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THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10 (LIMITATION OF LIABILITY) AND CLAUSE 13.4 AND CLAUSE 13.5 (LIQUIDATED DAMAGES).
The following definitions and rules of interpretation apply in these Terms and Conditions.
1.1 Definitions:
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Terms and Conditions – These terms and conditions as amended from time to time in accordance with clause 17.8.
Commencement Date: has the meaning given in clause 3.1.
Company – Growth Agency Ltd, a company incorporated in England and Wales, Company Registration Number: 11211692. Registered Address is 49 Piccadilly, Manchester, England, M1 2AP.
Contract Year: means a 12 month period commencing with the date of this Contract or any anniversary of it.
Customer – The person or firm who purchases the Services from the Company as set out in the Contract.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Deliverables: the deliverables as set out in the Order Form produced by the Company to the Customer.
Extended Term – being the duration as set out in the Order Form.
Intellectual Property Rights – patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
Initial Term – being the duration as set out in the Order Form.
Business Day – Any day other than Saturday, Sunday or public holidays in England, on which the banks in London are open for normal business.
Order Form: the description of the Services provided in writing by the Company to the Customer.
Restricted Person: means any firm, company or person employed or engaged by the Company during the Contract who has been engaged in the provision of the Services or the management of the Contract either as principal, agent, employee, independent contractor or in any other form of employment or engagement.
Order – The Customer’s order for the Services as set out in the Customer’s written acceptance of the Company’s Order Form.
Contract – the contract between the Company and the Customer for the supply of Services in accordance with these Terms and Conditions.
Change – has the meaning given in clause 7.1.
Service Fee – The amount(s) due to the Company by the Customer under the Contract, being a monthly fee of 20% of the Internet Marketing Campaign Costs (or as set out in the Order Form).
Internet Marketing Campaign Costs – being the agreed costs paid by the Customer to the Company which shall facilitate the Company’s ability to carry out the Services, as set out in the Order Form.
Services – The services, including the Deliverables, to be provided by the Company as set out in the Order Form.
1.2 Interpretation:
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) 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.
(c) A reference to writing or written includes email.
(d) The Order Form forms part of the Contract and shall have effect as if set out in the full body of these Terms and Conditions. Any reference to these Terms and Conditions includes the Order Form.
2.1 The Order shall constitute an offer by the Customer to purchase the Services in accordance with these Terms and Conditions.
2.2 Any drawings, descriptive matter or advertising issued by the Company, and any descriptions or illustrations contained in the Company’s brochures or on its website, 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.
2.3 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seems to impose, incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
3.1 This Contract shall commence on the date when Growth Agency issues written acceptance of the Order, following payment by the Customer of the first instalment of the Internet Marketing Campaign Costs, at which point and on which date the Contract shall come into existence (Commencement Date).
3.2 This Contract commences and continues, unless terminated in accordance with clause 13 (Termination) for the duration as set out in the Order Form.
4.1 In consideration of the payment by the Customer to the Company of the Service Fee and the Internet Marketing Campaign Costs as set out in the Order Form, the Company agrees to provide the Services to the Customer in accordance with the Order Form in all material respects.
4.2 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
4.3 The Company shall use all reasonable endeavours to meet any performance dates specified in the Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.4 This Contract shall not give rise to any exclusive relationship and nothing in this Contract shall prevent the Company acting for or providing services of the same or similar nature to any third party.
4.5 It is agreed and understood that any services undertaken by the Customer (or by any third party on its behalf) which is in relation to or similar to the Services, including without limitation any modification of the Services or the Customer’s website or the use of or inclusion of any third party product or service which might relate to the Services, shall not interfere with the provision of the Services by the Company and affect the results, outcomes and positions in search engines (Interference). The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising out any Interference, including but not limited to where such Interference affects the Services. Any proposed Interference should be discussed with the Company prior to being undertaken by the Customer and the Customer shall not implement the same without the prior written consent of the Company. Remedy of such matters shall be dealt with by way of Change.
4.6 Where any Interference, as referenced in clause 4.5 above, are instigated by the Customer (or by any third party) independent of the Company which affect performance of the Services or otherwise, the Company will perform a calculation, based on historic averages, in regard to the Company’s reporting of the performance of the Services, for the period in which the Interference affected performance. Examples will include, but are not limited to the following:
4.7 As the Company work with third party providers in the provision of the Services, the Company are obliged to provide the Customer with certain information regarding the extent of that relationship. A link to the guide is as follows: https://support.google.com/adspolicy/answer/9457109 and is also set out on our website and shall be provided to the Customer via email.
4.8 The Company reserves the right to refuse or cancel Orders or terminate this Contract with immediate effect where any content and/or Materials provided by the Customer in order to facilitate provision of the Services includes sexual content, racism, defamatory content, alcohol, copyrights, gambling and games, healthcare and medicines, political content, financial services, trademarks, ‘made for kids’; content, any foreign laws or jurisdictions that will govern the content/advertisement.
4.9 The Company shall notify the Customer where Google require a minimum initial payment prior to the creation of any relevant accounts.
4.10 The Company reserves the right to amend the Order Form 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 Company shall notify the Customer in any such event.
5.1. The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Order Form are complete and accurate;
(b)co-operate with the Company in all matters relating to the Services;
(c) take such acts and provide such source materials (including those listed in the Order Form) (Materials) as the Company shall incorporate into the Services, or as the Company may require to carry out its obligations hereunder;
(d) promptly, when requested to do so by the Company, provide the Company with such complete, truthful and accurate information and consents the Company may require in order to verify the identity of the Customer (including company descriptions and the services you provide), relevant contact details, data, business names and relevant email addresses of the Customer;
(e) not provide prohibited content and/or Materials to the Company including, but not limited to any content/Materials set out in clause 4.8, counterfeit goods, dangerous products or services, content enabling dishonest behaviour, content that contains misrepresented information, content that contains malware, spyware, unwanted software or any other malicious code or any other inappropriate content;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(g) comply with any additional obligations as set out in the Order Form.
5.2. In the event that the Customer does not undertake those acts or provide those Materials required under clause 5.1(c) above within a reasonable time (and at least within 30 days) of being requested to do so, including without limitation carrying out any reasonable changes, modifications or optimisations which, in the sole discretion of the Company, are critical to the Customer’s website or other materials as requested, recommended or required by the Company, the Company shall be entitled by giving written notice to the Customer to terminate the Contract with immediate effect.
5.3 The Customer shall indemnify the Company 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 professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:
(a) any breach of clause 5.1(d);
(b) any breach of clause 5.1(e);
(c) any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with any Materials, content or advertisements provided by the Customer to the Company in the course of the Services; and
(d) any claim made against the Company by a third party arising out of or in connection with any Materials, content, advertisements and the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by the Customer, its employees, agents or subcontractors.
5.4 If the Company’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, including but not limited to payment of the Service Fee and the Internet Marketing Campaign Costs (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Company 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 Company’s performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 5.4; and
(c) the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
6.1. In consideration of the provision of the Services by the Company:
(a) for the Initial Term, the Customer shall make payment of the Internet Marketing Campaign Costs and such Service Fees as set out in the Order Form from time to time;
(b) for the Extended Term, the Customer shall make payment of the Service Fee and the Internet Marketing Campaign Costs.
6.2 At the commencement of the Contract, the Customer shall confirm and make payment to the Company the minimum figure comprising the Internet Marketing Campaign Costs. The Customer’s ability to reduce the Internet Marketing Campaign Costs shall be at the sole discretion of the Company.
6.3 Any increases to the Internet Marketing Campaign Costs shall be at the sole discretion of the Customer and the Company shall not increase the Internet Marketing Campaign Costs without obtaining the Customer’s prior written consent.
6.5 The Service Fee shall include the following (upon prior written agreement between the Customer and the Company) which shall be payable by the Customer:
(a) the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Company engages in connection with the Services; and
(b) the cost to the Company of any materials or services procured by the Company from third parties for the provision of the Services as such items and their cost are approved by the Customer in advance from time to time.
6.6 The Service Fee and the Internet Marketing Campaign Costs shall be payable by the Customer monthly and in advance of the Services being undertaken by the Company on such dates as agreed in writing between the Company and the Customer from time to time.
6.7 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Company any sum due under the Contract on the due date:
(a) 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 6.7(a) will accrue each day at 8% a year above the Bank of England’s base rate from time to time, pursuant to the Late Payment of Commercial Debts (Interest) Act 1998, but at 8% a year for any period when that base rate is below 0%;
(b) the Company may suspend all or part of the Services until payment has been made in full.
6.8 All sums payable to the Company under this Contract:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) 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).
6.9 Time for payment shall be of the essence of the Contract.
6.10 The Company reserves the right to increase the Service Fee on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
7.1. Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services;
(b) the timetable of the Services; and
(c) any of the terms of these Terms and Conditions.
7.2 If the Company wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
7.3 If the Customer wishes to make a change to the Services:
(a) it shall notify the Company and provide as much detail as the Company reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) the Company shall, as soon as reasonably practicable after receiving the information at clause 7.3(a), provide a draft Change Order to the Customer.
7.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend this Contract; or
(b) are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in clause 16 (Multi-tiered dispute resolution procedure).
8.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in the Materials provided by the Customer) shall be owned by the Company.
8.2 The Company 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.
8.3 The Customer shall not sub-licence, assign or otherwise transfer the rights granted in clause 8.2.
8.4 The Customer grants the Company a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Materials provided by the Customer to the Company for the term of the Contract for the purpose of providing the Services to the Customer.
8.5 The Customer shall not modify, adapt or translate (Modifications) the Services except with the prior written consent of the Company or as otherwise permitted by law. Where consent is granted by the Company, all Intellectual Property Rights arising out of or in connection with the Modifications shall be the sole ownership of the Company unless otherwise agreed and specified in writing on the Order Form.
8.6 The Customer understands that the Company uses significant information, skill, expertise and know-how in the provision of the Services, including but not limited to, any and all processes, formulas, drawings, strategies, data, techniques, platforms, accounts, campaigns, tools and methods (Trade Secrets).
8.7 The parties acknowledge that any such Trade Secrets utilised in the provision of the Services are confidential to the Company and all Intellectual Property Rights arising out of or in connection with the Trade Secrets are the sole ownership of the Company.
8.8 The extent of the Services to be provided by the Company are as set out in the Order Form. The Company shall not permit any such access to or provide any explanation in any form as to the Company’s Trade Secrets in the provision of the Services and such access or explanation shall not form part of this Contract.
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this 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 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
10.1 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
10.3 Nothing in this clause 10 shall limit the Customer’s payment obligations under the Contract.
10.4 Nothing in this Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.5. Subject to clause 10.2 and clause 10.4, the Company’s total liability to the Customer in respect of all breaches of duty shall not exceed an amount equal to the Service Fees in a Contract Year in which the breaches occurred.
10.6 Subject clause 10.2, clause 10.3 and clause 10.4, this clause 10.6 sets out the types of loss that are wholly excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of damage to goodwill; and
(g) indirect or consequential loss.
10.7 Unless the Customer notifies the Company that it intends to make a claim in respect of an event within the notice period, the Company shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of it having grounds to make a claim in respect of the event and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.1. In performing its obligations under this Contract, the Customer shall comply with all Applicable Laws.
12.1. The Company gives no warranty, representation or undertaking in relation to any third-party materials used in the course of the Services.
13.1 Without affecting any other right or remedy available to it, the Company may terminate the Contract on giving the Customer 1 months’ written notice.
13.2 Without affecting any other right or remedy available to it, the Customer may terminate the Contract on giving the Company 6 months’ written notice expiring on or after the first anniversary of the end of the Initial Term.
13.3 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer, if the Customer:
(a) fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(c) repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(d) takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, 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), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 13.3(d);
(e) suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(f) their financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
(g) there is a change of control of the Customer.
13.4 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services under the Contract or any other contract between the Customer and the Company if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer becomes subject to any of the events listed in clause 13.3(e) or clause 13.3(f), or the Company reasonably believes that the Customer is about to become subject to any of them; and
(c) the Company reasonably believes that the Customer is about to become subject to any of the events listed in clause 13.3(d).
13.4 If the Customer at any point during the Initial Term:
(a) terminates this Agreement;
(b) abandons this Agreement;
(c) commits a breach of clause 4.8;
(d) commits a breach of clause 5.2; or
(c) fails to serve the relevant notice period set out in clause 13.2,
the Customer shall pay, as liquidated damages, the entirety of the Internet Marketing Campaign Costs and the Service Fee (as applicable) for the duration of the Initial Term.
13.5 The parties confirm that these liquidated damages are reasonable and proportionate to protect the Company’s legitimate interest in performance.
14.1 On termination or expiry of this Contract:
(a) the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return any materials belonging to the Company and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Company 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;
14.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of 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;
14.3 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.
15.1 In order to protect the legitimate business interests of the Company during the Contract and for a period of 12 months from the termination or expiry of the Contract, the Company shall not, directly (without the prior written consent of the Company):
(a) solicit, entice or induce, or endeavour to solicit, entice or induce, any Restricted Person of the other party with a view to employing or engaging the Restricted Person, or
(b) employ or engage, or offer to employ or engage a Restricted Person of the Company whilst they remain employed by the Company.
15.2 The Customer shall be bound by the covenant set out in clause 15.1 during the Contract.
15.3 Notwithstanding the above, the Customer may employ or engage any Restricted Person of the Company who has responded directly to a bona fide recruitment drive either through a recruitment agency or via an advertisement placed publicly by the Company.
16.1 If a dispute arises out of or in connection with this Contractor the performance, validity or enforceability of it (Dispute) then except as expressly provided in the Contract, the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Customer and the Supplier shall attempt in good faith to resolve the Dispute and within 30 days;
(b) if the Customer and the Supplier are for any reason unable to resolve the Dispute within 30 days, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 60 days after the date of the ADR notice.
16.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 17.11 (Jurisdiction) which clause shall apply at all times.
17.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
17.2 No partnership. Nothing in this Agreement shall be deemed to constitute a partnership or agency relationship between the Parties and neither of the Parties shall do or suffer to be done anything whereby it may be represented as a partner or agent of the other party.
17.3 Severance. If any provision or part-provision of this Contract is or becomes invalid, illegal, unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 17.3 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.
17.4 Assignment and other dealings.
(a) The Company 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.
(b) 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 Company.
17.5 Entire Agreement.
(a) 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.
(b) 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 or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
17.6 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.
17.7 Third Party Rights. 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.
17.8 Variation. The Company may vary these Terms and Conditions from time to time on giving the Customer at least 14 days’ notice in writing provided that any variation required by applicable law will be effective immediately. If the Customer does not accept the variation, the Customer may, within 14 days of being notified of the variation by the Company (Review Period), terminate the Contract on written notice to the Company. The Customer’s continued use of the Services after the Review Period will constitute the Customer’s acceptance of the variation.
17.9 Notices.
(a) 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 addresses specified in the Order Form.
(b)Any notice shall be deemed to have been received:
(i)if delivered by hand, at the time the notice is left at the proper address;
(ii)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
(iii)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 17.9(b)(iii), 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.
(c)This clause 17.9 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.
17.10 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.
17.11 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.