These Terms & Conditions of Sale (“Terms”) shall apply to any purchase of Design and Development Services and Products all from OTM Servo Mechanism Limited, a company registered in England with Company Number 00696076 whose principal place of business is at The Avenue, Egham, Surrey TW20 9AL
(“OTM”), and you (“Customer”) (hereinafter jointly referred to as “the parties”).
THE PARTIES HEREBY AGREE AS FOLLOWS:
The following terms have the meanings set forth below whenever they are used in these Terms:
“Acceptance Criteria” means the acceptance criteria, if any, agreed by the parties in a Statement of Work and delivered by an agreed acceptance test process.
“Business Days” means the days from Monday to Friday excluding English public holidays.
“Commencement Date” means the commencement date for the supply of the Products.
“Contract” means a valid Purchase Order and a Proposal, which shall be governed by these Terms.
“Customer Inputs ” means the information, NDA, designs, reviews, and all other materials provided by Customer before and during the performance of the Design and Development Services in order for OTM to perform its obligations.
“Delivery Date” means the date on which OTM shall first make the Products available to Customer, as agreed by OTM and Customer in writing from time to time.
“Design and Development Costs” means the fee payable by Customer to OTM in respect of any Design or Part-Design and Development or Part-Development Services or NRE or any other additional fees, as set out in a Proposal.
“Design and Development Services” means the Design or Part-Design and Development or Part-Development Services work resulting in Products and / or Enhancements in accordance with the Customer Inputs and corresponding Part Number, in addition to: consultancy, development, training and ad-hoc services provided by OTM as further set out in a Proposal.
“Documentation” means the applicable certificate of conformity, test results and other information requested by Customer and agreed to be made available by OTM to Customer in either printed or machine readable form with respect to the Product, the Design and Development Services, NRE, or any ad-hoc services provided.
“Enhancements” means changes to the agreed Statement of Work resulting in improved, amended or additional functionality, in accordance with the corresponding Part Number and Customer Inputs supplied, arising from the performance of the Design and Development Services.
“Lead Time” means (unless otherwise agreed in writing between the parties) the number of calendar days between OTM receiving the Purchase Order from Customer and the availability of the corresponding Products for dispatch to Customer.
“NDA” means a non-disclosure agreement that may have been signed by the parties.
“NRE” means non recurring engineering activities carried out by OTM for Customer
“Part Number” Is derived from a number of different sources including but not limited to; Customer Input supplied, Documentation, Proposal, Statement of Work and any materials, either tangible or intangible, that OTM generates in the course of providing the Products, and Design and Development Services setting out the functional and technical specification for the Design and Development Services, Enhancements, and the Products, all designated as a Part Number, and incorporated in or referenced by the applicable Purchase Order.
“Price” means the fees paid by Customer to OTM for the Products as set out in the applicable Purchase Order.
“Products” means the hardware products including any embedded software and / or firmware supplied by OTM to Customer as detailed in the applicable Part Number.
“Proposal” means a written proposal or quotation and specifies:
a) that (subject to the order of precedence) it is subject to these Terms;
b) a description of any Design and Development Services to be supplied, together with the applicable Design and Development Costs;
c) a description of any Products to be supplied, together with the applicable Price;
d) details of, or reference to the Statement of Work; and
e) any assumptions and specific obligations for Customer that will apply to the Proposal.
“Purchase Order” means a written purchase order that has been raised by Customer, is consistent with the corresponding Proposal and acknowledged by OTM and which will be:
a) subject to these Terms;
b) inclusive of the Part Number issued by OTM and / or Customer;
c) inclusive of a description of any Design and Development Services to be supplied, together with the applicable Design and Development Costs calculated in accordance with OTM’s then current Proposal; and
d) a description of any Products to be supplied, together with the applicable Price calculated in accordance with OTM’s then current Proposal.
“Statement of Work” means the initial request for the delivery of Design and Development Services and Product issued by Customer to OTM in writing.
Order of Precedence – If there is an inconsistency between any of the provisions of these Terms and the provisions of a Proposal, the provisions of the Proposal shall prevail to the extent of the inconsistency.
2 CONTRACT FORMATION
2.1 Each Contract comprises a separate legally binding contract for the purchase and supply of Design and Development Services and Products as set out in the applicable Proposal, independent of all other Contracts that might exist between OTM and Customer.
2.2 Any terms and conditions set out in any Purchase Order, order or other document supplied by Customer that are in addition to or at variance with the terms and conditions of these Terms shall be void and of no effect unless OTM expressly agrees otherwise in writing.
3.1 OTM may delegate or sub-contract any obligation under the relevant Contract provided OTM shall be liable for all acts or omissions on the part of OTM’s sub-contractors as though they were OTM’s acts and omissions.
4 SUPPLY OF DESIGN AND DEVELOPMENT SERVICES AND PRODUCTS
4.1 OTM agrees to provide the Products and Design and Development Services, subject to the terms of the relevant Contract, as set out in the applicable Proposal, and in accordance with the Statement of Work, all as described in the relevant Part Number.
4.2 Lead Times and any other timescales set out in each Proposal are given in good faith, but because of the nature of the work undertaken, they must be considered to be estimates only. While OTM shall make reasonable endeavours to maintain the timescales quoted, meeting such timescales shall not constitute the essence of the relevant Contract.
4.3 Customer may request additions or amendments to the Products and / or to the Design and Development Services. OTM may also give notice to Customer that a change in circumstances prompted by Customer constitutes a request for modification to the Products and / or to the Design and Development Services even though no formal request for modification has been issued by Customer. In response to such requests, OTM shall supply Customer with a written (to include by email) Proposal including the specification for the additional or changed Products and / or to Design and Development Services, Price and approximate timescales for delivery. Once Customer has accepted such Proposal in writing (to include by email), it shall be attached to the relevant Contract as an amendment to the applicable Proposal, and shall be delivered subject to these Terms and the relevant Contract.
5.1 OTM shall deliver the Design and Development Services in accordance with the Proposal and the Part Number.
5.2 OTM may deliver the Design and Development Services itself or by OTM’s subcontractors, providing always that OTM shall be fully liable for the acts and omissions of its subcontractors in the performance of the Design and Development Services.
5.3 Upon Customer’s request, OTM may provide ad-hoc Design and Development Services subject to the execution of a valid Purchase Order setting out the details of the Design and Development Services, their location, timescales and fees. For the avoidance of doubt, OTM is not obliged to accept a request for Design and Development Services.
5.4 In the event that OTM is unable to deliver the Design and Development Services on the scheduled date due to Customer’s failure to meet its obligations hereunder, the duration of the Design and Development Services may be extended by the amount of such delay and the Design and Development Costs may be increased accordingly.
6.1 Risk in the Products shall pass to Customer when the Products leave OTM’s site. Title in the Products will pass to Customer on receipt of payment of all sums due to OTM in respect of the Products.
6.2 Until title in the Products passes to Customer, Customer shall:
a) hold the Products as bailee for OTM and take proper care of them, storing them in accordance with the instructions and separately so as to show clearly that they belong to OTM;
b) not sell or part with possession of the Products other than in the normal course of business, and keep the Products free from any mortgage, charge, lien or other encumbrance; and
c) not remove, alter, obscure, or otherwise interfere with any identifying marks, labels or storage instructions placed on the Products or their packaging by OTM; and
d) keep the Products insured at Customer’s expense with an insurer of good repute against all insurable risks including (but not limited to) loss or damage by fire or theft for an amount not less than the applicable Price as set out in the corresponding Purchase Order.
6.3 Before title has passed to Customer and without prejudice to any of OTM’s other rights, OTM may repossess and / or sell some or all of the Products at any time and OTM or its agents may enter Customer’s premises or vehicles, with or without vehicles, for that purpose. This right and licence shall continue after and despite the termination for any reason of the relevant Contract.
7 CLIENT’S COOPERATION
7.1 Customer shall provide co-operation and support to OTM in its efforts to deliver the Products. Such co-operation and support shall include, but not be limited to:
a) a reasonable level of responsiveness to OTM’s requirements and communications;
b) the timely transmittal and release of appropriate and accurate documentation and information;
c) the prompt review and analysis of the work performed;
d) the making available of competent personnel to assist OTM when and to the extent as is
7.2 Customer agrees that if it does not perform its obligations under the relevant Contract, OTM shall not be considered in default to the extent that it is delayed in meeting its obligations as a result of such failure, and Customer shall remain fully obligated to pay OTM as provided in the relevant Contract as though no delay had occurred.
8 PRODUCT RESTRICTIONS
8.1 Customer agrees that it will not;
a) reverse engineer, decompile, or disassemble any OTM provided mechanical and / or electronic hardware, software embedded in the Products except to the extent that OTM cannot prohibit such acts by the applicable law, and will not permit any third party to do so;
b) adapt, modify, merge, revise, improve, translate, upgrade, enhance or create derivative works of the Products or any part of them for any purpose including error correction or any other type of maintenance;
9.1 In the event that either party visits the premises of the other (the “Host”), the visiting party (the “Guest”) shall be advised of all rules, regulations and practices they should comply with whilst on the Host’s premises. The Guest’s staff, agents and sub-contractors shall comply with such rules and regulations whenever they are on the Host’s premises. The Host shall take reasonable precautions to ensure the health and safety of the Guest’s staff, agents and sub-contractors whilst they are on its premises.
9.2 Without in any way restricting the right of an employee freely to accept employment and change employment, if either party (the “Hiring Party”) induces the other party’s employee engaged in the performance of the relevant Contract to enter its service at any time during the duration of the relevant Contract or during a period of six months thereafter, then the Hiring Party shall pay to the other party an amount being equivalent to fifty percent (50%) of the employee’s net annual salary, such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the affected party’s business.
10.1 OTM shall use reasonable endeavours to deliver the Products by the Delivery Date or as soon as possible thereafter subject to Clause 4.2.
11 PAYMENT & TAXES
11.1 OTM shall invoice Customer for the Price on despatch unless otherwise specified in the applicable Proposal.
11.2 OTM shall invoice Customer for the Design and Development Costs as agreed in a Proposal. OTM shall invoice Customer for OTM’s reasonable expenses incurred directly in the performance of the Design and Development Services, as set out in a Proposal, monthly in arrears.
11.3 Unless otherwise specified in the Proposal, Customer shall pay each of OTM’s valid invoices within thirty (30) days of the date on the invoice.
11.4 Customer shall be liable for any national, European Union, International value added, sales, excise, state, local, withholding or other taxes or customs duties applicable.
11.5 Customer shall pay debt collection fees and interest charges on any undisputed sum that is overdue in accordance with the Late Payment of Commercial Debts (Interest) Act (1998) (as amended). Customer shall notify OTM in writing within ten (10) days of receipt of an invoice that the invoice is in dispute.
11.6 OTM may increase the Design and Development Costs once per annum, such increase to be notified to Customer in writing, and to apply to all Design and Development Services delivered after such anniversary.
11.7 OTM may increase the Price from time to time, such increase to be notified to Customer in writing at least thirty (30) days prior to any relevant Price increasing after the giving of such notice, and to apply to all Products ordered after such notice period.
11.8 If payment of the Design and Development Costs and / or Price or any part thereof is overdue, then unless Customer has notified OTM in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice OTM shall notify Customer in writing of such delay and in the event that such fees are not paid in full within ten (10) days of the date of such notice, OTM may at OTM’s option:
a) suspend provision of the Design and Development Services, and / or delivery of the Products until the corresponding overdue fees are paid in full; or
b) treat such as a material breach and terminate the relevant Contract in accordance with Clause 15.2 (a).
12.1 Subject to the exceptions set out below in Clause 12.4 and the limitations upon OTM’s liability in
Clause 14, OTM warrants that for a period of twelve (12) months from despatch, the Products will substantially comply with the Part Number. OTM does not warrant that the operation of the Products will be uninterrupted or error free.
12.2 OTM hereby warrants that the Design and Development Services supplied under the relevant Contract will be carried out with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.
12.3 OTM hereby warrants that for a period of twelve (12) months from despatch, the Products will be free of defects in materials and workmanship and comply with their Documentation.
12.4 The warranties set out in this Clause 12 are all subject to OTM’s limit of liability as set out in Clause 14 and do not apply to the extent that the warranty claim arises from:
a) improper use, not in accordance with the operational and environmental parameters set out in the corresponding Documentation;
b) accidental damage;
c) attempted repair, service or modifications not performed by OTM;
d) integration with third party software or target hardware without OTM’s prior written consent;
e) use other than as permitted under the relevant Contract.
12.5 The warranties set out in this Clause 12 are the only warranties that apply to the Part Number, the Products and Design and Development Services. OTM hereby excludes all other conditions, warranties, representations or other terms that might otherwise be implied or incorporated into the relevant Contract by law, such as (but not limited to) those of satisfactory quality, fitness for a particular or any purpose or ability to achieve any particular result.
13 WARRANTY REMEDIES
13.1 Customer hereby agrees that its sole remedy in respect of any non-conformance with any warranty in Clause 12.1 is that OTM will remedy such non-conformance (either by itself or through a third party) and if in Customer’s reasonable opinion, OTM is unable to remedy such non-conformance OTM will accept the return of the non-conforming Products.
13.2 Customer hereby agrees that Customer’s sole remedy in respect of any non-conformance with the warranty in Clause 12.3 is that Customer shall return any defective Products to OTM at Customer’s cost and OTM shall procure the repair or replacement of any defective Products.
13.3 Customer must promptly notify OTM in writing of any breach of the above warranties in order to benefit from the remedy stated above in Clause 13.1. Customer shall provide all information reasonably requested by OTM to assist OTM in resolving such breach.
13.4 If Customer receives a replacement of Products under warranty, the replacement Products shall be covered by the warranty in Clause 12.3 for a warranty period of twelve (12) months.
13.5 In the event of damaged or faulty Products that are no longer covered by their warranty, Customer may request repairs or replacement Products from OTM. OTM shall use OTM’s reasonable endeavours to offer Customer such repairs or replacement at OTM’s then-current price provided such repairs or replacement are then available to OTM.
14 LIMITATION OF LIABILITY
14.1 Nothing in the relevant Contract shall exclude or limit OTM’s liability for
(i) fraud or other criminal act,
(ii) personal injury or death caused by the negligence of OTM’s employees in connection with the performance of their duties hereunder, or iii) any other liability that cannot be excluded by law.
14.2 Subject to Clause 14.1, in no event will OTM be liable for any damages resulting from: Customer issues involving integration of OTM Products into a Customer part and / or assembly, loss of use, lost profits, loss of revenue, loss of reputation and any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen.
14.3 Except as provided in Clause 14.1 and in Clause 14.2, OTM’s maximum aggregate liability to Customer for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 125% of the aggregate of the, Price and Design and Development Costs paid and payable by Customer under the Contract that is the subject of Customer’s claim.
14.4 OTM hereby excludes, to the fullest extent permitted by law, all liability that OTM has not expressly accepted in the relevant Contract. The limitations and exclusions set out in Clause 14 will apply regardless of the form of action, whether under statute, in contract, tort (including negligence) or any other form of action.
14.5 No action, regardless of form, arising out of transactions occurring under or contemplated under the relevant Contract may be brought by either party more than two (2) years after the cause of action has accrued.
14.6 Save as provided in Clause 14.7, Customer shall have no remedy in respect of any representation (whether written or oral) made to it upon which it relied in entering into the relevant Contract (“Misrepresentation”) and OTM shall have no liability to Customer other than pursuant to these Terms and the relevant Contract.
14.7 Nothing in these Terms shall exclude or limit OTM’s liability for any Misrepresentation made by OTM fraudulently.
15 DURATION & TERMINATION
15.1 Each Contract shall become effective on its Commencement Date and shall continue unless and until terminated in accordance with the provisions of Clause 15.2.
15.2 Either party (the “Initiating Party”) may forthwith terminate any Contract at any time upon giving written notice to the other party, if the other party:
a) commits any material breach of any term of the relevant Contract that is not reasonably capable of remedy or, if it commits a breach which is reasonably capable of remedy, fails to remedy such breach to the reasonable satisfaction of the Initiating Party within thirty (30) days of a written request to do so; or
b) has a receiver or administrative receiver appointed over it or any of its undertaking or assets, or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it), or a court of competent jurisdiction shall make an order to that effect, or if it shall become subject to an administration order, or shall enter into any voluntary arrangement with its creditors, or shall cease or threaten to cease to carry on its business, or if any substantially similar event shall take place under the laws of another jurisdiction; or
c) gives with regard to a Contract not less than ninety (90) days notice to terminate In the event Customer wishes to terminate a Contract, Customer will compensate OTM for the actual and reasonable expenses incurred by OTM for work in process up to and including the date of termination provided such expenses do not exceed the Design and Development Costs and / or the Price.
15.3 The termination of a Contract for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of the parties accrued prior to such termination.
16 INTELLECTUAL PROPERTY
16.1 OTM is the owner or licensee of any and all patents, copyright, trade secrets, trademarks and any other intellectual property rights that subsist in the Design and Development Services and Products. Title to the Products and the outputs from the Design and Development Services and media shall remain vested in OTM or its licensors. For the avoidance of doubt, title and all intellectual property rights to any design, new software, firmware, new protocol, new interface, enhancement, update, derivative works, or any other items that OTM creates for Customer shall remain vested in OTM or its licensors. Any rights not expressly granted herein are reserved to OTM.
16.2 Customer is the owner or licensee of any and all patents, copyright, trade secrets, trademarks and any other intellectual property rights that subsist in the Customer Inputs. Title to the Customer Inputs and media shall remain vested in Customer or its licensors.
16.3 Subject to the provisions of this Clause 16, OTM shall defend at its own expense any claim brought against Customer alleging that the normal use or possession of the Licensed Materials infringes a patent, copyright, or mask work belonging to a third party (“Intellectual Property Claim”) and OTM shall pay all damages awarded or agreed to be paid to any third party in settlement of an Intellectual Property Claim provided that Customer:
a) promptly furnishes OTM with written notice of the Intellectual Property Claim upon becoming aware of the same;
b) makes no admissions or settlements without OTM’s prior written consent;
c) acts in accordance with OTM’s reasonable instructions and provides OTM with reasonable assistance in respect of the Intellectual Property Claim; and
d) gives to OTM the sole authority to defend or settle the Intellectual Property Claim.
16.4 Subject to the provisions of this Clause 16, Customer shall defend at its own expense any claim brought against OTM alleging that the normal use or possession of the Customer Inputs infringes a patent, copyright, or mask work belonging to a third party (“Intellectual Property Claim”) and Customer shall pay all damages awarded or agreed to be paid to any third party in settlement of an Intellectual Property Claim provided that OTM:
a) makes no admissions or settlements without Customer’s prior written consent;
b) acts in accordance with Customer’s reasonable instructions and provides Customer with reasonable assistance in respect of the Intellectual Property Claim; and
c) promptly furnishes Customer with written notice of the Intellectual Property Claim upon becoming aware of the same;
d) gives to Customer the sole authority to defend or settle the Intellectual Property Claim.
16.5 If in OTM’s reasonable opinion the Products may become the subject of an Intellectual Property
Claim then OTM shall either:
a) obtain for Customer the right to continue using the Products which are the subject of the Intellectual Property Claim; or
b) replace or modify the Products which are the subject of the Intellectual Property Claim so they become non-infringing; or
c) if such remedies in (a) and / or (b) above are not in OTM’s opinion reasonably available, then Customer shall return the Products which are or may become the subject of the Intellectual Property Claim and OTM shall refund to Customer the corresponding portion of the fee paid by Customer to OTM, as depreciated on a three (3) year straight line basis.
16.6 If in Customer’s reasonable opinion the Customer Inputs may become part of an Intellectual Property Claim, then Customer shall either:
a) obtain for OTM the right to continue using the Customer Inputs which are the subject of the Intellectual Property Claim; or
b) replace or modify the Customer Inputs which are the subject of the Intellectual Property Claim so they become non-infringing; or
c) if such remedies in (a) and / or (b) above are not in Customer’s opinion reasonably available, then OTM shall return the Customer Inputs which are or may become the subject of the Intellectual Property Claim and OTM shall be relieved of OTM’s obligation under the relevant Contract to the extent that OTM relied on the Customer Inputs.
16.7 OTM shall have no liability for any Intellectual Property Claim resulting from the combination of the Products with other products that were neither supplied nor combined with the Products by OTM, or if the same results from any breach of Customer’s obligations under the relevant Contract.
16.8 This clause states OTM’s entire obligation and liability and Customer’s sole remedy in respect of any infringement or alleged infringement of any intellectual property rights arising from its acquisition, possession or use of the Products. OTM hereby excludes all other obligations and liabilities in relation to infringement or alleged infringement of the intellectual property rights of any person to the fullest extent permitted by law.
16.9 This clause states Customer’s entire obligation and liability and OTM’s sole remedy in respect of any infringement or alleged infringement of any intellectual property rights arising from its acquisition, possession or use of the Customer Inputs. Customer hereby excludes all other obligations and liabilities in relation to infringement or alleged infringement of the intellectual property rights of any person to the fullest extent permitted by law.
16.10 Customer acknowledges that OTM’s Products and their designs and specifications are OTM’s exclusive intellectual property and that Customer shall acquire no rights in the Products or any other deliverables created hereunder (including but not limited to the Enhancements).
16.11 OTM acknowledges that the Customer Inputs and their design and specification are Customer’s exclusive intellectual property and that OTM shall acquire no rights in the Customer Inputs.
16.12 OTM shall reimburse Customer’s reasonable costs incurred in complying with the provisions of Clause 16.3.
17.1 Where the parties have already signed a relevant NDA, then such NDA shall prevail as it relates to
this Clause 17.
17.2 Except as expressly provided in Clause 17.4, neither party shall disclose to any third party any part of these Terms or a Contract without the other party’s prior written consent.
17.3 Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to a party’s business affairs or activities and which:
(i) has been marked as confidential or proprietary,
(ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.
17.4 Each party undertakes that for a period of five (5) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the relevant Contract. In any event, each party hereby agrees that it shall treat the other’s Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the relevant Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 17. Each party agrees that it shall be liable for any breach of this Clause 17 by any employee, consultant or professional advisor to whom it has disclosed the other party’s Confidential Information as though it had committed the breach itself.
17.5 The provisions of Clause 17.4 shall not apply to:
a) any information in the public domain otherwise than by breach of the relevant Contract;
b) information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;
c) information lawfully obtained without restriction from a third party, as evidenced by written documents; and
d) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.
17.6 OTM may publicise its involvement with Customer with Customer’s prior written consent, such consent not to be unreasonably withheld or delayed.
18.1 Upon Customer’s written request (to include by email), OTM and Customer hereby agree to use
reasonable efforts to establish an escrow arrangement for the Products. Customer hereby agrees that the said arrangement is for its sole benefit and that Customer shall pay all corresponding fees, including OTM’s time in preparing and making the escrow deposit.
19.1 Customer may not assign any Contract or otherwise transfer any rights or obligations under it except with OTM’s prior written consent.
20 FORCE MAJEURE
20.1 Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder.
Dates or times by which each party is required to render performance under the relevant Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.
21.1 All notices made pursuant to the relevant Contract must be made in writing. Any written notice to be given or made pursuant to the provisions of the relevant Contract shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party’s address stated above and in the case of notices to be sent to OTM, shall be marked for the attention of the Managing Director, and in the case of notices to be sent to Customer, shall be marked for the attention of the directors. Unless otherwise provided in the relevant Contract, all notices shall be deemed as given on the Business Day of their receipt by the receiving party.
22 ENTIRE AGREEMENT
22.1 Each agreed Proposal and these Terms constitutes the entire agreement between the parties with
respect to its subject matter and shall supersede all previous representations, agreements and other communications between the parties, both oral and written. These Terms and the relevant Proposal (subject to the order of precedence) shall prevail notwithstanding any variance with the terms and conditions of any order or purchase order submitted by Customer.
23 LAW & JURISDICTION
23.1 In the event of any dispute arising under any Contract the parties will attempt to settle it by mediation. The mediator shall be selected from the Ministry of Justice Civil Mediation Directory, subject to the agreement of both parties. Save in respect of late or non-payment of undisputed invoices, no party may commence court proceedings in respect of any dispute arising out of these terms and conditions until it has attempted to settle the dispute by mediation and either the parties have been unable to agree on a mediator or the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. Unless agreed otherwise the mediator’s costs and expenses shall be shared equally between the parties.
23.2 Subject to Clause 23.1, each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any disputes arising out of or relating to any Contract and that the laws of England shall govern any Contract. Each party agrees that its rights and obligations under any Contract are not subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods.
23.3 Not withstanding the provisions of Clause 23.1, nothing in these Terms shall limit either party’s right to seek injunctive relief.
The following clauses shall continue to be in effect after the termination or expiration of the relevant
Contract: 1, 8, 11, 12, 13, 14, 15, 16, 17, 21, 22, 23.
If any provision of any Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions shall not be affected thereby, and that the remainder of any Contract shall remain valid and enforceable. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto.
No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof. No Contract may be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of OTM and Customer. A person who is not a party to any Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of any Contract except as expressly set out herein, but this does not affect any right or remedy that such third party may have without reference to the Contracts (Rights of Third Parties) Act 1999.