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VITAL EV SOLUTIONS – PART OF VITAL GROUP.

 

1.               Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1            Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Charges: has the meaning specified in the Order.

Commencement Date: has the meaning given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 17.9.

Contract: the contract between Vital and the Customer for the supply of Products or Services or Products and Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

Customer: the person or firm detailed in the Order who purchases the Products and / or Services from Vital.

Delivery Location: the location specified in the Order.

Extended Warranty: has the meaning specified in the Order.

Extension Charge: has the meaning specified in the Order.

Force Majeure Event: has the meaning given to it in clause 16.

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.

Order: the Customer’s order for the supply of Products and / or Services as set out overleaf.

Payment Terms: the payment terms specified in the Order.

Product Charges: has the meaning specified in the Order.

Products: the products (or any part of them) set out in the Order.

Products Specification: the specification for the Products detailed in the Order.

Services Charges: has the meaning specified in the Order

Service Levels: the service levels set out in Schedule 2.

Services: the services supplied by Vital to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services detailed in the Order.

Storage Charges: the security, warehousing and insurance charges (if any) for the Storage Period specified in the Order.

Storage Period: the period (if any) specified as such in the Order.

Vesting Agreement: an agreement materially in the form attached to these Conditions at Schedule 1.

Vital: the entity detailed in the Order.

Vital Materials: has the meaning given in clause 8.1.8.

Vital’s Premises: 52 Herald Way, Binley Industrial Estate, Coventry, West Midlands, CV3 2RQ

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

Warranty Period: has the meaning specified in the Order.

1.2            Interpretation:

1.2.1       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2       A reference to a party includes its personal representatives, successors and permitted assigns.

1.2.3       A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

1.2.4       Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.2.5       A reference to writing or written excludes fax and email.

 

2.               Basis of contract

2.1            The Order constitutes an offer by the Customer to purchase Products and / or Services in accordance with these Conditions.

2.2            The Order shall only be deemed to be accepted when Vital issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3            Any samples, drawings, descriptive matter or advertising issued by Vital and any descriptions of the Products or illustrations or descriptions of the Services contained in Vital’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products and Services described in them. They shall not form part of the Contract nor 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 law, trade custom, practice or course of dealing.

2.5            Any quotation given by Vital shall not constitute an offer, and is only valid for a period of a calendar month from its date of issue.

2.6            All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.

2.7            The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

 

3.               Products

3.1            The Products are described in the Products Specification.

3.2            To the extent that the Products are to be manufactured in accordance with a Products Specification supplied by the Customer, the Customer shall indemnify Vital 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Vital arising out of or in connection with any claim made against Vital for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Vital’s use of the Products Specification. This clause 3.2 shall survive termination of the Contract.

3.3            Vital reserves the right to amend the Products Specification if required by any applicable statutory or regulatory requirement, and Vital shall notify the Customer in any such event.

 

4.               Delivery of Products

4.1            Vital shall ensure that:

4.1.1       each delivery of the Products is accompanied by a delivery note which shows:

(a)             the date of the Order;

(b)             all relevant Customer and Vital reference numbers;

(c)              the type and quantity of the Products (including the code number of the Products, where applicable);

(d)             special storage instructions (if any);

(e)             (if the Order is being delivered by instalments), the outstanding balance of Products remaining to be delivered; and

(f)               any requirement for the Customer to return any packaging material to Vital. The Customer shall make any such packaging materials available for collection at such times as Vital shall reasonably request. Returns of packaging materials shall be at Vital’s expense.

4.2            Vital shall deliver the Products to the Delivery Location at any time after Vital notifies the Customer that the Products are ready (provided always that, if the parties agree, the Customer may collect the Products from Vital’s Premises within three Business Days of Vital notifying the Customer that the Products are ready (and in such circumstances the Delivery Location shall be deemed to be Vital’s Premises)).

4.3            Delivery of the Products shall be completed on the completion of unloading of the Products at the Delivery Location (provided always that in the event that the Customer collects the Products, delivery shall be completed on such collection).

4.4            Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. Vital shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Vital with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

4.5            If Vital fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Vital shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Vital with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

4.6            Subject to clause 4.9, if the Customer fails to take or accept delivery of the Products within three Business Days of Vital notifying the Customer that the Products are ready, then except where such failure or delay is caused by a Force Majeure Event or by Vital’s failure to comply with its obligations under the Contract in respect of the Products:

4.6.1       delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Vital notified the Customer that the Products were ready; and

4.6.2       Vital shall store the Products until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7            If ten Business Days after the day on which Vital notified the Customer that the Products were ready for delivery the Customer has not taken or accepted actual delivery of them, Vital may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Products.

4.8            Vital may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.9            In the event that the parties agree that the Products should be stored by Vital for the Storage Period prior to Delivery to the Delivery Location:

4.9.1       the Customer shall pay the Storage Charges in accordance with the Payment Terms; and

4.9.2       the parties shall enter into a Vesting Agreement.

 

5.               Quality of Products

5.1            Subject to clause 5.2, Vital warrants that on delivery, and for the Warranty Period, the Products shall:

5.1.1       conform in all material respects with the Products Specification;

5.1.2       be free from material defects in design, material and workmanship; and

5.1.3       be of satisfactory quality (within the meaning of the Sale of Products Act 1979).

5.2            The warranty set out in clause 5.1 does not apply to repairs to the Products and / or any failure to meet the requirements of clauses 5.1.1 to 5.1.3 caused by:

5.2.1       fair wear and tear, wilful damage or negligence;

5.2.2       any accident, acts of misuse, neglect, abuse, mishandling, vandalism or wilful or accidental third party damage;

5.2.3       damage caused by a driver’s negligence;

5.2.4       misapplication modification, alteration, adjustment or improper installation performed by a party other than Vital (or its authorised representatives);

5.2.5       repairs not undertaken by an authorised service provider of the original equipment manufacturer of the Product;

5.2.6       preventative maintenance not being undertaken in accordance with the original equipment manufacturer’s specification;

5.2.7       fire (not caused by the Product);

5.2.8       a Force Majeure Event;

5.2.9       vehicle impact damage;

5.2.10   using the Product outside of the environmental conditions specified in the original equipment manufacturer’s specification;

5.2.11   any other use or modifications for any purpose not specifically made known in writing by the Customer to Vital prior to acceptance by Vital of the relevant Order;

5.2.12   any failure by the Customer or its employees agents or subcontractors to follow any instructions and / or documentation provided by Vital to the Customer relating to the Product;

5.2.13   connection to incorrect or faulty mains supply voltage (including voltage surges outside the Product’s specification), overloading, transport or storage damage;

5.2.14   use of the Product for any purpose other than the charging of an electric vehicle; or

5.2.15   a cyber attack as a result of the Product’s VPN communication system being left open.

5.3            Subject to clause 5.4, if:

5.3.1       the Customer gives notice in writing to Vital during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1;

5.3.2       Vital is given a reasonable opportunity of examining such Products; and

5.3.3       the Customer (if asked to do so by Vital) returns such Products to Vital’s place of business at the Customer’s cost,

Vital shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.

5.4            The terms of this clause 5 shall apply equally to any repaired or replacement Product supplied by Vital.

5.5            Vital shall not be liable for the Products’ failure to comply with the warranty set out in clause 5.1 if:

5.5.1       the Customer makes any further use of such Products after giving a notice in accordance with clause 5.3.1; or

5.5.2       the Products differ from the Products Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.6            Should the Customer wish to purchase the Extended Warranty, the Customer shall pay the Extension Charge.

5.7            Except as provided in this clause 5, Vital shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.

5.8            These Conditions shall apply to any repaired or replacement Products supplied by Vital.

 

6.               Title and risk

6.1            The risk in the Products shall pass to the Customer on completion of delivery.

6.2            Subject to clause 4.9, title to the Products shall not pass to the Customer until Vital receives payment in full (in cash or cleared funds) for the Product Charges.

6.3            Until title to the Products has passed to the Customer, the Customer shall:

6.3.1       store the Products separately from all other goods held by the Customer so that they remain readily identifiable as Vital’s property;

6.3.2       not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

6.3.3       maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Vital’s behalf from the date of delivery;

6.3.4       notify Vital immediately if it becomes subject to any of the events listed in clause 14.2.2to clause 14.2.4; and

6.3.5       give Vital such information as Vital may reasonably require from time to time relating to:

(a)             the Products; and

(b)             the ongoing financial position of the Customer.

6.4            At any time before title to the Products passes to the Customer, Vital may require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

 

7.               Supply of Services

7.1            Vital shall supply the Services to the Customer materially in accordance with:

7.1.1       the Service Specification; and

7.1.2       the Service Levels.

7.2            Vital shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3            Vital reserves the right to amend the Service Specification 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 Vital shall notify the Customer in any such event.

7.4            Vital warrants to the Customer that the Services will be provided using reasonable care and skill.

 

8.               Customer’s obligations

8.1            The Customer shall:

8.1.1       ensure that the terms of the Order and any information it provides in both the Service Specification and the Products Specification are complete and accurate;

8.1.2       co-operate with Vital in all matters relating to the Services;

8.1.3       provide Vital, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Vital to provide the Services;

8.1.4       provide Vital with such information and materials as Vital may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

8.1.5       prepare the Customer’s premises for the supply of the Services;

8.1.6       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;

8.1.7       comply with all applicable laws, including health and safety laws;

8.1.8       keep all materials, equipment, documents and other property of Vital (Vital Materials) at the Customer’s premises in safe custody at its own risk, maintain Vital Materials in good condition until returned to Vital, and not dispose of or use Vital Materials other than in accordance with Vital’s written instructions or authorisation; and

8.1.9       comply with any additional obligations as set out in the Service Specification or the Products Specification or both.

8.2            If Vital’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 (Customer Default):

8.2.1       without limiting or affecting any other right or remedy available to it, Vital 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 Vital’s performance of any of its obligations;

8.2.2       Vital shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Vital’s failure or delay to perform any of its obligations as set out in this clause 8.2; and

8.2.3       the Customer shall reimburse Vital on written demand for any costs or losses sustained or incurred by Vital arising directly or indirectly from the Customer Default.

 

9.               Charges and payment

9.1            The Product Charges:

9.1.1       shall be the price set out in the Order or, if no price is quoted, the price set out in Vital’s published price list as at the date of delivery; and

9.1.2       are inclusive of all costs and charges of packaging, insurance, transport of the Products.

9.2            The Services Charges shall be calculated as set out in the Order.

9.3            Vital reserves the right to:

9.3.1       increase the Services Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the higher of 5% and the percentage increase in the Retail 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 higher of 5% and the latest available figure for the percentage increase in the Retail Prices Index);

9.3.2       increase the Product Charges, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to Vital that is due to:

(a)             any factor beyond the control of Vital (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)             any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or

(c)              any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give Vital adequate or accurate information or instructions in respect of the Products.

9.4            Each of the Product Charges and the Services Charges shall be invoiced and payable in accordance with the Payment Terms.  The Customer shall pay each invoice submitted by Vital in full and in cleared funds to a bank account nominated in writing by Vital, and time for payment shall be of the essence of the Contract.

9.5            All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Vital to the Customer, the Customer shall, on receipt of a valid VAT invoice from Vital, pay to Vital such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.

9.6            If the Customer fails to make a payment due to Vital under the Contract by the due date, then, without limiting Vital’s remedies under clause 14, 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 9.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.7            All amounts due under the Contract 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).

 

10.            Intellectual property rights

10.1        All Intellectual Property Rights in or arising out of or in connection with the Services and / or relating to the Products (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Vital.

10.2        Vital 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 any deliverables provided by Vital (excluding materials provided by the Customer) for the purpose of receiving and using the Services in its business.

10.3        The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.

10.4        The Customer grants Vital a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Vital for the term of the Contract for the purpose of providing the Services to the Customer.

 

11.            Data protection

11.1        The following definitions apply in this clause 11:

11.1.1   Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

11.1.2   Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

11.2        In the event that Personal Data is processed under the Contract:

11.2.1   both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation;

11.2.2   without prejudice to the generality of clause 11.2.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Vital and/or lawful collection of the Personal Data by Vital on behalf of the Customer for the duration and purposes of the Contract; and

11.2.3   the parties shall agree applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme.

 

12.            Confidentiality

12.1        Each party undertakes that it shall not at any time after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, 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 12.2.

12.2        Each party may disclose the other party’s confidential information:

12.2.1   to its employees, officers, representatives, contractors or subcontracts 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

12.2.2   as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3        No party shall 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 the Contract.

 

13.            Limitation of liability

13.1        Nothing in these Conditions and / or the Contract shall limit or exclude the liability of:

13.1.1    either party for:

(a)             death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)             fraud or fraudulent misrepresentation or wilful default; or

(c)              any matter in respect of which it would be unlawful to exclude or restrict liability;

13.1.2   the Customer to pay any undisputed invoices for the Product Charges and / or the Services Charges.

13.2        Subject to clause 13.1 above:

13.2.1   neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

(a)             any loss of profit, sales, revenue, or business;

(b)             loss of anticipated savings;

(c)              loss of or damage to goodwill;

(d)             loss of agreements or contracts;

(e)             loss of use or corruption of software, data or information;

(f)               any loss arising out of the lawful termination of the Contract or any decision not to renew its term, or

(g)             any loss that is an indirect or secondary consequence of any act or omission of the party in question.

13.3        Subject to clauses 13.1 and 13.2 above, the total liability of either party to the other for any 12 month period in respect of all other loss or damage arising under or in connection with these Conditions and / or the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate of the Product Charges and / or the Services Charges paid and / or payable in such 12 month period.

13.4        This clause 13 shall survive termination of the Contract.

 

14.            Termination

14.1        Without affecting any other right or remedy available to it, either party may terminate the Contract insofar as it relates to the Services by giving the other party not less than 90 days’ written notice, such notice to expire no earlier than the expiry of the Warranty Period.

14.2        Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

14.2.1   the other party 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 28 days after being notified in writing to do so;

14.2.2   the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

14.2.3   the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

14.2.4   the other party’s 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.

14.3        Without affecting any other right or remedy available to it, Vital may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

14.4        Without affecting any other right or remedy available to it, Vital may suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between the Customer and Vital if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.4, or Vital reasonably believes that the Customer is about to become subject to any of them.

 

15.            Consequences of termination

15.1        On termination of the Contract:

15.1.1   the Customer shall immediately pay to Vital all of Vital’s outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, Vital shall submit an invoice, which shall be payable by the Customer immediately on receipt;

15.1.2   the Customer shall return all of Vital Materials and Products which have not been fully paid for. If the Customer fails to do so, then Vital 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 this Contract.

15.2        Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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.

15.3        Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

 

16.            Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly.

 

17.            General

17.1        Vital 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.  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 Vital.

17.2        Any notice or other communication given to a party under or in connection with these Conditions and / or the Contract shall be:

17.2.1   in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered:

(a)             personally;

(b)             sent by pre-paid first class post or other next working day delivery service;

(c)              by commercial courier; or

(d)             by fax or email.

17.2.2   deemed to have been received:

(a)             if delivered personally, when left at the address referred to in clause 17.2;

(b)             if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;

(c)              if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or

(d)             if sent by fax or email, one Business Day after transmission.

17.3        The provisions of clause 17.2 shall not apply to the service of any proceedings or other documents in any legal action.

17.4        If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.4the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

17.5        A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

17.6        Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

17.7        The Contract constitutes the entire agreement between the parties.  Each party acknowledges that in entering into the Contract it does not rely on 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.

17.8        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.

17.9        Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

17.10     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.  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.

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