Terms and conditions for the supply of goods and services including the provision of storage facilities
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.7.
Contract: the contract between AVC One Ltd, Sherrards, 45 Grosvenor Road, St. Albans, Hertfordshire, AL1 3AW (AVC One) and the Customer for the supply of Goods, Storage and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods, Storage and/or Services from AVC One.
Dangerous Goods: means goods of any nature as may be referred to in the “Orange Book” United Nations Recommendations on the Transport of Dangerous Goods or prepared pursuant to the Carriage of Dangerous Goods (Classification, Packaging and Labelling) and Use of Transportable Pressure Receptacles Regulations 1996 and any similar Dangerous Goods Regulations (such as Directive 2008/68/EC on the inland transport of dangerous goods) as may be incorporated into the laws of England and Wales and amended from time to time and any goods which represent similar hazards, including but not limited to radioactive material, verminous, infested, contaminated or condemned goods and explosives of any kind.
Deliverables: the service outcomes set out in the Specification.
Goods: the goods supplied by AVC One to the Customer (or any part of them) as set out in detail in the Specification.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's written acceptance of the Specification provided by AVC One.
Pricing: the charges payable by the Customer to AVC One for the supply of Goods, Storage and/or Services, in accordance with clause 5.
Services: the services, including the Deliverables, supplied by AVC One to the Customer as set out in the Specification.
Specification: the description of the scope of the Goods, Storage and/or Services and the Pricing provided in writing by AVC One to the Customer.
Storage: means the warehousing and/or storage of goods provided by AVC One for the Customer as set out in the Specification.
Stored Goods: means any article or articles, materials or merchandise whatsoever that are deposited with AVC One for Storage under a Contract, including the packaging of such Stored Goods and any materials or equipment in which or upon which the Stored Goods are housed or carried.
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 successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(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; and
(e) a reference to writing or written includes faxes and e-mails.
2.1 The Specification is based strictly on the information provided by the Customer in written documentation and any subsequent data or information supplied to AVC One and acknowledged by them, by reference, in the Specification. For the avoidance of doubt if any item of correspondence, or any document, is not listed or referred to in the Specification then no provision has been made for it in the Specification and corresponding Goods, Storage and/or Services are not included in the Contract.
2.2 The Order constitutes an offer by the Customer to purchase Goods, Storage and/or Services in accordance with the Specification and these Conditions. Any further requirements or changes to the Specification requested by the Customer after the date of the Order shall be the subject of a separate Specification or, if agreed by AVC One, accommodated as an adjustment to the Contract pursuant to clause 8 Change Control.
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 AVC One which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by AVC One, and any descriptions or illustrations contained in catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods, Storage and/or Services and Deliverables described in them. They shall not form part of the Contract or have any contractual force.
2.6 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.
2.7 Any Pricing quotation given by AVC One is only valid for a period of 90 days from its date of issue.
3.1 AVC One shall supply the Goods, Storage and/or Services to the Customer in accordance with the Specification in all material respects. AVC One requires at least 2 weeks’ notice prior to the commencement of supply of Goods, Storage and/or Services.
3.2 To the extent that the Goods are manufactured in accordance with specifications supplied by the Customer, the Customer shall indemnify AVC One 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 AVC One in connection with any claim made against it for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or connected to the use of the Customer specification by AVC One in the manufacture of the Goods.
3.3 AVC One shall use all reasonable endeavours to meet any delivery or performance dates set out in the Specification, but any such dates shall be estimates only and time shall not be of the essence for supply of Goods and/or Services. If the Customer fails to take delivery or accept the Goods or the Goods cannot be delivered due to any other failure or delay of the Customer then AVC One shall accept no liability. If AVC One fails to deliver the Goods then its liability shall be limited to the costs incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3.4 AVC One shall deliver the Goods to the location set out in the Specification or such other location as the parties may agree at any time after the Customer is notified by AVC One that the Goods are ready for delivery.
3.5 Risk in the Goods shall pass to the Customer on completion of delivery. Title to the Goods shall not pass until AVC One receives payment in full for the Goods and any associated Services provided under the Contract, in which case title to the Goods shall pass at the time of payment. At any time before title passes and without limiting the Customer’s right to resell the Goods or use them in the ordinary course of its business, AVC One may require the Goods to be returned or recover them from the Customer.
3.6 The Customer agrees that it shall not submit for Storage any Dangerous Goods without the prior express written consent of AVC One, to whom full details of the Dangerous Goods and any specialist storage requirements have been supplied in writing. Should AVC One form the reasonable opinion that Dangerous Goods (or Stored Goods) become or are unsuitable for the Storage facility in which they are Stored the Customer agrees to remove them immediately and in the event they are not removed within a reasonable period of time, to permit AVC One to dispose of them in such a manner as it shall at its sole discretion decide.
3.7 The Customer shall retain responsibility for and will indemnify AVC One against all loss, damage, expenses and claims which may be sustained by it, made against it or for which AVC One may become liable as a result of:
(a) injuries to third parties or loss of or damage to property attributable to Stored Goods including claims made against AVC One by its own servants, agents or contractors;
(b) AVC One being obliged to comply with statutory or other regulations, directions, or notices made by a competent authority requiring the Stored Goods to be packaged or stored other than as agreed in the Contract; or
(c) for the decontamination or other cleansing that may be required at the Storage facility as a result of the presence of the Stored Goods.
3.8 Unless stated otherwise in the Specification the Customer shall be responsible for the providing and safe operation of any equipment that may be required for loading or unloading the Stored Goods. It shall be the Customer’s responsibility to notify AVC One of any special equipment or requirements for the unloading and storage of Stored Goods. Where the Customer delivers the Stored Goods to the agreed Storage facility it shall ensure that they are readily accessible on its vehicles for the purpose of unloading and shall notify AVC One of any risk assessments undertaken in relation to the unloading and storage thereof. The Customer shall indemnify AVC One against any loss, claims or damages sustained by it or its servants, agents or contractors as a result of any defect or deficiency in the Customer’s compliance with this clause 3.8.
3.9 AVC One shall on delivery of Stored Goods be provided by the Customer with a written notice noting the quantity, description and value of the Stored Goods and AVC One shall be entitled to make a visual inspection. Such notice shall not be evidence as to the accuracy, condition, weight, quantity or nature of the Stored Goods, the burden of proof being on the Customer. Upon collection of the Stored Goods the Customer shall sign a written note detailing all Stored Goods for which delivery is taken. The Customer may request, upon giving AVC One not less than 3 Business Day’s notice in writing, to inspect the Stored Goods (which inspection shall take place during normal opening hours only).
3.10 AVC One’s responsibility for the Stored Goods shall commence on the physical delivery of the Stored Goods to the Storage facility (after unloading) and shall cease when the Customer takes possession or control of the Stored Goods, or when the Stored Goods are loaded onto any vehicles nominated by the Customer for their removal.
3.11 AVC One shall have the right to make any changes to the Goods, Storage and/or Services that are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods, Storage and/or Services, and AVC One shall notify the Customer in any such event.
3.12 AVC One warrants to the Customer that the Storage and/or Services will be provided using reasonable care and skill. In relation to Goods only AVC One will take reasonable steps to ensure that any manufacturer’s warranty is passed on to the Customer. AVC One warrants that on delivery the Goods shall:
(a) conform in all material respects with their description within the Specification; and
(b) be free from material defects in design, material and workmanship.
4.1 The Customer shall:
(a) ensure that any information provided in the Specification are complete and accurate;
(b) co-operate with AVC One in all matters relating to the Goods, Storage and/or Services;
(c) provide AVC One, its employees, agents, consultants and subcontractors, with free, clear, continuous and unhindered access to the Customer's premises, site welfare facilities and other facilities as reasonably required by AVC One;
(d) provide AVC One with such information and materials as AVC One may reasonably require in order to supply the Goods, Storage and/or Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Goods and/or Services;
(f) warrant in writing that the Stored Goods are fit and suitably packaged for Storage and that it has accurately declared to AVC One the description, quantity and value of the Stored Goods;
(g) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Storage and/or Services are to start;
(h) keep and maintain all materials, equipment, documents and other property of AVC One (AVC One Materials) at the Customer's premises in safe custody at its own risk, maintain AVC One Materials in good condition until returned to AVC One, and not dispose of or use AVC One Materials other than in accordance with AVC One's written instructions or authorisation; and
(i) where requested by AVC One enter into a performance bond, parent company guarantee or collateral warranty under terms which are to the satisfaction of AVC One.
4.2 If AVC One'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) AVC One shall without limiting its other rights or remedies have the right to suspend delivery of the Goods, supply of the Storage and/or performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays AVC One's performance of any of its obligations;
(b) AVC One shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from AVC One's failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse AVC One on written demand for any costs or losses sustained or incurred by AVC One arising directly or indirectly from the Customer Default.
5.1 The Pricing for Goods and/or Storage shall be as set out in the Specification. If no price is quoted then the Pricing shall be that set out in AVC One’s latest published price list as at the date of supply. The Pricing of Goods includes all costs and charges of packaging and transport of the Goods, unless additional costs and charges are confirmed in writing to the Customer in the Specification.
5.2 In most circumstances a fixed price quotation will be given. Where a fixed price is not given in the Specification the Pricing for Services shall be charged on a time and materials basis:
(a) the Pricing shall be calculated in accordance with AVC One's standard rates applicable from time to time;
(c) AVC One shall be entitled to charge an overtime rate of 150% per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the supply of Storage and/or Services outside the hours referred to in clause 5.2(b); and
(d) AVC One shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom AVC One engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by AVC One for the performance of the Services, and for the cost of any materials.
5.3 The AVC One shall invoice the Customer in accordance with the Specification. Insurance cover for any Stored Goods shall be shown separately (if included). If not specified the Customer shall self-insure or make its own arrangements for insurance and insurable risks with any right of the insurer to bring a subrogated claim being excluded.
5.4 The Customer shall pay each invoice submitted by AVC One:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by AVC One, and
time for payment shall be of the essence of the Contract. No Stored Goods may be removed by the Customer unless the Customer has paid in full for the full term of Storage.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by AVC One to the Customer, the Customer shall, on receipt of a valid VAT invoice from AVC One, pay to AVC One such additional amounts in respect of VAT as are chargeable on the supply of Goods, Storage and/or Services at the same time as payment is due for the supply of Goods, Storage and/or Services.
5.6 If the Customer fails to make any payment due to AVC One under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount according to the provisions of the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall pay the interest together with the overdue amount.
5.7 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 AVC One may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by AVC One to the Customer.
5.8 All Stored Goods are accepted by AVC One and held by it subject to a lien for all charges due to it under the Contract and other proper charges or expenses incurred by it under these Conditions. If such lien is not satisfied within 5 Business Days of demand for payment and the notification of the right to exercise this lien, then AVC One shall be entitled, at its sole discretion, to sell the Stored Goods in accordance with the power of sale granted under this lien (Storage charges shall continue to accrue during such notice periods) and apply any proceeds of sale towards the sums due to it from the Customer. Any surplus proceeds from such sale shall be paid to the Customer after the deduction of reasonable expenses incurred by AVC One for the administration of the sale.
6.1 All Intellectual Property Rights in or arising out of or in connection with the Goods, Storage and/or Services shall be owned by AVC One.
6.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on AVC One obtaining a written licence from the relevant licensor on such terms as will entitle AVC One to license such rights to the Customer.
6.3 All AVC One Materials are the exclusive property of AVC One.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Contract.
8.1 If either party wishes to change the scope or execution of the Goods, Storage and/or Services, it shall submit details of the requested change to the other in writing.
8.2 If either party requests a change to the scope or execution of the Goods, Storage and/or Services, AVC One shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any necessary variations to the Pricing arising from the change;
(c) the likely effect of the change on the timetable; and
(d) any other impact of the change on the Contract.
8.3 If the Customer wishes AVC One to proceed with the change, AVC One has no obligation to do so unless and until the parties have agreed the necessary variations to the Pricing, the Goods, Storage and/or Services, the Specification and any other relevant terms of the Contract to take account of the change.
8.4 AVC One may, from time to time and without notice, change the Goods, Storage and/or Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Goods, Storage and/or Services. If AVC One requests a change to the scope of the Goods, Storage and/or Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
8.5 AVC One may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 5.
9. Limitation of liability
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
9.2 Subject to clause 9.1:
(a) AVC One 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;
(b) AVC One shall not be liable to the Customer, whether in contract, tort (including negligence) breach of statutory duty, or otherwise, for any loss or damage occasioned to the Stored Goods from the following:
(i) Force Majeure;
(ii) Theft or act of malicious intent (unless insurance cover for the same has been included in the Specification);
(iii) Seizure or forfeiture under legal process;
(iv) Latent or inherent defect or natural deterioration;
(v) Insufficient or improper labelling or packaging;
(vi) Defect in any equipment or packaging supplied by the Customer (for unloading or storage);
(c) AVC One shall not be deemed to have any knowledge as to the value of Stored Goods therefore it shall only be liable in respect of loss, damage or destruction of the Stored Goods to a sum not exceeding the value of the Stored Goods, as declared in writing by the Customer and set out in the Specification; and
(d) AVC One'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 £1,000,000
9.3 The Customer shall notify any claims, loss or damage to AVC One within 14 days from such claim, loss or damage coming to the Customer’s attention (through the use of reasonable diligence).
9.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.5 This clause 9 shall survive termination of the Contract.
10.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts 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;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 7 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(g) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(b) to clause 10.1(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(k) the other party's financial position deteriorates to such an extent that in AVC One's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, AVC One may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so.
10.3 Without limiting its other rights or remedies, AVC One may suspend provision of Storage and/or Services under the Contract or any other contract between the Customer and AVC One if the Customer becomes subject to any of the events listed in clause 10.1(b)) to clause 10.1(k), or AVC One 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 this Contract on the due date for payment.
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to AVC One all of AVC One's outstanding unpaid invoices and interest and, in respect of Goods, Storage and/or Services supplied but for which no invoice has been submitted, AVC One shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of AVC One Materials and any Goods or Deliverables which have not been fully paid for. If the Customer fails to do so, then AVC One may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
12.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of AVC One including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of AVC One or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
12.2 AVC One shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
12.3 If the Force Majeure Event prevents AVC One from providing any of the Goods, Storage and/or Services for more than 8 weeks, AVC One shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
13.1 Assignment and other dealings.
(a) AVC One may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of AVC One, 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.
(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 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 clause 13.2(a); if sent by pre-paid first class post or other next working day delivery service, at 12 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 or 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.
(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 clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If 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.
13.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy 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 its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 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.
13.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by AVC One.
13.8 Governing law. This 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.
13.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).