Engineering & Fabrication Services

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British ManufacturingPROUD OF OUR BRITISH MANUFACTURING

Terms & Conditions

All orders accepted by Tweddle Fabrications Ltd T/A Tweddle Engineering., Hereafter called the "Supplier", are subject to our standard terms & conditions.

1 Definitions and interpretation

1.1 In this Agreement all the definitions are set out in Schedule 1

1.2 In this Agreement:

(a) references to the Supplier includes its agents and sub-contractors appointed in accordance with the terms of this Agreement

(b) references to a "clause" or "schedule" are to a clause of or a schedule to this Agreement;

(c) words in the singular include the plural and vice versa and words of any gender include every other gender and references to legal persons shall include natural persons and vice versa;

(d) in the event of any inconsistencies between the terms of this Agreement and the schedules the terms of this Agreement shall prevail;

(e) the words "other", "includes", "including" "for example" and "in particular" do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;

(f) the headings and contents table are inserted for convenience only and shall be ignored in the interpretation of this Agreement.

2 Supply and Purchase

2.1 Subject to the terms and conditions of this Agreement, the Supplier shall sell and the purchaser shall purchase the Design, Manufacture and Installation Services specified in the quotation/confirmation of order.

2.2 Placing orders

(a) Confirmation of all orders is required in writing, no work will commence without a written order

(b) No works will commence without the receipt a cleared deposit payment, if this is required as per the quotation/confirmation of order

(c) No responsibility is accepted for goods wrongly supplied where no written order has been given, or the information requested is not provided correctly

3 The Purchaser's obligations

3.1 The Purchaser shall procure that the Supplier shall have access (but not exclusive access) to the Site (if required):

(a) at a reasonable time in advance of the Delivery Date for the purposes of performing its obligations under this Agreement;

(b) on the Delivery Date; and

(c) for such time thereafter (including hours outside of the standard working day if required) until completion. Strictly as necessary for the Supplier to perform its obligations under this Agreement;

3.2 The Purchaser shall procure the provision of the following to the extent as may be reasonably required by the Supplier to perform its obligations under this Agreement:

(a) access to such roads and other means of access to the Site;

(b) Site safety training and other training relating to the Site;

(c) such supplies of raw materials, 3 phase mains electricity, lighting, water, gas, air and other services (welfare facilities, site clearance etc.) or utilities as may be reasonably required by the Supplier to enable the Installation and/or Testing to be carried out effectively.

(d) such Consumables required for Testing the equipment;

(e) any equipment, services or otherwise as set out in the quotation/confirmation of order

3.3 If any additional equipment, services or otherwise are required due to site-specific health and safety requirements, these must be disclosed prior to quotation.

For the avoidance of doubt, if any of the provisions set out in Clause 3 are not provided these costs will be borne by the Purchaser

4 The Supplier's obligations

4.1 The Supplier shall, subject to the provisions of this Agreement, with due care and diligence, provide the Services as specified in the quotation/confirmation of order to be provided by the Supplier (“Supplier Services”). The Supplier shall provide all labour as set out in the quotation/confirmation of order, the supervision thereof and all equipment required for the Installation (if included).

4.2 The Supplier Services shall comply in all material respects with the specification set out in the quotation/confirmation of order provided, unless agreed between the parties in writing after order confirmation

4.3 The Supplier shall be responsible for the stability and safety of its operations on the Site and shall comply with and shall procure that its subcontractors, agents, employees and/or servants comply with such safety regulations and attend such safety training that the Purchaser or any third party specified by the Purchaser informs the Supplier as being applicable at the Site unless specifically authorised by the Purchaser to depart from them in any particular circumstances.

4.4 The Supplier shall not be responsible for (unless specified in the Schedules to this Agreement or otherwise agreed in writing):

(a) any consents, way leaves and approvals in connection with the regulations and bylaws of any local or other authority which shall be applicable to the Installation on the Site;

(b) any foundations, means of support, suitable access and appropriate utilities connections.

5 Delivery

5.1 The Supplier Services shall be delivered in accordance with the delivery terms specified in the quotation/confirmation of order.

5.2 The Supplier shall do all things reasonably necessary to deliver the Supplier Services at the Site on the Delivery Date.

5.3 If the Supplier is unable to deliver the Supplier Services on the Delivery Date then it shall notify the Purchaser as soon as reasonably practicable (and in any event within no more than 10 days of the Supplier becoming aware of the delay or when the Supplier reasonably should have been aware of the delay) and advise the Purchaser of any new delivery date.

5.4 If for any reason the Purchaser (except as a result of any default by the Supplier) is unable to accept delivery on or after the Delivery Date then the Supplier may, at its sole discretion and without prejudice to its other rights and for such period as the Supplier may determine store the equipment at the Purchasers risk and take all reasonable steps to safeguard and insure them, provided that the Purchaser shall be promptly informed as to the fact that the equipment is being stored by the Supplier. All costs incurred by the Supplier in respect of any storage and/or insurance shall be for the Purchasers account. If the storage and/or any additional transportation and/or offloading is required pursuant to this clause 5.4 then the Purchaser shall be responsible for the Supplier's reasonable costs in bringing the equipment back to a working condition after any storage period and/or such additional costs of transportation and/or offloading.

6 Prices and payment terms

6.1 Subject to clause 6.2 below, the Price of the Design, Manufacture and Installation Services shall be as set out in the quotation/confirmation of order.

6.2 If the cost to the Supplier of performing its obligations under this Agreement shall be increased by reason of the making after the date of acceptance of the order of any law or of any order, regulation or bylaw having the force of law that shall affect the Supplier in the performance of his obligations under the Agreement, the amount of such increase shall be added to the Price as the case may be.

6.3 The Supplier shall issue the Purchaser an invoice in respect of the Supplier Services on acceptance of the order for the Supplier Services. All sums due under the invoice shall become due and payable as specified in the quotation/confirmation of order and shall be paid in pounds sterling and at any banking institution in the United Kingdom.

6.4 If any sums are due to the Supplier under clause 6.2 and/or 6.3 then such sums shall be invoiced to the Purchaser as soon as reasonably practicable and the Purchaser shall pay such sums as detailed on the invoice provided.

6.5 Without prejudice to any other rights or remedies available to the Supplier when payment of any account is delayed beyond the due date for payment (except in respect of a disputed amount), interest at the rate of 8 per cent per annum above the current base lending rate of Bank of England (to be calculated on a daily basis) shall be added on the amount of such account for the period of the delay.

7 Title and risk

7.1 Except in respect of any damage or loss caused to the equipment by the Supplier during the Installation, from the time of Delivery the equipment shall be at the Purchasers risk who shall be solely responsible for their custody and maintenance.

7.2 Title in the equipment shall vest in the Purchaser on Delivery of the equipment.

8 Certificate of Completion

8.1 The Supplier shall perform the Testing of the equipment as stated in the quotation or confirmation of order (if required)

8.2 If after the Testing is completed, the only outstanding issue(s) in the completion of the Operational Test Run is/are identified as:

                        (a) a Snagging Matter under the provisions of Schedule 2; and/or

                        (b) a defect and/or fault in workmanship that is caused or attributable to any design, component or installation supplied by the Purchaser, or a sub-contractor employed by the Purchaser.

Then Supplier shall be entitled to issue a Certificate of Completion (if required).

8.3 Each party shall bear their own costs in relation to attendance at the Testing procedures and in respect of any need to repeat any Testing procedure.

9 Warranties

9.1 The Supplier warrants that:

                        (a) the Supplier Service shall comply in all material respects with the Specification;

                        (b) the Supplier Services shall be of sound materials and workmanship;

                        (c) the Supplier Services shall be fit for the purpose for which they are required;

                        (d) the Supplier Services shall comply with all applicable laws and regulations in England and Wales on the date of this Agreement;

                        (e) the equipment shall be capable of performance at or above the performance level specified in the Specification;

                        (f) subject to the provisions of clause 17.2 all Intellectual Property Rights in the Supplier Services shall be owned by the Supplier and the Supplier shall have an unfettered right to grant any rights in respect of such Intellectual Property Rights or the Supplier shall have an irrevocable transferable           worldwide licence to use such Intellectual Property Rights.

9.2 The Supplier will pass on to the Purchaser to the extent that it is able any benefits obtainable under any warranty given by the Supplier's supplier.

9.3 Without prejudice to any other remedies of the Purchaser, the Supplier undertakes in respect of the Supplier Services that if within the Warranty Period a defect in workmanship appears therein being a defect which:

                        (a) was not the result of fair wear and tear on the equipment or any of its component parts; or

                        (b) was the result of improper usage caused by the Supplier's erroneous instructions as to use and/or erroneous data; or

                        (c) was the result of any breach by the Supplier of the provisions of this Agreement then the Supplier will at its own discretion either repair or replace the defective component part free of charge at the place of Delivery.

9.4 In order to exercise its rights under clause 9.3 the Purchaser or any third party specified by the Purchaser shall inform the Supplier as soon as is reasonably practicable of the date when such defect appeared or ought reasonably to have been discoverable and shall if practicable retain the defective component part for the Supplier's inspection. If the Supplier does not remedy such defect, as set out in clause 9.3 after notification by the Purchaser, to the Purchasers reasonable satisfaction with 60 Working Days of receipt of such notice then the Purchaser may remedy, or procure the remedy, of such defect and the Supplier shall reimburse the Purchaser all reasonable costs and expenses in respect of the same.

9.5 Nothing herein shall impose any liability on the Supplier in respect of any defect in the equipment arising out of the acts, omissions, negligence or default of the Purchaser, its servants or agents or any third party specified by the Purchaser as a recipient of any of the Supplier Services pursuant to this Agreement.

9.6 All new equipment is warranted for a period of 12 months. This is based on an 8 Hour Single Shift at 5 Days per week. Any alternative shift pattern usage will be pro-rata based on this figure, however will never exceed 12 months.

10 Limitations of liability

10.1 The limitations and exclusions set out in this Agreement shall not apply (and no limitation or exclusion of liability shall apply) with respect to the liability of either party for death or personal injury caused by the negligence of a party or its directors, employees, agents or subcontractors or for any fraud or fraudulent misrepresentation.

10.2 Subject to clause 10.1, in no circumstances whatsoever shall the aggregate liability of either party under and/or in connection with this Agreement in respect of all acts, omissions (including negligence) of that party, its employees, agents or sub-contractors be greater than the Price.

10.3 Subject to clause 10.1 neither party shall be liable for any indirect loss or consequential loss (including without limitation loss of profit, loss of business and/or loss of goodwill) whether arising out of any tortious act or omission, any breach of contract or statutory duty.

11 Insurance

11.1 At the Supplier's sole expense, Supplier shall at all times, maintain with a reputable insurance company:

                        (a) product liability insurance of £5,000,000 in respect of each and every claim;

                        (b) public liability insurance of £5,000,000 in respect of each and every claim;

                        (c) employer's liability insurance of £2,000,000 in respect of each and every claim;

11.2 At the Purchasers sole expense, the Purchaser shall at all times, maintain with a reputable insurance company:

                        (a) public liability insurance of £5,000,000 in respect of each and every claim;

                        (b) employer's liability insurance of £2,000,000 in respect of each and every claim;

                        (c) such other insurances as are prudent for a company in the same business as Tweddle Engineering to maintain.

11.3 Each party shall at its own expense maintain a policy in respect of employer's liability with a reputable insurance company against the personal injury or accidental death of any employee to such limits as are required by law.

11.4 The Purchaser and Supplier shall upon the request of the other produce for inspection by the other a policy schedule confirming that insurance policies have been effected in accordance with the requirements of this clause.

12 Termination

Without prejudice to any other rights either party may have, either party may by notice in writing terminate this Agreement forthwith in any of the following events:

                        (a) if the other commits an irremediable breach of any of the provisions of this Agreement or if, having committed a remediable breach, fails to remedy the same within 30 days of receiving notice, requiring it to do so;

                        (b) if the other enters into liquidation whether compulsory or voluntary or has a receiver, administrative receiver or manager appointed over all or any part of its assets or an administrator is appointed in relation to the other or in the event of the other being an individual or a partnership if the other or any member of the firm has a bankruptcy order made against him or a statutory demand (within the meaning of the Insolvency Act 1986) served upon him or makes any arrangement or composition with his creditors generally or undergoes any process analogous to any stated in this clause 12(b) under the laws of any jurisdiction.

13 Effect of termination

13.1 Termination of this Agreement for whatever cause shall be without prejudice to the rights of each party against the other as may have been accrued up to the date of such termination whereupon each party shall return to the other party or otherwise dispose of as the other party shall direct all copies of documents and property of the other party of a secret or confidential nature relating to the Design, Plant and Installation Services.

13.2 The termination of this Agreement shall not affect any rights or obligations of the parties that accrued prior to termination.

13.3 Any termination of this Agreement shall not relieve any party of any obligation under this Agreement which is expressed or which by implication is intended to continue after termination.

14 Force majeure

14.1 Except as subsequently provided in this clause 14, if the performance by any party of its obligations under this Agreement is delayed or prevented due to Force Majeure that party shall be excused performance of such obligation for as long as and to the extent that the effects of the circumstance of Force Majeure continue.

14.2 The party seeking to rely on a circumstance of Force Majeure to excuse non-performance of any of its obligations under this Agreement shall:

                        (a) give written notice to the other party of the nature of the circumstance of Force Majeure and the way in which and the extent to which its obligations are prevented or delayed, such written notice to be delivered within five Working Days of the first happening of the circumstance of Force Majeure. Failure to comply with these obligations shall disentitle reliance on this clause 14;

                        (b) use its reasonable endeavours to limit the effects of the circumstance of Force Majeure, notify the other party of any material change in circumstances and expeditiously carry out its obligations as soon as, and to the extent that, it is able to do so.

15 Confidential Information

15.1 Each of the parties will during the duration of this Agreement and after its termination for whatsoever reason maintain at all times strict secrecy and confidentiality concerning the business affairs of the other as may come to its knowledge and without prejudice to the generality of the foregoing, both parties will, in particular:

                        (a) not disclose to any third party, except in the course of its duties under this Agreement any information concerning the terms and conditions contained in this Agreement;

                        (b) not disclose any information concerning methods of manufacture, turnover, production costs, sale or promotion of the equipment including in particular information as to the identity of or prices charged to customers or any other such information as may reasonably be deemed to be of value to a competitor and to use such information only for the purposes of this Agreement;

                        (c) take all reasonable steps including the insertion of relevant clauses in contracts of employment to prevent disclosure as aforesaid by employees of either party; and

                        (d) safeguard and protect all documents of a confidential nature from and against damage, theft, loss or from perusal by unauthorised persons.

15.2 The restrictions contained in clause 15.1 shall not apply to any information which:

                        (a) is at the Commencement Date, or subsequently becomes, public knowledge other than through breach of clause 15.1; or

                        (b) can be shown by the party intending to disclose such information to have been known to it and was at its free disposal prior to its disclosure under this Agreement.

15.3 Notwithstanding the provisions of this clause 15 it is acknowledged between the parties that the Supplier may be required to disclose confidential information to a government agency for the purpose of any statutory, regulatory or similar legislative requirement applicable to the supply of the Services, or to a court of law or to meet the requirements of any Stock Exchange to which the parties may be subject. In such circumstances the disclosing party will inform the other party prior to disclosure being made as to the nature of the required disclosure, shall only make the disclosure to the extent legally required and shall seek to impose obligations of secrecy wherever possible.

16 Intellectual Property Rights

16.1 Subject to clause 16.2 all Intellectual Property Rights which are in existence as at the date of this Agreement and which relate to the Design, Manufacture and/or Installation Services or their design, development and/or manufacture shall remain vested solely in the party who Controlled such Intellectual Property Rights at the date of this Agreement.

16.2 Any new Intellectual Property Rights provided by the Supplier which arise during the term of this Agreement by reason of the performance of the Services and which relate to the Design, Manufacture and/or Installation Services or their design, development and/or manufacture (including for the avoidance of doubt any improvements to the same) shall belong to the Supplier absolutely.

16.3 The Supplier shall indemnify and hold harmless the Purchaser against all costs, claims, losses, expenses or damages suffered or incurred by the Purchaser and/or for which it may be liable to any third party due to, arising from or in connection with any infringement or alleged infringement of any patent, copyright, registered design, design right, database rights, trade mark, trade name or other for or relating to the Supplier Services.

17 Waiver

Delay in exercising, or a failure to exercise, any right or remedy in connection with this Agreement shall not operate as a waiver of that right or remedy. A single or partial exercise of any right or remedy shall not preclude any other or further exercise of that right or remedy, or the exercise of any other right or remedy. A waiver of a breach of this Agreement shall not constitute a waiver of any subsequent breach.

18 Notices

18.1 All notices (including all other documents) to be served under this Agreement shall be in writing, in English and shall be delivered or sent:

                        (a) in the case of the Supplier, to: Tweddle Fabrications Limited, Hangar K1, Kirkbride, Wigton, Cumbria CA7 5HP

                        (b) Attention: Derek Tweddle, Managing Director;

18.2 A notice shall be delivered by hand or sent by prepaid first class recorded delivery.

18.3 A notice shall be deemed to have been received:

                        (a) if delivered by hand between 9.00 am and 5.00 pm on a Working Day (such a period of time being referred to in this clause 18 asBusiness Hours) when so delivered or, if delivered by hand outside Business Hours, at the next start of Business Hours;

                        (b) if sent by first class recorded delivery post on a Working Day, at 9.00 am on the second Business Day after posting, or, if the notice was not posted on a Working Day, at 9.00 am on the third Working Day after posting.

18.4 In proving service of a notice, it shall be sufficient to prove that delivery was made or that the envelope containing the notice was properly addressed and posted.

19 Scope of agreement

19.1 Each of the parties acknowledges that it is not entering into this Agreement in reliance upon any representation, warranty, collateral contract or other assurance (except those set out in this Agreement and the documents referred to in it) made by or on behalf of any other party before the execution of this Agreement. Each of the parties waives all rights and remedies which, but for this clause, might otherwise be available to it in respect to any such representation, warranty, collateral contract or other assurance, provided that nothing in this clause 19.1 shall limit or exclude any liability for fraud.

19.2 Each party shall at its own cost do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably requested of it by the other party from time to time to implement this Agreement.

19.3 No variation of this Agreement shall be effective unless it is in writing and executed by or on behalf of each of the parties.

19.4 The English language version of this Agreement shall prevail.

20 Assignment

Neither party shall be entitled to assign or transfer its rights under this Agreement in whole or part without first obtaining the consent of the other party provided however that Supplier’s consent shall not be required in relation to any assignment of this Agreement by Arch to an Affiliate.

21 Relationship between parties

Nothing in this Agreement shall constitute or be deemed to constitute a partnership or other form of joint venture between the parties or constitute or be deemed to constitute either party the agent or employee of the other for any purpose whatsoever.

22 The Contracts (Rights of Third Parties) Act 1999

No person who is not a party to this Agreement is entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

23 Severance

The parties intend each provision of this Agreement to be severable and distinct from the others. If a provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of this Agreement shall not be affected.

24 Survival of Rights

Termination of this Agreement for any reason shall not affect any rights or liabilities that have accrued prior to termination or the coming into force or continuance in force of any term that is expressly or by implication intended to come into or continue in force on or after termination.

25 Entire agreement

This Agreement (together with all other documents to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its subject matter.

26 Counterparts

This Agreement may be entered into in any number of counterparts and by the parties on separate counterparts, all of which taken together shall constitute one and the same instrument.

27 Dispute Resolution

All disputes and differences arising out of or in connection with this Agreement (a Dispute) shall be resolved pursuant to the terms of Schedule 6.

28 Applicable Law and jurisdiction

28.1 This Agreement is governed by, and shall be interpreted in accordance with, English law.

28.2 Each party irrevocably submits to the exclusive jurisdiction of the English Courts in relation to all matters arising out of or in connection with this Agreement.

Schedule 1

Definitions

Affiliatemeans any company, partnership or other entity which directly or indirectly controls, is controlled by or is under common control with the relevant party. Control for the purposes of this definition of affiliate shall mean the ownership of more than fifty percent (50%) of the issued share capital or the legal power to direct or cause the direction of the general management and policies of the entity in question

Consumable componentsmeans such parts and/or components of the equipment which in the course of normal usage will require replacement, including (but not limited to) seals and valves

Contract Yearmeans a period of twelve consecutive months commencing on the date of acceptance of the quotation

Controlledmeans with respect to Intellectual Property Rights that a party has the ability, either through ownership or otherwise, to grant a licence or a sub-licence to such intellectual property without violating the terms of any agreement with a third party.

Deliverymeans the delivery of the equipment as specified in clause 5

Designmeans the design of the equipment or any part thereof being provided by the Supplier

Force Majeuremeans any circumstances outside the reasonable control of the party liable to perform, including, without limitation, act of God, industrial disputes, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, failure of power supplies, shortage of fuel, transport, equipment, raw materials or other goods and services

Installationmeans the delivery of the equipment and the performance of the Installation Services

Installation Servicesmeans the installation of the equipment at the Site and such other services as specified in the quotation/confirmation of order

Intellectual PropertyRights means all rights, title and interests vested and/or arising out of any industrial or intellectual property including, without limitation, patents, trademarks, service marks, trade-names, business names, processes, developments, licences, trade secrets, goodwill, drawings, computer software, formulae, technical information, registered designs and any rights to apply for the same copyright, design rights, database rights, rights in and to confidential information and know-how and any rights analogous to the same subsisting anywhere in the world at any time

Lossesmeans all losses, liabilities (including provision for contingent liabilities), fines, damages, costs and expenses including legal fees on a solicitor/client basis and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties

Mechanical Test Runhas the meaning given to it in Schedule 2

Operational Test Runhas the meaning given to it in Schedule 2

Equipmentmeans the equipment, or services provided as per the details in the quotation or confirmation of order

Pricemeans the price of the Design, Manufacture and Installation Services as set out in the quotation/confirmation of order

Servicesmeans Design, Manufacture, Installation Services and other such Services

Sitemeans the location of installation (if applicable)

Snagging Matterhas the meaning given to it in Schedule 2

Testingmeans the Mechanical Test Run and the Operational Test Run

Warranty Periodmeans the period described in clause 9.6

Working Daymeans a day on which UK high street clearing banks are usually open for business except Saturdays and Sundays

 

Schedule 2

Testing

1 Pre-Delivery testing

1.1 The Supplier shall notify the Purchaser that it has completed the manufacture of the equipment and shall invite the Purchaser to attend a pre-delivery Mechanical Test Run at the Supplier's premises (if applicable)

2 Mechanical Test Run

2.1 The Supplier shall notify the Purchaser that it has completed the Installation and shall coordinate with the Purchaser to perform the Mechanical Test Run at the Site in the presence of the Purchaser.

3 Operational Test Run

The Supplier shall notify the Purchaser that it intends to perform the Operational Test Run (if required) and the parties shall arrange a date to perform the Operational Test Run as soon as is reasonably practicable after the Supplier has notified the Purchaser.

4 Snagging Matters

Any matter that requires rectification by the Supplier but does not prevent performance of the Plant in all material respects shall be deemed a Snagging Matter. Such Snagging Matters shall not be sufficient reason for the Purchaser not to countersign the Certificate of Completion.

 

Schedule 3

Dispute Resolution

1 Overriding right to pursue court proceedings

Nothing in this schedule precludes legal proceedings by either party in the courts at any time:

                        (a) for an order (whether interim or final) to restrain the other party from doing any act or compelling the other party to do any act; or

                        (b) for a judgment for a liquidated sum to which there is no arguable defence; or

                        (c) the purpose of which is to prevent a claim from becoming time-barred under any statute of limitations.

However, paragraph 1(a) does not apply to any proceedings from the point at which the court orders, or the parties agree, that the defendant should have permission to defend and paragraph 1(c) does not apply to any proceedings after they have been commenced and served.

2 Resolution of Disputes by bona fide discussion

The parties shall each use reasonable endeavours to resolve any Dispute by prompt discussion in good faith at a managerial level appropriate to the Dispute in question. This discussion shall (except as stated in paragraph 1 above) be a pre-condition to the commencement of Mediation. This procedure commences when either party gives notice to the other setting out the issues in the Dispute and referring to this paragraph and, unless the parties agree otherwise, shall be treated as having been exhausted if the Dispute has not been resolved within 10 Working Days after the giving of the notice.

3 Mediation

3.1 Except as stated in paragraphs 1, it is a condition precedent to the commencement of any court proceedings in relation to any Dispute that the Dispute has first been referred to mediation under the supervision of the Centre for Effective Dispute Resolution Limited (Supervising Body) in accordance with this paragraph 3 (Mediation).

3.2 Mediation commences when either party gives the other notice to mediate under this paragraph 3 (aNotice to Mediate) summarising the issues in the Mediation.

3.3 Mediation shall be conducted using a sole mediator (Neutral) (which expression does not exclude the presence of an unpaid assistant mediator) in or substantially in accordance with the Supervising Body's then current standard mediation procedure (and standard mediation agreement, if any). The Neutral shall be a registered or panel mediator of the Supervising Body agreed between the parties or, in default of agreement within 5 Working Days after the giving of Notice to Mediate, appointed by the Supervising Body.

3.4 The parties shall co-operate fully, promptly and in good faith with the Supervising Body and/or the Neutral in the performance of their obligations under this paragraph 3 including the doing of all acts and the signing of all documents that the Supervising Body or the Neutral may reasonably require to give effect to this paragraph 3.

3.5 Unless agreed otherwise, each party shall bear its own costs of the Mediation.

3.6 If and to the extent that the parties do not resolve a Dispute following the application of this paragraph 3 either party may commence proceedings in the English courts in respect of the Dispute (or, as applicable, that part of it that is unresolved).