Terms and Conditions of sale

1 Interpretation

1.1 Definitions

• “Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
• “Conditions” these terms and conditions set out in clause 1 to clause 9 (inclusive).
• “Contract” the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with any quote issued by the Supplier, the purchase order submitted by the Customer (where applicable), the Order Confirmation provided by the Supplier, any Specification applicable and these Conditions.
• “Delivery Date” the date specified for delivery of Goods as specified in an Order Confirmation.
• “Delivery Location” the address for delivery of the Goods, as specified in an Order Confirmation.
• “Force Majeure Event” events, circumstances or causes beyond a party’s reasonable control, including acts of God, flood, drought, earthquake, or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination, or sonic boom, collapse of buildings, loss or delay of goods, materials or components at sea, fire, explosion or accident, interruption or failure of utility service, the actions of any applicable customs or border agency, or non-performance by suppliers or subcontractors. .
• “Goods” the goods (or any part of them), as set out in the Order Confirmation.
• “Intellectual Property Rights” (IPR) patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks;  business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
• “Order Confirmation” the order confirmation for the Goods issued by the Supplier to the Customer.
• “Price” the price for the Goods, as set out in the Order Confirmation.
• “Specification” the specification for the Goods agreed in writing by the Customer and the Supplier, as set out in the Order Confirmation.
• “VAT” value added tax or any equivalent tax chargeable in the UK or elsewhere.

1.1.1 Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order Confirmation or otherwise in the Contract.

2 The Goods

2.1  Any samples, drawings, descriptive matter, logos, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.2 To the extent that the Goods (including any bespoke goods) are to be manufactured in accordance with a Specification or logo/illustration supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification, logo or illustration.

2.3 If the Supplier is making or supplying Goods to measurements provided by the Customer, the Customer remains responsible for making sure those measurements are correct.

2.4 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

2.5 Where the Customer requests that the Goods include artwork or logos, these must be supplied to the Supplier in the format either of Adobe Illustrator CS2 or a lower version; or as in Adobe EPS. Where artwork or logos are not provided in an approved form, the Supplier reserves the right to charge a studio fee of £100 an hour excluding VAT in addition to the quoted Price. If there are any additional costs incurred by the Supplier in having to amend artwork or logos, these will be invoiced in full to the Customer.

2.6 Unless otherwise agreed in writing and subject to the terms of any previously agreed non-disclosure agreement, the Supplier shall have the right to display marketing materials including the Goods on their website and at their sales office. In respect of any Goods which include Customer logo or branding, the Customer grants the Supplier a royalty-free, licence to use its IPR for such use and purpose.

3 Delivery

3.1 The Supplier shall endeavour to deliver Goods to the Delivery Location or have Goods ready for collection at the Delivery Location on the relevant Delivery Date. The Customer shall collect Goods from the Delivery Location within three (3) Business Days of the Supplier notifying the Customer that they are ready if the Goods are being collected by or on behalf of the Customer (as applicable).

3.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

3.3 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any failure or delay in delivery of any Goods that is caused by:

3.3.1 a Force Majeure Event; or

3.3.2 the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.4 If the Supplier fails to deliver Goodsor have Goods ready for collection by the relevant Delivery Date, 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.

3.5 If five (5) Business Days after the day on which the Supplier attempted to make delivery of Goods or notified the Customer that Goods were ready for collection the Customer has not taken delivery of or collected those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the Price of the Goods, or charge the Customer for any shortfall below the Price of the Goods.

3.6 If the Supplier delivers up to and including five (5) percent more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the relevant invoice.

3.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

3.8 Delivery prices quoted by the Supplier are for standard forty-eight (48) hour service within the UK. Any additional requirements must be agreed in writing between the parties. The Customer remains responsible for any and all applicable duties, taxes and any customs charges. The Supplier cannot be held responsible for Goods damaged or lost in transit. Any discrepancies must be reported, with photographic evidence, to the Supplier within twenty-hour (24) hours of receipt of the Goods.

4 Quality and fitness for purpose

4.1 The Goods shall be fit for any purpose held out by the Supplier, required by applicable law, or as set out in the Order Confirmation

4.2 Subject to clause 4.3, if:

4.2.1 the Customer disputes that the Goods conform with clause 4.1, it must give notice in writing to the Supplier, within twenty-four (24) hours after discovery that some or all of the Goods do not comply with clause 4.1 and provide sufficient detail and photographic evidence of the cause of the Customer’s complaint; and

4.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and

4.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.

4.3 The Supplier shall not be liable for Goods’ failure to comply with the provisions set out in clause 4.1 if:

4.3.1 the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 4.2;

4.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

4.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

4.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;

4.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

4.3.6 the Goods differ from their descriptionor the Specification as a result of changes made to ensure they comply with applicable statutory regulatory requirements.

4.4 Subject to the extent possible by applicable law, the supplier’s only liability to the Customer if the Goods fail to comply with the provisions set out in clause 4.1 is as set out in clause 7.

4.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

4.6 The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Supplier.

5 Title and risk

5.1 Risk in Goods shall pass to the Customer on completion of loading or unloading the Goods at the Delivery Location or loading of the Goods if being collected from the Supplier by or on behalf of the Customer.

5.2 Title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.

5.3 Until title to the Goods has passed to the Customer, the Customer shall:

5.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

5.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clauses 8.1.2 – 8.1.4; and

5.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods and the ongoing financial position of the Customer.

5.4 Notwithstanding clause 5.3, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in Clause 8.1.2 – 8.1.4 is or is likely to occur.

5.5 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 5.3, and to recover any Goods in which title has not passed to the Customer.

5.6 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price for the Goods to the Seller.

6 Price and payment

6.1 The Customer shall pay for Goods in accordance with this clause 6.

6.2 The Price excludes:

6.2.1 the costs of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in addition to the Price unless otherwise agreed in writing; and

6.2.2 amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice and any other applicable duties, taxes or customs charges. 

6.2.3 The Supplier reserves the right to increase the Price for any undelivered Goods: 

6.2.3.1 by giving thirty (30) days’ written notice to the Customer, such increase to take effect in respect of relevant Goods delivered after the expiry of such notice; or 

6.2.3.2 with immediate effect by written notice to the Customer, where such increase arises as a consequence of any increase in the direct cost to the Supplier of supplying the relevant Goods which is due to any factor beyond the control of the Supplier which may include without limitation, increase shipping or other transportation costs applicable to the goods, materials or components required by the Supplier in respect of the Goods. 

6.3 The Supplier may invoice the Customer for the Price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after the Supplier has informed the Customer it is ready and willing to deliver the Goods or once the goods have been delivered (unless the Customer has paid in advance). The Supplier shall ensure that the invoice includes the date of the Order Confirmation (where applicable), the invoice number, the Customer’s order number, the Supplier’s VAT registration number, and any supporting documentation that the Customer may reasonably require.

6.4 The Customer shall pay invoices in full in cleared funds within thirty (30) following the date of invoice unless otherwise agreed in writing with the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.

6.5 Time of payment is of the essence.

6.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under the terms of this Contract:

6.6.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Barclay’s Bank Plc’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and

6.6.2 the Supplier may suspend all further deliveries of Goods until payment has been made in full.

6.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6.8 Quotations of price are valid for thirty (30) days from the date of the quotation unless otherwise specified. 

6.9 The Supplier reserves the right to review the Price should the Customer seek to vary the details of this Contract. 

6.10 Where the Goods are bespoke, payment is required upon the receipt of the Order Confirmation and prior to the commencement of production of the Goods unless otherwise agreed in writing with the Supplier. 

6.11 Any samples supplied by the Supplier are done so upon approval and where not returned within thirty (30) days are deemed to be sold to the Customer from the date of dispatch and the Customer will be liable for payment of the sample at the prevailing price at the date of dispatch. 

7 LIMITATION OF LIABILITY

7.1 Nothing in this Contract shall limit or exclude the Supplier’s liability for:

7.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

7.1.2 fraud or fraudulent misrepresentation;

7.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

7.1.4 defective products under the Consumer Protection Act 1987; or

7.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

7.2 Subject to clause 7.1, and to the fullest extent permitted by applicable law, the Supplier’s total aggregate liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, shall not exceed the value of the Goods actually delivered under this Contract.

7.3 Subject to clauses 7.1 and 7.2, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for any of the following types of loss:

a) loss of profit;

b) loss of use or corruption of software, data or information;

c) loss of sales or business;

d) loss of agreements or contracts;

e) loss of or damage to goodwill;

f) loss of anticipated savings;

g) indirect or consequential loss; and/or

h) additional costs of procuring and implementing replacements for, or alternatives to Goods not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials.

8 TERMINATION

8.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if: 

8.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of being notified in writing to do so; 

8.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; 

8.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or 

8.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy. 

8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause 8.1.2 to Clause 8.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.

8.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

8.7 Where the Customer seeks to terminate this Contract, this must be in writing. The Supplier reserves the right to invoice the Customer for any work completed or in progress; or materials ordered provided the order which cannot reasonably be cancelled or materials purchased prior to the receipt of the Contract termination notice. 

9 DATA PROTECTION

9.1 Definitions 

9.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures:  as defined in the Data Protection Legislation.

9.1.2 Data Protection Legislation:  all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);

9.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

9.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.

9.4 Without prejudice to the generality of Clause 9.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this Contract.

9.5 Without prejudice to the generality of Clause 9.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Contract:

9.5.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by applicable legislation to otherwise process that Personal Data; 

9.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

9.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

9.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

9.5.4.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

9.5.4.2 the data subject has enforceable rights and effective legal remedies;

9.5.4.3 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

9.5.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

9.5.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

9.5.6 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

9.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by applicable legislation to store the Personal Data; and

9.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 9.

9.6 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under this Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written Contract substantially on that third party’s standard terms of business which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.

10 GENERAL

10.1 Force Majeure 

10.1.1 The Supplier will not be held responsible for failure or delay in the carrying out of our obligations under the Contract arising out of any cause outside its reasonable control or by inability to procure materials or articles except at higher prices due to any such cause and in such circumstances the Supplier shall be entitled by notice to terminate the Contract in whole or in part without incurring any liability to the Customer. 

10.2 Assignment and other dealings.

10.2.1 The Customer shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier. The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

10.3 Variation. 

10.3.1 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The Supplier reserves the right to make minor variations to these Terms and Conditions and/or this Contract to comply with applicable law and any other minor amendments it deems necessary. Up-to-date Terms and Conditions will be available on the Supplier’s website and the Customer is encouraged to review these periodically. 

10.4 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

10.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

10.6 Notices.

10.6.1 Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office 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 by hand, or sent by pre-paid first class post or other next working day delivery service, or email.

10.6.2 A notice shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 10.6.1; or if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second (2^nd) Business Day after posting; or, if sent by email, on receipt of a delivery or read receipt mail from the correct address; or by facsimile, on receipt of a successful transmission report from the correct number; or by airmail, five (5) Business Days after posting. 

10.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of resolution.

10.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

10.8 Dispute Resolution.

10.8.1 In the event that you are unhappy about any aspect of the Contract or the services supplied please contact the Supplier’s Customer Service Team at https://www.touchofginger.com/contact/ and they will do their best to resolve any problems. In the event that the Customer Services Team are unable to resolve the issue, the parties agree attempt to settle a dispute by meeting in a good faith effort to resolve the issue. If this fails, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing. A copy of the request should be sent to CEDR. Unless otherwise agreed in writing, the mediation will start not later than twenty eight (28) days after the date of the ADR notice. 

10.8.2 No party may commence any court proceedings/arbitration in relation to any dispute arising out of this Contract until it has attempted to settle the dispute by mediation. 

10.9 Governing law. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.

10.10 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.