Legal Terms

1   DEFINITIONS AND INTERPRETATION

1.1          In this Agreement:

“Affiliates” in relation to any party means, any companies, corporations, partnerships, trusts or other entities which are either (i) more than 50% owned by such party, or (ii) owners of more than 50% of such party, or (iii) more than 50% owned by the same entity which owns such party.

“Company” means the assignor / customer(s) / client(s)

“Contractor” means the assignee / Next-Ops Support Services Ltd.

“Agreement” means this agreement including the Appendices.

“Aircraft” means any of the aircraft acceptable in the Nigeria Airspace and approved by the Nigeria Civil Aviation Authority; that is provided by the Company for her operations/services.

“Applicable Currency” means the currency or currencies set out, being the currency or currencies in which the Charges are to be invoiced by the Contractor and paid by the Company.

“Applicable Jurisdiction” means the legal jurisdiction set out.

“Applicable Laws” means (i) any and all laws, statutes, regulations, by-laws, orders, ordinances and court decrees that apply to the performance of the Services, or (ii) the terms and conditions of any applicable approvals, consents, exemptions, filings, licences, authorities, permits, registrations or waivers issued or granted by, or any binding requirement, instruction, direction or order of, any applicable government department, authority or agency having jurisdiction in respect of that matter.

“Area of Operation” means the country, area or region set out.

“Available” means that, when the Contractor is required to be available to the services of the Company under the terms of this Agreement.

“Charges” means the charges to be paid by the Company to the Contractor for the Services, as set out in and calculated in accordance with Rates & Prices.

“Company Group” means (i) the Company and its Affiliates; (ii) if applicable, any other entity with whom the Company is or may be from time to time a party to a joint operating agreement or unitisation agreement or similar agreement and/or other activities relating to the operations for which the Services is being performed and their respective Affiliates and successors in interest; (iii) the Company’s contractors (other than the Contractor) and sub-contractors; (iv) the Passengers; and (iv) the officers, employees, consultants, and agents of any entity listed in this definition (other than the Contractor).

“Confidential Information” means the terms of this Agreement and all information and data belonging to or relating to a party, its Affiliates, it’s or their businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed, directly or indirectly (whether in writing, orally or by any other means) by it to the other party before, on or after the date of this Agreement.

“Contractor Group” means (i) the Contractor and its respective Affiliates; (ii) the Contractor’s contractors and sub-contractors; and (iii) the officers, employees, consultants, and agents of any entity listed in this definition.

“Effective Date” means the date so specified or, if no such date is specified, the date on which  both parties executes their first contract.

“Flight” means a flight in the Aircraft which commences when the Aircraft first moves under its own power for the purpose of flight until it next comes to rest for the purpose of shutting down.

“Gross Negligence” means any act or failure to act (whether sole, joint or concurrent) by any person or entity which was in reckless disregard of or want on indifference to, harmful, avoidable and reasonably foreseeable consequences.  For the avoidance of doubt, Gross Negligence shall require a higher degree of fault than what is required for negligence.

“Month” means one calendar month which is sub‑divided into 30 equal parts for pro rata purposes.

“New Taxes” means any taxes that have become applicable to Contractor, or have ceased to be applicable, to the performance of this Agreement after commencement of this Agreement (specifically excluding taxes enacted into law prior to the commencement of this Agreement but applying only to periods after commencement, due to: (a) a change in such performance, such change having been agreed in writing between Company and Contractor; or (b) any amendment or addition to Applicable Laws, and shall include any change in the application of the import exemption and any changes in status of sales tax, purchase tax, VAT or similar from applicable to exempt, but shall exclude any fines, penalties, interest, or any payment imposed as a result of Contractor’s delay, omission, default or negligence in complying with the legislation.

“Operational Base” means the Contractor’s base or other base(s) specified in the request from which the Services shall be agreed to be provided by the Contractor.

“Passengers” means individuals, whether or not employed by Company, nominated by Company for a Flight.

“Services“ means the specific services detailed in clause 2.1 below and Appendix 2 (Contractor Services) to be provided by the Contractor in accordance with the terms of this Agreement.

“Taxes” means any tax, national or local, imposed in relation to the performance of this Agreement, before or after commencement of the Services, by any applicable authority empowered to levy taxes, including, but not limited to, profit tax, excess profit tax, withholding tax, income tax (whether in relation to physical or legal persons), value added tax, capital gains tax, duty, including all customs duties and fees and all import and export taxes and duties, tariffs, transport tax, vehicle tax, sales tax or other ad valorem or consumption tax, stamp duty, equity or capital stock tax, foreign exchange tax, commission fee or duty, employee social security contributions or taxes, payroll and employment taxes, registration duties or taxes, environmental taxes or payments, any levy, fixed rental payment or any other rental or real estate tax including land lease payments, land tax and land use compensation payment, impost, charge, fee or compulsory contribution, penalty, fine, or interest for late payment.

“Termination Date” means the expiry date so specified or deemed fit.

“Term” means the period during which this Agreement is in full force and effect as determined by clause 3.

“Third Party” means a person not being a member of the Company Group or the Contractor Group.

1.2          In this Agreement (except where the context otherwise requires):

1.2.1       a reference to a clause or Appendix is to a clause of or Appendix to this Agreement;

1.2.2       clause headings are for convenience and shall not affect the interpretation of this Agreement;

1.2.3       use of the singular includes the plural and vice versa and use of any gender includes the other genders;

1.2.4       a reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality);

1.2.5       “including” ,“include”, “in particular” shall be interpreted with the words “without limitation” after them;

1.2.6       if there is a contradiction between the body of this Agreement and the Appendices the former shall take precedence; and

1.2.7       reference to statutes, bylaws, regulations, rules, delegated legislation or orders are to the same as amended, modified or replaced, from time to time, and to any bylaw, regulation, rule, delegated legislation or order made there-under.

2              APPOINTMENT

2.1          Company appoints Contractor to provide flight support services on Flights/airplanes to meet the Company’s operational requirements for the purpose(s) nominated by Company, on such days and times as advised by Company, and Contractor accepts such appointment, with effect from the date of which the request was received.

2.2          Contractor shall use all reasonable endeavours to perform the Services but Company acknowledges that Contractor’s obligation to provide the Services is strictly subject to the rules and regulations guiding the country/aerodrome(s) in which the operation is to take place.

2.3          Notwithstanding the fact that an Operation was considered by the Company to be Available for Contractor to provide the Services, the Contractor shall not be deemed to be in breach of any the provisions of clause 2.1 and 2.2 above if the Contractor is not able at any time to provide any Services due to any reason “outside the Contractor’s control”.  The term “outside the Contractor’s control” shall include the following occurrences:

2.3.1       any decision by the Civil Aviation Authority/legal authority as to whether or not a flight should be undertaken, and as to the manner of performing the Services and operations under this Agreement;

2.3.2       any Applicable Law making flight operations impossible; or

2.3.3       the default of Company in any of its obligations and/or responsibilities under this Agreement.

2.4          Contractor shall advise the Company promptly of such circumstances pursuant to clause 2.3 above.

3              DURATION

3.1          This Agreement shall commence on the Effective Date an operational request is received by the contractor and shall expire on the Termination Date unless (a) it is terminated earlier in accordance with the terms of this Agreement or (b) prior to the Termination Date, the parties agree in writing to extend the Agreement.

3.2          Notwithstanding any other provisions of this Agreement, either party shall have the right to terminate the Agreement at any time for convenience by providing to the other party the required period of prior written notice.

4              Company’S OBLIGATIONS

4.1          Company shall:

4.1.1       Furnish the contractor with detailed information via E-mail regarding her operation into  the region.

4.1.2       Request for advise where deemed fit on her operations which may include but not limited to: the Civil Aviation Authority’s (CAA) requirements, Notams, Airport Operating hours/information, weather reports/conditions and any necessary information.

4.1.3       Provide/forward as soon as possible all necessary requirements for smooth flight operation such as fuel release, ICAO Operational flight plan, General Declaration (GENDEC), Aircraft documents (for landing permit procurements), passenger manifest and all other documents (requested) relating to any operating aircraft into the region.

4.1.4       Shall be timely in settling all forwarded invoices in accordance with the agreed terms.

5       CONTRACTOR’S OBLIGATIONS

5.1          Contractor shall:

5.1.1       Perform the Services with all due care and diligence and with the skill expected of a reputable Contractor experienced in performance of the type of services to be provided under this Agreement;

5.1.2       Perform the Services in compliance with all Applicable Laws;

5.1.3       provide at the Operational Base(s)required services for the operation as deemed fit and also advise the company, provide movement messages and situational reports to the company via e-mails/telephone calls with regards to the flight operations including passenger handling facilities; and

5.1.4       Arrange/liaise with fuel suppliers/company with regards to fuel release for fuel necessary for the operation of the Aircraft.

5.2          The Contractor shall perform the Services and shall comply with its obligations under clause 4.1 as an independent contractor and neither it, nor its agents or employees shall be deemed to be employees of the Company.

6              PERSONNEL

6.1          Contractor shall provide all personnel necessary to perform the Services and shall ensure that the Services are performed by personnel who are under the sole direction of Contractor and who have the necessary skill and expertise to provide the Services in accordance with the provisions of this Agreement.

6.2          All such personnel who are directly engaged in providing the Services under the terms of this Agreement shall be the employees of the Contractor, who shall be solely responsible for payment of salaries to all such personnel.

6.3          The Contractor shall ensure that all such personnel who are directly engaged in providing the Services under the terms of this Agreement comply with Applicable Laws.

7              BUSINESS ETHICS

7.1          Both the Company and the Contractor insist on honesty, integrity, transparency and fairness in all aspects of their business and expects the same in their relationships with all those with whom they do business.  The direct or indirect offer, payment, soliciting and acceptance of bribes in any form are unacceptable practices.

7.2          Notwithstanding the provisions of clause 13 (Termination), either party shall be entitled to terminate this Agreement if the other party or any of its Affiliates shall, in relation to the Agreement, have committed any act on or after the effective date of commencement of the Agreement which is an offence under any relevant applicable legislation relating to proper business practices and payment of inducements from time to time in force in the countries where the Services are to be carried out.

8              CHARGES

In consideration of the performance of the Services provided by Contractor to Company pursuant to this Agreement, Company shall pay to Contractor the amounts provided in Rates & Prices (invoice) at the times and in the manner agreed upon and in clause 10 (Payment) below.

9              AUDIT RIGHTS

9.1          If appropriate either:

9.1.1       for the purpose of verifying that no Service that is supposed to be included in the rates of the Contractor is invoiced as a reimbursable item and that all the Services that are supposed to be provided for in the rates of the Contractor are so provided;

9.1.2       for the purpose of reviewing and verifying (i) the costs of reimbursable items and/or (ii) the quantities both of reimbursable items and of any items chargeable by specified rate, or

9.1.3       for the purpose of an operational and technical audit to confirm that the Contractor has complied with its operational and technical obligations under this Agreement, the Company or its authorised representatives shall have sufficient access at office hours to all relevant books, records, computer programs, tapes, correspondence, instructions, plans, drawings, receipts and vouchers relating to the Services, upon giving reasonable notice to the Contractor.  Notwithstanding the foregoing, the Company shall not be entitled to investigate (i) documents or records protected by attorney/client privilege; (ii) documents or records held by the Contractor under obligation of confidentiality to a third party; (iii) documents or records collected by the Contractor and maintained in separate files in connection with pending or threatened litigation, government investigation or prosecution; (iv) documentation relating to the verification of the fixed charges, and (v) any of the Contractor’s proprietary information, trade secrets or formulas. The Company shall keep confidential any documents or records held by the Contractor in accordance with Clause 17 of this Agreement.

9.2          The above audit rights of the Company shall continue for a period of six (6) months after expiry, or if earlier, termination of this Agreement, and the Contractor shall preserve (and shall procure that its sub-contractors preserve) all documents for the same said period.

10            TAXES & DUTIES

10.1        The Contractor shall charge the Company value added tax, sales tax or other ad valorem or consumption tax (“VAT”) at the applicable rate on all services supplied under this Agreement (including without limitation the Services), unless Company informs Contractor prior to a supply of goods, works or services being made, that a particular supply is subject to VAT at zero rate.  In the event that Company so notifies Contractor, Contractor shall charge Company VAT at zero rate, and Company shall be liable for, and hold Contractor harmless in respect of any liability or claim that Contractor is subject to, as a result of complying with Company’s instruction to charge such VAT at zero rate.  To the extent that payments to be made under this Agreement attract VAT, the Contractor shall issue to the Company a valid VAT invoice, which shall detail the proper amount of such VAT payable.

10.2        Subject to clause 10.3 below, the Contractor shall primarily bear and be liable for all Taxes and New Taxes and shall, at its expense, pay all Taxes and New Taxes in accordance with Applicable Laws whether related directly or indirectly to this Agreement.

10.3        The sums payable to the Contractor by Company under this Agreement shall be adjusted in respect of, and to the extent of, the Contractor’s costs of performing the Services being increased as a result of: (a) new or amended, changed or varied directions, rulings, regulations, laws or decrees of any regulatory body or any applicable government agency or agencies; or (b) any amendment to the Applicable Laws or regulations, or (c) any taxes that have become applicable to Contractor, or have ceased to be applicable, to the performance of this Agreement after commencement of this Agreement (including without limitation any change in the application of the import exemption and any changes in status of sales tax, purchase tax, or similar), subject only to the Contractor providing Company with reasonable written proof of being subject to any such directions and the effect of those new directions on the Contractor’s costs of performing the Services.

10.4        If a payment due from the Company under this Agreement is subject to Taxes (whether by way of direct assessment or withholding at its source), Company may withhold from payments otherwise due to Contractor pursuant to this Agreement any Taxes or amounts required to be withheld by any Applicable Law legally in force at the time of deduction, provided that Company undertakes to Contractor to:

10.4.1    pay any amounts so withheld to the applicable authorities in accordance with the relevant Applicable Law; and

10.4.2    make available to Contractor any and all receipts and/or other documentation in the name of the Contractor for any amounts so withheld when they are received by the Company from the applicable authorities or the body authorized to collect such deductions made by the Company and to use all reasonable endeavours to procure that such receipts and/or other documentation are legally valid under the relevant Applicable Law.

11            PAYMENT

11.1        The Contractor will submit to the Company invoices in accordance with the provisions in Rates & Prices. Each invoice shall show separately the individual amounts charged together with any VAT if applicable and shall be forwarded to the address specified or provided by the Company.

11.2        The contractor will submit to the company all back-up/supporting documents with regards to the service(s) rendered and invoiced.

11.3        The Company shall pay, in advance / cash on delivery of service / on credit facility as approved by the contractor for Contractor’s performance of the Services, the Contractor’s Rates and Prices in full, without deduction, set-off or counterclaim. On credit facility, contractor shall provide to the company service(s) on credit at the contractor’s discretions, with a payment period of twenty-one days (21 days) from receipt of invoice and ten percent (10%) mark-up as disbursement fee. However, overdue invoice(s) will be charged two percent (2%) monthly compound interest rate after 30days. Notwithstanding any other provision in this Agreement, Contractor shall not be obliged to perform any Services in the event that payments are not made for previous services rendered.

11.4        Unless otherwise agreed in writing by the parties, all payments due under this Agreement shall be made in the Applicable Currency.

12            CANCELLATION

Contractor shall acknowledge and not charge / invoice the company for any pre-arrangement fee due to cancellation. However, this does not include (a) PERMITS (Over-flight / Landing) already obtained with regards to the flight before cancellation, this will be invoiced to the company. (b) Visa-On-Arrival (VOA) processed, obtained or not but had been processed to the final stage will attract processing fee chargeable to the company. (c) Catering already ordered from catering organisation, prepared or in process (d) any other third party service(s) that is charged due to the cancellation.

13            TERMINATION

Without prejudice to any other rights to which it may be entitled, either party may by notice to the other terminate this Agreement with immediate effect if the other party:

13.1        Commits a material breach of the terms of this Agreement which is not capable of remedy;

13.2        commits a material breach of the terms of this Agreement which is capable of remedy but fails to remedy that breach within fourteen (14) days of being notified of the breach;

13.3        ceases to carry on business, or suffers or allows any execution, whether legal or equitable, to be levied on its assets or obtained against it, or goes into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purposes of bona-fide reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed in respect of all or any of its assets, or is the subject of a court resolution or petition for its winding up, or takes or is subject to any steps (including, without limitation, the making of an application or the giving of any notice) for the appointment of an administrator in respect of the other party, or is subject to any other proceedings or similar action relating to its insolvency or possible insolvency.

14            EFFECTS OF TERMINATION

14.1        Upon termination each party shall promptly return to the other all other property of the other in its possession or control.

14.2        Provisions which either expressly or by implication are to survive termination will continue to have effect after the termination of this Agreement.

14.3        Any rights arising pursuant to antecedent breaches shall not be waived by the termination of this Agreement (including without limitation any Charges unpaid at termination for Services carried out prior to such termination in accordance with this Agreement).

15            FORCE MAJEURE

15.1        Except for terms or conditions relating to payment of sums owed by one party to the other, neither Company nor Contractor shall be in breach of this Agreement, or otherwise liable or responsible to the other party, by reason of any failure to fulfil or any delay in fulfilling any term or condition of the Agreement (except the obligation to pay) if and to the extent that fulfilment has been delayed by a Force Majeure Event.

15.2        A “Force Majeure Event” means any cause, event or circumstance which is beyond the reasonable control of, and without the fault or negligence of, the party affected.  For the purpose of the Agreement, examples of Force Majeure Events shall include but not be limited to riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, seizure, hijacking, civil war, civil commotion, malicious damage, rebellion, revolution, insurrection of military or usurped power; pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds; an act of God, earthquake, flood, fire, lightning, explosion, storm, cyclone, typhoon or hurricane or other natural physical disaster, strikes or industrial disputes at a national or regional level, or strikes or industrial disputes by labour not employed by the affected party which affect a substantial or essential portion of the Services, or strikes or industrial disputes or its suppliers over which the affected party has no reasonable control or influence; maritime and aviation disasters or accidents;compliance with, or changes to, any Applicable Law; and pandemic outbreaks.

15.3        If either party is unable to perform any of its obligations under this Agreement (other than terms or conditions relating to payment of sums owed by one Party to the other) by reason of a Force Majeure Event, it shall as soon as reasonably practicable so notify the other party of the matters constituting the Force Majeure Event and provide it with all such information as it may have at that time regarding the course of Force Majeure Event and its anticipated duration and shall thereafter keep the other party regularly informed as to the anticipated duration of the Force Majeure Event. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.

15.4        If the performance of the Contractor’s obligations under this Agreement is prevented, hindered or delayed by a Force Majeure Event which continues for a period of 14 days, either party may terminate this Agreement on giving written notice of termination to the other without liability for any loss, damage, cost or expense as a result of such termination, but without prejudice to any rights the Contractor may have in respect of Charges unpaid at termination for Services carried out prior to such termination in accordance with this Agreement.

16            CONFIDENTIALITY

16.1        During the Term and thereafter each party shall, in relation to the Confidential Information of the other party:

16.1.1    keep the Confidential Information confidential and not make or release copies of it;

16.1.2    not disclose the Confidential Information to any other person other than with the prior written consent of the other party;

16.1.3    not use the Confidential Information for any purpose except the performance of its obligations under this Agreement;

16.1.4    not use any Confidential Information so as to procure any commercial advantage over the other party.

16.2        During the Term each party (the “Discloser”) may disclose the Confidential Information of the other party to its Affiliates, employees, agents or contractors (“Group Members”) but only to the extent reasonably necessary to perform properly its obligations under this Agreement and provided that before disclosure of any of the Confidential Information to any of the Group Members the Discloser procures that each such Group Member is aware of the obligation of confidentiality and undertakes to keep Confidential Information confidential.  In any event, the Discloser shall be responsible for any unauthorised disclosure of Confidential Information by the Group Members as though such breach were committed by it as a party to this Agreement.

16.3        The obligations contained in clauses 16.1 and 16.2 shall not apply to any Confidential Information which is in or comes into the public domain other than through breach of this Agreement by the party receiving the Confidential Information (the “Receiving Party”), or can be shown by the Receiving Party to the reasonable satisfaction of the other party to have been known by the Receiving Party before it was disclosed by the other, or subsequently comes lawfully into the possession of the Receiving Party from a person who is rightfully in possession of such Confidential Information and who is not bound as to its use or disclosure by an obligation of confidence or secrecy to the other party, or is required to be disclosed by any Applicable Law or is required to be disclosed by the regulations of any recognised investment exchange or other regulatory organisation provided that, before disclosing any such Confidential Information, the Receiving Party shall (to the extent legally permitted) notify the Disclosing Party in advance of the required disclosure and consult with the Disclosing Party on reasonable steps to limit the required disclosure.

16.4        Without prejudice to any other rights or remedies that the Disclosing Party may have, the Receiving Party acknowledges and agrees that if the Confidential Information is used or disclosed other than in accordance with the terms of this Agreement, the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable relief for any threatened or actual breach of the provisions of this clause, in addition to any damages or other remedy to which it may be entitled.

17            DISPUTES

17.1        The Contractor and the Company shall negotiate in good faith with a view to resolving any question or difference which may arise concerning the construction, meaning or performance of this Agreement and any dispute arising out of, or in connection with, this Agreement.

17.2        If any such matter cannot be resolved amicably through negotiations between the designated representatives of Contractor and the Company within 30 days of a written notice from either party to the other under this clause, then the matter shall be referred by Contractor or the Company to a meeting to be convened between the Business Unit Managing Director (or equivalent title) of the Contractor and Aviation Services Managing Director (or equivalent title) for the Company. If any such meeting fails to result in a settlement of the matter in dispute within 30 days of such referral to it (or it is not possible to complete such a meeting within this period), then the matter shall be subject to referral to the Courts of the Applicable Jurisdiction.

18            ASSIGNABILITY

18.1        Company shall have the right to assign this Agreement and/or any or all of its rights and/or obligations hereunder to any third party, subject to having obtained the prior consent of Contractor, which may be granted or withheld at the Contractor’s sole discretion.

18.2        Contractor shall have the right to assign this Agreement and/or any or all of its rights and/or obligations hereunder to any third party, subject to having obtained the prior consent of Company, which may be granted or withheld at the Company’s sole discretion.

19            SUB-CONTRACTING

19.1        The Contractor shall have the right at all times to sub-contract any rights, duties or interests arising under this Agreement, in whole or in part, (a) to any of its Affiliates and (b) to any third party provided always in either case that the Contractor shall be responsible for any acts, defaults and neglects of any sub-contractor, its employees, servants or agents as fully as if they were the acts, defaults and neglects of the Contractor, its employees, servants or agents.

20         VARIATIONS

20.1        The provisions of this Agreement shall only be amended, upon the formal issue by the Contractor of a variation document, which shall be stated in writing and agreed and signed by both parties.  All such signed variation documents shall be dated and numbered in sequential order.

20.2        A variation document shall in no way affect the rights or obligations of the parties except as expressly provided in the applicable agreed and signed variation document.  All variation documents shall be governed by all provisions of this Agreement.

21          GENERAL

21.1        Each party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Agreement and of each document referred to in it.

21.2        Subject to the rights of Company and/or any third party licensor in respect of any pre-existing materials which are used by Contractor in order to provide the Services, all intellectual property rights (including without limitation copyright, patent rights, domain names, rights in computer software, service marks, trademarks, rights in goodwill or rights to sue for passing off, design rights, data base rights, know how, trade secrets, technical information, confidential process information, trade and business names, proprietary information and all similar rights, whether registered or not and all rights to apply for such registrations which subsist now or in the future in any part of the world) in the Services and any documents, materials, data or information in whatever form provided by the Contractor to the Company in connection with the Services belong to Contractor.  However, Contractor shall not unreasonably refuse any request from Company for a non-exclusive licence to be granted to it to use the information contained within any formal reports specifically produced by Contractor for Company in connection with the Services, provided the scope of the licence is limited solely to Company’s internal purposes. The provisions of this clause shall survive the expiry or termination of this Agreement.

21.3        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.

21.4        This Agreement, and the documents referred to in it, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.

21.5        Any conditions or warranties other than those expressly set out in this Agreement (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) are expressly excluded from this Agreement to the fullest extent permitted by law. Nothing in this clause shall limit or exclude liability for fraud.

21.6        If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.

21.7        Any notice or similar communications under this Agreement shall be in writing, in English, and shall be delivered personally, sent by pre-paid registered or recorded delivery post (and air mail if overseas), E-mail or by fax to the recipient party at its address set out at the beginning of this Agreement or such other address as that party may specify by notice to the other party.

21.8        This Agreement may be executed in counterparts or duplicates, each of which, when executed and delivered, shall be an original and such counterparts or duplicates together shall constitute one and the same instrument.

21.9        No terms of this Agreement shall be enforceable by a third party whether under any Applicable Laws or for any other reason.

21.10      This Agreement shall be governed by and construed in accordance with the law of the Applicable Jurisdiction and each party agrees to submit to the exclusive jurisdiction of the Courts of the Applicable Jurisdiction over any claim or matter arising under or in connection with this Agreement.