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Keltek Brewery Terms & Conditions of Sale (Issue 5 18th June 2012)
The customer’s attention is drawn in particular to the provisions of clause 11.
1.1 Definitions. In these Conditions, the following definitions apply.
Best Before Date: means the date specified on the packaging of the Goods by which the Goods should be consumed.
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 (together with any further terms incorporated under clause 3), as amended from time to time in accordance with clause 13.6.
Contract: the contract between Keltek and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from Keltek.
Force Majeure Event: the meaning given in clause 12.
Goods: any goods (or any part of them) set out in the Order.
Keltek: The Optoelectonic Manufacturing Corporation (UK) Limited (registered in England and Wales with company number 2577713) trading as the Keltek Brewery.
Order: the Customer’s order for the Goods and/or Services, as set out in the Customer’s purchase order form, whether made on paper, electronically or verbally.
Services: any contract bottling services whereby Keltek bottles products provided by the Customer or bottles its own Goods in bottles designed to the Customer’s specification to which the terms and conditions in the document referred to as ‘KC1BIS1 Contract Bottling Terms & Conditions’ shall also apply.
Standard Stock Items: Goods that are sold, without modification, from Keltek’s standard goods stock and have not been produced specially for a Customer’s Order.
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 faxes and 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 and/or Services in accordance with these Conditions. If the Customer requires alternative terms and conditions that differ from these Conditions these must be agreed in writing and signed by a director of both Keltek and Customer prior to an Order being accepted by Keltek and if any alternative terms are required a new quotation will be provided. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Keltek issues a written acceptance of the Order or attempts to deliver the Goods or provide the Services, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Keltek which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Keltek and any descriptions or illustrations contained in Keltek’s catalogues, brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods and/or Services given by Keltek shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue unless otherwise stated on the quotation.
2.7 All Goods and/or Services are offered for sale subject to availability. Acceptance of the Order is not confirmation by Keltek of availability. If for any reason beyond Keltek’s reasonable control it is unable to supply a particular item of Goods, Keltek will notify the Customer as soon as possible and offer the Customer alternative Goods. If Keltek is unable to contact the Customer Keltek may substitute Goods of a similar variety, which the Customer may return unopened and in good condition for a full refund. In such circumstances Keltek’s liability will be limited to the price for the Goods.
2.8 By placing an Order the Customer confirms that they and any person taking delivery of the Goods and/or any products provided under the Services are over 18.
2.9 All these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. ADDITIONAL TERMS
Where the Customer is also requiring Services the latest issue of the KCBIS1 Contract Bottling Terms & Conditions shall be incorporated into the Contract in addition to these Conditions.
4. GOODS AND SERVICES
4.1 The Goods and/or Services are described in the Order Form.
4.2 Keltek reserves the right to amend the specification of the Goods and/or Services if required by any applicable statutory or regulatory requirements.
5.1 Keltek shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date and the type and quantity of the Goods.
(b) if Keltek requires the Customer to return any packaging materials or containers to Keltek other than casks, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Keltek shall reasonably request. Returns of packaging materials shall be at the Customer’s expense. Risk in any casks or other packaging shall pass to the Customer from the time of delivery until collected by Keltek but all casks shall remain the property of Keltek. Keltek considers all casks returnable and reserves the right to charge for any casks not returned in good condition.
5.2 If the Customer has opted for the Goods to be delivered Keltek 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 Keltek notifies the Customer that the Goods are ready.
5.3 If the Customer has opted to collect the Goods the Customer shall collect the Goods from Keltek’s premises at Candela House, Cardrew Industrial Estate, Redruth, Cornwall, TR15 1SS or such other location as may be advised by Keltek prior to delivery (Delivery Location) within 3 Business Days of Keltek notifying the Customer that the Goods are ready. Customers wishing to collect their Goods will not be covered by Keltek’s insurance during transit and will be charged a packing fee.
5.4 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
5.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Keltek 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 Keltek with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If Keltek 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. Keltek 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 Keltek with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.7 If the Customer fails to accept delivery of the Goods within three Business Days of Keltek notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Keltek’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Keltek notified the Customer that the Goods were ready; and
(b) Keltek shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.8 If 10 Business Days after the day on which Keltek notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Keltek may resell or otherwise dispose of part or all of the Goods.
5.9 The Customer shall not be entitled to reject the Goods if Keltek delivers up to and including 5% more or less than the quantity of Goods ordered.
5.10 Keltek 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.
5.11 Delivery will only be made to someone over the age of 18 and identification must be provided to Keltek’s representatives before the Goods are delivered if requested.
5.12 Keltek reserve the right to not ship Goods to any person or destination where such sale or shipment would be prohibited by the laws of that country and that Customer warrants that it will not resell any Goods to any country where such sale or shipment would be prohibited by the laws of that country. The Customer shall at its own expense be solely responsible for securing any licences and import and export documents that it requires.
5.13 Keltek reserves the right to apply a minimum order quantity for delivery and where applicable this will be specified in the quotation or otherwise specified prior to Keltek accepting the Order.
6.1 Keltek warrants that on delivery, and until the Best Before Date (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable specification . Upon placing an Order the Customer understands and accepts that manufacturing tolerances apply to all specifications. Details of Keltek’s tolerances on any particular specification are available on request.;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by Keltek.
6.2 Unless otherwise agreed within individual Contracts, product quality will be assured to Keltek’s current acceptable quality levels by statistical sampling techniques in accordance with BS6001.
6.3 Subject to clause 6.4, if:
(a) the Customer gives notice in writing to Keltek during the warranty period within a reasonable time of discovery and prior to the Best Before Date, that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) Keltek is given a reasonable opportunity of examining such Goods and having examined the Goods, determines in its sole discretion that the Goods do not comply with the warranty in clause 7.1; and
(c) the Customer (if asked to do so by Keltek) returns such Goods to Keltek’s place of business at the Customer’s cost,
Keltek shall, at its option, remedy or replace the defective Goods, or refund the price of the defective Goods in full.
6.4 Keltek shall not be liable for Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(b) the defect arises because the Customer failed to follow Keltek’s oral or written instructions as to the storage, 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 Keltek following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Keltek;
(e) the defect arises as a result of fair wear and tear to the packaging of the Goods, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause 6, Keltek shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.7 These Conditions shall apply to any replacement Goods supplied by Keltek.
6.8 It is the sole responsibility of the Customer to establish the suitability of the Goods for their particular application, market and end customer requirements. Keltek may at its sole discretion provide data to assist the process but Keltek provides no warranty as to suitability for any particular application, market or customer requirement.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until Keltek has received payment in full (in cash or cleared funds) for:
(a) the Goods and/or Services; and
(b) any other goods or services that Keltek has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as Keltek’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Keltek’s property;
(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;
(e) notify Keltek immediately if it becomes subject to any of the events listed in clause 10.2; and
(f) give Keltek such information relating to the Goods as Keltek may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
7.4 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 10.2, or Keltek 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 Keltek may have, Keltek may at any time require the Customer to deliver up the Goods and, 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.
7.5 Notwithstanding clause 8.2 above, any equipment provided to the Customer, including without limitation, casks, stillage, coolers, hand pumps, cask taps (Equipment) will remain the sole property of Keltek and title shall not pass to the Customer. Risk in such Equipment shall pass to the Customer upon delivery until such time as it is returned to Keltek. The Customer hereby warrants to Keltek that it will keep any Equipment in good repair and condition (fair wear and tear accepted) whilst it is in its possession or control and the Customer shall indemnify Keltek in full in respect of any loss of or damage to the Equipment whilst in the Customer’s care or control. Any breakages must be paid for. The Suppler may demand the return of any Equipment at any time and reserves the right to charge the Customer for any Equipment not returned within a reasonable period following any such request. Such Equipment shall also be returned to Keltek in the event of the Customer becoming subject to any of the events listed in clause 11.2. The Customer must also comply with the requirements set out in clause 8.3 in respect of such Equipment as if it were Goods.
8. PRICE AND PAYMENT
8.1 The price of the Goods and/or Services shall be the price set out in the acknowledgement Keltek sends out to the Customer in response to the Order the Customer has placed, or, if no acknowledgement is issued the price will be as set out in the latest quotation issued by Keltek to the Customer for the Goods and/or Services or, if no price has been quoted or set out in the acknowledgement, the price will be as set out in Keltek’s published price list in force as at the date of delivery.
8.2 Keltek may, by giving notice to the Customer at any time up to 20 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond Keltek’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs).
8.3 Keltek may, by giving notice to the Customer at any time after the following events occur, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a) any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or
b) any delay caused by any instructions of the Customer or failure of the Customer to give Keltek adequate or accurate information or instructions.
8.4 Unless otherwise stated on the quotation, the price of the Goods and/or Services is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall also be paid by the Customer.
8.5 Unless otherwise provided the price of the Goods and/or Services is exclusive of amounts in respect of value added tax (VAT) and all other applicable taxes and duties. The Customer shall, on receipt of a valid VAT invoice from Keltek, pay to Keltek such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.
8.6 Import Duty will be paid on all Goods supplied by Keltek. Evidence that Import Duty has been paid cannot be supplied unless agreed by Keltek in writing prior to the Order being submitted. Prices do not include beer duty unless otherwise stated on the quotation or price list.
8.7 Keltek may invoice the Customer for the Goods on or at any time after the completion of delivery. Notwithstanding the foregoing, Keltek reserves the right at it’s sole discretion to request payment prior to the manufacturing or delivery of the Goods.
8.8 For Customers that have been approved with a credit account, the Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Keltek or as otherwise directed by Keltek. Time of payment is of the essence. For all other Orders payment shall be made in cash or card when the Order is submitted. If other alternative payment terms are required by the Customer these must be agreed by Keltek in writing prior to the Customer submitting the Order.
8.9 If the Customer fails to make any payment due to Keltek under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 3% per annum above Barclays Bank PLC’s base 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.
8.10 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 Keltek in order to justify withholding payment of any such amount in whole or in part. Keltek 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 Keltek to the Customer.
8.11 Goods are not provided on a ‘sale or return’ basis unless an agreement has been made in writing prior to Delivery and it may attract a return fee of which Keltek will confirm to the Customer before agreeing to provide Goods on a ‘sale or return’ basis’. Any sale or return Goods must be returned within the time specified by Keltek upon agreement to provide Goods on a ‘sale or return basis’.
9.1 In the event of an Order being cancelled by the Customer, the Customer shall indemnify Keltek against all losses occasioned by such cancellation.
9.2 The Customer must provide Keltek with at least 20 Business Days notice before cancelling an Order for Services.
9.3 Orders for Standard Stock Items may be cancelled by the Customer by providing Keltek with at least 5 Business Days notice.
10. CUSTOMER’S INSOLVENCY OR INCAPACITY
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, or Keltek 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 Keltek, Keltek may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Keltek without incurring any liability to the Customer, and all outstanding sums in respect of the Goods and/or Services delivered to the Customer shall become immediately due.
10.2 For the purposes of clause 10.1, the relevant events are:
(a) 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) 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;
(b) 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;
(c) (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;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) 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;
(f) (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;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) 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 clause 10.2(a)to clause 10.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in Keltek’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and (l) (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.
10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
The Customer’s attention is particularly drawn to the provisions of this clause 11.
11. LIMITATION OF LIABILITY
11.1 Nothing in these Conditions shall limit or exclude Keltek’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) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Keltek to exclude or restrict liability.
11.2 Subject to clause 11.1:
(a) Keltek shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Keltek’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount paid for the Goods and/or Services.
12. 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, 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.
13.1 Assignment and subcontracting.
(a) Keltek may at any time assign, transfer, charge, subcontract 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, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Keltek.
(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, recorded delivery, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or recorded delivery, 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 by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause 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.
13.4 Waiver. A waiver of any right or remedy under the Contract 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.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by a director of Keltek prior to the Order being placed.
13.7 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.