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1. Interpretation

1.1 The definitions and rules of interpretation in this condition apply in these conditions.

Customer: the person, firm or company who purchases Products and/or Services and/or hires Hire Goods from the Company.
Company:  Agora (Bath) trading as 1st Hygiene Solutions.  
Contract: any contract between the Company and the Customer for the supply of Products and/or Services and/or Hire Goods, incorporating these conditions.
Conditions: these Terms and Conditions of Supply.
Delivery Point: the place where delivery of the Products and/or Hire Goods is to take place under condition 4.
Products:  any products agreed in the Contract to be sold to the Customer by the Company (including any part or parts of them).
Hire Goods: Goods which the Company has agreed in the Contract to hire to the Customer.
Hire Charge: the Company’s charge for the hire of Hire Goods, as applicable from time to time.
Hire Term: the period during which the Hire Goods are held by the Customer in return for payment of the Hire Charge to the Company.
Services: any services agreed in the Contract to be provided by the Company to the Customer.
Supply: the sale of Products and/or provision of Services and/or hire of Hire Goods from the Company to the Customer.

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to one gender includes a reference to the other gender.

1.5 Condition headings do not affect the interpretation of these Conditions.

 

2. Application of Terms

2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions apply to the Supply of any and all Products, Services and Hire Goods by the Company and any variation to these Conditions and any representations about any Products, Services and/or Hire Goods shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation

2.4 Each order or acceptance of a quotation for Products, Services and/or Hire Goods by the Customer from the Company shall be deemed to be an offer by the Customer to procure Products, Services and/or Hire Goods subject to these Conditions.

2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company.

2.6 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.

2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.

 

3. Description

3.1 The quantity and description of the Products, Services and/or Hire Goods, shall be as set out in the Company's quotation or acknowledgement of order.

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products, Services and/or Hire Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

 

4. Delivery and performance

4.1 The Company only delivers Products and Hire Goods and performs Services within the United Kingdom, unless otherwise agreed between the Customer and the Company’s export department, who will advise the Customer regarding any and all terms and conditions and the delivery charges applicable to export orders.

4.2 Unless otherwise agreed in writing by the Company, and without prejudice to Condition 4.1, delivery of the Products and/or Hire Goods and/or performance of the Services shall take place at the Customer’s place of business. All carriage charges, including, without limitation, all costs in relation to transport, insurance and unloading, shall be borne by the Customer.        

4.3 Any dates specified by the Company for delivery of the Products and/or Hire Goods and/or performance of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. Should expedited delivery be agreed, the Company reserves the right to levy an extra delivery charge.

4.4 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products and/or Hire Goods or in the performance of the Services (even if caused by the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.

4.5 If for any reason the Customer fails to accept delivery of any of the Products and/or Hire Goods, or the Company is unable to deliver the Products and/or Hire Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Products and/or Hire Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);

(b) the Products and/or Hire Goods shall be deemed to have been delivered; and

(c) the Company may store the Products and/or Hire Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance);or

(d) sell and/or hire the Products and/or Hire Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale/hire of the Products and/or Hire Goods), charge the Customer for any shortfall below the price for the Products and/or Hire Goods.

4.6 The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Products and/or Hire Goods.

4.7 If delivery involves difficult access to or at the Delivery Point and/or the Delivery Point is located at an unreasonable distance from any feasible vehicular access point, the Company reserves the right to levy an extra delivery charge.

4.8 If the Company delivers to the Customer a quantity of Products and/or Hire Goods of up to 10% more or less than the quantity accepted by the Company, the Customer shall not be entitled to object to or reject the Products and/or Hire Goods or any of them by reason of the surplus or shortfall and shall pay for such Products and/or Hire Goods at the pro rata Contract rate.

4.9 The Company may deliver the Products and/or Hire Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.10 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

 

5. Non Delivery

5.1 The quantity of any consignment of Products and/or Hire Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

5.2 The Company shall not be liable for any non-delivery of Products and/or Hire Goods (even if caused by the Company's negligence) unless the Customer gives written notice to the Company of the non-delivery within 3 days of the date when the Products and/or Hire Goods would in the ordinary course of events have been received.

5.3 Any liability of the Company for non-delivery of the Products and/or Hire Goods shall be limited to replacing the Products and/or Hire Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Products and/or Hire Goods.

 

6. Risk / Title

6.1 The Products and/or Hire Goods are at the risk of the Customer from the time of delivery. Risk in the Hire Goods will only pass back from the Customer to the Company once the Hire Goods have been returned to the Company. The Company will collect the Hire Goods at the end of the Hire Term and the Customer shall ensure that reasonable access is provided in order to facilitate collection of the Hire Goods by the Company.

6.2 Ownership of the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

(a) the Products; and

(b) all other sums which are or which become due to the Company from the Customer on any account.

6.3 Ownership of the Hire Goods shall remain at all times with the Company.

6.4 Until ownership of the Products has passed to the Customer, the Customer shall:

(a) hold the Products on a fiduciary basis as the Company's bailee;

(b) store the Products (at no cost to the Company) separately from all other Products of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and maintain the Products in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.

6.5 The Customer may resell the Products before ownership has passed to it solely on the following conditions:

(a) any sale shall be effected in the ordinary course of the Customer's business at full market value; and

(b) any such sale shall be a sale of the Company's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale; and

(c) the proceeds of any such sale shall be held by the Customer as the Company’s bailee and in a fiduciary capacity.

6.6 The Customer's right to possession of the Products and/or Hire Goods shall terminate immediately if:

(a) the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or

(b) the Customer suffers or allows any execution distress or diligence, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or a secured lender to the Customer takes any steps to obtain possession of the secured property or otherwise enforce its security or the Customer ceases to trade; or

(c) the Customer encumbers or in any way charges any of the Products and/or Hire Goods.

6.7 The Company shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Company.

6.8 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products and/or Hire Goods are or may be stored or otherwise located, but in any event, and without limitation, hereby undertakes to secure access at any time to any such premises for the Company, its agents and employees in order to inspect the Products and/or Hire Goods, or, where the Customer's right to possession has terminated, to recover them.

6.9 Where the Company is unable to determine whether any Products and/or Hire Goods are the Products and/or Hire Goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all Products and/or Hire Goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.

6.10 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this Condition 6 shall remain in effect.

 

7. Price

7.1 Unless otherwise agreed by the Company in writing, the price for any Goods and Services  and the amount of any Hire Charge for Hire Goods shall be as set out in the Company's price list published on the date of delivery or deemed delivery (and for Services, on the date of commencement of performance of the Services).

7.2 The price for any Products and Services  and the amount of any Hire Charge for Hire Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance.

7.3 Hire Charges are subject to annual adjustment. The price of any Product (including but not limited to any Consumables) is subject to change without prior notice.

 

8. Payment

8.1 Provided that the Customer has produced credit references which in the Company’s opinion are satisfactory. then settlement terms shall be in accordance with Condition 8.2 below. In all other cases, all payments shall, at the Company’s discretion, be made in advance upon submission by the Company of a pro-forma invoice.

8.2 Invoices shall be payable annually in advance and payment shall be due within 14 days of date of invoice. Should the Company agree to bill the Customer on a quarterly or monthly basis, an annual surcharge of 3% shall be added.

8.3 If any payment is not made by the due date, the Company may, without prejudice to any other right or remedy, suspend performance of the Services or delivery of any Hire Goods or Products.

8.4 Without limiting the provision of Condition 8.3 above, if any outstanding payment is not received by the Company within 60 days of the due date, the Company may, without prejudice to any other right or remedy, terminate the Contract and apply termination billing, whereby the Company may charge the Customer the full amount due for any remaining period of the Contract, which amount shall be payable within 14 days of the Customer’s receipt of an invoice therefor.

8.5 Time for payment shall be of the essence.

8.6 No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.

8.7 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.8 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.

8.9 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 6 % above the Bank of England’s base rate from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 at the rate of 8% over the current Bank of England base rate together with late payment charges as set out in the Act. Without limitation, the Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 8.

 

9. Warranties

9.1 The Company shall repair or, at the Company's option, replace Products and/or Hire Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design, or, in the case of Services, re-perform Services which are proved to the reasonable satisfaction of the Company to have not been performed with reasonable care. This obligation will not apply:

(a) if the defect arises because the Customer has altered or repaired any such Products and/or Hire Goods without the written consent of the Company; or

(b) because the Customer did not follow the manufacturers' instructions for storage, usage, installation, use or maintenance of the Products and/or Hire Goods; or

(c) if the Customer is in breach of any of its obligations in Condition 12.

9.2 Except as set out in Condition 10.1 below, the provisions in this Condition 9 constitute the Company's sole obligation to the Customer and are accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of any Products and/or Hire Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.

 

10. Limitation of Liability

10.1 The Company does not exclude its liability to the Customer:

(a) For breach of the Company's obligations under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

(b) For personal injury or death arising as a result of the Company's negligence;

(c) Under section 2(3) of the Consumer Protection Act 1987;

(d) For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or;

(e) For fraud or fraudulent misrepresentation.

10.2 Except as provided in Conditions 9 and 10.1, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, or loss of contracts and like loss) howsoever caused.

10.3 The Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions ) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.

10.4 Save as set out in Condition 10.1 the Company's total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Products and/or Hire Goods or in the case of Services, re-performing the Services or, at the Company's option, refunding any monies already paid .

10.5 The Company maintains £1,000,000 public liability insurance and £25,000 fidelity cover.

10.6 As part of the Company’s commitment to quality control, all approved suppliers and partners are monitored on a continuous basis.

 

11. Hire Term and Termination

11.1 The Hire Term shall commence immediately following the issuance of the Company’s written acknowledgment of order pursuant to Condition 2.5 and shall continue for an initial period of three years (the ‘Initial Hire Term’). The Hire Term shall thereafter continue from year to year, unless the Contract is earlier terminated by three months written notice commencing three months prior to the expiry of the Initial Hire Term, or three months prior to the end of the relevant successive annual period, as applicable. Contracts to supply warm air dryers shall come with a five year option on the same terms. Should the Company agree to an Initial Hire Term of 12 months, an annual surcharge of 20% shall be added.

11.2 The Company may, (without prejudice to any other rights or remedies it may have against the Customer) exercise any remedy available to it up to and including termination of the Contract, if:

(a) the Customer  is in breach of any Condition which is incapable of remedy; or

(b) the Customer is in breach of any Condition which is capable of remedy, but fails to remedy such breach within 14 days of receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or

(c) any one or more of the events set forth in Condition 6.6 occurs. 

(d) Notwithstanding the exercise of any remedy by the Company in accordance with Condition 11.1 above, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time. 

 

12. Customer Obligations-Hire Goods/Services

12.1 Where Hire Goods are available on a seven day free trial period; unless the Customer requests the Company in writing at the end of the trial period to remove any Hire Goods which are on trial, those Hire Goods shall be included in the Contract.

12.2 The Customer hereby agrees that with respect to any Hire Goods, it shall:-

(a) take reasonable care of the Hire Goods and use them only for their intended purpose in accordance with any instructions provided to the Customer and, if no instructions have been so provided, in accordance with good trade practice; and

(b) insure the Hire Goods on such terms as the Company may require, the proceeds of such insurance to be held by the Customer in trust for the Company and to be paid to the Company on demand; and

(c) permit the Company upon reasonable notice to inspect the Hire Goods; and

(d) notify the Company immediately, following any loss of, damage to, and/or breakdown of, the Hire Goods; and

(e) be responsible for and shall fully reimburse the Company for any and all expenses, costs, losses (including loss of Hire Charges) and/or damage incurred by or against the Company arising from any loss of, damage to, and/or breakdown of the Hire Goods attributable to the Customer’s negligence and/or misuse of the Hire Goods; and

(f) indemnify and keep indemnified the Company against any and all losses, lost profits, damages, claims, costs, actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of contract, tortious act and/or omission and/or any breach of statutory duty by the Customer.

12.3 The Customer hereby agrees that with respect to any Hire Goods, it shall not:

(a) attempt to repair the Hire Goods without the prior written consent of the Company; or

(b) attempt to sell, hire, assign, charge, pledge, or otherwise lend or dispose of the Hire Goods or any interest therein; or

(c) without limitation, do or omit to do anything which the Customer has been notified may invalidate any policy of insurance related to the Hire Goods.

12.4 Without limiting any of the provisions of this Condition 12, the Customer will incur additional costs and charges for any Hire Goods which are damaged or lost due to vandalism, up to and including the replacement costs for new Hire Goods and the charges for their installation. Without limitation, the Company reserves the right to charge the Customer for any lost/damaged Hire Goods if the Contract is terminated within the first 13 months.

12.5 Without limiting any of the provisions of this Condition 12, Hire Goods will be repaired or replaced free of charge within 2 weeks, subject to the availability of all materials, if they are faulty or are deemed by the Company to constitute a health & safety hazard.

12.6 The Customer hereby agrees, with respect to any Services to be provided by the Company:

(a) that it shall provide adequate access to the Customer’s site, (together with sufficient on-site facilities) to the Company’s employees, sub-contractors and/or agents, in order to enable them to perform the required Services; and

(b) that if any Services are delayed or suspended due to the Customer failing to comply with the Customer’s obligations set forth in 12.1, the Customer shall pay any additional charges imposed by the Company for any such delay or suspension.

12.7 Any additional Services shall incur an additional charge of £25.00 for each additional service over and above the Services and/or frequency of Services agreed in the Contract. Please note that for warm air dryers, unless electrical spurs are already in place, additional wiring charges may be incurred.

12.8 The Company’s standard charge for taking down or removing old equipment comprising the Hire Goods is £6.00 per unit and in the case of sanitary bins, this will also cover waste disposal. The standard rate does not apply for warm air dryers and vending machines.

 

13. Assignment

13.1 The Company may assign the Contract or any part of it to any person, firm or company.

13.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

 

14. Force Majeure

14.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Products, Services and/or Hire Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

 

15. General

15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

15.2 The Company and the Customer shall each keep confidential any and all information which has been expressed to be confidential or could reasonably be supposed to be confidential and which has been obtained or disclosed as a result of the relationship of the respective parties under the Contract

15.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

15.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

15.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

15.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

15.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

 

16. Communications

16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:

(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or

(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.

16.2 Communications shall be deemed to have been received:

(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

(b) if delivered by hand, on the day of delivery; or

(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

Communications addressed to the Company shall be marked for the attention of Ms. Jennifer Boardley.

©Agora (Bath) Ltd 2009

 

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