Template:IETA Master Agreement 18

18 Miscellaneous
18.1 Waiver. No waiver by either Party of any breach by the other of this Agreement operates unless expressly made in writing, and any such waiver is not to be construed as a waiver of any other breach.
18.2 Variation. No variation to the provisions of this Agreement is valid unless it is in writing and signed by each Party.
18.3 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and supersedes and extinguishes any representations previously given or made with respect to its subject matter other than those given or made in this Agreement, but nothing in this Clause 18.3 limits or excludes any liability for fraud in relation to those representations.
18.4 Severability. If any provision or part of a provision of this Agreement is found by a court, arbitrator or other authority of competent jurisdiction to be void or unenforceable, that provision or part of a provision is to be deemed deleted from this Agreement and the remaining provisions to continue in full force and effect. The Parties shall in this event seek to agree upon a valid and enforceable provision or part of a provision to replace the provision or part of a provision found to be void and unenforceable.
18.5 Notices. Any notice or other written communication to be given or made in respect of this Agreement by one Party to the other is to be given or made in writing to the other at the address or contact number or in accordance with the electronic messaging system or e-mail details provided pursuant to Schedule 2 (Elections). A written notice is deemed to have been received:

18.5(a) if delivered by hand, on the Banking Day of delivery or on the first (1st) Banking Day after the date of delivery if delivered on a day other than a Banking Day;

18.5(b) if sent by registered mail, on the second (2nd) Banking Day after the date of posting or, if sent from one country to another, on the fifth (5th) Banking Day after the date of posting; or

18.5(c) if sent by facsimile transmission and a valid transmission report confirming good receipt is generated, on the day of transmission if transmitted before 17:00 hours on a Banking Day or otherwise at 09:00 hours on the first Banking Day after transmission.

18.6 Third Party Rights. Subject to the rights that may accrue to any successor or permitted assignees of the Parties, no provision of this Agreement is be construed as creating any rights enforceable by a third party, and all third party rights implied by law are, to the extent permissible by law, excluded from this Agreement.
18.7 Applicable Law. The Agreement is governed by and is to be construed in accordance with English law, unless otherwise specified in Schedule 2 (Elections). Subject to the express referral of any matter to the Expert under this Agreement and subject to Clause 18.8 (Arbitration) (if it applies), the Parties submit to the non-exclusive jurisdiction of the English courts, unless otherwise specified in Schedule 2 (Elections), for the purposes of any dispute under or in connection with this Agreement and any non-contractual obligations arising out of or in connection with it.
18.8 Arbitration. If this Clause 18.8 is specified as applying in Schedule 2 (Elections), save for those disputes that are expressed under this Agreement to be subject to expert determination in accordance with Clause 18.9 (Expert Determination), the Parties agree that any difference or dispute arising under, out of or in connection with this Agreement that the Parties are unable to settle between themselves is to be resolved by arbitration in accordance with the rules of arbitration, the number of arbitrators and at the place specified in Schedule 2 (Elections). The language of arbitration is English. The appointing authority is the Secretary-General of the Permanent Court of Arbitration unless the rules chosen in Schedule 2 (Elections) specify otherwise. Unless indicated otherwise in Schedule 2 (Elections), the number of arbitrators is one.
18.9 Expert Determination.

18.9(a) If any matter specified in Schedule 2 (Elections) (pursuant to Clause 9.4(b) (Disputed Payments)) as subject to expert determination is referred to an independent expert (the “Expert”), the Expert is to be appointed by agreement between the Parties. If the Parties fail to agree upon that appointment within ten (10) Banking Days of a Party notifying the other Party of its decision to refer the matter to an Expert, the President of the International Emissions Trading Association may appoint the Expert on the application of either Party.

In the absence of the Parties agreeing to any amendments to this Agreement, if that failure to agree is referable to the Expert, the Expert is empowered to make amendments binding on the Parties consistent with any relevant requirements, purposes or restrictions concerning those amendments expressly provided for in this Agreement. The Parties agree that it is their intention that in the absence of their ability to agree to any required amendments to this Agreement, this Agreement should continue and not come to an end or be deemed to be void or voidable in accordance with the doctrine of frustration or any other legal theory. Accordingly, if the Expert is unable to decide upon any amendments based on the express or implied intentions of the Parties, the Expert is entitled to have regard to the way in which similar issues or amendments are addressed or are proposed to be addressed by other participants trading Allowances and to substitute the Expert’s own view of what is reasonable in all the circumstances.

18.9(b) The Expert shall act as an expert and not as an arbitrator and shall give his or her determination in writing.

18.9(c) The determination of the Expert shall be final, conclusive and binding upon the Parties unless a Party notifies the other Party that it disputes the Expert’s determination within twenty-one (21) days of receipt of that determination, in which case the dispute is to be referred either to the courts of law of the jurisdiction specified in accordance with Clause 18.7 (Applicable Law) or, if Clause 18.8 (Arbitration) applies, to arbitration in accordance with Clause 18.8 (Arbitration).

18.9(d) The Expert shall determine the procedure to be followed by the Expert for the purpose of making a determination, but the Parties shall use their respective reasonable endeavors to ensure that he or she makes his or her determination within twenty (20) Banking Days of being appointed.

18.9(e) Each of the Parties shall bear one half of the costs of the Expert unless the Expert determines otherwise.

18.9(f) Pending the determination of any amendments to this Agreement by the Parties or the Expert, the Parties shall continue to the extent possible to perform their obligations under this Agreement.

18.10 Party Preparing this Agreement. The Party (the “Relevant Party”) who has prepared copies of this Agreement for execution (as indicated in item 14.10 of Schedule 2 (Elections)) warrants and undertakes to the other Party that no changes have been made to the standard form Emissions Trading Master Agreement For The EU ETS (Version 4.0 2019) posted by the International Emission Trading Association on its website on 20 June 2019, except (a) the elections as set out in Part 1 of Schedule 2 (Elections) and (b) any revisions specifically agreed in Part 2 of Schedule 2 (Elections).
18.11 Counterparts. This Agreement (including any Confirmations) may be executed in any number of counterparts and by different Parties in separate counterparts, any of which when so executed shall be deemed to be an original and all of which when taken together shall constitute the one and same Agreement.