Details of services purchased are in a separate Front Sheet

Commercial Terms & Conditions


Details of services purchased are in a separate Front Sheet

CONTENTS

1. Interpretation

2. Application of conditions

3. Commencement and duration

4. Supplier's obligations

5. Customer's obligations

6. Software support

7. Change control

8. Charges and payment

9. Intellectual property rights

10. Confidentiality and the supplier's property

11. Limitation of liability

12. Data protection

13. Termination

14. The Hub

15. Force Majeure

16. Variation

17. Waiver

18. Severance

19. Status of pre-contractual statements

20. Assignment

21. No partnership or agency

22. Rights of third parties

23. Notices

24. Governing law and jurisdiction


1. INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).

Access Level Control: means the ability for the Customer or the Supplier to restrict access to data by Location based on the Customer’s organisational hierarchy.

Analysis Report: a report structure and format which can be populated with the Customer's own data.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person, firm or company who purchases Services from the Supplier as detailed in the Front Sheet.

Customer's Manager: the Customer's manager for the Services, appointed in accordance with condition 5.1 and whose details are set out in the Front Sheet.

Customer Reporting Period: regular periods of time during which the Customer agrees with the Supplier to track performance results (these are typically monthly and normally correspond to periods in the Customer’s accounting system)

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Data Processor: as defined in the Data Protection Legislation

Domain: the internet address at which Survey Site will be hosted.

Features: refers to a feature of The Hub or a Survey Site, developed and maintained by the Supplier to help the Customer to measure or manage the experience of its Guests.

Front Sheet: the front sheet incorporating these Conditions and containing specific details in respect of the supply of Services.

Guest: means a paying guest at one of the Customer’s specified Locations.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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 which subsist or will subsist now or in the future in any part of the world.

Location(s): means such locations for the performance of Services as shall be specified by the Customer.

Location Setting: means the logo, title and social media link for a Location

Mystery Guest: means an ordinary member of the public who is registered with the Supplier for the purpose of visiting a Location in order to complete a Questionnaire.

Online Review: a review of the experience received by a Guest at one of the Customer’s Locations and posted by the Guest on a public internet site.

Personal Data: as defined in the Data Protection Legislation

Project Plan: any written plan for the implementation of the Services agreed between the Supplier and the Customer.

Questionnaire: means the questions, as agreed between the Supplier and the Customer, to be completed by a Mystery Guest following a Mystery Visit or by a Guest on the Survey Site.

Reporting Group: a group of individuals, including the Customer’s Manager, to whom a selection of Analysis Reports are made available.

Reporting Period: each calendar month or such other reporting period as may be agreed by the Customer and the Supplier from time to time.

Services: the services to be provided by the Supplier shall be as set out in the Front Sheet, together with any other services which the Supplier provides or agrees to provide to the Customer from time to time.

Service Charges: the charges (excluding VAT) for the supply of the Services as specified in the Front Sheet payable in accordance with condition 8.

Software Support: means the following services to be available between the hours of 9 am and 5.30 pm on weekdays (excluding UK public holidays):-

Provision of first-line and second-line technical support to users of the Software to assist Customer with general enquiries in connection with the Software;

diagnosis and, where possible, correction of faults more specifically to correct errors, bugs and failure of the Software.

Supplier: HGEM Ltd, a company registered in England and Wales under company number 04849448 whose registered office is at Kings Court, Parsonage Lane, Bath, BA1 1ER.

Supplier's Manager: the Supplier's manager for the Services appointed under condition 4.3 and whose details are set out in the Front Sheet.

Survey Site: an internet site used for the purpose of collecting feedback from Guests on their experience of the Customer’s service

The Hub: the Supplier’s Guest Experience Management platform, provided for use by the Customer, including both web and mobile applications

Visit or Mystery Visit: means a visit by the Mystey Guest to a Location in order to complete a Questionnaire.

Visit Report: means a report prepared by the Supplier following a Mystery Guest’s Visit which shall be based on the completed Questionnaire.

1.2 Condition and paragraph headings shall not affect the interpretation of these Conditions.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6 Words in the singular shall include the plural and vice versa.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes and e-mail.

1.9 Where the words include(s), including or in particular are used in these Conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.10 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.11 References to conditions are to the conditions of the Contract.


2. APPLICATION OF CONDITIONS

2.1 These Conditions shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.

2.2 The Customer's purchase order, or the Customer's acceptance of a quotation for the supply of Services by the Supplier, constitutes an offer by the Customer to purchase the Services specified in it on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than:

2.2.1 by a written acknowledgement issued and executed by the Supplier; or

2.2.2 (if earlier) by the Supplier starting to provide the Services, when a contract for the supply and purchase of those Services on these Conditions will be established. The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract and these Conditions shall apply to and be incorporated into the Contract to the exclusion of any such terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course by dealing.

2.3 Quotations are given by the Supplier on the basis that no agreement or contract shall come into existence except in accordance with condition 2.2. Any quotation given by the Supplier is valid for a period of 30 days from its date, provided that the Supplier has not previously withdrawn it.


3. COMMENCEMENT & DURATION

3.1 The Services supplied under the Contract shall be provided by the Supplier to the Customer from the date specified in the Front Sheet;

3.2 The Services supplied under the Contract shall be supplied for the minimum period specified in the Front Sheet or as otherwise agreed by the parties in writing and, after that, shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other not less than three months' written notice, such notice to expire on the end of a Services Reporting Period, unless the Contract is terminated in accordance with condition 13.1.


4. SUPPLIER'S OBLIGATIONS

4.1 The Supplier shall provide the Services to the Customer using reasonable care and skill.

4.2 The Supplier shall use reasonable endeavours to meet any agreed performance dates, but any such dates shall be estimates only and time shall not be of the essence for supply of the Services.

4.3 The Supplier shall appoint the Supplier's Manager who shall have authority to contractually bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier's Manager throughout the term of the Contract, but may replace him from time to time where reasonably necessary in the interests of the Supplier's business.

4.4 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.


5. CUSTOMER'S OBLIGATIONS

5.1 The Customer shall:

5.1.1 ensure that the terms of the Front Sheet are complete and accurate;

5.1.2 co-operate with the Supplier in all matters relating to the Services and appoint the Customer's Manager in relation to the Services. The Customer warrants that the Customer’s Manager shall have the authority to contractually bind the Customer on matters relating to the Services;

5.1.3 provide, for the Supplier, its agents, sub-contractors, consultants and employees, access to the Locations to facilitate the supply of Services;

5.1.4 provide, in a timely manner, such information as the Supplier may require in order to supply the Services, and ensure that it is accurate in all material respects; and

5.1.5 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.

5.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, sub-contractors, consultants or employees, or failure by the Customer to perform any relevant obligation (Customer Default):

5.2.1 the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay;

5.2.2 the Customer shall be liable to pay to the Supplier, on written demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing; and

5.2.3 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

5.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the last date of supply of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, sub-contractor or consultant of the Supplier in the provision of the Services.


6. SOFTWARE SUPPORT

6.1 This condition 6 shall apply where the Supplier and the Customer have agreed that as part of the Services the Supplier shall provide or make available to the Customer proprietary software (“Software”) and Software Support, (together the “Supported Services”).

6.2 The Supplier shall appoint a suitably qualified person to support the Customer in relation to any Software matters (“Support Manager”), who shall be responsible for the co-ordination of all matters relating to the Supported Services. All communications, documentation and materials relating to Software issues arising under the Contract shall be sent as appropriate by the Support Manager to the Customer’s Manager. Each party shall notify the other in writing promptly if there is any proposed change to those appointments.

6.3 In addition to its Support Manager, the Supplier shall provide sufficient support staff to fulfil the Supported Services. Such support staff shall be suitably trained and experienced in support and maintenance of the Software.

6.4 In the event that the Support Manager or of any other member of the support staff are unavailable for any reason, the Supplier shall supply a replacement person who:

6.4.1 is appropriately trained and competent to fulfil the role required of him; and

6.4.2 has undergone a suitable period of familiarisation with the Software to enable him to perform the functions of the person he is replacing.

6.5 Without prejudice to the Supplier’s obligation to provide any Supported Services, the Customer acknowledges that the Supplier reserves the right at all times and without consultation with the Customer to upgrade, modify and provide new versions of any Software.


7. CHANGE CONTROL

7.1 The Customer's Manager and the Supplier's Manager shall discuss not less than once per annum matters relating to the Services, and on such other occasions as the Supplier shall reasonably require. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing as soon as is reasonably practicable.

7.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:

7.2.1 the likely time required to implement the change;

7.2.2 any variations to the Supplier's charges arising from the change;

7.2.3 the likely effect of the change on any Project Plan; and

7.2.4 any other impact of the change on the terms of the Contract.

7.3 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.

7.4 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, and any other relevant terms of the Contract to take account of the change.

7.5 The Supplier may charge for its time spent in assessing a request for change from the Customer on a time and materials basis in accordance with condition 8.


8. CHARGES & PAYMENT

8.1 Where the Services are provided for a fixed price specified in the Front Sheet, the total price shall be paid to the Supplier in instalments, as set out in the Front Sheet (these are typically monthly and/or based on the Customer Reporting Periods). When an instalment is due, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses, the costs of materials and VAT, where appropriate, calculated as provided in condition 8.3.

8.2 In the event that the Supplier provides additional services to the Customer, it shall be entitled to invoice the Customer for an additional fee, as set out in the Front Sheet, the payment of which shall be made in accordance with this condition 8.

8.3 All charges shall exclude the cost of hotel, meals and other subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost.

8.4 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds to a bank account nominated in writing by the Supplier, within 30 days of the date of invoice. Time for payment shall be of the essence of the Contract.

8.5 All amounts payable by the Customer 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 Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

8.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date then, without limiting the Supplier’s remedies under condition 13, the Supplier shall charge interest on such sum from the due date for payment at the annual rate of 3% above the Bank of England’s base rate from time to time, accruing on a daily basis and being compounded monthly until payment is made, whether before or after any judgement.

8.7 The Customer shall pay the interest together with the overdue amount.

8.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except where required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.


9. INTELLECTUAL PROPERTY RIGHTS

9.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

9.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract for the purpose of receiving and using the Services in its business.

9.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in Clause 9.2

9.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.


10. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY

10.1 The Customer shall keep in strict confidence and undertakes that it shall not at any time disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or sub-contractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents, consultants or sub-contractors who need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents, consultants or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

10.2 This condition 10 shall survive termination of the Contract, however arising.


11. LIMITATION OF LIABILITY

11.1 This condition 11 sets out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and sub-contractors) to the Customer in respect of:any breach of the Contract;

11.1.1 any use made by the Customer of the Services, or any part of them; and

11.1.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

11.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

11.3 Nothing in these Conditions limits or excludes the liability of the Supplier:

11.3.1 for death or personal injury caused by its negligence; or

11.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier

11.4 Subject to condition 11.2 and condition 11.3;

11.4.1 the Supplier shall not be liable for:

11.4.1.1. loss of profits; or

11.4.1.2. loss of sales or business; or

11.4.1.3. depletion of goodwill and/or similar losses; or

11.4.1.4. loss of anticipated savings; or

11.4.1.5. loss of goods; or

11.4.1.6. loss of agreements or contract; or

11.4.1.7. loss of use or corruption of software, data or information; or

11.4.1.8. any indirect or consequential loss.

11.5 the Supplier's total liability to the Customer in contract, tort (including negligence) or breach of statutory duty, misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the total price paid for the Services.


12. DATA PROTECTION

12.1 The Supplier will process all Personal Data provided by the Customer under these Terms in accordance with all applicable requirements of the Data Protection Legislation and the Supplier’s privacy policy, as amended or updated from time to time. A copy of the Supplier’s can be found on its website.

12.2 Where the Supplier is a Data Processor in relation to Personal Data supplied by the Customer, the Supplier will process the Personal Data in accordance with a supplementary data processing agreement agreed between the parties.

12.3 Without prejudice to the generality of clause 12.1, 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 and/or to enable the Supplier to obtain Personal Data on behalf of the Customer for the duration and purposes of this agreement


13. TERMINATION

13.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

13.1.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

13.1.2 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 liability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

13.1.3 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 or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

13.1.4 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

13.1.5 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder over the assets of the other party (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

13.1.6 a receiver is appointed over any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

13.1.7 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

13.1.8 the other party ceases, or threatens to cease, to trade; or

13.1.9 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

13.2 Without affecting any other right or remedy available to it, 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.

13.3 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 Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.

13.4 The accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

13.5 For the avoidance of doubt, the provision of access to The Hub shall automatically terminate upon the termination of the Contract.


14. THE HUB

14.1 The Customer shall:

14.1.1 co-operate with the Supplier in all matters relating to The Hub;

14.1.2 provide in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;

14.1.3 reimburse the Supplier’s reasonable fees for any activities carried out by the Supplier which are, in the reasonable opinion of the Supplier, solely attributable to the failure of the Customer to operate The Hub in accordance with the Contract;

14.1.4 ensure that The Hub is used in a proper manner and only by the Customer’s competent trained employees;

14.1.5 co-operate fully with the Supplier's personnel in the diagnosis of any error or defect in The Hub;

14.1.6 ensure that all user identification codes, passwords or any other pieces of information issued by the Supplier as part of the security procedures relating to The Hub are treated as confidential and not disclosed to any third party;

14.1.7 promptly notify the Supplier if the Customer knows or suspects that anyone other than the Customer or one of the Customer’s authorised users knows an authorised user’s identification code or password;

14.1.8 configure its information technology, computer programmes and platform in order to access The Hub and use its own virus protection software;

14.1.9 not misuse The Hub by knowingly introducing viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful;

14.1.10 not attempt to gain unauthorised access to The Hub, the server on which The Hub is hosted or any server, computer or database connected to The Hub;

14.1.11 not to reproduce, duplicate copy or re-sell any part of The Hub.

14.2 The Supplier shall have the right to disable any user identification code or password, whether chosen by the Customer, an authorised user or allocated by the Supplier, at any time, if in the Supplier's reasonable opinion the Customer has failed to comply with any of the provisions of the Contract.

14.3 The Supplier may update The Hub from time to time and may change the nature or configuration of the Features of The Hub at any time in response to changes in technology or changes in demand from its Customers.

14.4 The Supplier does not guarantee that The Hub, or any content on it, will always be available or be uninterrupted.

14.5 The Customer acknowledges that the Supplier shall not be held liable for the Customer's use or any other person’s use of The Hub and the Customer shall indemnify and hold harmless the Supplier against all damages, costs, losses and claims arising from the use of The Hub.


15. FORCE MAJEURE

15.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by any circumstance not within its reasonable control (“Force Majeure Event”), including without limitation: any acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 sub-contractors.

15.2 If the Force Majeure Event prevails for a continuous period of more than 3 months, either party may terminate the Contract by giving 28 days' written notice to the other party. On the expiry of this notice period, the Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Contract occurring prior to such termination.


16. VARIATION

Subject to condition 7, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.


17. WAIVER

17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

17.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

17.2.1 waive that or any other right or remedy; or

17.2.2 prevent or restrict the further exercise of that or any other right or remedy.


18. SEVERANCE

18.1 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 condition shall not affect the validity and enforceability of the rest of this Contract.

18.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable and to the greatest extent possible, achieves the intended commercial result of the original provision.


19. STATUS OF PRE-CONTRACTUAL AGREEMENTS

19.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter

19.2 Each of the parties acknowledges and agrees that, in entering into the Contract it does not rely on, and shall have no remedies in respect of any undertaking, promise, assurance, statement, representation, warranty or understanding (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.


20. ASSIGNMENT

20.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

20.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.


21. NO PARTNERSHIP OR AGENCY

Nothing in the Contract is intended to, or shall operate to, create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).


22. RIGHTS OF THIRD PARTIES

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns. This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.


23. NOTICES

Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address given in the Contract (or such other address or person as the relevant party may notify to the other party) and shall be delivered personally or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 23 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that in the case of post, that the envelope containing the notice was properly addressed and posted.


24. GOVERNING LAW AND JURISDICTION

24.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

24.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.