1.1 The following definitions and rules of interpretation shall apply:
Charges: means the fees and other charges, set out in the CRM Proposal and/or as agreed with, and invoiced to, the Client;
Client: the person or legal entity identified in the Agreement as having accepted CRM’s Proposal;
Client’s Manager: means the person appointed by the Client responsible for overseeing the provision of the Services;
Deadline(s): means the date(s) by which the Services (or agreed parts thereof) are estimated to be provided or completed, asset out in the Agreement;
Documents: means any document in writing, or drawing, plan, map, diagram, design, picture or other image, tape, disk or anyother device or record containing or embodying information in any form;
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights,trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue forpassing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moralrights, rights (including confidential know-how and trade secrets) and any other intellectual property rights, in each case whetherregistered or unregistered and including all applications for and renewals or extensions of such rights and all similar orequivalent rights or forms protection in any part of the world;
CRM: means Complete Risk Management Commodities Limited (registered in England and Wales with company no. 09205550);
CRM’S Manager: means CRM’s Personnel responsible for the management of the Services;
CRM’s Proposal: means CRM’s written proposal identifying the Services, Charges, any special terms and these Terms and Conditions, accepted by Client;
Personnel: means any employee(s), authorised agents or contractors of a party to the Agreement;
Pre-existing Materials: means all Documents, information, and materials (including any computer programs, data, reports and specifications) provided by either party relating to the Services which existed prior to the commencement of the Agreementor which are developed at any time independently of that party’s obligations under the Agreement;
Services: means the services to be provided by CRM as set out in CRM’s Proposal, together with any other services whichCRM provides or agrees to provide to the Client as described in any additional CRM Proposal the Client may accept from to time;
Standard Terms / Terms or Terms and Conditions: means these Terms and Conditions;
Third Party Suppliers: means CRM’s suppliers used by CRM to support CRM’s provision of the Services who require CRM to pass additional terms and conditions through to the Client as identified in the CRM Proposal; and
VAT: means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to ‘writing’ or ‘written’ includes faxes and e-mail (provided, in the case of CRM, that the email has been authorised by a CRM Director) save that email may not be used for the purpose of serving notice of breach or termination.
1.7 Where the words ‘include(s)’, ‘including’ or ‘in particular’ are used in the Agreement, they are deemed to have the words ‘without limitation’ following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in the Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to a clause or schedule are to the clauses and schedules of this Agreement.
1.10 In the event of any inconsistency between special terms in any CRM Proposal and these Terms and Conditions, the special terms shall take priority.
2.1. CRM shall provide the Services on the terms of the Agreement, which may not be varied or amended unless agreed in writing in accordance with clause 5 below.
2.2. The parties agree that the Agreement shall govern all Services provided by CRM to the Client and that all other terms and conditions contained in any documents(s) passing between the parties, including any orders, proposals or offers, shall have no contractual effect unless the parties agree otherwise in writing in accordance with the requirements of clause 5 below.
- CRM’s OBLIGATIONS
3.1. CRM shall use reasonable endeavours to provide the Services and to the Client in accordance with the Agreement.
3.2. CRM shall use reasonable endeavours to meet any agreed deadlines but any such dates shall be estimates only and time for performance shall not be of the essence.
3.3. CRM shall use reasonable endeavours to ensure the Personnel engaged in providing the Services will be sufficiently qualified and have the necessary level of skill and expertise as may be required to carry out any tasks for which they are responsible in relation to the Services.
3.4. CRM shall appoint CRM’s Manager who shall have authority to act on behalf of CRM on all matters relating to the Services. CRM shall use reasonable endeavours to ensure that the same person acts as CRM’s Manager throughout the term of the Agreement so far as is practically possible, but CRM may replace him or her from time to time where reasonably necessary.
3.5. CRM shall observe all health and safety rules and regulations and any other reasonable security requirements that apply to the Client’s premises where the Services are performed, provided that the Client gives CRM advance written notice of the same.
- CLIENT’S OBLIGATIONS
4.1. The Client shall when required:
(a) co-operate with CRM in all matters relating to the Services and, at CRM’s request, appoint a Client’s Manager(s) in relation to the Services, who shall have the authority to act on behalf of the Client on matters relating to the Services;
(b) provide for CRM, its agents, subcontractors, consultants and employees, at CRM’s request, in a timely manner and at no charge, access to the Client’s premises, offices, accommodation, sites, warehouses, data and other facilities as reasonably required for the performance of the Services;
(c) provide, in a timely manner, such information as CRM may reasonably require and ensure that it is accurate in all material respects (including but not limited to: sending the Client’s local market prices, regular futures and physical transaction updates and information to CRM to enable CRM to keep an accurate record, regularly updated by the Client));
(d) be responsible (at its own cost) for preparing and maintaining any relevant Client premises for the supply of the Services and inform CRM of all health and safety rules and regulations and any other reasonable security requirements that apply at any such premises;
(e) comply with all applicable Third Party Supplier terms and conditions notified to the Client from time time.
4.2. If CRM’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, CRM shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
4.3. The Client hereby represents and warrants that CRM entering into the Agreement and/or providing the Services shall not give rise to any proceedings, claims or demands (or circumstances likely to give rise to the same) by any employee, agent or contractor (of either the Client, its affiliates or any supplier) pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Client agrees to indemnify CRM fully and keep it indemnified in respect of any cost, loss, damage or expense suffered or incurred by reason of any breach of the aforementioned warranty.
4.4. The Client shall be liable to pay CRM, on demand, all reasonable costs, charges or losses sustained or incurred by CRM (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement, subject to CRM confirming such costs, charges and losses to the Client in writing.
4.5. The Client shall not, without the prior written consent of CRM, at any time from the date of the Agreement to the expiry of 12 months after the termination of the Agreement, solicit or entice away from CRM or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of CRM in the provision of the Services.
4.6. Any consent given by CRM in accordance with clause 4.5 shall be subject to the Client paying to CRM a sum equivalent to 50% of the then current annual remuneration of CRM employee, consultant or subcontractor or, if higher, 50% of the annual remuneration to be paid by the Client to that employee, consultant or subcontractor. The parties agree that the foregoing represents a genuine pre-estimate of the costs reasonably likely to be suffered by CRM in the aforementioned circumstances, including costs associated with disruption to work, any loss of business and consequent recruitment and training.
- CHANGE CONTROL
5.1. If either party requests a change to the scope or execution of the Services, CRM shall, within a reasonable time, provide a written estimate to the Client of:
(a) whether the change is feasible or practicable in CRM’s opinion;
(b) the likely time required to implement the change;
(c) any necessary variations to CRM’s Charges arising from the change;
(d) the likely effect of the change on the Services (and in particular the Deadlines); and
(e) any other impact of the change on the Agreement.
5.2. CRM may charge for the time it spends assessing a request for change from the Client on a time and materials basis in accordance with clause 6.
5.3. Neither party shall be obliged to proceed with any change unless or until the parties have varied the Agreement in accordance with clause 13. Neither party shall unreasonably withhold or delay its consent to a change request made by the other.
5.4. Notwithstanding clauses 5.1 – 5.3 above, CRM may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not substantively affect the nature, scope of, or the charges for the Services.
- CHARGES AND PAYMENTS
6.1. In consideration for the provision of the Services by CRM, the Client shall pay the Charges in accordance with the payment requirements set out in the Agreement. Charges are based upon CRM’s knowledge at the date the Charges are provided and in relation to the scope of the Services described in the Agreement.
6.2. The Client shall pay each invoice submitted to it by CRM in full and in cleared charges (net of all charges) by the date for payment specified on the invoice to a bank account nominated in writing by CRM. Unless agreed otherwise, all invoices will be paid in Pounds Sterling. Time for payment shall be of the essence in the Agreement.
6.3. All Charges, expenses and any other amounts due are stated exclusive of Value Added Tax, if applicable, which will be paid by the Client at the prevailing rate which may be altered from time to time.
6.4. Unless agreed otherwise in writing, the Charges do not include expenses incurred by CRM in connection with the provision of the Services and the Client agrees to reimburse all reasonable travel, subsistence and other expenses incurred in connection with the provision of the Services. If it appears that the expenses and/or disbursements are likely to exceed any estimate by a significant amount, CRM shall endeavour to notify the Client in writing.
6.5. Any dispute or query concerning an invoice must be raised in 14 days of receipt of it, failing which the invoice shall be deemed accepted and any right of dispute waived. The parties shall use best endeavours to resolve any dispute promptly and shall apply the dispute resolution process set out in clause 21 if the dispute is not resolved informally within 13 days of the dispute being raised.
6.6. If any sum due under the Agreement is late CRM may, without prejudice to any other rights or remedies it might have, charge interest on such outstanding sums at a daily rate of 3% above the base rate of NatWest plc from time to time and CRM also reserves the right to suspend the provision of the Services or any part thereof until such time as all outstanding payments have been made. Such interest shall be paid by the Client on demand.
6.7. The parties agree that CRM may review and increase the Charges, provided that such Charges cannot be increased more than once in any 12 month period. CRM shall give the Client written notice of any such increase 3 months before the proposed date of that increase, following which the increase shall apply to all Services provided thereafter.
6.8. All sums payable to CRM under the Agreement shall become due immediately on its termination, despite any other provision. This clause 6.8 is without prejudice to any right to claim for interest in law, or any such right under the Agreement.
6.9. CRM may, without prejudice to any other rights it may have, set off any liability of the Client to CRM against any liability of CRM to the Client.
- INTELLECTUAL PROPERTY RIGHTS
7.1. All Intellectual Property Rights created by CRM in the course of the provision of the Services will be owned by CRM.
7.2. Notwithstanding any other provision in the Agreement, CRM will not be prevented or restricted in any way from using and/ or developing for any purpose whatsoever any skills, techniques, ideas, concepts, information or know-how acquired or used by it in providing the Services.
8.1. Each party will keep as confidential any information received from the other side which is marked as confidential or is of a confidential nature, including Client specific information which forms part of the Services, market reports, business plans, financial information, customers, trade secrets and know how. All such confidential information shall be used by the receiving party only insofar as is necessary to provide or receive the Services and shall not be disclosed to any third party without the prior written consent of the disclosing party, except to the recipient’s professional advisors or auditors.
8.2. The obligations in clause 8.1 shall not apply in relation to any information which:-
(a) is in or comes into the public domain other than as a result of a breach of the Agreement by the receiving party; or
(b) is obtained by the receiving party from a third party who owes no obligation of confidence to the disclosing party in relation to such information; or
(c) has been developed by or on behalf of the receiving party independently or any information disclosed to it by the disclosing party; or
(d) was in the receiving party’s possession or known to it prior to receipt from the disclosing party, any such prior knowledge to be proved by the party seeking to rely upon it.
8.3. A party will not be in breach of clause 8 where any disclosure of the other party’s confidential information is required by law, a court of competent jurisdiction or a competent government or regulatory authority.
8.5. All materials, equipment and tools, drawings, specifications and date supplied by CRM to the Client (including Pre-existing Materials) shall, at all times, be and remain the exclusive property of CRM, but shall be held by the Client is safe custody at its own risk and maintained and kept in good condition by the Client until returned to CRM and shall not be disposed of or used other than in accordance with CRM’s written instructions or authorisation.
- LIMITATION OF LIABILITY
9.1. REFERENCES TO LIABILITY IN THIS CLAUSE 9 INCLUDE EVERY KIND OF LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING BUT NOT LIMITED TO LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION OR OTHERWISE. THIS CLAUSE 9 SETS OUT THE ENTIRE LIABILITY OF CRM (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS, CONSULTANTS AND SUB CONTRACTORS) TO THE CLIENT IN RESPECT OF:
(a) ANY BREACH OF THE AGREEMENT;
(b) ANY USE MADE BY THE CLIENT OF THE SERVICES; AND
(c) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT.
9.2. ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE AGREEMENT.
9.3. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES THE LIABILITY OF CRM:
(a) FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE; OR
(b) FOR ANY DAMAGE OR LIABILITY INCURRED BY THE CLIENT AS A RESULT OF FRAUD OR FRAUDULENT MISREPRESENTATION BY CRM.
9.4. SUBJECT TO CLAUSE 9.2 AND CLAUSE 9.3:
(a) CRM SHALL NOT BE LIABLE FOR: LOSS OR PROFITS; LOSS OF SALES OR BUSINESS; DEPLETION OF OR DAMAGE TO GOODWILL AND/OR SIMILAR LOSSES; LOSS OF ANTICIPATED SAVINGS; LOSS OF GOODS; LOSS OF AGREEMENTS OR CONTRACTS; LOSS OF USE; LOSS OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION; OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES; AND
(b) CRM’S TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES (EXCLUDING TAXES AND EXPENSES) PAID BY THE CLIENT TO CRM UNDER THE AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE UPON WHICH THE CAUSE OF ACTION AROSE.
9.5 DISCLAIMERS, SUBJECT TO CLAUSE 9.2 AND CLAUSE 9.3:
9.5. CRM USES ITS REASONABLE ENDEAVOURS TO ENSURE THE ACCURACY OF THE INFORMATION, OPINIONS AND STRATEGIC RECOMMENDATIONS, ADVICE, FORECASTS, MODELS AND TRAINING PROVIDED THROUGH CRM’S SERVICES HOWEVER CLIENT’S INTERPRETATION AND USE OF THE SERVICES AND CLIENT’S DECISIONS MADE IN RELATION TO THE SERVICES ARE, IN EACH CASE, CLIENT’S OWN DECISIONS FOR WHICH CLIENT HAS FULL RESPONSIBILITY.
9.5.2. CRM IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY THAT CRM MAY INTRODUCE TO THE CLIENT.
9.5.3. CLIENT AGREES THAT IT USES THE SERVICES AT ITS OWN RISK. CRM IS NOT RESPONSIBLE FOR ANY LIABILITY RESULTING FROM ANY DECISIONS MADE BY CLIENT OR BY ANYONE ACCESSING THE SERVICES THROUGH CLIENT.
9.5.4 . THE SERVICES ARE PROVIDED TO THE CLIENT FOR THE CLIENT’S USE IN ACCORDANCE WITH THE AGREEMENT AND CRM DOES NOT ACCEPT ANY RESPONSIBILITY TO ANY OTHER PERSON WHO MAY OBTAIN ACCESS TO INFORMATION THAT FORMS PART OF THE SERVICES CRM PROVIDES TO THE CLIENT.
- DATA PROTECTION
10.1. Each party agrees to process, protect and disclose personal data received as a result of this Agreement in accordance with applicable law including to comply with the provisions of the Data Protection Act 2018 and to the General Data Protection Regulation ((EU) 2016/679) and any regulations implementing it (all referred to together as the ‘Data Protection Requirements’) insofar as the Data Protection Requirements apply to that party’s obligations under the Agreement. In particular and without limitation to the forgoing, the party receiving personal data (the ‘Processor’) from the other (the ‘Controller’) shall:
(a) act only on instructions from the Controller and shall take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, any personal data;
(b) not transfer any personal data outside the countries of the European Economic Area, without the express written consent of the Controller; and
(c) consider all reasonable suggestions which the Controller may put to the Processor to ensure that the level of protection that Processor provides is suitable and complies with the Data Protection Requirements.
10.2. The Processor shall keep all materials containing personal data in a safe and secure place and shall return them to the Controller as soon as reasonably practicable on termination or expiry of the Agreement or sooner on the Controller’s written request.
- TERM & TERMINATION
11.1. This Agreement shall commence on the date Client accepts CRM’s Proposal and continue thereafter for an initial period of 12 months or such other period agreed in writing with the Client unless or until terminated in accordance with its terms.
11.2. Either party may terminate the Agreement at any time without penalty by giving at least 3 months’ written notice unless the Agreement relates to information based and/or online only Services which, subject to clause 11.3 and clause 11.4, shall continue for an initial period of 12 months or such other period agreed in writing with the Client.
11.3. Either party may terminate the Agreement immediately by giving written notice if the other party commits a material breach of the terms of the Agreement which is either incapable of remedy or which the defaulting party fails to remedy within 30 days of receiving written notice thereof.
11.4. Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving notice if:
(a) the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement; or
(c) the other party is or may be (in the reasonable opinion of the other party) unable to pay its debts or has a receiver, administrator, administrative receiver or liquidator or similar appointed or calls a meeting of its creditors or ceases for any other reason to carry on business.
11.5. On termination of the Agreement for any reason:
(a) the Client shall immediately pay to CRM all of CRM’s outstanding unpaid invoices, Charges and interest and, in respect of Services supplied and Charges incurred but for which no invoice has been submitted, CRM may submit an invoice (including for the balance owing of any minimum or guaranteed sum), which shall be payable immediately on receipt;
(b) the Client shall return all of CRM’s equipment and Pre- existing Materials. If the Client fails to do so, then CRM may enter the Client’s premises and take possession of them. Until they have been returned or repossessed, the Client shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11.6. On termination of the Agreement, each party will return to the other party any property belonging to such other party which it has in its possession or control. In the case of termination by the Client, it shall pay to CRM any additional costs reasonably incurred as a result of the early termination of the Services, such as expenses legitimately incurred following termination and costs relating to sub- contracts, provided CRM has taken reasonable steps to mitigate any such additional costs.
11.7. On termination of the Agreement (however arising) the following clauses shall survive and continue in full force and effect; Clauses 6, 7, 8, 9 and 22.
11.8. In the event that the Client terminates the Agreement other than owing to the default of CRM or without sufficient notice period in writing, it shall, as a minimum and without prejudice to any other right or remedy available to CRM, immediately pay to CRM a cancellation fee equivalent to (a) the average monthly Charges paid or payable to date under the Agreement, or (b) the Charges which would have been paid or payable in respect of the month following termination, had termination not been effected, if greater.
11.9. The Client may suspend or postpone the Services only with the prior written agreement of CRM. Any postponement or suspension not so authorised shall comprise a material breach of the Agreement.
- FORCE MAJEURE
12.1. A party, provided that it has complied with the provisions of clause 12.2 shall not be in breach of the Agreement, nor liable for any failure or delay in performance of any obligations under the Agreement arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event) including but not limited to the following: acts of God, including but not limited to fire, flood, drought, earthquake, windstorm or other natural disaster; terrorist attack, threat of or preparation for war, war, civil commotion or riots; sanctions, embargo or breaking of diplomatic relations; nuclear, chemical or biological contamination or sonic boom, mandatory compliance with any law; fire, explosion or accidental damage; loss at sea; extreme adverse weather conditions; epidemic or pandemic; collapse of building structure; failure of plant machinery, machinery computers or vehicles; non-performance of suppliers or sub-contractors; any labour dispute, including but not limited to strikes, industrial action or lockouts; and interruption or failure of utility service, including but not limited to electric power, gas or water.
12.2. Any party that is subject to a Force Majeure Event shall not be in breach of the Agreement provided that:
(a) It promptly and no less than 7 days of it occurring notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance.
(b) It has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
12.3. If the Force Majeure Event prevails for a continuous period of more than 2 months, either party may terminate the Agreement by giving 30 days’ written notice to the other party.
No variation of the Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties and headed expressly as a ‘Variation Agreement’.
14.1. Failure to exercise, or any delay in exercising, any right or remedy provided under the Agreement or by law shall not constitute a waiver of that (or any other) right of remedy, nor shall it preclude or restrict exercise of that (or any other) right or remedy.
14.2. No single or partial exercise of any right or remedy provided under the Agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
14.3. A waiver (which may be given subject to conditions) of any right or remedy provided under the Agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
14.4. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
15.1. If any provision of the Agreement (or any part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
15.2. If a provision of the Agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable with regard to the reasonable intention of CRM at the time of making the contract.
- ENTIRE AGREEMENT
16.1. This Agreement constitutes the entire Agreement between the parties and supersedes and extinguishes any previous arrangements, promises, assurances, warranties, representations understandings or agreements between them relating to the subject matter of the Agreement.
16.2. Each party acknowledges that, in entering into the Agreement, it does not rely on any statement , representation, assurance or warranty (Representation) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in the Agreement. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
17.1. Save with respect to any Intellectual Property Rights owned or licensed by CRM, neither party may without the prior written consent of the other, assign, transfer, charge, mortgage or deal in any other manner with all or any of its rights or obligations under the Agreement.
17.2. CRM may use agents and/or sub-contractors when providing any part of the Services but shall remain responsible for the Services despite any delegation or sub-contracting, unless the aforementioned delegation or sub-contracting is not carried out in accordance with CRM’s express terms.
17.3. Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
- NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
- RIGHTS OF THIRD PARTIES
A person who is not a party to the Agreement shall not have any rights under or in connection with it.
20.1. A notice given to a party under the Agreement:
(a) shall be in writing in English or accompanied by a properly prepared translation into English);
(b) shall be signed by or on behalf of the party giving it;
(c) shall be sent for the attention of the person, at the address specified in this clause (or to such other address, or person as that party may notify to the offer, in accordance with the provisions of this clause); and
(d) shall be: (i) delivered personally; or (ii) sent by commercial courier; or (iii) sent by pre-paid first-class post or recorded delivery; or (iv) sent by airmail requiring signature upon delivery.
20.2. The address for service of a notice (or other communication) is as follows:
(a) CRM Commodities Limited
(i) Address: The Alliston Centre, Stroud Road, Cirencester, GL7 6JR.
(ii) For the attention of the Managing Director.
(b) Client: the details set out in the Agreement.
20.3. If a notice has been properly sent or delivered in accordance with this clause it will be deemed to have been received as follows:
(a) if delivered personally, at the time of delivery; or
(b) if delivered by commercial courier, at the time of signature of the courier’s receipt; or
(c) if sent by pre-paid first-class post or recorded delivery, at 9am on the second business day after posting; or
(d) if sent by airmail, five days from the date of posting.
20.4. For the purposes of this clause:
(a) All times are to be read as local time in the place of deemed receipt; and
(b) If deemed receipt under this clause is not within business hours (meaning within 9am and 5.30pm Monday to Friday, not including public holidays in the place of receipt) the notice is deemed to have been received when business next starts in the place of receipt.
20.5. To prove delivery, it is sufficient to prove that if sent by pre-paid first class post, the envelope containing the notice was properly addressed and posted.
20.6. The provisions of this clause 20 shall not apply to the service of any process in any legal action or proceedings.
20.7. A notice required to be given under the Agreement shall not be validly served if sent by e-mail.
- DISPUTE RESOLUTION
21.1. If any dispute arises in connection with the Agreement, CRM’s Manager and the Client’s Manager shall within 14 days of a written request from one party to the other, meet in good faith to try and resolve the dispute. If the dispute cannot be resolved at that meeting, the parties will attempt alternative dispute resolution measures such as mediation or arbitration. Unless otherwise agreed, the mediation shall be referred to a mediation chambers in London to be agreed between the parties.
21.2. Neither party may commence any court proceedings in relation to any dispute arising out of the Agreement until it has attempted to settle the dispute by mediation and either 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.
- GOVERNING LAW AND JURISDICTION
22.1. The Agreement and any dispute or claim arising out of in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
22.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.