STANDARD TERMS AND CONDITIONS FOR SHIPBROKING SERVICES
MADRID SHIPPING ADVISORS
These Conditions confirm the terms of business that govern the contractual relationship between the Client and the Company. The Client will be deemed to accept them on each occasion they receive the Services of the Company.
These Conditions shall be effective from 13 October 2022 and from that date replace and supersede any previous versions.
The Client’s attention is particularly drawn to the provisions of clause 8 which contains provisions which exclude or limit the Company’s liability.
1. Interpretation
1.1 In these Conditions, the following definitions apply:
Applicable Laws means all and any laws, regulations, ordinances, directions or directives issued by any government or regulatory body which apply to or could apply to the Services and including without limitation any sanctions imposed or agreed by the United Kingdom, United Nations, the European Union or the United States of America and laws relating to money laundering, anti-bribery and corruption (including without limitation the UK Bribery Act 2010).
Affiliates of an entity means its group undertakings as construed in accordance with section 1161 of the Companies Act 2006.
Client means the person who requests Services from the Company or responds to the Company in relation to the provision of the Services. Where such party is acting as a Representative, references in these Conditions to the Client will also include the Principal.
Company means Braemar Shipbroking Limited and/or any of its Affiliates with whom the Client engages for the provision of the Services.
Conditions means these terms and conditions as amended from time to time in accordance with clause 19.1.
Confidential Information means (a) information that is given by a Party to the other Party and that is stated by the disclosing Party to be confidential, and (b) any Fixtures that are expressly agreed in writing by the Parties to be confidential.
Contract has the meaning given to it in clause 2.
Data Protection Legislation means the General Data ProtectioN Regulation ((EU) 2016/679) and all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU version of the General Data Protection Regulation ((EU) 2016/679) and the Data Protection Act 2018 and any successor legislation.
Fees means the fees payable by the Client for the supply of the Services in accordance with clause 7.
Fixture means a contract or contracts (including without limitation) for the sale, purchase, construction, towage or charter of a Ship together with the Negotiations to enter into such contracts.
Intellectual Property Rights means all patents, rights to copyright and related rights, trademarks, 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 right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation 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.
Negotiations means exchanges, whether verbal or in writing, in relation to concluding a Fixture.
Post Fixture Services means assistance with communications, operational matters and claims arising from the performance of a Fixture.
Principal means a party to a Fixture including without limitation the owner, seller, buyer, builder or charterer of a Ship and any party guaranteeing the obligations of such party. The Client may be a Principal.
Representative means a person, including without limitation a ship manager, chartering department, shipbroker or other agent, who is not a Principal but is involved in Negotiations on behalf of a Principal.
Services means the services referred to in clause 2 of these Conditions.
Ship means any type of ship, vessel and/or equipment used or intended to be used for any purpose on, in or over water including without limitation rigs, jack ups, submersibles and barges.
1.2 Unless the context otherwise requires, each reference in these Conditions to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic transmission or similar means including without limitation e-mail, WhatsApp, and SMS messaging;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 a clause is a reference to a clause of these Conditions;
1.2.4 references to “controller”, “processor”, “data subject”, “personal data”, “personal data breach” and “processing” shall have the meanings given to them under the Data Protection Legislation; and
1.2.5 a “Party” or the “Parties” refer to the parties to the Contract.
1.2 The headings used in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions.
1.3 Words imparting the singular number shall include the plural and vice versa.
2. The Services
2.1 Unless otherwise agreed expressly in writing, the Company will act as a shipbroker in relation to Fixtures. The role of the Company is to introduce Principals. Thereafter the Company will assist the Principals and/or their Representatives as a channel for Negotiations as well as providing any Post Fixture Services as may be agreed or provided by the Company.
2.2 Unless otherwise agreed expressly in writing, the Company will act solely as an intermediary in relation to Fixtures and will not enter any Fixtures arising from the Services as a Principal. The Company is not responsible for the performance or non-performance of Fixtures or by Principals.
2.3 Unless otherwise agreed expressly in writing, the Services are provided on a Fixture-by-Fixture basis.
2.4 As part of the Services, the Company may provide supplementary or ancillary services to the Client in relation to the shipping industry, including without limitation the provision of market research. Such services may be subject to specific provisions (such as disclaimers) in addition to these Conditions. In the event of, and only to the extent of, a conflict between these Conditions and the specific provisions the latter will prevail. Otherwise these Conditions, including without limitation those as to limitation of liability, will apply.
2.5 The Company may, in its sole discretion, provide the Services to the Client by or in conjunction with any of its Affiliates. In such circumstances, such Affiliate(s) shall comply with and have the full benefit and protection of these Conditions. The liability of the Company and such Affiliates shall be joint and several.
2.6 The Company will perform the Services with the reasonable skill and care expected of a professional shipbroker.
2.7 Unless otherwise agreed in writing, the Company shall supply the Services to the Client as agent. For certain activities, the Company shall supply the Services as a Principal (these include without limitation market research).
2.8 The Company shall use all reasonable endeavours to meet any performance dates, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
2.9 The Company shall have the right to make any changes to the Services which are necessary to comply with Applicable Laws or safety requirements, or which do not materially affect the nature or quality of the Services, and the Company shall use reasonable endeavours to notify the Client in any such event.
2.10 It is understood that where the Company is dealing with a Representative or other intermediary rather than a Principal, the Company is dealing with such Representative or intermediary in good faith as to the authority that they possess, but the Company does not give a warranty as to that authority.
2.11 Where the Company is acting directly for a Principal, the Company warrants that the Company has the authority of that Principal.
2.12 Unless otherwise agreed expressly in writing, the Services are not provided on an exclusive basis and it is understood that the Company may act as a shipbroker for other parties in relation to the same or other Fixtures. If the Company is dealing directly with two Principals in relation to the same Fixture,the Company’s duties will be to pass on offers, counteroffers and other such communications accurately and in a timely manner as authorised by each Principal in turn.
2.13 If at any time the Company provides information in respect of a Principal,including without limitation information regarding corporate structures or financial standing, it is understood and agreed that such information is provided in good faith but without guarantee. It is the sole obligation of the Principal to satisfy themselves of any counterparty risk and decide whether to enter a Fixture with the proposed counterparty and on what terms.
2.14 If the Company publishes market reports, research or commentary, these are provided for general information only and not for use in relation to specific Fixtures. They shall be provided in good faith, but without any statement, representation or warranty as to their accuracy. Such market reports, research or commentary do not constitute advice and nothing contained in such documents shall amount to a solicitation, offer, advice or recommendation of any kind,including without limitation with respect to the decision by the Client to enter or not to enter a Fixture. The Company shall have no liability for the consequences of any person, including without limitation the Client, purporting to rely on such market reports, research or commentary and any use by the Client or any person of such reports, research or commentary shall be at such person’s sole risk.
2.15 These Conditions together with: (i) any separate scope of work agreed between the Parties; (ii) any other additional provisions or terms and conditions set out in writing by the Company and agreed by the Client (including without limitation a commission agreement); and (iii) any amendments or supplements to any of the foregoing agreed from time to time in writing, will constitute the entire agreement relating to the Services (together, the “Contract”). In the event of any conflict or inconsistency between the documents comprising the Contract, the documents set out in clause 2.15(i) and (ii) shall take priority over these Conditions, in each case as supplemented and/or amended as envisaged in clause 2.15(iii).
3. Client’s Obligations and Warranties
3.1 The Client warrants and represents to the Company that:
3.1.1 it is either: (i) a Principal with full legal power to accept these Conditions and enter into Fixtures in connection with the Services; or (ii) the agent of a Principal authorised to accept these Conditions on behalf of the Principal and to
make all offers, counteroffers and representations during Negotiations and to agree Fixtures on the Principal’s behalf;
3.1.2 the Client does not know of any fact or matter which could cause the performance of the Services or a Fixture to be in breach of Applicable Laws and that, should it become aware of any such fact or matter, it will immediately notify the Company of it;
3.1.3 it will not rely upon any information provided to it by the Company in respect of any person or Ship (including without limitation the ownership structure or financial standing of any such person or Ship) as being warranted, guaranteed or represented by the Company as being accurate or otherwise endorsed by the Company as to its content;
3.1.4 it accepts that it is at all times solely responsible for satisfying itself of any counterparty risk and for deciding whether to take a particular course of action (including without limitation entering, or not entering, into a Fixture and on what terms); and
3.1.5 it has specifically considered the limits and exclusions of liability and the indemnities set out in clauses 8 and 9 below and that it considers them to be fair and reasonable and a commercial allocation of risk having regard to the nature of the Services, the Fees paid for such Services and all other circumstances known to the Parties at the date of entering into the Contract.
3.2 The Client shall co-operate with the Company in all matters relating to the Services and where any actions need to be taken by a certain time, the Client shall ensure that the Company has sufficient time to take such actions prior to the relevant time limit.
3.3 The Client shall provide the Company with such information and materials as the Company may reasonably require in order to supply the Services and ensure that such information is accurate in all material respects. In particular, the Client shall ensure that during Negotiations there are no misrepresentations and will review all messages sent or copied to it in detail and promptly advise the Company of any errors or misrepresentations.
3.4 The Client shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
3.5 In relation to Post Fixture Services, where the Company has asked the Client to use specific e-mail addresses or telephone numbers for operational messages or claims then the Client will use those e-mail addresses or telephone numbers. In the event that the Client does not receive a prompt acknowledgement of receipt of time sensitive messages or claims documentation from the Company, the Client shall contact the Company to confirm receipt. The Company will have no responsibility for a failure to action a message or claims documentation unless it is communicated in a timely manner to the correct address or telephone number and acknowledged by the Company.
3.6 If the Client becomes aware of any claim or circumstances which might involve litigation or arbitration concerning or connected with the Services, the Client shall inform the Company immediately.
4. Data Protection
4.1 In providing, receiving, or requesting the Services, each Party may be required to provide the other Party with certain personal data and, in such event, each Party shall comply (and assist the other in complying) with the obligations imposed under the Data Protection Legislation in connection with such personal data. Each Party will be a data controller of the personal data supplied by the other Party, but in no event will the Parties be joint controllers. Each Party undertakes that (i) it is lawfully entitled to disclose any personal data; (ii) any data subject whose personal data it is providing under this Contract is aware of the use of such data; (iii) it will lawfully use personal data provided to it for the purposes of performing their obligations under the Contract, administering the relationship between the Parties and, in the case of the Company, disclosing it to any of its Affiliates for sales and marketing purposes; and (iv) it will have in place appropriate technical and organisational measures to protect the security,confidentiality and integrity of any personal data supplied.
5. Fees and Payment
5.1 On Fixtures, the Company’s Fees will (unless otherwise expressly agreed in writing) be in the form of a commission on the freight, hire, purchase price or other payments or remuneration due under the Fixture as the case may be.
5.2 The level of Fees payable and the party responsible for payment will be:
5.2.1 as expressly agreed in the Negotiations;
5.2.2 recorded in a specific commission agreement with the Company;
5.2.3 recorded in a commission clause or other agreement related to the Fixture concluded between the Client (or its Principal) and a third party; or
5.2.4 a combination of the foregoing.
5.3 If the Fee or amount of commission payable as a Fee has not been agreed in accordance with clause 5.2 above, a reasonable commission shall be payable to the Company based on the Parties’ previous course of dealing (if any), or in the absence of any relevant course of dealing, in accordance with market practice.
5.4 If the Client has agreed to be responsible for paying the Fees, the Client undertakes to make the payment or payments promptly. If the Client is not the party responsible for payment of the Fees, the Client expressly agrees to making a provision for such Fees in the Fixture and to use its best endeavours to ensure the prompt payment of the Fees to the Company.
5.5 Nothing in these Conditions will prevent the Company from enforcing a commission clause or other clause conferring a benefit on them as a third party in accordance with the terms of the Fixture and the Company will be deemed to have acted in reliance on the insertion of that clause.
5.6 Unless otherwise expressly agreed between the Parties in writing:
5.6.1 Fees payable on voyage charters are payable on dead freight, deviation costs, mobilisation and demobilisation, and demurrage, as well as on all items that comprise the freight rate;
5.6.2 Fees payable on time charters are payable on the hire paid under the charter and any continuation or extension of the charter and ballast bonus, if any;
5.6.3 Fees payable on sale agreements are payable on the gross purchase price or construction cost, including without limitation any extras and any mobilisation,demobilisation and commission costs, and are payable on delivery of the Ship and payment of the purchase price, or in the case of new building contracts, as and when each stage payment is made, in each case whether or not so provided for in the Fixture.
5.7 Fees, calculated as above, shall also be payable on any subsequent renewal, continuation or extension of any Fixture, any optional further contract arising out of or in connection with any Fixture, and any Fixture that is entered into or performed by another party in place of the Client.
5.8 If a Fixture is cancelled, terminated or modified with the effect that the Company is deprived of its Fees, the Client shall make such payment to the Company as required so that the Company is in no worse position than if such cancellation, termination or modification had not taken place. Fees shall also be payable on any cancellation fee and any damages payable for non-performance of a Fixture.
5.9 The Company shall invoice the Client on completion of the Services or such other basis as the Parties shall agree.
5.10 The Client shall pay each invoice submitted by the Company:
5.10.1 within 30 days of the date of the invoice;
5.10.2 in full and in cleared funds to a bank account nominated in writing by the Company; and
5.10.3 time for payment shall be of the essence of the Contract.
5.11 All amounts payable by the Client under the Contract are exclusive of amounts in respect of tax and duties chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.12 Without prejudice to any other rights and remedies of the Company, if the Company does not receive any payment due under the Contract, interest shall accrue on a daily basis on the overdue amount at an annual rate equal to 3 per cent over the then current base lending rate of HSBC UK Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment, and compounding quarterly.
5.13 The Client shall pay all amounts due under the Contract in full without any deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
5.14 The Company has a general lien on all documents in its possession, custody or control for all sums due at any time to the Company from the Client on any account whatsoever.
6. Intellectual Property Rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Company and these Conditions do not grant any Intellectual Property Rights to the Client.
7. Confidentiality
7.1 Each Party undertakes that, except as provided by the remainder of this clause 7, or as expressly authorised in writing by the other Party, it shall keep confidential all Confidential Information and not disclose any Confidential Information to any third party for any purpose other than the Negotiations, the Fixture or the implementation of the Contract.
7.2 Either Party may disclose any Confidential Information to its Affiliates and any of their respective officers, employees, contractors or suppliers as is necessary for the purposes contemplated by the Contract, in connection with marketing or providing other services to the Client or its Affiliates, compliance or audit purposes, or as required by law.
7.3 The obligation in clause 7.1 shall not extend to any information which:
7.3.1 is or becomes public knowledge through no fault of a receiving Party;
7.3.2 was in the receiving Party’s lawful possession prior to the date of disclosure;
7.3.3 is lawfully disclosed to the receiving Party with no restrictions on disclosure;
7.3.4 is independently developed by the receiving Party; or
7.3.5 is required to be disclosed by law, regulation or any governmental or competent regulatory authority.
7.4 In all cases the obligation of confidentiality in this clause 7 shall be deemed to end two years after the end of performance of the Fixture in question or, in the absence of a concluded Fixture, two years from the end of the Negotiations.
7.5 If the parties have entered into a separate confidentiality or non-disclosure agreement regarding the Contract or a particular Fixture, the terms and conditions of such agreement shall apply regarding such disclosure to the exclusion of the terms of this clause 7.
7.6 Nothing in this clause 7 shall prevent the Company from using the Client’s name and logo for marketing purposes and the Client consents to such use for the purposes of the Company referring to current or previous clients.
8. Limitation of Liability
THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
8.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
8.1.2 fraud or fraudulent misrepresentation.
8.2 Subject to clause 8.1:
8.2.1 the Company and its Affiliates shall be relieved of liability for any loss or damage: (i) if, and to the extent that, such loss or damage is caused by any cause or event which the Company is unable to avoid, and the consequences of which the Company is unable to prevent by the exercise of reasonable diligence; and (ii) not solely caused by the act or omission of the Company or which would have occurred in any event;
8.2.2 neither the Company or any of its Affiliates shall be liable for: (i) any loss of profits, loss of or interruption to business; (ii) loss of reputation, depletion of goodwill; (iii) loss or corruption of data or information; (iv) pure economic loss; or (v) any special, indirect or consequential loss;
8.2.3 the Client shall not bring any claim of any kind against any of the Company’s or its Affiliates’ officers, employees or consultants personally in relation to the performance of the Services or the Contract unless the claim arises from the illegal acts of such person (but this will not exclude or limit the liability of the Company for the acts or omissions of such person performed within the scope of their authority or contract for employment or services as the case may be); and
8.2.4 the total liability of the Company and its Affiliates arising out of or in connection with the Contract or the Services shall in no circumstances exceed the higher of the following: (i) the amount of Fees payable to the Company by the Client in respect of the Services in connection with which the claim arises; or (ii) the sum of US$1,000,000.
8.3 The Client shall save, defend, hold harmless and keep the Company and its Affiliates indemnified from and against all liability, loss, damage, costs (including without limitation legal costs), expenses or claims whatsoever (including without limitation all duties, taxes, levies, fines, penalties or outlays of whatsoever nature levied by or owed any authority or any other third party) in excess of the maximum liability set out in clause 8.2.4.
8.4 The exclusions and/or limitations set out in this clause shall apply whether the claim against the Company or its Affiliates is brought in contract, tort (including without limitation for negligence) breach of duty or for any other cause whatsoever and irrespective of any breach of contract, negligence, breach of duty or other failure of any kind of the Company or its Affiliates or their respective employees, agents, consultants or sub-contractors.
8.5 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.
8.6 Any claim by the Client against the Company or its Affiliates arising out of or in connection with the Services shall be made in writing and notified to the Company within one month of the date upon which the Client became aware, or ought reasonably to have become aware, of any occurrence alleged to give rise to such claim. Any claim not made and notified as aforesaid shall be deemed to be waived and absolutely barred. The Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of the Contract or the Services unless formal proceedings are brought and written notice thereof is given to the Company within one year from the date of the occurrence alleged to give rise to a cause of action against the Company.
8.7 The Company will be entitled to act upon the instructions of any of the Client’s Affiliates or any of its or their respective officers, employees, or agents and rely upon any information supplied by the Client or any of the foregoing in connection with the Services.
8.8 The Services shall be performed by the Company for the benefit of the Client only. The Company does not accept any responsibility or liability to any third party for the Services performed for the benefit of the Client, unless the Company has expressly agreed otherwise in writing.
9. Indemnity
9.1 The Client shall save, defend, hold harmless and keep the Company and its Affiliates indemnified from and against:
9.1.1 all liability, loss, damage, costs (including without limitation legal costs), expenses, demands or claims whatsoever (including without limitation all duties, taxes, levies, fines, penalties or outlays of whatsoever nature levied by or owed to any authority or any other third party) arising out of the Company acting in accordance with the Client’s instructions, or arising from any breach by the Client of any warranty or obligation contained in these Conditions, or from the negligence of the Client; and
9.1.2 without derogation from clause 9.1.1, any liability assumed or incurred by the Company or its Affiliates when, by reason of carrying out the Client’s instructions, the Company has become liable to any other party.
10. Applicable Laws and Anti-Bribery
10.1 The Client shall:
10.1.1 comply with Applicable Laws;
10.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
10.1.3 promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Client in connection with the performance of the Services.
10.2 The Client shall not require the Company to perform the Services if there is any possibility that in doing so the Company may contravene any Applicable Laws.
10.3 If, in the Company’s absolute discretion, the performance of the Services may infringe any Applicable Laws, the Company shall be entitled to suspend or cancel performance of the Services and in that event shall notify the Client.
11. Termination
11.1 Without limiting its other rights or remedies, each 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 the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that Party being notified in writing of the breach.
11.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to (a) pay any amount due under this Contract on the due date for payment or (b) comply with its obligations under clause 10.1.
11.3 Without limiting its other rights or remedies, the Company may terminate this Agreement by written notice with immediate effect if in the Company’s reasonable opinion it would be likely to suffer damage to its reputation by continuing to act and/or be associated with the Client.
11.4 Without limiting its other rights or remedies, the Company shall have the right to suspend provision of the Services under the Contract or any other contract between the Client and the Company if the Client is unable to pay its debts as they fall due or is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or if the Client is based in a jurisdiction other than England and Wales, an equivalent or similar provision of the law of that jurisdiction.
12. Consequences of termination
12.1 On termination of the Contract for any reason:
12.1.1 the Client 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 Client immediately on receipt;
12.1.2 the Company shall be entitled to submit an invoice to the Client for immediate payment for all reasonable costs and/or expenses incurred by the Company as a result of the termination or cancellation;
12.1.3 the accrued rights, remedies, obligations and liabilities of the Parties as at termination shall not be affected, including without limitation the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
12.1.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect including without limitation clauses 7, 8, 9 and 20.
12.2 The Company shall not be liable to the Client for any consequences which result from the suspension, cancellation or termination of the Services pursuant to clauses 10.3 or 11.
13. Assignment
13.1 The Company may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any and all of its rights under this agreement.
13.2 Except as provided for in the Contract, this agreement is personal to the Client and the Client shall not assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or in any other manner transfer to any third party any of its rights or obligations under the Contract without the prior written consent of the Company, such consent not to be unreasonably withheld.
14. Force Majeure
14.1 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. In such circumstances, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty days, the Party not affected may terminate the Contract by giving two weeks’ written notice to the affected Party.
15. Notices
15.1 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 (a) delivered to the other Party personally, or sent by prepaid first-class post, recorded delivery,or by commercial courier, at its registered office or such other address as the receiving Party may notify from time to time for such purposes, or (b) by e-mail to such address as the receiving Party may notify from time to time for such purposes.
15.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am 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 e-mail, at the time of transmission (unless a delivery failure notice is received by the sender). If deemed receipt under this clause would occur on a public holiday or outside 9:00 am to 5:00 pm Monday to Friday in the place of receipt, the notice shall be deemed to have been received when such usual business hours next recommence.
15.3 This clause 15 shall not apply to the service of any proceedings or other documents in any legal action.
16. Waiver
16.1 A waiver of any right under the Contract is only effective if it is expressly given in writing and shall not be deemed to be a waiver of any subsequent breach or default.
16.2 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.
17. Severance
17.1 The Parties agree that, in the event that one or more of the provisions of these Conditions is found to be unlawful, invalid or otherwise unenforceable, that provision shall, to the minimum extent required, be deemed severed from the remainder of these Conditions and the remainder of that and all other provisions of these Conditions shall remain valid and enforceable.
18. Third Parties
18.1 Unless it expressly states otherwise, these Conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
19. Variation
19.1 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when expressly agreed in writing by the Company. Notwithstanding the foregoing, the Company reserves the right to update these Conditions from time to time without the Client’s consent and such updated terms shall be deemed accepted by the Client continuing to use the Services. It is the Client’s sole responsibility to review these Conditions prior to using the Services.
20. Governing Law and Jurisdiction
20.1 The Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
20.2 Any dispute, controversy, proceedings or claim between the Parties relating to the Contract or the Services (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.
