1.1 The definitions and rules of interpretation in this Condition shall apply in these Conditions.
Charges: the charges payable by the Customer to the Company for the Services;
Company: Balcombe Limited, 14a Garden Close, Watford, WD17 3DP
Company Data: any and all information, documentation, records and/or other data which is specified in the Schedule as being required to be furnished by the Company in order to facilitate the performance of the Services, including any prospective client contact lists furnished by the Company for use in making appointments by the Company (Company Contact Lists);
Conditions: these Terms and Conditions of Supply;
Confidential Information: any information, data or know-how disclosed by one (the disclosing party) to another (the receiving party) or otherwise coming into the possession of or to the notice of the receiving party, including but not limited to that which relates to the Company Data and the Customer Data and any research, plans, ideas, products, services, customers, markets, software developments, inventions, processes, designs, drawings, statistics, marketing or finances, or other business or technical information, which has been marked confidential or notified to the receiving party as being confidential, or which could reasonably be supposed to be confidential. Confidential Information does not include information that is in the possession of the receiving party at the time of the disclosure, becomes public knowledge without any action of either party, was independently developed or prepared by either party, or is required to be disclosed by law or to any regulator to whose regulation the disclosing party is subject;
Contract: any contract between the Company and the Customer for the supply of Services, incorporating these Conditions;
Customer: any person, firm, company or other organisation who is the addressee of the Company’s quotation or acceptance of order issued by the Company and shall include any parent or subsidiary company of the Customer and any successor-in-title of the Customer and any company or entity arising (wholly or partly) by way of any merger, amalgamation, reorganisation or acquisition of the Customer;
Customer Data: any and all information, documentation, records and/or other data which is specified in the Schedule as being required to be provided by the Customer to enable the Company to perform the Services, including any prospective client contact lists that the Customer provides to the Company for use in making appointments by the Company (Customer Contact Lists);
Deliverables: any and all information, documentation and/or other tangible items which the Company agrees to provide to the Customer upon or prior to completion of the Services, as detailed in the Schedule;
Document: any document in writing, and any plan, graph, drawing or photograph and any film, negative, tape or other device or document embodying visual images and any disc, tape or other device or document embodying any other data;
DPA: the Data Protection Act 1998 as may be amended, extended, re-enacted or consolidated and all subordinate legislation made pursuant to it;
Input Material: any Document or other materials, and any specification, data or other information provided by the Customer to the Company relating to the Services, including any Customer Data and any Personal Data;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
Output Material: any Document or other materials, and any data or other information provided by the Company to the Customer relating to the Services, including any Company Data and any Personal Data;
Personal Data: any and all data from which a living individual can be identified and which is used in the course of the Services, whether supplied by the Customer to the Company (Customer Personal Data) or provided by the Company on the Customer’s behalf as part of the Services (Company Personal Data);
Processing: obtaining, recording or holding Personal Data or carrying out any operation in relation to Personal Data, including but not limited to organising, adapting, altering, retrieving, consulting, using, disclosing or destroying Personal Data and “Process” shall have the equivalent meaning;
Question Set: specific questions asked on a Survey which form the basis of Company Data;
Services: the specific telemarketing services as shall be provided by the Company to the Customer in accordance with the details set out in the Schedule, for such period as shall be detailed in the Schedule;
Schedule: the schedule agreed by the parties, which sets out the scope of the Services and any contract variables such as price, payment terms, timescales for performance and Deliverables;
Set-Up Fee: any fee referred to in the Schedule to cover, amongst other matters, any period of instruction by the Customer of the calling team at the offices of the Company;
Survey: any information compiled by or in conjunction with the Company which contains a Question Set and other questions in order to create Company Data.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 A reference to one gender includes a reference to the other gender.
1.6 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS AND DESCRIPTION OF SERVICES
2.1 Subject to any variation under Condition 2.2, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These Conditions apply to the supply of any and all Services by the Company and any variation to these Conditions and any variation to or representations about any Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company.
2.3 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition 2.3 shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these Conditions. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.5 No order for Services shall be deemed accepted by the Company until confirmed in writing by the Company’s authorised representative signing the Schedule.
2.6 The description for the Services shall be that set out in the Schedule.
2.7 The Customer is responsible for checking the Schedule and satisfying itself that any description given is accurate and adequate for the Services the Customer requires.
2.8 If during the course of performing the Services the Company considers that the method of performing the Services and/or the scope of the Services should be amended, the Company will discuss any changes which may be required to the Schedule with the Customer.
2.9 All descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them and they shall not form part of the Contract.
2.10 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
2.11 No order of the Customer may be cancelled by the Customer, except with the Company’s agreement in writing and on such terms as the Company may require.
2.12 No order of the Customer may be varied, altered or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of such variation, alteration or deferment.
3. OBLIGATIONS OF THE COMPANY
3.1 The Company shall undertake the Services with reasonable skill and care and will comply with all reasonable, lawful and proper requests appropriate to the completion of the Services which may be made by the Customer.
3.2 The Company shall, when undertaking the Services present itself as a representative of the Customer.
3.3 The Company may use the Customer’s name, logos, trade and service marks for the purpose of carrying out the Services as the Customer’s representative.
3.4 The Company will when required, give the Customer such written or oral advice or information regarding any of the Services as the Customer may reasonably require.
3.5 For quality control purposes, all calls made to or from the Company may be digitally recorded.
3.6 The Company will endeavour to provide the Customer with the Deliverables (in a format agreed by the Company) on or by any dates set out in the Schedule and, in any event, on completion of the Services.
3.7 Any required quality control and/or reporting procedures must be notified by the Customer to the Company at the outset. The Company does not guarantee that any information related to a campaign will be available to the Customer if it was not requested by the Customer at the outset.
3.8 All forecasts made by the Company, including those related to appointments, are estimates given in good faith using the Company’s experience and judgment and do not constitute a guarantee, nor does the Company guarantee that the Customer will enter into an agreement with any prospective client as a result of the Services provided by the Company.
3.9 Dates for performance of the Services (including but not limited to the delivery of the Deliverables) as set out in the relevant Schedule are estimates only and are not guaranteed. Time is not of the essence in relation to such dates. The Company will use reasonable commercial endeavours to ensure performance on or by the dates specified in the Schedule.
3.10 Where the Company is to provide Company Data on the Customer’s behalf:
(a) the Company will reasonably endeavour to ensure that the Company Data is sourced in accordance with the Customer’s criteria, but the Company acts as an agent in this respect and cannot be held responsible for the quality or relevance of any Company Data procured on the Customer’s behalf; and
(b) whilst reasonable efforts will be made to ensure the accuracy of any Company Data obtained by the Company for use in providing the Services, the Company cannot, in any circumstances, accept liability for any loss, inconvenience or damage (including loss of profits) occasioned by any inaccuracy of, or any error in, any such Company Data.
3.11 Company Data will remain under the sole and exclusive ownership of the Company at all times. The Company shall have the right to analyse, manipulate, formulate conclusions and extract information from all Company Data.
3.12 The Company reserves the right to alter the wording of a Question Set at any time and without notice or to refuse to include in a Survey, questions which in the reasonable opinion of the Company are or may be illegal or offensive or are not of commercial interest.
3.13 The Company will not and shall not be required to commit the Customer to any legally binding third party commitments or contracts.
3.14 The Company may accept and perform engagements for other companies, firms or persons, (including, for the avoidance of doubt, any clients, ex-clients and potential clients of the Customer) which do not conflict with or materially impinge upon the Company’s ability to provide the Services to the Customer.
3.15 The Company may refer to the Customer’s name and give a general factual description of the nature of the Services performed by the Company for the Customer, in the Company’s marketing and promotional materials and presentations.
4. OBLIGATIONS OF THE CUSTOMER
4.1 The Customer shall provide the Company with all information, co-operation, support and access to such facilities and resources as may be required to enable the Company to carry out its obligations to the Customer.
4.2 The Customer shall be responsible for delivering to the Company, all necessary Input Material in the manner, quantity, form, and in accordance with the delivery timescale agreed in the Schedule, where applicable. The Company reserves the right to charge a reasonable additional fee for any preparatory work necessary to use the Input Material where such Input Material was not supplied as agreed.
4.3 The Customer warrants and represents to the Company that the Customer has the unrestricted ability to grant any and all rights in and to any Input Material.
4.4 Without prejudice to the generality of Condition 7.7, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material submitted by the Customer.
4.5 The Customer shall ensure that any Input Material submitted by the Customer does not contravene any applicable statutory or regulatory requirement.
4.6 The Customer warrants that any and all Input Material shall be true and accurate in every respect throughout the duration of the Contract and the Customer shall promptly notify the Company of any changes to the Input Material.
4.7 The Customer warrants that no Input Material shall contain or promote adware, spyware or viruses, or obscene, abusive, violent, bigoted, hate-oriented, cracking or hacking content or conduct.
4.8 The Customer hereby grants to the Company a non-exclusive, worldwide, royalty-free licence to utilise the Input Material in order to perform its obligations under the Contract.
4.9 If the Customer is required to provide any Customer Data to enable the Company to perform the Services, the Customer undertakes to provide that Customer Data (in a format to be agreed) by any date set out in the Schedule. In any event, the Customer undertakes to provide the Company with the Customer Data with sufficient time to allow the Company to perform the Services within any timescales set out in the Schedule. If the Customer fails to comply with this obligation and, as a result of the Customer’s failure the Customer prevents the Company from performing the Services, the Company shall have no liability to the Customer for the resulting delays. Any timescales imposed on the Company for the performance of the Services shall be extended by a reasonable period of time to accommodate the delay to the Services caused by the Customer’s actions.
4.10 The Customer warrants that, as at the date of delivery to the Company, the Customer Data is accurate and up to date and that the Company may use it in order to perform the Services.
4.11 The Customer warrants that the Customer shall be solely liable for the integrity, source and status of all Customer Data, including any Customer Contact Lists.
4.12 The Customer warrants that any and all Question Sets and information scripts that the Customer approves for the Company to use in connection with the Services are true and accurate in all material respects.
4.13 The Customer warrants that it shall not issue, produce or originate any information or make any statement (using Company Data or otherwise) that is untrue, false, incorrect or misleading, including, but not limited to, information relating to the Customer’s identity and contact details.
4.14 All Company Data obtained on behalf of the Customer shall be paid for by the Customer whether or not the Company Data is used by the Customer.
4.15 The Customer is not permitted to supply, transfer or otherwise make available any Company Data to any third parties.
4.16 The Customer warrants that any products and services which the Company has been engaged to market for the Customer are, for products, as described and of merchantable quality and will, for services, be performed satisfactorily.
4.17 The Customer warrants that it will not conduct any business activities which are or could reasonably be considered to be illegal, immoral or obscene and agrees not to use the Services for any such purpose.
4.18 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services or termination of the Contract, as applicable, solicit or entice away from the Company, or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
4.19 Any consent given by the Company in accordance with Condition 4.18 shall be subject to the Customer paying to the Company a sum equivalent to 25 % of the then current annual remuneration of the Company’s employee, consultant or subcontractor.
5. CHARGES AND PAYMENT
5.1 The Charges shall be as set out in the Schedule.
5.2 The Company will charge Value Added Tax at the rate applicable at the invoice date.
5.3 The Company may increase the Charges where the increase is to take account of any increase in costs, charges and/or expenses incurred by the Company and/or any change of instructions from the Customer. The Charges will also be revised if the Company and the Customer both agree a revision to the scope of the Services.
5.4 Any waiver or reduction of the Charges (or any part thereof) will only be applicable if agreed by the Company in writing.
5.5 All Customers will be credit checked by the Company and the Company will either approve or refuse credit, at the Company’s sole discretion. The Charges shall be paid by the Customer to the Company, as follows:
(a) if the Company has approved the Customer’s credit, the Company’s invoices must be paid within 30 days of the date of the Company’s invoice, unless stated otherwise on the Schedule; or
(b) if no credit terms have been approved, then full payment of the Charges must be made immediately following acceptance of the Customer’s order by the Company pursuant to Condition 2.5.
5.6 Any Set-Up Fee will be referred to in the Schedule and the Customer shall pay such Set-Up Fee at the same time stipulated for payment of the Charges in Condition 5.5.
5.7 Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
5.8 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
5.9 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
5.10 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 5.
5.11 Without prejudice to Condition 5.10, any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 9.1 (b)-(e) shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
(a) to suspend or cancel the performance of the Services;
(b) to withdraw or reduce any agreed monthly credit limit; and
(c) to treat the Contract as having been repudiated by the Customer.
6. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer and the Company agree that in the course of the Company providing Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will not use the Confidential Information other than to perform their obligations under the Contract. Each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent.
6.2 The Customer shall retain ownership of any and all Intellectual Property Rights in any and all Input Material.
6.3 The Company shall retain ownership of all Intellectual Property Rights in all Output Material. All Intellectual Property Rights in anything developed by the Company in carrying out the Services (including, without limitation, any presentation methodologies and any corresponding briefs, proposals and reports) shall vest solely and exclusively in the Company. The Company shall own all telephone lines and telephone numbers that are used in providing the Services. If any Output Material is incorporated into the Deliverables, then once the Customer has paid the Company all invoiced sums which are due to the Company under the Contract and the Company has expressly confirmed this to the Customer in writing, the Customer shall be granted a non-exclusive, royalty free, right to use such Output Material in conjunction with the Deliverables to such extent as is necessary to enable the Customer to enjoy the benefit of the Services.
7. LIMITATION OF LIABILITY AND INDEMNITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
7.1 Subject always to any additional limitation of the Company’s liability elsewhere in these Conditions, this Condition 7 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Output Material, or any part of them or it; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
7.2 With respect to the Company’s liability hereunder, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.3 Nothing in these Conditions limits or excludes the liability of the Company:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Company;
(c) for any matter for which it would be illegal for the Company to limit or exclude or to attempt to limit or exclude its liability; or
(d) for any liability incurred by the Customer as a result of any breach by the Company of the conditions implied by section 2 of the Supply of Goods and Services Act 1982.
7.4 Subject to Condition 7.2 and Condition 7.3:
(a) the Company shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.
7.5 If the Company’s performance of its obligations under the Contract is prevented, suspended, delayed, or otherwise adversely affected by any act, omission or delay of (or occasioned by) the Customer, the Company shall not be liable for any costs, charges or losses incurred by the Customer arising directly or indirectly from the prevention or suspension of, or delay in or adverse effect on, the performance of the Company’s obligations, but the Customer shall be liable for any costs, charges or losses so incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation and loss of opportunity to deploy resources elsewhere), subject to the Company confirming such costs, charges and losses to the Customer in writing.
7.6 The Customer shall be liable to pay to the Company, on demand, all costs, charges or losses incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform, or breach of or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
7.7 The Customer shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform, or breach of or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
8. DATA PROTECTION
8.1 In order to perform the Services, the Company may need to Process Customer Personal Data.
8.2 When Processing the Customer Personal Data, the Company agrees to comply with its obligations as a data processor under the DPA.
8.3 The Company agrees to:
(a) maintain technical and organisational security measures sufficient to comply with the obligations imposed on the Company by the DPA as a data processor;
(b) only Process the Customer Personal Data for the purposes of performing the Services and in accordance with the Customer’s instructions from time to time; and
(c) not transfer the Customer Personal Data outside the EEA without the Customer’s prior written consent.
8.4 In respect of any Company Personal Data, the Customer is the data controller for the purposes of the DPA. It is the Customer’s responsibility to notify the Company of the purpose for which the Customer intends to use such Company Personal Data and to whom it may be passed so that the Company can inform relevant individuals regarding the potential uses of their Personal Data at the time of data capture. Please note that this is an obligation imposed on the Customer as a data controller under the DPA and the Company does not accept any responsibility for ensuring the Customer’s compliance with the DPA.
8.5 Unless specifically stated otherwise in the Schedule, the Customer shall be solely responsible for providing Corporate Telephone Preference Services (CTPS) clearance services in respect of all Customer Data, including any Customer Contact Lists.
9.1 Either party shall be entitled to immediately terminate the Contract on giving written notice to the other if:
(a) the other party commits any material or persistent breach of any of these Conditions and in the case of such a breach which is capable of remedy, fails to remedy the same within 14 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied (for the avoidance of doubt, any late payment or failure to pay any sums due to the Company shall be deemed to be a material breach); or
(b) an incumbrancer takes possession or a receiver is appointed over any of the property or assets of the other party; or
(c) the other party makes a voluntary arrangement with its creditors or becomes the subject of an administration order; or
(d) the other party enters into insolvency proceedings or has a bankruptcy order made against it, or goes into liquidation (except for the purposes of amalgamation, reconstruction or other reorganisation); or
(e) the other party ceases or threatens to cease to carry on its business.
9.2 Termination of the Contract shall be without prejudice to any accrued rights and remedies of either party.
10. FORCE MAJEURE
Neither party shall be liable to the other for any loss or damage which may be suffered by the other due to any cause beyond either party’s reasonable control including, but not limited to, any failure of telephone or database systems, Act of God, terrorism, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour shortage, any act or omission of government, telecommunications operators or administrators or other competent authorities, war, military operation, or difficulty, delay or failure in manufacture, production or supply by third parties of materials or equipment necessary to carry out either party’s obligations under the Contract.
Notwithstanding the provisions of Condition 2.2 (which shall not apply to this Condition 11), the Company reserves the right without prior approval from or notice to the Customer to make any changes to the Services which are required to conform to any applicable statutory or regulatory requirements or which, in the reasonable opinion of the Company, do not materially affect the specification of the Services.
12.1 No forbearance or indulgence granted by the Company to the Customer shall in any way limit any right of the Company under these Conditions.
12.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business.
12.3 Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.5 The Company, but not the Customer, shall be free to sub-contract or delegate to any third party any or all of its obligations under the Contract without seeking the prior consent of the other party.
12.6 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
12.7 Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties. The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final.
12.8 These Conditions shall be subject to and construed under English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts for that purpose.