1 This Agreement
1.1 This agreement is the Equipment Rental Agreement between BMS and the Service User herein defined as the ‘Agreement’. BMS shall be referred to as the ‘Company’ herein.
1.2 In this Agreement, ‘Party’ means BMS or the Service User (as the case may be) and ‘Parties’ shall be interpreted accordingly.
1.3 In this Agreement references to ‘Sections 1, 2, 3 and 4’ are references to those sections on the Equipment Rental Agreement.
1.4 This Agreement will commence on the date of signature ‘Commencement Date’.
1.5 The Service User will begin making payments in accordance with this Agreement on the date provided by the Company ‘Start Date’.
1.5.1 The Company will provide the Service User with the Start Date once all relevant documents have been executed.
1.6 For the purposes of this Agreement, a Trigger Event is a course of action that may be deemed unlawful or violates the term of this Agreement or any policy of the Company.
1.7 The term Remaining Contractual Value ‘RCV’, within this Agreement means the number of months left outstanding on the contract, multiplied by the monthly reoccurring charge.
2 Term
2.1 The Agreement will continue from the Start Date for the Term as specified in Section 2 ‘Initial Fixed Term’.
2.2 Provided that, unless not less than 90 days prior written Notice of Termination is given by either Party to the other, expiring at the end of the Initial Term, this Agreement shall continue in force for a further period of the same Term specified in section 3 from the date of expiry of the Initial Term ‘the Additional Term’, and such Additional Term (and subsequent Additional Terms) shall similarly renew in the manner set out in this clause unless not less than 90 days prior written notice of termination is given by either Party.
3 Service Users Obligations
3.1 The Service User shall make timely payments of the Equipment Rental Charges as specified in Section 4. All payments must be made in full and without any deductions or set-offs unless otherwise agreed in writing by the Company.
3.1.1 The Service User acknowledges that all amounts specified are exclusive of VAT, and VAT shall be payable in addition where applicable.
3.1.2 The Service User shall ensure that all payments are made by direct debit unless an alternative payment method has been agreed upon in writing with the Company.
3.1.3 Any failure by the Service User to meet the payment obligations outlined in this Clause 3.1 shall be considered a material breach of this Agreement and may result in termination in accordance with Clause 12.3.
3.2 The Service User shall ensure that the Equipment is maintained in good working order and used only in accordance with the manufacturer’s instructions and any guidelines provided by the Company.
3.2.1 The Service User is responsible for carrying out regular maintenance checks on the Equipment to prevent any damage or malfunction.
3.2.2 The Service User shall not make any alterations or repairs to the Equipment without prior written consent from the Company.
3.2.3 Any unauthorised alterations, repairs, or failure to maintain the Equipment as required under this Clause 3.2 shall constitute a material breach of this Agreement, which may result in termination in accordance with Clause 12.3.
3.3 The Service User shall use the Equipment solely for the purpose for which it is intended and shall not use the Equipment for any unlawful or unauthorised purpose.
3.3.1 The Service User shall ensure that the Equipment is operated by qualified personnel who have been adequately trained in the use of the Equipment.
3.3.2 The Service User shall not sublease or allow third parties to use the Equipment without the express written consent of the Company.
3.3.3 Any misuse, unauthorised use, or violation of this Clause 3.3 shall be considered a material breach of this Agreement, which may result in termination in accordance with Clause 12.3.
3.4 The Service User shall notify the Company immediately of any damage to, loss of, or defect in the Equipment.
3.4.1 The Service User shall inform the Company of any changes to the Service User’s contact information, including address, phone number, and email, within 7 calendar days of such change.
3.4.2 The Service User shall promptly report any legal claims, disputes, or regulatory actions related to the use of the Equipment.
3.4.3 Failure to comply with the reporting and notification obligations outlined in this Clause 3.4 shall be deemed a material breach of this Agreement and may result in termination in accordance with Clause 12.3.
3.5 The Service User shall comply with all applicable laws, regulations, and industry standards relating to the use of the Equipment.
3.5.1 The Service User shall obtain and maintain all necessary licenses, permits, and approvals required for the operation of the Equipment.
3.5.2 The Service User shall indemnify the Company against any fines, penalties, or legal costs arising from the Service User’s non-compliance with legal or regulatory requirements.
3.5.3 Non-compliance with any legal or regulatory requirements as stipulated in this Clause 3.5 shall be considered a material breach of this Agreement and may lead to termination in accordance with Clause 12.3.
3.6 The Service User shall maintain adequate insurance coverage for the Equipment as detailed in Clause 11 of this Agreement.
3.6.1 The Service User shall provide proof of insurance coverage to the Company as required under Clause 11 and ensure that the policy remains valid for the duration of the Agreement.
3.6.2 Failure to maintain the required insurance or provide proof thereof within the stipulated time frame shall constitute a material breach of this Agreement, which may result in termination in accordance with Clause 12.3.
3.7 Upon termination or expiration of this Agreement, the Service User shall return the Equipment to the Company in the condition in which it was received, subject to normal wear and tear.
3.7.1 The Service User shall bear the cost of returning the Equipment to the Company’s registered address unless otherwise agreed in writing.
3.7.2 If the Equipment is not returned within the specified time frame or is returned in a damaged condition, the Service User shall be liable for additional fees as detailed in Clause 13.
3.7.3 Any breach of the obligations related to the return of Equipment as outlined in this Clause 3.7 shall be considered a material breach of this Agreement and may lead to termination in accordance with Clause 12.3.
3.8 The Service User shall indemnify and hold harmless the Company from and against any and all claims, liabilities, damages, losses, and expenses (including legal fees) arising out of or in connection with the Service User’s use of the Equipment, except where such claims arise solely due to the Company’s negligence or wilful misconduct.
3.8.1 Any failure to indemnify the Company as required under this Clause 3.8 shall be considered a material breach of this Agreement and may result in termination in accordance with Clause 12.3.
3.9 The Service User shall keep confidential all information and data provided by the Company that is marked as confidential or should reasonably be understood to be confidential, in accordance with Clause 16 of this Agreement.
3.9.1 The Service User shall not disclose such information to any third party without the prior written consent of the Company, except as required by law.
3.9.2 Any breach of confidentiality as outlined in this Clause 3.9 shall be deemed a material breach of this Agreement and may lead to termination in accordance with Clause 12.3.
4 Obligations of the Company
4.1 The Company shall endeavour to provide the Service User with the Equipment as specified in this Agreement in good working order and suitable for the purpose intended.
4.1.1 The Company will use reasonable efforts to ensure that the Equipment is delivered to the Service User’s designated location by the agreed-upon date, provided that all conditions set out in this Agreement have been met.
4.1.2 The Company shall aim to provide instructions, manuals, and relevant training materials to facilitate the proper use and maintenance of the Equipment, upon request by the Service User.
4.2 In the event of any malfunction or defect in the Equipment not caused by the Service User, the Company shall make reasonable efforts to repair or replace the Equipment within a reasonable timeframe.
4.2.1 The Company shall seek to provide technical support to the Service User during normal business hours to address any issues or concerns related to the operation of the Equipment.
4.3 The Company shall endeavour to ensure that the Equipment complies with all applicable laws, regulations, and industry standards at the time of delivery to the Service User.
4.3.1 The Company will use reasonable efforts to obtain and maintain all necessary licenses, permits, and approvals required for the provision of the Equipment and its use by the Service User as specified in this Agreement.
4.4 The Company shall endeavour to keep confidential all information and data provided by the Service User that is marked as confidential or should reasonably be understood to be confidential, in accordance with Clause 16 of this Agreement.
4.4.1 The Company will aim not to disclose such information to any third party without the prior written consent of the Service User, except as required by law.
4.5 The Company shall maintain adequate insurance coverage for the Equipment until it is delivered to the Service User and after it has been returned by the Service User in accordance with Clause 13 of this Agreement.
4.5.1 The Company will use reasonable efforts to provide proof of such insurance coverage to the Service User upon request.
4.6 The Company will aim to indemnify and hold harmless the Service User from and against any claims, liabilities, damages, losses, and expenses (including legal fees) arising out of or in connection with the Company’s wilful misconduct.
4.7 If the Company is unable to deliver the Equipment as agreed, or if the Equipment is not fit for purpose due to a fault attributable to the Company, the Company may to permit the Service User to terminate the Agreement and receive a refund for any charges paid.
4.8 The Company shall endeavour to notify the Service User in writing of any changes to the terms of this Agreement, including any variations in rental charges or policies, at least 30 days before such changes take effect.
4.8.1 The Company will use reasonable efforts to inform the Service User of any events or circumstances that may affect the performance of its obligations under this Agreement.
4.9 The Company shall not be held liable for any failure to perform its obligations under this Agreement due to circumstances beyond its reasonable control, including but not limited to natural disasters, acts of terrorism, or governmental actions, as detailed in Clause 19.
4.10 The Company shall endeavour to maintain accurate records of all transactions, maintenance activities, and communications with the Service User related to this Agreement.
4.10.1 The Company will use reasonable efforts to keep such records for the duration of the Agreement and for a period of 1 year thereafter, and shall seek to make them available to the Service User upon reasonable request.
5 Exclusivity
5.1 The Company shall be the exclusive provider to the Service User, of the Standard Services.
5.1.1 The Service User shall not purchase Standard Services from another party, whether directly or indirectly, from any other person or business, during the Term.
5.2 Nothing in this Agreement shall restrict the Company from providing any Standard Services which are the same as or similar to the Service(s), to other Service Users.
6 Payment
6.1 The Service User understands payment for Equipment Rental Charges is severable from any third-party contract.
6.2 The Company may raise and issue their invoice(s) for the Equipment Rental Charges at Company’s discretion.
6.2.1 The Service User may request an individual invoice for the Equipment Rental Charges at any time during the Term, subject to clause 16.
6.3 The Service User shall pay all invoices:
6.3.1 In full in cleared funds within 7 days of the date of each invoice;
6.3.2 Make all payments by direct debit; and
6.3.2 In the event that non-direct debit payment is approved by the Company, to the bank account nominated by the Company.
6.3.3 In the event that payment is not made by direct debit the Service User will lose any associated direct debit discount applied to the Services User(s) account.
6.4 Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
6.4.1 The Company may, without limiting its other rights, charge interest, late payment fees & recovery costs in accordance with Late payment of Commercial Debts (Interest) Act 1998 & subsequent regulations on such sums; and
6.4.2 interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
7 Debt Management Process
7.1 In the event that any payment due under this Agreement is not received by the Company by the due date specified on the invoice, the Service User shall be liable to pay a late payment fee.
7.2 All late fees and interest will be charged in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent regulations.
7.3 The Company shall notify the Service User in writing if a payment is overdue, specifying the amount due, the late payment fee, and the new total balance owed.
7.4 The Service User will be provided with a 7-day grace period from the date of the late payment notification to settle the outstanding balance, including the late payment fee.
7.5 If the outstanding balance, including the late payment fee, is not settled within the grace period, interest shall accrue on the total outstanding amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent regulations.
7.6 If the payment, including any late payment fees and accrued interest, remains unpaid 25 days after the original due date, the Company reserves the right to escalate the matter to a debt collection agency or initiate legal proceedings to recover the outstanding debt.
7.7 Any costs incurred by the Company in recovering the debt, including legal fees and debt collection agency charges, shall be added to the outstanding balance and payable by the Service User.
7.8 The Company reserves the right to suspend the provision of any Service(s) under this Agreement if the Service User fails to settle the outstanding balance, including any late payment fees and accrued interest, within 14 days of the original due date.
7.9 Service(s) will only be reinstated once the outstanding balance, including all associated fees and interest, has been paid in full.
7.10 The Company reserves the right to terminate this Agreement as the Service User(s) are in material breach of this Agreement, if the Service User fails to settle the outstanding balance within 30 days of the original due date, as outlined in Clause 12.2 of this Agreement.
8 Fees
8.1 The Company will charge the Service User a ‘Cancelled Direct Debit Fee’ of £50.00 for any cancelled direct debit returned by the Company’s BACS service provider each time a Direct Debit is cancelled, or the Service User fails to make payment at the time the Direct Debit is due, to cover Company’s reasonable administration costs. The Company will have the sole right to waive any Cancelled Direct Debit Fees.
8.2 The Company will charge the Service User an additional ‘Late Fee’ of £40.00 for each payment the Service User fails to make at the time the Direct Debit is due, to cover the Company’s reasonable administration and/or recovery costs. The Company shall have the sole right to waive any Late Fees.
8.3 The Cancelled Direct Debit Fee & Late Fee defined in clauses 8.1 & 8.2 are herein defined as the Fees.
9 Acceptance
9.1 On written and/or verbal acceptance of an offer made by the Company to the Service User, the Service User will become liable to the Company to pay the Fees as outlined in clause 8.
9.2 The Company does not guarantee that the offer will be accepted by the Merchant Services Provider and the Company’s liability is limited as outlined in clause 14.
10 Privacy Notice
10.1 The Company shall collect and process personal data in accordance with all applicable data protection laws, including but not limited to the Data Protection Act 2018 and the UK General Data Protection Regulation (UK GDPR).
10.2 The Company shall only use the personal data provided by the Service User for the purposes of performing its obligations under this Agreement, unless otherwise agreed in writing by the Service User.
10.3 The Company commits to implementing appropriate technical and organizational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, or damage.
10.4 The Service User has the right to request access to, correction of, or deletion of their personal data held by the Company, in accordance with applicable data protection laws.
10.5 The Service User agrees to the Company’s Privacy Policy, which details the Company’s practices regarding the collection, use, and protection of personal data. The Privacy Policy can be found on the Company’s website at https://bespokemerchantsolutions.com/privacy-policy-v2/.
11 Insurance
11.1 The Service User agrees to insure the Equipment against all risks of loss or damage for the full replacement value of the Equipment from the Commencement Date until the Equipment is returned to the Company in accordance with Clause 13 of this Agreement.
11.2 The Service User shall provide proof of such insurance to the Company within 7 calendar days of the Commencement Date and upon request at any time during the Term of this Agreement. The Service User shall ensure that the Company is named as a beneficiary on the insurance policy.
11.3 In the event of any loss or damage to the Equipment, the Service User shall notify the Company and the insurance provider within 24 hours of the incident and shall take all necessary steps to facilitate the processing of any insurance claim. The Service User must provide the Company with the claim reference number and any relevant details within 48 hours of filing the claim.
11.4 The Service User shall be liable for any deductible or excess under the insurance policy and for any loss or damage to the Equipment that is not covered by the insurance policy. The Service User shall settle any such deductible or excess with the Company within 14 calendar days of the Company’s request.
11.5 If the Service User fails to maintain adequate insurance coverage as required under this Clause 11 or fails to provide proof of insurance within the stipulated time frame, the Company reserves the right to terminate this Agreement immediately. The Company may recover from the Service User any losses incurred as a result of such failure, and the Service User shall settle such amounts within 30 calendar days of the termination notice.
12 Early Termination
12.1 Company has the sole right to allow the Service User to terminate this Agreement before the end of the Initial Term or any Additional Terms in accordance with the Company’s Termination policy which can be found a https://bespokemerchantsolutions.com/early-termination-policy/. If the Company permits The Service User to terminate this Agreement before the end of an Initial Term or an Additional Term, The Service User must first pay the full RCV and all outstanding Fees including Late Fees, relating to the relevant term to the Company before this Agreement can be terminated.
12.2 The Company has the right to terminate this Agreement at any time by giving the Service User not less than 30 calendar days written notice.
12.2.1 If this Agreement is terminated by the Company as per the above clause 12.2 then the Service User will only pay to the Company any Fees and Late Fees outstanding at the date this Agreement is to be terminated.
12.3 The Company may terminate this Agreement with immediate effect if the Service User materially breach this Agreement.
12.4 The Company reserves the right to terminate the Agreement with immediate effect, and charge the RCV should the Service User misuse, damage or destroy the equipment,
12.4.1 If this Agreement is terminated by the Company as per clause 12.4 then the Service User will pay the RCV, all outstanding Fees relating to the relevant term to the Company within 7 calendar days of the notice having been given by the Company.
12.5 The Company reserves the right to terminate the Agreement with immediate effect should the Service User account remain in arrears for a period of over 2 months.
12.5.1 If this agreement is terminated as per clause 12.5, the RCV plus all outstanding Fees shall become immediately payable.
12.6 Should a Contravention Event occur during the term or any subsequent terms of this Agreement; the RCV & all outstanding Fees shall become immediately payable.
13 Returns
13.1 For the purposes of this Agreement, any reference to Equipment relates to that which is specified on Page 1 of this Agreement (Equipment).
13.2 Any returned Equipment must be returned in good working order to the Company’s registered address. The Company must be able to immediately redistribute to the Equipment to another client.
13.3 The Company must receive the Equipment within 14 calendar days of any reasonable request by the Company to return the Equipment. If the Equipment is not returned within the 14 calendar days, in good working order & in condition which is acceptable to the Company, then the Company reserves the right to charge the Service User a Restocking Fee for each item of Equipment not returned. The value of the Restocking Fee will be equal to 50% of the total value of all Equipment Rental Charges due in relation to the item of Equipment during the Initial Fixed Term and subsequent Additional Fixed Term(s) or the full replacement value of the Equipment ‘Restocking Fee’ as the Company deem.
13.4 The Company reserves the right to charge the Service User a Refurbishment Fee for each returned item of Equipment the Company receives. The Value of the Restocking Fee will be equal to 20% of the total value of all Equipment Rental Charges due in relation to the item of Equipment during the Initial Fixed Term and subsequent Additional Fixed Term(s) ‘Refurbishment Fee’.
13.5 The Company reserves the right to waive any Fees at their sole discretion.
13.6 Under no circumstances will the Company be responsible for the cost to the Service User for the return of any Equipment to the Company.
14 Limitation of liability
14.1 The Company is not liable for any losses incurred by the Service User in relation to this Agreement.
14.2 Nothing in this Agreement shall operate to exclude or limit either Party’s liability for: (1) death or personal injury caused by its negligence; (2) fraud; (3) wilful misconduct; and/or (4) any other liability which cannot be excluded or limited under applicable law.
14.3 Notwithstanding any other provision of this Agreement, the aggregate liability of either Party, its respective directors and employees, whether in contract, tort or otherwise, shall in no circumstances whatsoever (but to the extent allowed by law) exceed the Fees paid by the Service User to the Company. Neither Party shall be liable to the other Party or any third party for indirect or incidental losses and without limitation generally, to the foregoing, for any special consequential, exemplary or punitive damages, economic loss or failure to realise expected profits, savings or other benefits, regardless of whether such damages where foreseeable and whether or not a party has been advised of the possibility of such damages.
14.4 The Service User are wholly responsible for any loss, damage (including accidental), or defamation of the Equipment whilst it is in the Service User possession and until it has been returned and has been received by the Company.
14.4 The Company is not responsible for anything they deem outside of their control.
14.5 The Company shall not be liable for any of the following (whether direct or indirect):
14.5.1 loss of profit;
14.5.2 loss of or corruption to data;
14.5.3 loss of use;
14.5.4 loss of production;
14.5.5 loss of contract;
14.5.6 loss of opportunity;
14.5.7 loss of savings, discount or rebate (whether actual or anticipated);
14.5.8 harm to reputation or loss of goodwill.
14.6 Notwithstanding any other provision of this Agreement, the liability of the Parties shall not be limited in any way in respect of the following:
14.6.1 death or personal injury caused by negligence;
14.6.2 fraud or fraudulent misrepresentation; or
14.6.3 any other losses which cannot be excluded or limited by applicable law.
15 Data
15.1 The Service User hereby grant the Company authority to use any data provided by the Service User to the Company, for the provision of services by the Company to the Service User and for the Company to fulfil its obligations within this Agreement.
15.2 The Company commits that all personal data will be collected, processed, and held in accordance with all applicable data protection legislation including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any codes of practice or other guidance issued from time to time relating to the processing of personal data.
15.3 The Parties further agree that all personal information they may each use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation ‘GDPR’ and that they will each comply at all times with their respective obligations under GDPR.
15.4 By signing this Agreement, the Service User agree that all personal data will be used in accordance with the Company’s Privacy Policy.
16 Confidential information
16.1 Each Party undertakes that it shall keep any information that is confidential in nature concerning the other Party and its any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity herein defined as “Affiliates”, including any details of its business, affairs, customers, clients, suppliers, plans or strategy ‘Confidential Information’ confidential and that it shall not use or disclose the other party’s Confidential Information to any person.
16.2 Each party recognises that any breach or threatened breach of this clause may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
17 Assignment
17.1 The Company expressly reserves the right to assign this Agreement, and all its content, to a company of their choosing by providing not less than 30 calendar days written notice.
17.2 No prior consent is required from the Service User for the Company to assign this Agreement, provided notice is given as outlined in clause 17.1.
18 Non-Circumvention
Both Parties hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of this Agreement, including but not limited to those provisions regarding the calculation and payment of the Fees, and affirm that in every case that they will act with the highest standards of ethics in their dealings with each other.
19 Force Majeure
19.1 In no event shall the Company be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
20 Marketing and Publicity Rights
20.1 The Service User(s) agrees that the Company may publicly refer to the Service User(s) and any sub-Service User(s) (in either written or verbal form) as being a client of the Company.
20.2 The Service User(s) agrees that the Company may use the Service User(s) company logos for activities including but not limited to:
20.2.1 Publication on the Company’s website;
20.2.2 Use in sales pitch decks, presentations, and/or events;
20.2.3 Use on social media; and
20.2.4 Use in internal documents.
20.3 The Company may, subject to the Service User(s) prior written consent and approval, engage in marketing activities that refer to the Service User(s). Such marketing activities may include but are not limited to:
20.3.1 Written and/or video case studies;
20.3.2 Joint marketing and/or social activities;
20.3.3 Joint public relations activities; and
20.3.4 External or internal event activities.
20.4 Subject to the above approval, the Company shall be entitled to use the material created during a Joint Marketing Activity in perpetuity anywhere in the world, in any media whether now known or developed in the future, for the purposes of promoting the Company’s goods or services.
21 Nature of Agreement
21.1 This Agreement contains the entire Agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
21.2 Each Party agrees that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
21.3 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
21.4 If any provision of this Agreement is held by any court or other competent authority to be invalid or unenforceable in whole or in part, this Agreement shall continue to be valid as to its other provisions and the remainder of the affected provision.
21.5 If the Company do not insist immediately that the Service User do anything the Service User are obligated to do under this Agreement, or if the Company delay in taking steps against the Service User in respect of the Service User breaching this Agreement, then the Company can still enforce the terms set out in this Agreement at any time.
21.6 A person who is not Party to this Agreement may not enforce any term of this Agreement under the Contracts (Rights of Third Parties) Act 1999. The Parties may rescind or change any term of this Agreement without the consent of a person who is not Party to this Agreement.
26 Further assurance
Each Party shall at the request of the other Party, and at the cost of the requesting Party, do all acts and execute all documents which are necessary to give full effect to this Agreement.
27 Notices
15.1 Any notice or other communication given by a Party under this Agreement shall be:
27.1.1 in writing and in English;
27.1.2 signed by, or on behalf of, the Party giving it;
27.1.3 sent to the relevant Party at the correct address.
27.2 Notices may be given, and are deemed received:
27.2.1 by hand: on receipt of a signature at the time of delivery;
27.2.2 by email: when sent by the Service User from an email registered to the Service User(s) account with the Company & when sent by the Company to an email registered on the Services User(s) account with the Company. Excluding notices of Early Termination & Termination of the Agreement which must be given in accordance with the Company’s Policies detailed in clause 12.
27.2.3 The Service User accepts that all calls within the Company are recorded for training, monitoring and verification purposes.
28 Variation
This Agreement may be varied from time to time by the Company by informing the Service User in writing of any variation 30 days before the variation takes effect. Any variation will be deemed to have been accepted, variations will not and cannot be applied retrospectively.
29 Set off
The Service User shall pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
30 No partnership or agency
The Parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither Party shall have, nor shall represent that it has, any authority to make any commitments on the other Party’s behalf.
31 Severance
31.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.
31.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the Parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
32 Third party rights
32.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of this Agreement.
32.2 The Affiliates of the Company shall have the right to enforce the provisions of this Agreement.
33 Governing Law
33.1 This Agreement 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 laws of England and Wales.
33.2 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 this Agreement or its subject matter or formation.
34 Compliance with law
Each Party shall comply and shall (at its own expense unless expressly agreed otherwise) ensure that in the performance of its duties under this Agreement, its employees, agents and representatives will comply with all applicable laws and regulations, provided that neither Party shall be liable for any breach of this clause 31 to the extent that such breach is directly caused or contributed to by any breach of this Agreement by the other party (or its employees, agents and representatives).
35 Jurisdiction
35.1 This Agreement shall be governed and construed in accordance with the Laws of England and Wales.
35.2 In relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement each of the Parties irrevocably submits to the exclusive jurisdiction of the English and Welsh courts and waives any objection to proceedings in such courts.
35.3 On signing this Agreement, the Service User agree that the information given by the Service User or anyone on behalf of the Service User to the Company relating to this Agreement is correct and accurate and that any person signing this Agreement on behalf of the Service User has the authority of the Service User to sign this Agreement and that they are at least 18 years old.
