1. INTERPRETATION

1.1 The following definitions and rules of interpretation apply in these Conditions.

1.2 Definitions:

“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Charges” the charges payable by the Customer for the supply of the Services in accordance with clause 5 (Charges and payment).

“Commencement Date” has the meaning given in clause 2.4.

“Conditions” these terms and conditions as amended from time to time in accordance with clause 11.5.

“Contract” the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

“Customer” the person or firm who purchases Services from the Supplier.

“Customer Default” has the meaning set out in clause 4.2.

“Customer Materials” all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to the Supplier in connection with the Services.

“Deliverables” all products and materials developed by the Supplier in relation to the Services.

“Intellectual Property Rights” patents, rights to inventions, copyright and neighbouring and related rights (including copyright for all design work, including words, pictures, ideas, visuals and illustrations), trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, typography rights, moral rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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 order for Services as set out in the Customer’s written acceptance of the Quotation, or where a Quotation has not been requested, the written or telephone order given by the Customer to the Supplier.

“Proof” the draft content, information, material or data provided by the Supplier to the Customer for approval in accordance with clause 4.1.11

“Quotation” means the written quotation given by the Supplier to the Customer setting out the estimated price and Specification for the Services.

“Services” the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Quotation or, where there is no Quotation, in the Order.

“Specification” the description or specification of the Services provided in writing by the Supplier to the Customer.

“Supplier” Sims Brand Design Limited (trading as ‘Sims Creative’) registered in England and Wales with company number 08905906.

“Supplier Materials” has the meaning set out in clause 4.1.12.

1.3 Interpretation:

1.3.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3.1 A reference to a party includes its personal representatives, successors and permitted assigns.

1.3.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.3.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.3.4 A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1 The Supplier shall provide a Quotation setting out the Charges and Services. The Quotation shall only remain valid for a period of 28 days from the date of the Quotation (“the Acceptance Period”).

2.2 Where the Customer has requested a Quotation from the Supplier, the Customer may advise the Supplier of its agreement to that Quotation within the Acceptance Period. Where the Quotation is agreed by the Customer within the Acceptance Period, this shall constitute an Order.

2.3 The Customer may also place an Order without requesting a prior Quotation.

2.4 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.5 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or commences work, at which point and on which date the Contract shall come into existence (Commencement Date).

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

2.7 The Customer confirms and agrees that there may be reasonable tolerances in relation to the Services and the Deliverables, including but not limited to, paper quality and colour.

2.8 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.

3. SUPPLY OF SERVICES

3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2 The Supplier shall use all reasonable endeavours to meet any performance dates agreed by the parties in writing, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

3.5 Where the Customer has a query regarding the Services provided, including but not limited to, in relation to shortages or errors, the Customer must notify the Supplier in writing of this query within 3 working days of the Services being completed by the Supplier.

4. CUSTOMER’S OBLIGATIONS

4.1 The Customer shall:

4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

4.1.2 clearly, concisely, specifically and adequately convey the Customer’s requirements to the Supplier;

4.1.3 ensure all artwork provided to the Supplier is suitable and adequate for the Customer’s needs and purposes and does not infringe any rights, including any Intellectual Property Rights, of any third party;

4.1.4 co-operate with the Supplier in all matters relating to the Services;

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

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

4.1.7 (where necessary) prepare the Customer’s premises for the supply of the Services;

4.1.8 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

4.1.9 comply with all applicable laws, including health and safety laws;

4.1.10 thoroughly and properly check any Proof provided by the Supplier for errors or omissions, and thereafter making any necessary amendments clearly;

4.1.11 once it has complied with 4.1.10, give the Supplier complete and absolute approval of any Proof in a verbal or written form, which shall be deemed to be the Customer’s authority to proceed to print the Proof in final form. Any errors or omissions after authority to proceed has been given by the Customer are the Customer’s sole responsibility and not the responsibility of the Supplier and the Supplier reserves the right in its sole discretion to make additional charges to the Customer for any costs, charges or expenses it incurs as a result of such errors or omissions. The Supplier shall not be responsible for any errors apparent in artwork, copy or Proofs that have been approved by the Customer;

4.1.12 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
4.1.13 comply with any additional obligations as set out in the Specification.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or the Customer’s agents, sub-contractors or employees or failure by the Customer to perform any relevant obligation (Customer Default):

4.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

4.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

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

4.3 If the Customer requests any alterations or changes to the Order or Specification, the acceptance of such changes will be at the sole discretion of the Supplier. The Supplier shall be entitled to charge the Customer additional costs, charges or expenses it incurs as a result of such alterations or changes.

5. CHARGES AND PAYMENT

5.1 Save as otherwise notified by the Supplier to the Customer in the Quotation, the Charges for the Services shall be:

5.1.1 as set out in the Quotation if an Quotation has been requested by the Customer and provided by the Supplier (provided always that Charges set out in the Quotation shall be estimates only and the Supplier retains the right to vary the Quotation where necessary);

5.1.2 where an Quotation is not provided, the Charges shall be calculated in accordance with the Supplier’s normal pricing structure;

5.1.3 the Supplier shall be entitled to charge a reasonable overtime rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the their normal working hours;

5.1.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses; and

5.1.5 the Supplier shall be entitled to charge the Customer for additional costs, charges or expenses it incurs, including but not limited to: as a result of materials supplied by the Customer not being legible or clear, authors corrections or other work not being specified in the Quotation, the additional use of couriers, special deliveries and similar facilities, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

5.2 The Supplier reserves the right to:
5.2.1 increase the Charges, by giving notice to the Customer at any time before the Services are completed, to reflect any increase in the cost of the Services to the Supplier that is due to:
5.2.1.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);

5.2.1.2 any request by the Customer to make any change to the Services to be supplied or to the Specification; or

5.2.1.3 any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.

5.3 The Supplier may, at its sole discretion, require the Customer to pay a deposit or to pay the full amount for the Services, as stated in the Order, at the time the Order is placed or at any time prior to the Services being completed.

5.4 Save as otherwise notified by the Supplier to the Customer in the Quotation or in writing, the Supplier shall invoice the Customer:

5.4.1 where completion of the Services shall take less than 28 days, on completion of the Services; or

5.4.2 where completion of the Services shall take more than 28 days, monthly in arrears.

5.5 The Customer shall pay each invoice submitted by the Supplier:

5.5.1 where the Services have been completed within 28 days, by the last working day of the month immediately following the month of the invoice or in accordance with any credit terms agreed by the Supplier and Customer from time to time;

5.5.2 where the Services take longer than 28 days to complete, by regular or staged payments on a monthly basis, in accordance with the due date(s) for payment as stated on the invoice or where no due date is stated on the invoice, within 28 days of the date of the invoice; and

5.5.3 in both cases set out in clause 5.5.1 and 5.5.2, all payments must be made in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

5.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.7 Where the Customer has a query regarding an invoice, the Customer must notify the Supplier of the query within 10 working days of the date of the invoice. Following notification of such query, the Supplier shall use its reasonable endeavours to deal with that query.

5.8 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:

5.8.1 terminate the Contract or suspend any further deliveries of performance of Services (whether ordered under the same contract or not) to the Customer;

5.8.2 appropriate any payment made by the Customer to such of the Services (or the Services supplied under any other contract between the Customer and the Supplier) as it thinks fit (despite any purported appropriation by the Customer);

5.8.3 charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether or not after judgment), at the annual rate of 8% above the base lending rate from time to time of Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

5.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5.10 Where any invoice remains unpaid, the Customer shall be responsible for any legal or other costs (including, but not limited to, legal costs incurred in taking advice from a solicitor or barrister, charges made by a debt recovery agent, time spent by the Supplier preparing or pursuing the legal action and court fees) incurred by the Supplier to recover the monies owed by the Customer.

6. WEBSITE DEVELOPMENT

6.1 Where the Services includes the design and production of a website, the website will be hosted via an appropriate link from the Supplier’s server until all invoices and monies due from the Customer to the Supplier have been settled in full. The website will then be made available to the Customer for hosting on the Customer’s own server or a third party server.

7. PROPERTY OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights in or arising out of or in connection with the Services and all other rights in the Deliverables (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

7.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services in its business.

7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.

7.4 In relation to the Customer Materials, the Customer:

7.4.1 and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and

7.4.2 grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of this agreement for the purpose of providing the Services to the Customer.

7.5 The Supplier:

7.5.1 warrants that the receipt and use of the Services and the Deliverables by the Customer shall not infringe any rights of third parties to the extent that infringement results from copying;

7.5.2 shall, subject to clause 8.3, indemnify the Customer against all direct and properly incurred costs, expenses, damages and losses, including any reasonable and properly incurred interest, legal and other professional fees and expenses suffered and properly incurred by the Customer as a direct result of or in connection with any claim brought against the Customer in relation to the Services or the Deliverables infringing a third parties Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying; and

7.5.3 shall not be in breach of the warranty at clause 7.5.1, and the Customer shall have no claim under the indemnity at clause 7.5.2, to the extent the infringement arises from:

7.5.3.1 the use of the Customer Materials in the development of, or the inclusion of the Customer Materials in any Deliverable;

7.5.3.2 any modification of the Deliverables or Services, other than by or on behalf of the Supplier; and

7.5.3.3 compliance with the Customer’s specifications or instructions.

7.6 The Customer:

7.6.1 warrants that the receipt and use of the Customer Materials in the performance of this Contract by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and

7.6.2 shall indemnify the Supplier against all direct and properly incurred costs, expenses, damages and losses, including any reasonable and properly incurred interest, legal and other professional fees and expenses suffered and properly incurred by the Supplier as a direct result of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants in relation to the Customer Materials infringing a third parties Intellectual Property Rights.

8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:

8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

8.1.2 fraud or fraudulent misrepresentation; or

8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

8.2 Subject to clause 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

8.2.1 loss of profits;

8.2.2 loss of sales or business;

8.2.3 loss of agreements or contracts;

8.2.4 loss of anticipated savings;

8.2.5 loss of use or corruption of software, data or information;

8.2.6 loss of or damage to goodwill; or

8.2.7 any indirect or consequential loss.

8.3 Subject to clause 8.1 and clause 8.2, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the total Charges paid or payable under the Contract.

8.4 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.

8.5 This clause 8 shall survive termination of the Contract.

9. TERMINATION

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other three months’ written notice.

9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

9.2.1 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

9.2.2 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

9.2.3 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

9.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment;

9.3.2 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 working days of being notified in writing to do so; or

9.3.3 the Supplier has made reasonable attempts to complete the Services and has been unreasonably prevented from the Customer from doing do.

9.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2.1 to clause 9.2.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

10. CONSEQUENCES OF TERMINATION

10.1 On termination of the Contract:

10.1.1 the Customer shall immediately pay to the Supplier the full amount of the total Order value or such other lower amount as the Supplier may determine in its absolute discretion;

10.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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 the Contract.

10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.

10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. GENERAL

11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. Where the provisions of this clause apply, the relevant party shall immediately notify the other party of this and shall take all reasonable steps to resume performance of its obligations.

11.2 Assignment and other dealings.

11.2.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.

11.3 Confidentiality.

11.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.2.

11.3.2 Each party may disclose the other party’s confidential information:

11.3.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and

11.3.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3.3 Notwithstanding the provisions of this clause 11, the Supplier reserves the right to promote any of the designs provided and developed under the Services for the Customer as part of its portfolio and as part of the Supplier’s promotional activities.

11.3.4 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

11.4 Entire agreement.

11.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

11.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.

11.5 Variation.

11.5.1 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5.2 Any typographic, clerical or other error or omission in any sales literature, Quotation, acceptance of Order, invoice or other document or information supplied by the Supplier shall be subject to correction without any liability on the Supplier and without the need for notice or consent to the Customer.

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

11.7 Severance. 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.

11.8 Notices.

11.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address nominated by the Customer and the Supplier.

11.8.2 Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.

11.8.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

11.9 Third party rights.

11.9.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

11.9.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.