TERMS AND CONDITIONS
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 9.
Commencement Date: has the meaning set out in clause 2.1.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.
End Client: where the Customer is a project advisor then the client/end user at whose Installation Premises the Services are to be supplied as part of that project.
Installation Premises: the premises of the Customer or End Client at which the Services (and Goods if applicable) are to be supplied.
Modus: Modus Living Limited (registered in England and Wales with company number 8099370) trading as “Modus Fireplaces”.
Modus Materials: has the meaning set out in clause 4.1(j).
Contract: the contract between Modus and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person, firm or company who purchases the Services from Modus.
Deliverables: the deliverables specified in the Service Specification produced by Modus for the Customer.
Goods: means any goods supplied under the Contract as part of the Deliverables.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Services: the services, including the Deliverables, supplied by Modus to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by Modus to the Customer either in any quotation, email or order confirmation (whichever is the latter) given by Modus or separate specification document.
1.2 In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or 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.
(d) 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.
(e) A reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 An order from a Customer shall only be deemed to be accepted when Modus receives the initial deposit payment at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Modus which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by Modus, and any descriptions or illustrations contained in the catalogues or brochures of Modus, 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.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 In the event of a conflict between the Service Specification and the Conditions the provisions of the Service Specification shall prevail.
2.6 Any quotation given by Modus shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. Supply of services
3.1 Modus shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
3.2 Modus shall use all reasonable endeavours to meet any performance dates specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 Modus shall have the right to make any changes to the Services 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, and Modus shall notify the Customer in any such event.
3.4 Modus warrants to the Customer that the Services will be provided using reasonable care and skill.
4. Obligations of the Customer
4.1 The Customer shall:
(a) ensure that any information it provides in the Service Specification and the Goods Specification (where applicable) is complete and accurate;
(b) ensure that the Service Specification and/or Goods Specification is appropriate (including but not limited to dimensions and performance specifications) for the Installation Premises and compliant with any local regulatory requirements;
(c) co-operate with Modus in all matters relating to the Services and/or the Goods;
(d) ensure the co-operation of the End Client in all matters relating to the Services and/or the Goods;
(e) provide Modus with such information as Modus may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(f) provide Modus, its employees, agents, consultants and subcontractors, with access to the Installation Premises of the Customer, accommodation and other facilities as reasonably required by Modus;
(g) in so far as the Services do not include the same, prepare the Installation Premises, undertake an installation of the Deliverables/Goods and/or make good the Installation Premises following commissioning;
(h) ensure that suitably qualified and regulated third parties are instructed in a timely manner to undertake any preparation or installation work or making good at the Installation Premises;
(i) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;
(j) keep and maintain all materials, equipment and other property of Modus (Modus Materials) at the Installation Premises of the Customer in safe custody at its own risk, maintain Modus Materials in good condition until returned to Modus, and not dispose of or use Modus Materials other than in accordance with the written instructions or authorisation of Modus; and
(k) following installation of the Deliverables/Goods follow Modus’ or the manufacturer’s oral or written instructions use or maintenance of the same.
4.2 The Customer or their duly authorised representative shall inspect the installation, the Deliverables/the Goods with a representative of Modus on the date of installation/commissioning and both parties shall sign a “Certificate of Completion” and accordingly signature of such Certificate or where none is signed by the Customer then payment by the Customer of the balance of the Charges under clause 9.1(c) shall be deemed confirmation by the Customer that Modus has satisfactorily fulfilled its obligations in performance of the Services under the Contract. Following signature of such Certificate or balance payment by the Customer, any further services required by the Customer from Modus (save for services resulting from a claim by the Customer under clause 7.1) shall incur additional charges at Modus’ then current daily rate.
4.3 If the performance of Modus 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 (or where applicable the End Client) to perform any relevant obligation (Customer Default):
(a) Modus shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the performance of Modus of any of its obligations;
(b) Modus shall not be liable for any costs or losses sustained or incurred by the Customer or the End Client arising directly or indirectly from the failure or delay of Modus to perform any of its obligations as set out in this clause 4.2; and
(c) the Customer shall reimburse Modus on written demand for any costs or losses sustained or incurred by Modus arising directly or indirectly from the Customer Default including (but not limited to) Modus’ cost for additional visits to the Installation Premises to finalise installation or commission Deliverables/Goods where this was prevented in the first instance due to the Customer’s or a third party’s failure to complete preparatory works or which are necessary because required utility services were not available (including but not limited to gas and electricity supplies).
4.4 In the event that the Customer unlawfully terminates or cancels the Contract, the Customer shall be required to pay to Modus, as agreed damages and not as a penalty, the full amount of any third party costs to which Modus has committed and in respect of cancellations on less than 10 days’ written notice the full price of the Goods as set out in the Contract, and the Customer agrees this is a genuine pre-estimate of Modus’ losses in such a case.
5.1 The Goods are described in any specification for the Goods, including any relevant plans or drawings or order confirmation (whichever is the latter) that are agreed in writing by the Customer and Modus (“Goods Specification”).
5.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied or approved by the Customer (whether or not such Goods Specification is produced by Modus or a third party consultant or supplier), the Customer shall indemnify Modus against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Modus in connection with any claim made against Modus for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Modus’ use of the Goods Specification. This clause 5.2 shall survive termination of the Contract.
5.3 Modus reserves the right to amend the Goods Specification of the Goods if required by any applicable statutory or regulatory requirements.
6. Delivery of Goods
6.1 Delivery of the Goods shall take place at the delivery location stated below (“Delivery Location”):
(a) For Goods for delivery within the UK mainland by Modus – at the point of completion of unloading of the Goods by Modus at the agreed delivery address (whether or not the Installation Premises); or
(b) For Goods collected by the Customer from Modus’ warehouse or for delivery within the UK mainland by third party carrier – when the Goods have been loaded onto the Customer’s or the carrier’s vehicle (as applicable); or
(c) For Goods for export outside the UK mainland – where the Goods are made available at Modus’ warehouse (EXW) for collection by the Customer’s nominated carrier service.
Delivery of Goods shall take place at the applicable Delivery Location stated above and following such delivery the Customer shall be liable for any subsequent loss or damage to Goods however caused.
6.2 Acceptance of any change to the Delivery Location requested by the Customer shall be at the Modus’ sole discretion and the Customer shall be liable for any additional expenses incurred by Modus as a result of such change.
6.3 The Customer is responsible for obtaining, at its own cost:
(a) transport from the Delivery Location;
(b) insurance cover in relation to the transport of the Goods from Modus’ warehouse; and
(c) all export/import licences and other consents in relation to the Goods as are required from time to time by the Customer and, if required by Modus, the Customer shall make those licences and consents available to Modus prior to the relevant shipment.
6.4 In the event that Modus agreed to arrange transportation of the Goods such Goods are delivered by third party carriers over whom the Modus has no control and therefore Modus shall not be liable for any loss, damage or expense suffered by the Customer or any other party by reason of any alleged delay in delivery or damage to the Goods during transit.
6.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Modus shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Modus with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.6 If the Customer fails to accept or take delivery of the Goods within 10 Business Days of Modus notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Modus’ failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 11th Business Day following the day on which Modus notified the Customer that the Goods were ready; and
(b) Modus shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
6.7 If 20 Business Days after Modus notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, Modus may resell or otherwise dispose of part or all of the Goods.
7. Quality of Goods
7.1 Subject to the provisions of this clause 7, Modus warrants that on delivery and for a period of 2 years the Goods shall:
(a) conform in all material respects with their description and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship.
7.2 Subject to clause 7.3, if:
(a) the Customer gives notice:
(i) in the case of visual defects apparent on normal visual inspection (including glass condition), within two Business Days of Delivery; or
(ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent,
that some or all of the Goods do not comply with the warranty set out in clause 7.1;
(b) Modus or its appointed representative is given a reasonable opportunity of examining such Goods; and
(c) where Goods have not yet been used/installed/commissioned, the Customer (if asked to do so by Modus) returns such Goods to Modus’ place of business at Modus’ cost,
Modus shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The above warranty shall only cover Goods and accordingly any associated labour costs will be charged at Modus’ then current daily rate (or part thereof). If the Customer’s claim is found by the Modus to be outside the scope or duration of the warranty in clause 7.1, the costs of transportation of the Goods, investigation, inspection (including Modus’ or their appointed representative’s reasonable travel and accommodation expenses) and repair or replacement shall be borne by the Customer.
7.3 Modus shall not be liable for the Goods’ failure to comply with the warranty in clause 7.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 7.2;
(b) the defect arises because the Customer (or its contractor) failed to follow Modus’ or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use (including fuel type used) or maintenance of the Goods or (if there are none) good trade or industry practice;
(c) the defect arises as a result of Modus following any drawing, design or Goods Specification supplied by the Customer;
(d) the defect is glass damage/broken glass caused following delivery (as defined in clause 6.1 of these Conditions);
(e) the defect arises as a result of special (non-standard) material finish to the Goods requested by the Customer;
(f) the Customer (or any of its contractors) alters or repairs such Goods without the written consent of Modus;
(g) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(h) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
7.4 Except as provided in this clause 7, Modus shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Modus under clause 7.2.
7.6 For the avoidance of doubt Modus shall not be liable under this clause 7 in respect of:
(a) damage to or failure or reduced performance of Deliverables/Goods which results from works undertaken at the Installation Premises by the Customer or other third parties following the signature of the Certificate of Completion; or
(b) the Customer’s (or the End User’s) failure to be able to operate the Goods in accordance with the manufacturer or Modus’ operating/user instructions; or
(c) the Goods failure or reduced performance as a result of incorrect storage, installation or commissioning by the Customer or End User’s appointed suppliers,
and in the event of such damage or failure and the Customer’s or End User’s subsequent request that Modus attend the Installation Premises to provide additional instruction or remedial works then the Customer shall be liable to pay Modus’ standard daily rates and reasonable expenses (including but not limited to travel and accommodation expenses) to provide such additional services together the full replacement cost of the unit (or any part thereof) .
7.7 Where the Goods have been manufactured and supplied to Modus by a third party, any warranty granted to Modus shall be passed on to the Customer to the extent that Modus is able and subject to the Goods having been accepted and paid for by the Customer.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery as stated in clause 6.1.
8.2 Title to the Goods shall not pass to the Customer until Modus has received payment in full (in cleared funds) for:
(a) the Goods; and
(b) any other goods or Services that Modus has supplied to the Customer,
and no other sums are due from the Customer to Modus
8.3 Until title to the Goods has passed to the Customer, the Customer shall hold the Goods and each of them on a fiduciary basis as a custodier/bailee for Modus. The Customer shall store the Goods separately from all other Goods in its possession and marked in such a way that they are clearly identified as the property of Modus. The Customer shall not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods. The Customer shall maintain the Goods in satisfactory condition and keep them insured on Modus behalf for their full price against all risks to the reasonable satisfaction of Modus. On request Customer shall produce the policy of insurance to Modus.
8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1 (c) to (e) (inclusive) of the Terms and Conditions, or Modus reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been irrevocably incorporated into another product, and without limiting any other right or remedy Modus may have, Modus may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Charges and payment
9.1 The Charges for the Services (including any Goods where supplied as part of the Services) shall be the price set out in the Service Specification which shall be payable as follows unless otherwise agreed in writing by Modus:
(a) on receipt of the Customer’s Order: a non-refundable payment of 50% of the total Charges on account of Modus’ preparatory works and initial instructions and costs;
(b) not later than 21 days prior to the agreed installation date: 35% of the total Charges; and
(c) on the installation date: the balance 15% of the total Charges.
9.2 In respect of a Contract for the supply of Goods only, Modus shall invoice the Customer at the times and in the amounts set out in the quotation but if not stated in the quotation then as follows:
(a) 50% of the total price of the Goods is payable when the order is made by the Customer; and
(b) the balance 50% of the total price of the Goods is payable 10 days prior to despatch of the Goods or on confirmation that the Goods are ready for collection (whichever is the earlier)..
9.3 Where any additional works are necessary over and above the original agreed Services or costs are incurred as a result of a Customer Default then additional Charges shall be calculated in accordance with the then standard daily fee rates of Modus.
9.4 Modus shall invoice the Customer:
(a) In the case of clause 9.1 above – on the date(s) or events set out in clause 9.1 above or otherwise date(s) or events stated in the Service Specification; or
(b) In the case of Charges under clause 9.2 or where no invoicing interval is indicated in the Service Specification – monthly in arrears.
9.5 Unless agreed otherwise by Modus the Customer shall pay each invoice submitted by Modus
in full and in cleared funds to a bank account nominated in writing by Modus andtime for payment shall be of the essence of the Contract.
9.6 All amounts and charges stated or referred to in these Conditions:
(a) are in Sterling (UK Pounds);
(b) are, subject to clause 12.3(b), non-cancellable and non-refundable; and
(c) are exclusive of VAT and other charges and duties.
9.7 Without limiting any other right or remedy of Modus, if the Customer fails to make any payment due to Modus under the Contract by the due date for payment (Due Date), Modus shall have the right to charge interest on the overdue amount at the rate of 4% per annum above the then current base rate of HSBC Bank plc accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
9.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against Modus in order to justify withholding payment of any such amount in whole or in part. Modus may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Modus to the Customer.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by Modus.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the use by the Customer of any such Intellectual Property Rights is conditional on Modus obtaining a written licence from the relevant licensor on such terms as will entitle Modus to license such rights to the Customer.
10.3 All Modus Materials are the exclusive property of Modus.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, Service Specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the business of Disclosing Party or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the obligations of the Receiving Party under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
12. Limitation of liability
12.1 Nothing in these Conditions shall limit or exclude the liability of Modus for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and 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.
12.3 Subject to clauses 12.1 and 12.2:
(a) Modus shall under no circumstances whatever be liable to the Customer, 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
(b) the total liability of Modus to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges paid by the Customer for the Services.
12.4 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.5 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, Modus may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of receipt of notice in writing of the breach;
(b) the Customer fails to pay any amount due under this Contract on the due date for payment;
(c) an order is made for bankruptcy of the Customer or an effective resolution is passed for the winding-up of the Customer or the Customer makes a composition with creditors or if a supervisor, receiver, administrator, administrative receiver;
(d) 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 (c) aboveor
(e) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business
13.2 Without limiting its other rights or remedies, Modus shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and Modus if the Customer becomes subject to any of the events listed in clause 13.1(c) to clause 13.1(e) or Modus reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
14. Consequences of termination
14.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Modus all of the outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Modus shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) return or destroy (as directed in writing by the other party) any documents, handbooks or other information or data provided to it by the other party for the purposes of this agreement. If required by the other party, it shall provide written evidence (in the form of a letter signed by its director) no later than 28 days after termination of this agreement that these have been destroyed and that it has not retained any copies of them, except for one copy that it may use for audit purposes only and subject to the confidentiality obligations in clause 11;
(c) the Customer shall return all of Modus Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Modus may enter the Installation Premises of the Customer 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 this Contract;
(d) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Modus including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Modus or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Modus or subcontractors.
(b) Modus shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents Modus from providing any of the Services for more than two weeks, Modus shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
15.2 Assignment and subcontracting:
(a) Modus may at any time assign, transfer, 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.
(b) The Customer shall not, without the prior written consent of Modus, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
(c) This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
(a) A waiver of any right under the Contract 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 under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Variation: Except as set out in these Conditions, any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Modus.
15.9 Governing law and jurisdiction: 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.