stated or recommended shelf life, wilful damage, negligence, or abnormal storage or working conditions; or

(g)          the Goods differ from their description in the Contract or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.4              Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 7.1.

7.5              The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.6              These Conditions shall apply to any replacement Goods supplied by the Supplier.

 

8.                TITLE AND RISK

8.1              The risk in the Goods shall pass to the Customer on delivery.

8.2              Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods including any delivery or other charges related to the Goods.  Save where the Goods are consumables, 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 identifiying mark or packaging on or relating to the Goods, and

(c)          maintain the Goods in satisfactory condition.

8.3              If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

 

9.                PRICE AND PAYMENT

9.1              The price of the Goods and/or Services shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.

9.2              Unless otherwise stated in the Order, the price of the Goods and/or Services is exclusive of the costs and charges of packaging, insurance and transport of the Goods and the costs of travel, subsistence and materials properly and reasonably incurred in the provision of the Services, which shall be invoiced to the Customer.

9.3              The price of the Goods and/or Services is exclusive of value added tax which shall be charged at the appropriate rate.

9.4              The Supplier may invoice the Customer for the Goods and/or Services on or at any time after delivery of the Goods and/or performance of the Services.

9.5              The Customer shall pay the invoice in full and in cleared funds by the 20th day of the month following the month the invoice was dated or as otherwise stated in the Order or agreed between the parties. For the avoidance of doubt, the Customer shall be responsible for ensuring that the Supplier receives full payment of its invoice in its account as specified in the invoice (and any bank or foreign exchange charges shall be for the account of the Customer).   Time of payment is of the essence.

9.6              If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above The Bank of Scotland plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. In the event of unpaid account, your account information held will be shared with our appointed Debt Collection Agency / Solicitors.

9.7              The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

 

10.              CUSTOMER’S INSOLVENCY OR INCAPACITY

10.1           If the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries of Goods and/or Services under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to and/or Services performed for the Customer shall become immediately due.

10.2           For the purposes of clause 10.1, the relevant events are:

(a)          the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay his 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) is subject to any of the foregoing or has any partner to whom any of the foregoing apply;

(b)          the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(c)          (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(d)          (being an individual) the Customer is the subject of a bankruptcy petition or order;

(e)          a creditor or encumbrancer of the Customer attaches or takes possession of, or a diligence, distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

(f)           (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;  

(g)          (being a company) a floating charge holder over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;

(h)          a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;

(i)            any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(a)to clause 10.2(h) (inclusive);

(j)            the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;

(k)          the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(l)            (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

10.3           Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

 

11.              LIMITATION OF LIABILITY

11.1           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; or

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

11.2           Subject to clause 11.1:

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

(b)          the Supplier's total liability to the Customer in respect of all losses arising under or in connection with the Contract, whether in contract, delict, tort (including negligence, breach of statutory or other duty), or otherwise, shall in no circumstances exceed the price of the Goods and/or Services; and

(c)          any claim in respect of the provision of the Services by the Supplier to the Customer must be brought by the Customer within 6 months from the date of completion of the Services.  The Supplier shall not to be liable to the Customer in respect of any claims brought by the Customer outside such period.

 

12.              FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. 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.

 

13.              GENERAL

13.1           Health and Safety at Work. The attention of the Customer is drawn to the provisions of section 6 of the Health & Safety at Work etc. Act 1974.  The Supplier will make available on request information on the Goods to ensure that as far as is reasonably practical they are safe and without risk to health when properly used.  It is the responsibility of the Customer to take such steps as are necessary to ensure that appropriate information relevant to the Goods is made available to his or its employees and contractors and to any person to whom the Customer supplies them.

13.2           Assignation and subcontracting.

(a)          The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b)          The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

13.3           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 clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, 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 clause 13.3 (a); if sent by pre-paid first class post or recorded delivery, at 12.00 noon 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, e-mail, one Business Day after transmission.

(c)          The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.4           Severance.

(a)          If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b)          If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

 

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

 

13.6           No Partnership. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

 

13.7           Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.

 

13.8           Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing.

 

Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Scottish law, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of