INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Charges” the charges payable by the Customer for the supply of the Services in accordance with clause 5.
“Commencement Date” has the meaning given to it in clause 2.2.
“Conditions” these terms and conditions as amended from time to time or varied in accordance with clause 11.5.
“Contract” the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
“Customer” the person or business or other organisation who purchases Services from the Supplier.
“Customer Default” has the meaning set out in clause 4.2.
“Deliverables” the deliverables set out in the Sales Agreement produced by the Supplier for the Customer.
“Intellectual Property Rights” patents, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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, 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.
“Notice Period to Claim” the notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire one month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
“Personal Data” as defined in the UK Data Protection Legislation.
“Sales Agreement” the Customer’s order for Services as set out in the Customer’s Sales Agreement incorporating the Specification.
“Services” the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
“Specification” the description or specification of the Services provided in writing by the Supplier to the Customer included in, or attached to, the Sales Agreement.
“Supplier” Trusted Interactions Group Limited trading as Cymphony, a company incorporated and registered in England and Wales with company number 09041445, whose registered address is at The Dovecote, Crewe Hall Farm Buildings, Old Park Road, Crewe CW1 5UE.
“UK Data Protection Legislation” means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
1. Interpretation:
1.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.3 A reference to writing or written includes email.
2 BASIS OF CONTRACT
2.1 The Sales Agreement constitutes an offer by the Suppler to provide Services in accordance with these Conditions.
2.2 The Sales Agreement shall only be deemed to be accepted when the Customer digitally signs the Sales Agreement at which point and on which date the Contract shall come into existence (Commencement Date). If the Customer requests in writing that the Supplier commences services or makes preparations in advance of the Commencement Date then that will be deemed as the date of acceptance of the Sales Agreement at which point the Contract will come into existence.
2.3 This Contract shall commence on the Commencement Date and continue, for a minimum period of one month (Initial Term) unless a different period is stated on the Sales Agreement or otherwise agreed with the Customer, and shall automatically continue thereafter for an indefinite term until it’s terminated in accordance with clause 9.
2.4 If the Customer has committed to a service during the Initial Term that has a notice period longer than the Initial Term then this longer notice period will alter the Initial Term accordingly from that stated in Clause 2.3.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3 SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Sales Agreement and/or Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 In order for the Supplier to provide the highest level of service, wrap up time will be added to each call, being the period following the call until the completion of any tasks associated with it.
3.4 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.5 The Supplier shall use its discretion to assess whether a message is urgent or important and use reasonable endeavours to relay the same via SMS to a designated mobile phone or via email.
3.6 The Supplier shall be entitled forthwith to suspend or terminate the Services if it has reasonable grounds to believe that any aspects of the Services are being used for illegal, fraudulent or immoral (in the reasonable opinion of the Supplier) purposes.
3.7 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4 CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.2 co-operate with the Supplier in all matters relating to the Services;
4.3 effect the telephone number divert feature or other necessary technical requirements as directed by the Supplier;
4.4 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
4.5 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.6 prepare the Customer’s premises for the supply of the Services;
4.7 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;
4.8 not use the Supplier’s name, address or logo in any advertising materials, publications or products without the prior written consent of the Supplier;
4.9 not at any time (either during or within five years of the last provision of the Service by The Supplier) contract with, employ, reward or pay – either directly or indirectly – any employee, agent or freelancer introduced by, retained by or in any relationship with the Supplier. Should The Customer or any of its officers, employees or associates breach this term, a fee of the greater of £3,500 or 12.5% of the employee’s annual total cost to the Customer will become payable to the Supplier immediately. The Supplier will invoice the Customer for this fee if it has a reasonable suspicion that the Customer is in breach of this term; and
4.10 comply with any additional obligations as set out in the Specification.
4.11 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.12 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;
4.13 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2;
4.14 the Customer shall indemnify and hold harmless the Supplier from and against any and all claims demands, proceedings, damages, penalties, costs, losses, liabilities and expenses of any kind, threatened, claimed or awarded against or otherwise incurred by the Supplier arising out of or in connection with the Transfer of Undertakings (Protection of Employment) Regulations 2006 as a result of the provision of the Services or otherwise; and
4.15 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
4.16 If the Customer diverts calls from a telephone number where Multi-Factor Authorisation (as defined in the user manual) or any other security verification is in use then this will be done at the Customer’s own risk and the Supplier will not be responsible for any consequential, direct, indirect or special loss or damage or any economic loss. The Customer is advised to use alternative telephone numbers for such verification.
4.17 The Customer accepts that calls may be recorded unless otherwise stated on the Sales Agreement and/or Specification. It is the Customer’s responsibility to comply with applicable UK Data Protection Legislation and ensure that its callers are aware that calls may be recorded.
5 CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated in accordance with rates as set out in the Specification and/or the Sales Agreement:
5.2 one month’s tariff will be charged to the Customer by way of a fully refundable deposit that will be repaid on the termination of the Contract subject to the Supplier deducting any Charges which remain outstanding at the date of termination;
5.3 fixed charges including monthly subscriptions and minute bundles (as described in the Specification) shall be billed monthly in advance and shall be payable by direct debit to an account nominated by the Supplier from time to time;
5.4 the Charges shall be calculated in accordance with the Supplier’s fee rates, as set out in the Sales Agreement or subsequently revised;
5.5 the Supplier shall be entitled to charge the Customer for any administrative costs incurred in providing the Services;
5.6 The Customer needs to inform the Supplier of any changes that are necessary in order for the Supplier to provide the Services. This could include employee absences, joining or departing employees or changes to scripts. Where these changes are deemed by the Supplier to be excessive in terms of number, duration or frequency, the Supplier reserves the right to impose additional charges;
5.7 if the Supplier takes malicious, abusive or threatening calls on behalf of the Customer then the Supplier will inform the Customer. It is the Customer’s responsibility to prevent these calls from recurring. Where the Supplier has provided the Customer with the details of such repeat callers, who continue to persist in calling and the calls come through to the Supplier, the Supplier will terminate the calls immediately. The Supplier will charge the Customer £10.00 for each such call, in addition to any other charges;
5.8 any additional usage charges shall be billed monthly in arrears.
5.9 The Supplier reserves the right to increase the Charges on an annual basis in line with the percentage increase in the Retail Prices Index in the preceding 12-month period or other amount.
5.10 The Supplier shall invoice the Customer monthly dated 1st of the month for fixed costs in advance and other costs in arrears.
5.11 The Customer shall pay each invoice submitted by the Supplier:
5.12 within 7 days of the date of the invoice (Due Date);
5.13 in full and in cleared funds to a bank account nominated in writing by the Supplier; and
5.14 time for payment shall be of the essence of the Contract.
5.15 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.
5.16 If the Customer fails to make a payment due to the Supplier under the Contract by the Due Date, then, without limiting the Supplier’s remedies under clause 9, 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 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.17 If a direct debit is dishonoured or the Customer cancels a direct debit instruction, then all unpaid invoices will become due for immediate payment and the Supplier reserves the right to add further charges.
5.18 All invoices issued to the Customer will be accepted as fully payable unless the Customer notifies the Supplier of any discrepancies by the Due Date.
5.19 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 INTELLECTUAL PROPERTY RIGHTS
6.1 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.
6.2 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 to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
6.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.2.
6.4 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.
7 DATA PROTECTION
7.1 Both parties will comply with all applicable requirements of UK Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the UK Data Protection Legislation. In this clause 7, applicable laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
7.2 The parties acknowledge for the purposes of the UK Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the UK Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, 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 for the duration and purposes of this Contract.
7.4 Without prejudice to the generality of clause 7.1, the Supplier shall, to the extent any Personal Data is processed in connection with the performance of its obligations under this Contract:
7.5 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by applicable laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Supplier from so notifying the Customer;
7.6 ensure that it has in place appropriate technical and organisational measures, 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);
7.7 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.8 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
7.9 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
7.10 the data subject has enforceable rights and effective legal remedies;
7.11 the Supplier complies with its obligations under the UK Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
7.12 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
7.13 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 UK Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.14 notify the Customer without undue delay on becoming aware of a Personal Data breach;
7.15 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Agreement unless required by applicable law to store the Personal Data; and
7.16 maintain complete and accurate records and information to demonstrate its compliance with this clause 7.
7.17 Neither party shall unlawfully discriminate on grounds of any protected characteristic as defined in the Equality Act 2010 or any comparable statutory provision relating to discrimination in employment or service provision. Both Parties shall comply with all relevant codes of practice issued by the Commission for Equality and Human rights and, as far as practicable, operate an equal opportunities policy which complies with the practical guidance and recommendations contained in the said codes of practice.
8 LIMITATION OF LIABILITY
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to, liability for:
8.4 death or personal injury caused by negligence;
8.5 fraud or fraudulent misrepresentation; and
8.6 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.7 Subject clause 8.2 (No limitation of customer’s payment obligations) and clause 8.3 (Liabilities which cannot legally be limited), this clause 8.4 sets out the types of loss that are wholly excluded:
8.8 loss of profits.
8.9 loss of sales or business.
8.10 loss of agreements or contracts.
8.11 loss of anticipated savings.
8.12 loss of use or corruption of software, data or information.
8.13 loss of or damage to goodwill; and
8.14 indirect or consequential loss.
8.15 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, are excluded from the Contract.
8.16 The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to Charges paid by the Customer for a period of one month preceding the date on which the loss occurred.
8.17 Unless the Customer notifies the Supplier that it intends to make a claim in respect of a loss within the Notice Period to Claim, the Supplier shall have no liability for that claim.
8.18 This clause 8 shall survive termination of the Contract.
9 TERM AND TERMINATION
9.1 Following expiry of the Initial Term and without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one months’ written notice subject to Clause 9.2. The notice must be sent to cancellations@cymphony.co.uk and a follow up telephone conversation is required to verify that the request has been approved.
9.2 If the Customer has committed to a service with a notice period longer than that stated in Clause 9.1 then this longer notice period will apply in relation to terminating this Contract and not the period stated in Clause 9.1.
9.3 For the avoidance of doubt a notice issued pursuant to Clause 9.1 shall not be effective where the Customer continues to use the Services following expiry of the written notice. A divert telephone number or other arrangement that continues to send calls or other requests to the Supplier, whether the Customer has terminated the Service or not, constitutes the Customer continuing to use the Service.
9.4 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 commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five (5) days of being notified in writing to do so.
9.5 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.6 the other party 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
9.7 the other party suspends, or threatens to suspend, or ceases or threatens to cease to continue all or a substantial part of its business; or
9.8 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.9 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 by the Due Date for payment.
9.10 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:
9.11 the Customer fails to pay any amount due under the Contract by the Due Date for payment;
9.12 the Customer becomes subject to any of the events listed in clause 9.5.2 or clause 9.5.3, or the Supplier reasonably believes that the Customer is about to become subject to any of them; and
9.13 the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.5.1.
10 CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
10.2 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 shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
10.3 the Customer shall return any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.4 In the event the Customer continues to use the Services (including but not limited to call divert services) following expiry of any written termination notice pursuant to clause 9.1, the Customer shall be obliged to make payment to the Supplier of any and all additional Charges for its continued use of the Services.
10.5 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11 GENERAL
11.1 Force majeure.
11.2 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to 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, chemical attack or warfare (including, but not limited to, biological, industrial or commercial chemicals, whether toxic or non-toxic), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or subcontractors, or a contagious, communicable or other similar disease or an epidemic or pandemic including, but not limited to, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) which causes COVID-19, and in each case, any effects arising from or in connection with the same including, but not limited to, any actions, recommendations, announcements or restrictions, related to its subject matter (whether made by a government body, authority, public health organisation or other similar official body) which affects the Supplier’s performance of its obligations under this Contract.
11.3 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event, provided it has notified the Customer of the Force Majeure Event on or around the date on which it started and the likely effect of the Force Majeure Event on the Supplier’s ability to perform any of its obligations under these Conditions.
11.4 If a Force Majeure Event is prevailing or predicted at the date of the Contract, the Supplier will be entitled to relief under clause 11.1.2 if at the date of this Contract, the Supplier had good reason to believe that it would be able to perform its obligations notwithstanding the Force Majeure Event.
11.5 This clause 11.1 does not excuse the Customer from paying sums due under the Contract.
11.6 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 90 days, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
11.7 Assignment and other dealings.
11.8 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.9 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
11.10 Confidentiality.
11.11 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, or suppliers of the other party, except as permitted by clause 11.3.2.
11.12 Each party may disclose the other party’s confidential information:
11.13 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
11.14 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.15 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.16 Entire agreement.
11.17 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.
11.18 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (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 based on any statement in the Contract.
11.19 Nothing in this clause shall limit or exclude any liability for fraud.
11.20 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and agreed by both parties. Where the Customer decides to amend its order by telephone an updated Sales Agreement or other confirmation will be sent to the Customer by email.
11.21 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.22 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.23 Notices.
11.23.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Sales Agreement.
11.24 Any notice shall be deemed to have been received:
11.25 if delivered by hand, at the time the notice is left at the proper address;
11.26 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
11.27 if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a Business Day.
11.28 This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.30 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.31 Governing law. The 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.
11.32 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 the Contract or its subject matter or formation.