Terms and Conditions
UNITED KINGDOM STANDARD CONDITIONS FOR TOWAGE AND OTHER SERVICES (REVISED 1986)
- (a) The agreement between the Tugowner and the Hirer is and shall at all times be subject to and include each and all of the conditions hereinafter set out.
(b) for the purpose of these conditions
i. “towing” is any operation in connection with the holding, pushing, pulling, moving, escorting or guiding of or standing by the Hirer’s vessel, and the expressions “to tow”, “being towed” and “towage” shall be defined likewise.
ii. “vessel” shall include any vessel, craft or object of whatsoever nature (whether or not coming within the usual meaning of the word “vessel”) which the Tugowner agrees to tow or to which the Tugowner agreed at the request, express or implied, of the Hirer, to render any service of whatsoever nature other than towing.
iii. “tender” shall include any vessel, craft or object of whatsoever nature which is not a tug but which is provided by the Tugowner for the performance of any towage or other service.
iv. The expression “ whilst towing” shall cover the period commencing when the tug or tender is in a position to receive orders direct from the Hirer’s vessel to commence holding, pushing, pulling, moving, escorting, guiding or standing by the vessel or to pick up ropes, wires or lines, or when the towing line has been passed to or by the tug tender, whichever is the sooner, and ending when the final orders from the Hirer’s vessel to cease holding, pushing, pulling, moving, escorting, guiding or standing by the vessel or to cast off ropes, wires or lines has been carried out, or the towing line has been finally slipped, whichever is the later, and the tug or tender is safely clear of the vessel.
v. Any service whatsoever nature to be performed by the Tugowner other than towing shall be deemed to cover the period commencing when the tug or tender is placed physically at the disposal of the Hirer at the place designated by the Hirer, or, if such be at a vessel, when the tug or tender is in a position to receive and forthwith carry out orders to come alongside and shall continue until the employment for which the tug or tender has been engaged is ended. If the service is to be ended at or off a vessel the period of service shall end when the tug or tender is safely clear of the vessel, or if it is to be ended elsewhere, then when any persons or property of whatsoever description have been landed or discharged from the tug or tender and/or the service for which the tug or tender has been required is ended.
vi. The word “tug” shall include “tugs”, the word “tender” shall include “tenders”, the word “vessel” shall include “vessels”, the word “Tugowner” shall include “Tugowners”, and the word “Hirer” shall include “Hirers”.
vii. The expression “Tugowner” shall include any person or body (other than the Hirer or the owner of the vessel on who behalf the Hirer contracts as provided in Clause 2 hereof) who is a party to this agreement whether or not he in fact owns any tug or tender, and the expression “other Tugowner” contained in Clause 5 hereof shall be construed likewise.
- If at the time of making this agreement or of performing the towage or of rendering any service other than towing at the request, express or implied, of the Hirer, the Hirer is not the owner of the vessel referred to herein as “the Hirer’s vessel”, the Hirer expressly represents that he is authorised to make and does make this agreement for and on behalf of the owner of the said vessel subject to each and all of these conditions and agrees that both the Hirer and the owner are bound jointly and severally by these conditions.
- Whilst towing or whilst at the request, express or implied, of the Hirer, rendering any service other than towing, the master and crew of the tug or tender shall be deemed to be servants of the Hirer and under the control of the Hirer and/or his servants and/or his agents, and anyone on board the Hirer’s vessel who may be employed and/or paid by the Tugowner shall likewise be deemed to be servant of the Hirer and the Hirer shall accordingly be vicariously liable for any act or omission by any such person so deemed to be the servant of the Hirer.
- Whilst towing, or whilst at the request, either express or implied, of the Hirer rendering any service of whatsoever nature other than towing: -
(a) The Tugowner shall not (except as provided in Clauses 4 (c) and (e) hereof) be responsible for or liable for
i damage of any description done by or to the tug or tender; or done by or to the Hirer’s vessel or done by or to any cargo or other thing on board or being loaded on board or intended to be loaded on board the Hirer’s vessel or the tug or tender or to any other object or property;
ii loss of the tug or tender or the Hirer’s vessel or of any cargo or other thing on board or being loaded on board or intended to be loaded on board the Hirer’s vessel or the tug or tender or any other object or property;
iii any claim by a person not a party to this agreement for loss or damage of any description whatsoever;
arising from any cause whatsoever, including ( without prejudice to the generality of the foregoing) negligence at any time of the Tugowner his servants or agents, unseaworthiness, unfitness or breakdown of the tug or tender, its machinery, boilers, towing gear, equipment , lines , ropes or wires, lack of fuel, stores, speed or otherwise and
(b) The Hirer shall (except as provided in Clauses 4 (c) and (e)) be responsible for, pay for and indemnify the Tugowner against and in respect of any loss or damage any claims of whatsoever nature or howsoever arising or caused, whether covered by the provisions of Clauses 4 (a) hereof or not, suffered by or made against the Tugowner and which shall include, without prejudice to the generality of the foregoing, any loss of or damage to the tug or tender or any property of the Tugowner even if the same arises from or is caused by the negligence of the Tugowner his servants or agents.
(c) The provisions of Clause 4 (a) and 4 (b) hereof shall not be applicable in respect of any claims which arise in any of the following circumstances:-
i All claims which the Hirer shall prove to have resulted directly and solely from the personal failure of the Tugowner to exercise reasonable care to make the tug or tender seaworthy for navigation at the commencement of the towing or other service. For the purpose of this Clause the Tugowner’s personal responsibility for exercising reasonable care shall be construed as relating only to the person or persons having the ultimate control and chief management of the Tugowner’s business and to any servant (excluding the officers and crew of any tug or tender) to whom the Tugowner has specifically delegated the particular duty of exercising reasonable care and shall not include any other servant of the Tugowner or any agent or independent contractor employed by the Tugowner.
ii All claims which arise when the tug or tender, although towing or rendering some service other than towing, is not in a position of proximity or risk to or from the Hirer’s vessel or any other craft attending the Hirer’s vessel and is detached from and safely clear of any ropes, lines, wire cables or moorings associated with the Hirer’s vessel. Provided always that, notwithstanding the foregoing, the provisions of Clauses 4 (a) and 4 ( b) shall be fully applicable in respect of all claims which arise at any time when the tug or tender is at the request, whether express or implied, of the Hirer, his servants or his agents, carrying persons or property of whatsoever description (in addition to the officers and crew and usual equipment of the tug or tender) and which are wholly or partly caused by or arise out of the presence on board of such persons or property or which arise at anytime when the tug or tender is proceeding to or from the Hirer’s vessel in hazardous conditions or circumstances.
(d) Notwithstanding anything hereinbefore contained, the Tugowner shall under no circumstances whatsoever be responsible for or be liable for any loss or damage caused by or contributed to or arising out of any delay or detention of the Hirer’s vessel or of the cargo on board or being loaded on board or intended to be loaded on board the Hirer’s vessel or of any other object or property or of any person, or any consequence thereof, whether or not the same shall be caused or arise whilst towing or whilst at the request , either express or implied, of the Hirer rendering any service of whatsoever nature than towing or at any time whether being during or after the making of this agreement.
(e) Notwithstanding anything contained in Clause 4 (a) and 4 (b) hereof the liability of the Tugowner for death or personal injury resulting from negligence is not excluded or restricted thereby.
- The Tugowner shall at any time be entitled to substitute one or more tugs or tenders for any other tug or tender or tugs or tenders. The Tugowner shall at any time (whether before or after the making of this agreement between him and the Hirer) be entitled to contract with any other Tugowner (hereinafter referred to as “the other Tugowner”) to hire the Tugowner’s tug or tender and in any such event it is hereby agreed that the Tugowner is acting (or is deemed to have acted) as the agent for the Hirer, notwithstanding that the Tugowner may in addition, if authorised whether expressly or impliedly by or on behalf of the Tugowner, act as agent for the other Tugowner at any time and for any purpose including the making of any agreement with the Hirer. In any event should the Tugowner as agent for the Hirer contract with the other Tugowner for any purpose as aforesaid it is hereby agreed that such contract is and shall at all times be subject to the provisions of these conditions so that the other Tugowner is bound by the same and may as a principle sue the Hirer thereon and shall have the full benefit of these conditions in every respect expressed or implied herein.
- Nothing contained in these conditions shall limit, prejudice or preclude in any way any legal rights which the Tugowner may have against the Hirer including, but not limited to, any rights which the Tugowner or his servants or agents may have to claim salvage remuneration or special compensation for any extraordinary services rendered to vessels or anything aboard the vessels by any tug or tender. Furthermore, nothing contained in these conditions shall limit, prejudice in any way any right the Tugowner may have to limit his liability.
- The Tugowner will not in any event be responsible or liable for the consequences of war, riots, civil commotions, acts of terrorism or sabotage, strikes, lockouts, disputes, stoppages or labour disturbances (whether he be a party thereto or not) or anything done in contemplation of furtherance thereof or delays of any description, howsoever caused or arising, including by the negligence of the Tugowner or his servants agents.
- The Hirer of the tug or tender engaged subject to these conditions undertakes not to take or cause to be taken any proceedings against any servant or agent of the Tugowner or other Tugowner, whether or not the tug or tender substituted or hired or the contract or any part thereof has been sublet to the owner of the tug or tender, in respect of any negligence or breach of duty or other wrongful act on the part of such servant or agent which, but for this present provision, it would be competent for the Hirer so to do and the owners of such tug or tender shall hold this undertaking for the benefit of their servants and agents.
- (a) The agreement between the Tugowner and the Hirer is and shall be governed by the English Law and the Tugowner and the Hirer hereby accept, subject to the proviso contained in sub-clause (b) hereof, the exclusive jurisdiction of the English Courts (save where the registered office of the Tugowner is situated in Scotland when the agreement is and shall be governed by Scottish law and the Tugowner and the Hirer hereby shall accept the exclusive jurisdiction of the Scottish courts).
(b) No suit shall be brought in any jurisdiction other than that provided in sub-clause (a) hereof save that either the Tugowner of the Hirer shall have the option to bring proceedings in rem to obtain the arrest of or other similar remedy against any vessel or property owned by the other party hereto in any jurisdiction where such vessel or property may be found.
Applicable Laws - has the meaning provided in Clause 19
Business Day - a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions - the terms and conditions set out in this document as amended from time to time in accordance with clause 17.3
Contract - the contract between the Customer and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Customer - SMS Towage Limited (registered in England and Wales with company number 4527156).
Customer Materials - has the meaning set out in clause 10 (Customer materials).
Delivery Date - the date specified in the Order, or, if none is specified, within 3 days of the date of the Order.
Delivery Location - the address for delivery of Goods as set out in the Order.
Goods - the goods (or any part of them) set out in the Order.
Mandatory Policies - the Customer’s business policies listed below as amended by notification to the Supplier from time to time: Health & Safety, Environmental, Anti-Bribery,
Order - the Customer’s order for the Goods or Services, as set out in the Customer’s purchase order form.
Required Standard of Performance - means all of the following:
I. in a good and workmanlike manner and in accordance with generally recognised international industry practices for the industry in which the Services are to be provided;
ii. in compliance with the requirements of the Contract;
iii. in compliance with Applicable Laws [as well as any Mandatory Policies].
Services the Services supplied by the Supplier to the Customer as set out in the Order.
Specification any specification for the Goods and/or Services, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier the person or firm from whom the Customer purchases the Goods and/or Services.
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes emails.
- Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
2.3.1 the Supplier issuing a written acceptance of the Order; and
2.3.2 the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
- The Goods
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description and any applicable Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect, the Customer relies on the Supplier’s skill and judgement;
3.1.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.1.5 The warranties and representations in this clause 3 are given by the Supplier whether it has manufactured the Goods itself or procured them from a third party.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 Where practicable, in the Customer's sole opinion. the Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract. Where the Customer determines it is not practicable to inspect the Goods prior to delivery, the Customer shall be entitled to inspect and test the Goods up to 7 days after delivery.
3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance including, without limiting the Customer's remedies, returning the Goods at the Supplier's risk and expense and replacing them with Goods that comply with the Customer's requirements..
3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.3 if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the Delivery Date;
4.2.2 at the Delivery Location; and
4.2.3 during the Customer’s normal business hours, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in clause 5.
- Customer remedies
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following rights and remedies:
5.1.1 to terminate the Contract;
5.1.2 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
5.1.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
5.1.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
5.1.5 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
5.1.6 to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.3 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
- Title and risk
Title and risk in the Goods shall pass to the Customer on completion of delivery.
7.1 The Supplier shall ensure that the Services are performed with the Order and the Required Standard of Performance.
7.2 Where the Supplier provides Services which include the supply of Goods the warranties and representations in clause 3, in relation to Goods, are deemed repeated here.
- Customer Remedies
8.1 If the Services are not performed within any time limit set out in the Order or in accordance with the Required Standard of Performance then, without limiting any of its other rights or remedies, the Customer may exercise any one or more of the following remedies:
8.1.1 terminate the Contract;
8.1.2 reject the performance of the Services;
8.1.3 require the Supplier to remedy, at its own expense any defective performance of the Services;
8.1.4 engage another supplier to perform the Services and recover the cost of so doing from the Supplier; and
8.1.5 claim damages for any costs, expenses or losses incurred or suffered by the Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract including the cost of returning any defective Goods supplied as part of the Services.
- Price and payment
9.1 The price of the Goods and/or Services shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.
9.2 The price of the Goods and/or Services:
9.2.1 excludes amounts in respect of value-added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
9.2.2 includes the costs of packaging, insurance and carriage of the Goods.
9.3 No extra charges shall be effective unless agreed in writing with the Customer.
9.4 The Supplier may invoice the Customer for price of the Goods and/or Services plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer’s order number, the Supplier’s VAT registration number and any supporting documents that the Customer may reasonably require.
9.5 The Customer shall pay correctly rendered invoices within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
9.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date 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 the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 14 days after the dispute is resolved until payment.
9.7 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.
9.8 The Customer may at any time set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.
- Customer materials
The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by the Customer to the Supplier (Customer Materials) and all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to the Customer and not dispose or use the same other than in accordance with the Customer’s written instructions or authorisation.
11.1 The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other [reasonable] professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
11.1.1 any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
11.1.2 any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, or performance of the Services, to the extent that the defects in the Goods, or claims in relation to the performance of the services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
11.1.3 any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
11.2 This clause 11 shall survive termination of the Contract.
During the term of the Contract and for a period of 2 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
13.1 Each party undertakes that it shall not at any time during the Contract and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- Compliance with relevant laws and policies
14.1 In performing its obligations under the Contract, the Supplier shall:
14.1.1 comply with all applicable laws, statutes, regulations [and codes] from time to time in force; and
14.1.2 comply with the Mandatory Policies.
14.2 The Customer may immediately terminate the Contract for any breach of clause 14.
15.1 The Customer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
15.2 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
15.2.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
15.2.2 the Supplier 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), 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.2.3 the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with its creditors, having a receiver appointed to any of its assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.2.4 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.2.5 the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.3 On termination of the Contract, the Supplier shall immediately return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.1 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
16.2 Entire agreement. 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.
16.3 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
16.4 Waiver. Except as set out in clause 2.4, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 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 of the Contract is deemed deleted under this clause 16.5 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.
16.6.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(a) 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
(b) sent by email to the address specified by the parties.
16.6.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) 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 at the time recorded by the delivery service; and
(c) 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 16.6.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.7 Third party rights.
16.7.1 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.
16.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.8 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.
16.9 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.