These terms and conditions (Conditions) apply in respect of all work undertaken by Sway Marketing.
Version 2.5 – 18/05/2022
The Customer’s attention is particularly drawn to the provisions of clause 12.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.7.
Contract: the contract between Sway Marketing and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from Sway Marketing.
Delivery Location: has the meaning set out in clause 4.2. Force Majeure Event: has the meaning given to it in clause14. Goods: the goods (or any part of them) set out in theOrder.
Sway Marketing: Sway Marketing Limited a company registered in England and Wales with company number whose registered office is at Pandora Business Park Greengate, Middleton, Manchester, M24 1RU
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 oral or written acceptance of the Proposal whether by e-mail, telephone or otherwise, the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Sway Marketing’s Proposal/quotation, as the case maybe.
Proposal: Sway Marketing’s written proposal/quote to which these Conditions are appended
Site: the website at the URL described or specified in the Service Specification where the Services include website design and/or development.
Services: the services supplied by Sway Marketing to the Customer as set out in the Service Specification below.
Service Specification: the description or specification for the Services provided in writing by Sway Marketing to the Customer.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
- BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Sway Marketing issues written acceptance of the Order at which point and on which date the Contract shall come into existence (CommencementDate).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Sway Marketing which is not set out in theContract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Sway Marketing and any descriptions of the Goods or illustrations or descriptions of the Services contained in Sway Marketing’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by Sway Marketing shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in Sway Marketing’s catalogue as modified by any applicable specification agreed in writing by Sway Marketing and theCustomer.
3.2 The Customer shall indemnify Sway Marketing against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Sway Marketing in connection with any claim made against Sway Marketing for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Sway Marketing’s use of any specification supplied by the Customer. This clause 3.2 shall survive termination of the Contract.
3.3 Sway Marketing reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
- DELIVERY OF GOODS
4.1 Sway Marketing shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Sway Marketing reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if Sway Marketing requires the Customer to return any packaging material to Sway Marketing, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Sway Marketing shall reasonably request. Returns of packaging materials shall be at Sway Marketing’s expense.
4.2 Sway Marketing shall make the Goods available to the Customer on an ex-works basis at Sway Marketing’s premises at The Door Centre, Discovery Park, Crossley Road, Stockport, SK4 5BW or such other Sway Marketing location as may be advised by Sway Marketing before delivery (Delivery Location) within three Business Days of Sway Marketing notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Sway Marketing shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Sway Marketing with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Sway Marketing fails to deliver the Goods, 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 Goods. Sway Marketing shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provideSway Marketing with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within three Business Days of Sway Marketing notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Sway Marketing’s failure to comply with its obligations under the Contract in respect of theGoods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth Business Day following the day on which Sway Marketing notified the Customer that the Goods were ready; and
(b) Sway Marketing shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after Sway Marketing notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Sway Marketing may resell or otherwise dispose of part or all of the Goods.
- QUALITY OF GOODS
5.1 Sway Marketing warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.2 The Customer may reject any Goods delivered to it that do not comply with clause 5.1, provided that:
(a) notice of rejection is given to Create8:
(i) in the case of a defect that is apparent on normal visual inspection, within five Business Days of Delivery;
(ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
(b) none of the events listed in clause 5.4
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause1;
(b) Sway Marketing is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Sway Marketing) returns such Goods to Sway Marketing’s place of business at the Customer’s cost,
Sway Marketing shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.4 Sway Marketing shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause3;
(b) the defect arises because the Customer failed to follow Sway Marketing’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of Sway Marketing following any drawing, design or other specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Sway Marketing;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 Except as provided in this clause 5, Sway Marketing shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Sway Marketing under clause 5.3.
- TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Sway Marketing has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods that Sway Marketing has supplied to the
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as Sway Marketing’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Sway Marketing’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Sway Marketing’s behalf from the date of delivery;
(e) notify Sway Marketing immediately if it becomes subject to any of the events listed in clause 13.2(a) to clause 13.2 (l); and
(f) give Sway Marketing such information relating to the Goods as Sway Marketing may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(l), or Sway Marketing reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Sway Marketing may have, Sway Marketing may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- SUPPLY OF SERVICES
7.1 Sway Marketing shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 Sway Marketing shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Sway Marketing shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Sway Marketing shall notify the Customer in any such event.
7.4 Sway Marketing warrants to the Customer that the Services will be provided using reasonable care and skill.
- CUSTOMER‘S OBLIGATIONS
8.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) any applicable specification submitted by the Customer and accepted by Sway Marketing are complete and accurate;
(b) co-operate with Sway Marketing in all matters relating to the Services;
(c) provide Sway Marketing, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Sway Marketing to provide the Services;
(d) provide Sway Marketing with such information and materials as Sway Marketing may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services; and
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
8.2 If Sway Marketing’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Sway Marketing shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Sway Marketing’s performance of any of its obligations;
(b) Sway Marketing shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Sway Marketing’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse Sway Marketing on written demand for any costs or losses sustained or incurred by Sway Marketing arising directly or indirectly from the Customer Default.
- CHARGES AND PAYMENT
9.1 Subject to clause 9.2, the price for Goods shall be the price set out in the Proposal or, if no price is quoted, the price set out in Sway Marketing’s published price list/catalogue as at the date of delivery. The price of the Goods is exclusive of all cost sand charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
9.2 The charges for Services shall be either as set out in the Proposal or otherwise in accordance with Sway Marketing’s standard price list from time to time for the provision of Services.
9.3 Sway Marketing shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Sway Marketing engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Sway Marketing for the performance of the Services, and for the cost of any materials.
9.4 Sway Marketing reserves the right to increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods or services to Sway Marketing that is due to:
(i) any factor beyond the control of Sway Marketing (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods or services ordered, or the specification of the Goods or services; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give Sway Marketing adequate or accurate information or instructions in respect of the Goods or Services.
9.5 In respect of Goods, Sway Marketing shall invoice the Customer on or at any time after completion of delivery. In respect of Services, Sway Marketing shall invoice the Customer once the Services have been provided or monthly in arrears for on-going Services.
9.6 The Customer shall pay each invoice submitted by Sway Marketing:
(a) within 7 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Sway Marketing, and
time for payment shall be of the essence of the Contract.
9.7 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 Sway Marketing to the Customer, the
Customer shall, on receipt of a valid VAT invoice from Sway Marketing, pay to Sway Marketing such additional amounts in respect of VAT as are chargeable on the supply of theServices or Goods at the same time as payment is due for the supply of the Services or Goods.
9.8 If the Customer fails to make any payment due to Sway Marketing under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.9 The Customer shall pay all amounts due under the Contract in full without any set- off, counterclaim, deduction or withholding except as required by law. Sway Marketing may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Sway Marketing to the Customer.
- INTELLECTUAL PROPERTY RIGHTS
10.1 The following definitions apply in this clause 10:
Customer Materials: the materials provided to the Supplier by the Customer in relation to or in connection with the Services from time to time, including but not limited to Site content.
Software: any software and/or developer tools owned by or used by the Supplier that are used in connection with the Services or that are needed to operate the Site (if any).
10.2 All Intellectual Property Rights in or arising out of or in connection with the Services (but excluding Intellectual Property Rights in the Software and the Customer Materials) shall be owned by Create8 until such time that such Intellectual Property Rights are assigned to the Customer in accordance with clause 10.3.
10.3 With effect from the date that Sway Marketing receives payment from the Customer in respect of its charges and expenses arising out of or in connection with the Services (in full and in cleared funds) Sway Marketing hereby assigns to the Customer all Intellectual Property Rights in or arising out of or in connection with the Services (but excluding Intellectual Property Rights in the Software).
10.4 Where the Services include website design and/or development and subject to clause 10.5, the Supplier hereby grants the Customer a non-exclusive licence to use any Software that is needed for the purpose of operating the Site.
10.5 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services provided by Sway Marketing and/or third party Intellectual Property Rights in the Software, the Customer’s use of any such Intellectual Property Rights and any licence granted by Sway Marketing pursuant to clause 10.4 is conditional on Sway Marketing obtaining a written licence from the relevant licensor on such terms as will entitle Sway Marketing to license such rights to theCustomer.
10.6 The Customer warrants and represents to Sway Marketing that it has obtained all necessary written licences from third parties in respect of any third party Intellectual Property Rights in the Customer Materials (if applicable) and that the terms of any such licences entitle Sway Marketing to use such Customer Materials in providing the Services.
10.7 The Customer shall indemnify Sway Marketing against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Sway Marketing in connection with any breach of the warranty and representation in clause 10.6 and/or any claim made against Sway Marketing for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Sway Marketing’s use of Customer Materials. This clause shall survive termination of the Contract.
10.8 Each party shall (at its own expense) as soon as reasonably practicable following a request by the other, execute and deliver all such documents, and do all such things, or procure the execution of documents and doing of such things as are required to give full effect to this clause 10.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.
11.1 Confidential Business Information
The Customer and Sway Marketing agrees that all confidential information regarding the practices and procedures of the Company and its affiliates, their methods of marketing, know-how, trade information, trade secrets, customer or client lists, licensing arrangements, accounts and requirements, and other information regarding the affairs of the Company and its affiliates (collectively, the “Confidential Business Information”) shall be received and held in the strictest confidence.
11.2 Conflict of Interest
Our Directors, Employees and Partners of the Company from time to time may engage in and possess interests in other business ventures of any and every type and description, independently or with others, including ones in competition with the Client.
- LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Sway Marketing has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Sway Marketing has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
12.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.3 Subject to clause 12.2, Sway Marketing’s total liability to the Customer shall not exceed the price of the Goods and/or Services actually supplied by Sway Marketing and invoiced to the Customer under the Contract. Sway Marketing’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
12.4 This clause 12.3 sets out specific heads of excluded loss:
(a) Subject to clause 12.2, the types of loss listed in clause 12.4 (b)are wholly excluded by the parties
(b) The following types of loss are wholly excluded:
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
12.5 Sway Marketing has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.6 Unless the Customer notifies Sway Marketing that it intends to make a claim in respect of an event within the notice period, Sway Marketing shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 1 month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, Sway Marketing may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so.
13.2 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:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or
(b) (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company);
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(a) to clause 13.2(h) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in Sway Marketing’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health
13.3 Without limiting its other rights or remedies, Sway Marketing may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.4 Without limiting its other rights or remedies, Sway Marketing may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Sway Marketing if the Customer fails to pay any amount due under this Contract (or due under any other contract between Sway Marketing and the Customer) on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(m), or Sway Marketing reasonably believes that the Customer is about to become subject to any of them. The right to suspend the supply of services under this clause includes the right to suspend hosting services (whether of Customer’s emails or website) even if the hosting services are supplied under a contract between the Customer and Sway Marketing other than the Contract.
13.5 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Sway Marketing all of Sway Marketing’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Sway Marketing shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and
- FORCE MAJEURE
14.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Sway Marketing including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Sway Marketing or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
14.2 Sway Marketing shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.3 If the Force Majeure Event prevents Sway Marketing from providing any of the Services and/or Goods for more than 4 weeks, Sway Marketing shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
15.1 Assignment and other dealings.
(a) Sway Marketing may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third
(b) The Customer shall not, without the prior written consent of Sway Marketing, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) 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 personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in anyway.
15.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Sway Marketing.
15.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
15.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non- contractual disputes or claims).