Terms and Conditions
The following terms and conditions apply to all website development / design services provided by Spectre Creative Limited to the Client.
It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.
Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
TERMS AND CONDITIONS OF BUSINESS
The Client’s attention is particularly drawn to the provisions of clause 11.
1. PROVISION OF OUR SERVICES
The purpose of this document is to record the terms on which we, Spectre Creative Limited (“we” or “us”), will supply services to you as our client. These terms and conditions of business will be supplemented by one or more Orders (as defined below) which set out terms specific to the engagement, such as the scope of work to be completed and our fees. By indicating acceptance of the details set out in the Order to us, you agree to be bound by the same.
Our client is only ever the party or parties named in the Order, unless agreed otherwise in writing.
These terms and conditions of business apply to the services we provide to you regardless of the jurisdiction from which they are provided, unless otherwise agreed.
In these Conditions (as defined below), the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business;
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8;
Contract: the contract between the Supplier and the Client for the supply of the Services, which consists of the Order and these Conditions;
Client: the person or firm who purchases Services from the Supplier whose details are set out in box 3b of the Order;
Deliverables: the deliverables to be produced by the Supplier for the Client, details of which are set out in box 5 of the Order;
Fees: the fees payable by the Client for the supply of the Services in accordance with clause 7;
Intellectual Property Rights: all patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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;
Order: the Client’s order for the Services as set out in the Client’s order form, a copy of which is attached to these Conditions;
Services: the services to be supplied by the Supplier to the Client as set out in box 4 of the Order;
Supplier: the person supplying the Services, as described in box 3a of the Order; and
Supplier Materials: all materials, equipment, documents and other property of the Supplier used in the provision of the Services.
In these Conditions, the following rules apply:
a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
a reference to a party includes its personal representatives, successors or permitted assigns;
a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
a reference to writing or written includes faxes and e-mails.
3. BASIS OF CONTRACT
3.1 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3.2 The Order constitutes an offer by the Client to purchase the Services and/or Deliverables in accordance with these Conditions.
3.3 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
3.4 The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier that is not set out in the Contract.
3.5 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.
3.6 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
SUPPLY OF SERVICES
4.1 The Supplier shall supply the Services and deliver the Deliverables to the Client in accordance with the Order in all material respects. The Supplier shall have the right to make any changes to the Services or Deliverables which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services or the Deliverables, and the Supplier shall notify the Client in any such event.
4.2 Where applicable, prior to commencing the printing of any Deliverables, the Supplier will provide to the Client a final proof of the Deliverables. This may be provided in printed or electronic format. The Client will have sole responsibility for checking the final proof. On the Client providing instructions to the Supplier to print the Deliverables the Client shall be deemed to have approved the final proof.
4.3 The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
5.1 The Client shall:
ensure that the terms of the Order and any information it provides in the Order are complete, accurate, up-to-date and supplied as quickly as possible;
provide the Supplier, within a reasonable time considering any deadlines agreed between the parties, with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
obtain and maintain all necessary licences, permissions and consents, including but not limited to consents to use any protected (e.g. copyrighted or trademarked) material, which may be required before the date on which the Services are to start;
co-operate with the Supplier in all matters relating to the Services and the Deliverables;
provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Supplier for the provision of the Services; and
review the Deliverables promptly upon receipt from the Supplier and provide any written comments and/or corrections (including typographical amendments) to the Supplier within 5 business days of receipt of the Deliverables from the Supplier. Such written comments or corrections shall contain sufficient detail to assist the Supplier to identify the Client’s concerns, objections or corrections. In the absence of written comments and/or corrections being identified to the Supplier in accordance with this clause 5.1(f) or in the event of the client providing instructions to print the deliverables in accordance with clause 4.2, the Deliverables shall be deemed to be accepted by the Client and the Client shall be responsible for any costs involved in correcting any errors.
5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (the “Client Default”) and such Client Default has not been remedied by the Client within 10 Business Days of the Client Default having been notified in writing to, and a resolution having been requested of, the Client by the Supplier:
the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
6.1 The Deliverables shall be delivered to the Client’s address set out in box 3b of the order unless otherwise agreed in writing between the Company and the Client. The Services will be performed at the location agreed between the Client and the Supplier and as specified in the Order or at such location as otherwise agreed in writing between the Company and the Client.
6.2 Delivery of the Deliverables will be accepted at any time of day. If the Client fails to take delivery, or provide any necessary documents, the Deliverables will be deemed to have been delivered and the Company, without prejudice to its other rights, may at its option:
store or arrange for storage of the Deliverables until actual delivery or sale and charge the Client for all related costs and expenses (including, without limitation, storage and insurance); and/or
use reasonable endeavours to rearrange delivery but, if unable to rearrange delivery, following written notice to the Client, sell any of the Deliverables at the best price reasonably obtainable in the circumstances and charge the Client for any shortfall below the price under the Contract or account to the Client for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
6.3 The Supplier shall use reasonable endeavours to meet any delivery or performance dates in relation to the Services and the Deliverables specified in the Order, and, if no time is agreed then within a reasonable time, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. Any delay in delivery or performance will not entitle the Client to cancel the Contract unless and until the Client has given 30 days’ written notice to the Company requiring the delivery or performance to be made and the Company has not fulfilled the delivery or performance within that period. If the Client cancels the order in accordance with this Clause 6.3 then:
the Supplier will refund to the Client any sums which the Client has paid to the Supplier in respect of that Order or part of the Order which has been cancelled;
the Client will be under no liability to make any further payments in respect of that Order or part of the Order which has been cancelled, however, for the avoidance of doubt, the Client’s obligation to make payment for the Services and/or Deliverables provided will remain; and
the Supplier will have no other liability to the Client in respect of the delay or failure of the Supplier.
FEES AND PAYMENT
7.1 The Fees for the Services shall be the agreed fees set out in the Order and the Fees shall be for the scope of work set out in the Order.
7.2 Unless otherwise provided in the Order, the Fees are based on a maximum of two requests for revisions to the Deliverables being made by the Client. The Client shall pay additional fees for any revisions requested by them which exceed that number (and are therefore outside the scope of the Services) on a time and materials basis at the Supplier’s standard hourly rate for similar services. Such fees shall be in addition to all other amounts payable in accordance with the Order, despite any maximum budget, contract price or final price identified in the Order. The Supplier may extend or modify any delivery schedule or deadlines set out in the Order as may be required to complete the additional revisions requested by the Client.
7.3 In addition to the Fees, the Supplier shall be entitled to charge the Client for: (i) any expenses reasonably incurred by the Supplier in connection with the provision of the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses; (ii) for the cost of services provided by third parties and required by the Supplier for the performance of the Services, including but not limited to printing services, photography and/or artwork licenses, music licenses or courier expenses; and (iii) for the cost of any materials.
7.4 The Supplier shall invoice the Client in accordance with the payment terms agreed in the Order. The Client shall pay each invoice submitted by the Supplier in accordance with the payment terms agreed in the Order in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Contract.
7.5 Where no payment details are set out in the Order, the Client shall pay each invoice submitted by the Supplier:
within 7 days of the date of the invoice; and
in full and in cleared funds to a bank account nominated in writing by the Supplier.
Time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client 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. Where the client is VAT exempt, the Supplier will continue to apply and VAT due on the Services until provided with a VAT exemption number by the Client.
7.7 If the Client fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without prejudice to the Supplier’s other rights and remedies, the Supplier reserves the right to charge the Client interest on the overdue amount at the rate of 3 per cent. per annum above the Royal Bank of Scotland’s base rate from time to time or if that base rate is discontinued a similar rate reasonably selected by the Supplier. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
7.8 The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding 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 Client against any amount payable by the Supplier to the Client.
7.9 Where additional costs will be due to the Supplier as a result of revisions requested by the Client, the Supplier may require that the Client pays an additional retainer fee to the Supplier before the Supplier commences work in accordance with the requested revisions.
7.10 The Deliverables will not be delivered to the Client until payment of all Fees for the Services has been met and the Deliverables shall remain the property of the Supplier until the Fees have been paid in full.
APPOINTMENT OF THIRD PARTIES
8.1 Where the parties have agreed in the Contract that the services of a third party shall be engaged to assist with the provision of the Services, such costs will be charged to the Client in addition to the Fees.
8.2 The Client shall at all times remain responsible and liable for the payment of any costs charged by that third party in addition to the Fees, even where the third party is engaged by the Supplier on the Client’s behalf either acting as the Client’s agent or for the Client’s benefit.
8.3 The Supplier maintains the right to ask for money on account before engaging a third party.
INTELLECTUAL PROPERTY RIGHTS
9.1 All Intellectual Property Rights in or arising out of or in connection with the Services and/or the Deliverables shall be owned by the Supplier until payment for all Fees has been received by the Supplier in cleared funds following which all Intellectual Property Rights in or arising out of or in connection with the Services and/or Deliverables shall become the property of the Client.
9.2 Upon any Intellectual Property Rights in or arising out of or in connection with the Services transferring to the Client in accordance with clause 9.1, the Supplier shall execute and deliver such documents, perform such acts and do such things as the Client shall reasonably request to transfer the Intellectual Property Rights to the Client.
9.3 The Client acknowledges that, in respect of any third party Intellectual Property Rights, the Client’s use of any such Intellectual Property Rights is conditional upon the Client providing to the Supplier a written licence from the relevant licensor on such terms as will entitle the Supplier to use such rights for the provision of the Services. The Client will remain liable to the holder of the Intellectual Property Rights for all mistakes and/or errors made in relation to the incorrect use of trademarks and/or copyrights.
9.4 All Supplier Materials are, and shall at all times remain, the exclusive property of the Supplier.
A party (the “Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction; information that is in the public domain or becomes publicly known through no fault of the Receiving Party; and information which is otherwise properly received from a third party without an obligation of confidentiality. This clause 10 shall survive termination and/or completion of the Contract.
11. ACCREDITATION / PROMOTIONS
11.1 All displays or publications of the Deliverables shall bear an accreditation and/or copyright notice as directed by the Supplier. The Supplier retains the right to reproduce, publish and display the Deliverables in the Supplier’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. The Supplier and the Client, subject to the other’s reasonable approval, may describe its role in relation to the Deliverables and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website, subject always to the obligations agreed in clause 10.
11.2 The Client shall grant the Supplier a licence to utilise any Intellectual Property Rights contained in the Deliverables which have been transferred to the Client in accordance with the Contract in order to grant the Supplier the rights set out in this clause 11.
LIMITATION OF LIABILITY:
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation; or
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 Subject to clause 12.1:
the Supplier shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
the Supplier’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Fees.
12.3 The Supplier shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with any engagement of a third party to assist with the provision of the Services.
12.4 The Client shall indemnify, keep indemnified and hold harmless the Supplier from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance by the Client of the terms of the Contract.
12.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.6 This clause 12 shall survive termination and/or completion of the Contract.
13.1 Either party may terminate the Contract by giving the other party twenty business days written notice.
13.2 Either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
the other party (being an individual) is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(b) to clause 13.2(i) (inclusive);
the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13.3 The Supplier may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 10 Business Days after being notified in writing to do so.
13.4 The Supplier may suspend provision of the Services under the Contract or any other contract between the Client and the Supplier if the Client becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(m), or the Supplier reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
the Client shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied and/or Deliverables delivered and/or Fees incurred but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Client immediately on receipt;
the Client shall immediately pay any third party costs which have been incurred in respect of Services supplied;
the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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;
clauses which expressly or by implication survive termination shall continue in full force and effect; and
each party shall return or destroy the confidential information of the other party received in connection with the Contract.
15.1 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, 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, earthquake, default of suppliers or subcontractors or death, illness or incapacity of the Supplier.
15.2 The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
15.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than two weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
16. DOCUMENT RETENTION
16.1 The Client may ask the Supplier to send them all of the records relating to Services supplied (unless the Supplier has not been fully paid in which case the Supplier may have the right to retain such until full payment has been made). In the event that the Client makes such a request, the Supplier may keep copies of the documents for their records but will respect the Client’s right of confidentiality. The Supplier does not undertake to retain the Client’s records for any particular period of time but the Client understand that the Supplier may maintain such records for their own purposes (in any format). The Supplier may destroy records of any type, without further notice to the Client, unless the Client has specifically asked the Supplier to retain them. Where the Client would like the Supplier to keep documents for the Client following completion of an Order, the Client should contact the Supplier to arrange this. A fee may be charged by the Supplier to cover the Supplier’s costs.
17. ELECTRONIC COMMUNICATIONS
17.1 The Supplier will take precautions to ensure that electronic communications from the Supplier are virus free although this cannot be guaranteed. The Supplier may not allow certain documents into their system for security reasons. The Client accepts the risk that electronic communications cannot be guaranteed to be delivered, may not be secure or error free and can be delayed or received by other than the intended recipients, and the Supplier shall have no liability for these risks unless caused by their negligence or wilful default. The Supplier reserves the right to monitor electronic communications.
18.1 Relationship of the parties
The Supplier is an independent contractor and not an employee of the Client or any company affiliated with the Client. The Supplier shall provide the Services under the general direction of the Client, but the Supplier shall determine, in the Supplier’s sole discretion, the manner and means by which the Services are accomplished.
The Supplier shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”).
The parties expressly acknowledge that the Contract does not create an exclusive relationship between the parties. The Client is free to engage others to perform services of the same or similar nature to those provided by the Supplier, and the Supplier shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by the Supplier.
18.2 Assignment and other dealings
The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
The Client shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at the address set out in box 9 of the Order or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.3(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 a.m. on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, on receipt of a delivery notice confirming safe receipt by the recipient.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
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 clause shall not affect the validity and enforceability of the rest of the Contract.
If one party gives notice to the other of the possibility that 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.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy 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 its 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.
18.6 No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
18.7 Third parties
A person who is not a party to the Contract shall not have any rights to enforce its terms. The Supplier and the Client agree that the Contract shall not be enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
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 Supplier.
18.9 Governing law
This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of Scotland.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).