1.1 Definitions. In these Conditions, the following definitions apply.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Condition 11.7.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Location: has the meaning given to it in Condition 4.2.
Force Majeure Event: has the meaning given to it in Condition 10.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: any patent, copyright, trade mark, service mark or trade name, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in the United Kingdom and all other countries in the world in each case whether registered or not and including any application for registration of the foregoing.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form or in the Customer's written acceptance of the Supplier's quotation or in the Customer's purchase order form, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, which is agreed in writing by the Customer and the Supplier.
Supplier: Joma Jewellery Limited, a company registered in England and Wales with company number 07706056, whose registered address is Park Farm, Stratford Road, Drayton, Banbury, Oxfordshire, OX15 6EG.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 No Order shall be deemed to have been accepted until the Supplier issues a written acceptance of the Order or, if earlier, commences manufacture of the Goods, their appropriation to the Customer's Order or despatch of the Goods to the Customer, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 Any quotation for the Goods given by the Supplier is given subject to these Conditions and shall not constitute an offer. A quotation shall only be valid for a period of 7 Business Days from its date of issue.
2.6 The Supplier reserves the right to cancel any Contract at any time prior to despatch of the Goods to the Customer, without liability or compensation to the Customer.
3.1 The Goods to be supplied by the Supplier to the Customer are described in the Supplier's website at http://www.jomajewellery.com or in the Supplier's quotation or written acknowledgement of Order (given pursuant to Condition 2.3).
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of such Specification. This Condition 3.3 shall survive termination of the Contract.
3.3 Any Intellectual Property Rights created by the Supplier in the course of the performance of the Contract or otherwise in the manufacture of the Goods shall remain the Supplier’s property. Nothing in the Contract shall be deemed to have given the Customer a licence or any other right to use any of the Intellectual Property Rights of the Supplier.
3.4 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.5 No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the agents or employees of the Customer shall be construed to vary in any way any of these Conditions under the Contract
4.1 If the Supplier requires the Customer to return any packaging and/or presentation materials to the Supplier;
(a) the Supplier shall ensure that this fact is clearly stated to the Customer by way of a written notice accompanying the relevant delivery;
(b) the Customer shall make any such packaging and/or presentation materials available for collection at such times as the Supplier shall reasonably request; and
(c) unless otherwise set out in the Contract, returns of packaging and/or presentation materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event
or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.If for any reason the Customer does not accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations then :
(a) the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by the Supplier's negligence); and
(b) the Supplier may store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including storage and insurance).
4.5 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to (and including) 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 The Customer will be deemed to have accepted the Goods as being in accordance with the Contract unless:
(a) within 14 days of the date of delivery of the Goods, the Customer notifies the Supplier in writing of any defect or other failure of the Goods to conform with the Contract (which would be apparent upon reasonable inspection and testing of the Goods within 14 days); or
(b) the Customer notifies the Supplier in writing of any defect or other failure of the Goods to conform with the Contract within a reasonable time where the defect or failure would not be so apparent within 14 days of the date of delivery,
failing which the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
4.8 Goods, once delivered, may not be returned unless their return is agreed in advance in writing by the Supplier.
4.9 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.1 The Supplier warrants that, on delivery, the Goods shall:
(a) subject to Condition 5.2 below, conform in all material respects with the Specification; and
(b) be free from material defects in design, material and workmanship.
5.2 The Customer acknowledges and agrees that certain types of goods supplied by the Supplier, e.g. pearls, are natural items and, as a consequence, are subject to naturally occurring variations. Therefore, any variation from the Specification which has arisen as a result of a natural formation or variation in the relevant Goods shall not constitute a material non-conformity to the Specification unless such variation or formation constitutes a material deviation to that which would reasonably be expected for an item of the nature of the relevant Goods.
5.3 Subject to Condition 5.4, if:
(a) the Customer gives notice in writing to the Supplier within 5 Business Days of delivery that some or all of the Goods do not comply with the warranty set out in Condition 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the purchase price of the defective Goods in full, provided always that the liability of the Supplier under this Condition 5.3 shall in no event exceed the purchase price of the relevant Goods and performance of any one of the foregoing options by the Supplier shall constitute an entire discharge of the Supplier’s liability under the warranty at Condition 5.1.
5.4 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in Condition 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with Condition 5.3;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 The warranties set out in this document are the only warranties which shall be given by the Supplier and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 Risk in the Goods shall pass to the Customer on completion of delivery in accordance with Condition 4.
6.2 Title to the Goods shall not pass to the Customer until:
(a) payment in full, in cash or cleared funds, for all the Goods has been received by the Supplier; and
(b) all other money payable by the Customer to the Supplier on any other account or under the Contract or any other contract between the Supplier and Customer has been received by the Supplier.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property and permit the Supplier to examine any such Goods in storage at any time during normal business hours upon receipt of reasonable notice to do so from the Supplier;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery at no cost to the Supplier;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in Condition 8.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 The Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods, subject to reselling such goods as principal and not as the Supplier's agent.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them; and
(c) the Supplier shall be entitled to maintain an action against the Customer for the price of the Goods notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Customer.
6.6 The Supplier’s rights and remedies set out in this Condition 6 are in addition to, and shall not in any way prejudice, limit or restrict any of the Supplier’s other rights or remedies under the Contract or in law or equity.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery or deemed date of delivery of the Goods.
7.2 The Supplier may, by giving notice to the Customer at any time up to 7 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). 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 Goods.
7.5 Payment terms:
(a) if the Contract states that Goods are sold on a "pro-forma" basis, then the Supplier shall issue an invoice for the Goods which will accompany the delivery of the relevant Goods and such invoice shall become due and payable by the Customer immediately upon delivery (or deemed delivery) of the Goods; or
(b) if the Contract states that Goods are sold on a "Credit" basis, then the Supplier shall issue an invoice for the Goods which will accompany the delivery of the relevant Goods and such invoice shall become due and payable by the Customer 30 days following the day on which the Goods were delivered (or were deemed to have been delivered).
7.6 All payments shall be made in UK Pounds Sterling (GBP) to the bank account nominated in writing by the Supplier from time to time. Time for payment is of the essence.
7.7 No indulgence granted by the Supplier to the Customer concerning the Customer’s obligations under this Condition 7 shall be or be deemed to be a credit facility but if any such facility is granted to the Customer by the Supplier, the Supplier may withdraw it at its sole discretion at any time.
7.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set off or counterclaim against the Supplier to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. TERMINATION AND SUSPENSION
8.1 If the Customer becomes subject to any of the events listed in Condition 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may terminate cancel or suspend all further deliveries under the Contract, or under any other contract between the Customer and the Supplier, with immediate effect by giving written notice to the Customer without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of Condition 8.1, the relevant events are:
(a) the Customer fails to pay any sum payable under the Contract within 10 Business Days of its due date;
(b) the Customer commits a material breach of any of its obligations under the Contract which is incapable of remedy;
(c) the Customer commits a material breach of its obligations under the Contract which is capable of remedy and fails to remedy it or persists in such breach after 30 days of having been required in writing to remedy or desist;
(d) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(g) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(h) (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(j) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(k) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 8.2(d) to Condition 8.2(k) (inclusive);
(m) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(n) the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(o) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Condition 8.2(d) to Condition 8.2(o), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies that have accrued as at termination.
8.5 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to Condition 9.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence or breach of statutory duty) misrepresentation, or otherwise in connection with the Contract, for any:
(i) loss of profit;
(ii) loss of revenue;
(iii) loss of business;
(iv) loss or anticipated savings,
in each case whether direct or indirect, or for any indirect, special or consequential loss, howsoever arising; and
(b) the Supplier's total aggregate liability to the Customer in respect of all other losses arising under or in connection with the performance or contemplated performance of the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price paid or payable to the Supplier for the Goods.
10. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, failure of suppliers of raw materials or other goods or services, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Entire Agreement.
(a) The Contract contains the entire agreement between the parties in relation to its subject matter and supersedes any prior arrangement, understanding written or oral agreements between the parties in relation to such subject matter
(b) The parties acknowledge that the Contract has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on its behalf other than as expressly set out in the Contract.
(c) Each party agrees that the only rights and remedies available to it arising out of or in connection with any warranties, statements, promises or representations will be for breach of contract and irrevocably and unconditionally waives any right it may have to any claim, rights or remedies including any right to rescind the Contract which it might otherwise have had in relation to them.
(d) Nothing in this Condition 11.1 will exclude any liability in respect of misrepresentations made fraudulently.
11.2 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge or subcontract to any third party, or deal in any other manner with, all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier, with such consent not to be unreasonably withheld.
(c) Any resale by the customer to a third party wholesaler may only be made with the Suppliers consent, with such consent not to be unreasonably withheld.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 11.3(a) ; 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.5 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.6 Third party rights. A person who is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either party) shall have no right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any provision of the Contract. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any person that is not a party to the Contract.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
11.8 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales