The Client’s attention is particularly drawn to the provisions of clause 12.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.1.
Company: Upright (UK) Limited.
Company Materials: has the meaning set out in clause 8.1(g).
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.
Contract: the contract between the Company and the Client 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 the Company.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 15.1(a).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Client and the Company.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Client’s order for the supply of Goods and/or Services, as set out in the Client’s purchase order form.
Services: the services, including the Deliverables, supplied by the Company to the Client as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Company to the Client.
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 statutory 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; and
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Company issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract.
2.4 Any descriptive matter or advertising issued by the Company and any illustrations or descriptions of the Services contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Client then the suitability and accuracy of that specification, instruction or design will be the Client’s responsibility, the Client shall indemnify the Company 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 and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Company reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
3.4 The Company agrees to supply and the Client agrees to purchase the Goods and (where agreed in the Contract) the Services upon the terms and conditions of the Contract and in consideration of the payment of the Contract Price by the Client.
3.5 The Client shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving the Company any necessary information relating to the Goods or Services within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.6 All non-conformities in the Goods with the Contract shall be waived by the Client, if the Client shall have previously approved or accepted any visual, sample, prototype in which such non-conformity shall have been reflected.
4. DELIVERY OF GOODS
4.1 The Company shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Company reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Company requires the Client to return any packaging material to the Company, that fact is clearly stated on the delivery note. The Client shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company’s expense.
4.2 The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree at any time after the Company notifies the Client that the Goods are ready failing which agreement the Client shall collect the Goods from the Company’s premises (in either case the Delivery Location) within three Business Days of the Company notifying the Client that the Goods are ready.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Client’s failure to provide the Company with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.5 If the Client fails to accept or take delivery of the Goods within three Business Days of the Company notifying the Client that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Company’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Company notified the Client that the Goods were ready; and
(b) the Company shall store the Goods until delivery takes place, and charge the Client for all related costs and expenses (including insurance).
4.6 If three Business Days after the Company notified the Client that the Goods were ready for delivery the Client has not accepted or taken delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods or charge the Client for any shortfall below the price of the Goods.
4.7 The Client shall not be entitled to reject the Goods if the Company delivers up to and including 5 per cent more or less than the quantity of Goods ordered.
4.8 The Company 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 Client to cancel any other instalment.
5. QUALITY OF GOODS
5.1 The Company warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and the Goods Specification;
(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 described in the Goods Specification.
5.2 Subject to clause 5.3, if:
(a) the Client gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Company is given a reasonable opportunity of examining such Goods; and
(c) the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost,
(d) the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Company shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Client makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Client failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Company following any drawing, design or Goods Specification supplied by the Client;
(d) the Client alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Company shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Company under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Client on completion of delivery.
6.2 Title to the Goods shall not pass to the Client until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods that the Company has supplied to the Client in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Client, the Client shall:
(a) hold the Goods on a fiduciary basis as the Company’s Bailee;
(b) store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Company’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 on the Company’s behalf from the date of delivery;
(e) notify the Company immediately if it becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l); and
(f) give the Company such information relating to the Goods as the Company may require from time to time, but the Client may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l), or the Company reasonably believes that any such event is about to happen and notifies the Client accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.
6.5 Where the Company has agreed to install the Goods at the Site the risk of damage in transit of the Goods shall be that of the Company
6.6 In all other cases, except where the Company specifically accepts responsibility for organising transportation to the Site of the Goods, the Client shall organise such transportation and the risk of damage to the Goods during such transportation shall be that of the Client.
6.7 Where the Company has expressly accepted responsibility for transportation of the Goods to the Site, and the Goods are damaged in transit, the Company’s liability to the client shall be limited to such sum or sums as are actually recovered in respect of such damage from the relevant transport company.
6.8 The Client shall (at the cost of the Client) provide suitable access to and possession of the Site and proper foundations ready to receive the Goods as and when delivered, adequate lifting facilities and scaffolding, all unskilled labour, masons’, joiners’ and builders’ work, suitable guarding and protection for the Goods from time of delivery, any electric power, lighting and heating necessary at the Site during and after installation, and all necessary facilities and adequate assistance.
6.9 The Client shall allow the Company including its employees, agents and sub-contractors such reasonable access to the Site as it shall from time to time require to perform its obligations under the Contract.
6.10 Should the Company incur extra cost owing to variation or suspension of the work by the instructions of the Client or lack of such instructions, interruptions, delays, overtime, unusual hours, mistakes or work for which the Company is not responsible, a reasonable sum in respect of such extra cost, as well as the cost incurred by keeping any of the Company’s men on the Site after completion of the installation, shall be added to the Contract Price and paid for accordingly.
6.11 The Company shall commence installation of the Goods at the Site on the Actual Delivery Date and shall inform the Client when such installation is completed.
6.12 The Client shall accept (and in default shall be deemed to accept) the Goods upon the date (“the Acceptance Date”) that the Company informs it that the Goods has been installed.
7. SUPPLY OF SERVICES
7.1 The Company shall provide the Services to the Client in accordance with the Service Specification in all material respects.
7.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Services Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Client in any such event.
7.4 The Company warrants to the Client that the Services will be provided using reasonable care and skill.
8. CUSTOMER’S OBLIGATIONS
8.1 The Client shall:
(a) ensure that the terms of the Order and (if submitted by the Client) the Goods Specification are complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Client’s premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(g) keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Client’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
8.2 If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Customer Default):
(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Company’s performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Client shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Client Default.
9. CHARGES AND PAYMENT
9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Company’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Client when it pays for the Goods.
9.2 The charges for Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Company’s standard daily fee rates, of £450 per day;
(b) the Company’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) the Company shall be entitled to charge an overtime rate of one hundred and fifty per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
(d) the Company shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Company engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Company for the performance of the Services, and for the cost of any materials.
9.3 In respect of Goods, the Company shall invoice the Client on or at any time after completion of delivery. In respect of Services, the Company shall invoice the Client on monthly in arrears.
9.4 The Client shall pay each invoice submitted by the Company:
(a) On placement of the Client Order; and
(b) in full and in cleared funds to a bank account nominated in writing by the Company, and
(c) time for payment shall be of the essence of the Contract.
9.5 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.6 Without limiting any other right or remedy of the Company, if the Client fails to make any payment due to the Company under the Contract by the due date for payment (Due Date), the Company shall have the right to charge interest on the overdue amount at the rate of eight per cent per annum above the then current HSBC Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
9.7 The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company.
10.2 The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Client.
10.3 All Company Materials are the exclusive property of the Company.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.Subject to clause 12.1:
(f) the Company shall under no circumstances whatever be liable to the Client, 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
(g) the Company’s total liability to the Client 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 greater of the amount recoverable under any insurance cover taken out by the Company in respect of the risk giving rise to the claim in question and the price payable for the Goods and any Services.
12.2 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.
12.3 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 15 working days after receipt of notice in writing of the breach;
(b) the other party 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;
(c) the other party 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 a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party 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;
(g) 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 other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(b) to clause 13.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.2 Without limiting its other rights or remedies, the Company may terminate the Contract:
(a) by giving the Client two months’ written notice;
(b) with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, the Company shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and the Company if:
(a) the Client fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Client becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l), or the Company reasonably believes that the Client is about to become subject to any of them.
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;
(b) the Client shall return all of the Company Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Company shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Company from providing any of the Services and/or Goods for more than four weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
15.2 Assignment and subcontracting:
(a) The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
15.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other 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 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.
15.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Company.
15.9 Governing law and jurisdiction: This 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.
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