Standard Terms and Conditions
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
These Terms and Conditions are not to be used in conjunction with Metalyte’s fixed price repair service.
The following definitions and rules of interpretation apply in these Conditions.
|Business Day||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.|
|Charges||the charges payable by the Customer for the supply of the Services in accordance with clause 5(Charges and payment).|
|Commencement Date||has the meaning given in clause 2.2.|
|Conditions||these terms and conditions as amended from time to time in accordance with clause 11.5.|
|Contract||the contract between Metalyte and the Customer for the supply of Services in accordance with these Conditions.|
|Customer||the person or firm who purchases Services from Metalyte.|
|Customer Default||has the meaning set out in clause 4.2.|
|Documentation||the Engineering Assessment Form, the Repair Quotation, the Repair Specification, the method statement, the risk assessment form, the tool box talk form, the Quality Control Completion & Sign-Off Form, the time sheet, the work procedure and any other specifications, drafts, documents, drawings or illustrations drawn up by Metalyte and provided to the Customer.|
|Engineering Assessment Form||the engineering assessment form required by Metalyte to be completed accurately by the Customer with full technical details of the defect needing repair.|
|Group Company||in relation to a company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.|
|Intellectual Property Rights||patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|Metalyte||Metalyte Pipeworks Limited registered in England and Wales with company number 08126595.|
|Metalyte Materials||has the meaning set out in clause 4.1.8.|
|Order||the Customer’s order for Services as set out in the Customer’s purchase order form or the Customer’s written acceptance of a Repair Quotation by Metalyte, as the case may be.|
|Quality Control Completion & Sign-Off Form||Metalyte’s Quality Control Completion & Sign-Off Form to be signed by the Customer on completion of the Services.|
|Repair Quotation||Metalyte’s repair quotation setting out the scope of work and Charges for the Services.|
|Repair Specification||the description or Repair Specification for the Services provided in writing by Metalyte to the Customer.|
|Services||the services supplied by Metalyte to the Customer as set out in the Repair Specification.|
|Services Location:||the location where the Services are to be provided by Metalyte.|
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.1 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Metalyte issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Metalyte, and any descriptions or illustrations contained in Metalyte’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any Repair Quotation given by Metalyte shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
3. SUPPLY OF SERVICES
3.1 Metalyte shall supply the Services to the Customer in accordance with the Repair Specification in all material respects.
3.2 Metalyte shall use all reasonable endeavours to meet any performance dates agreed by the parties , but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. There may be delays due to an event outside the control of Metalyte. Clause 11.1 sets out Metalyte’s responsibilities when an outside its control occurs. Metalyte may be unable to commence or may have to suspend the Services due to the weather or because of the condition of the Services Location and such weather or other conditions will be considered s force majeure event. Metalyte will resume or commence the Services at its sole discretion.
3.3 Metalyte reserves the right to amend the Repair Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Metalyte shall notify the Customer in any such event.
3.4 Metalyte warrants to the Customer that the Services will be provided using reasonable care and skill.
3.5 Subject to clause 8, if the Customer requires Metalyte to carry out work so that the resulting work is below the standard Metalyte recommends in order to reduce the price or for any other reason or if the Customer requires specific materials or a specific method that Metalyte do not recommend or do not ordinarily supply, or requires Metalyte to deviate from the Repair Specification or the Method Statement in any way whatsoever, Metalyte will not be liable for any losses, costs or expenses the Customer incurs arising directly or indirectly from Metalyte’s compliance with the Customer’s instructions.
3.6 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until the party proposing the change submits a request in writing to the other party and a new Repair Specification is issued by Metalyte setting out the changed Services, the Charges, the timetable of the Services and any other new terms of the Contract. If the parties agree the proposed changes, the Services shall be amended as set out in the new Repair Specification. If the parties are unable to agree the proposed changes, either party may terminate the agreement by giving 2 Business Days’ written notice and Metalyte may invoice the Customer for its costs incurred as set out in clause 9.1.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and any information it provides in the Engineering Assessment Form or otherwise provided to Metalyte are complete and accurate and notify Metalyte promptly if any of the information provided by the Customer to Metalyte changes, whether such changes occur before Metalyte commences providing the Services or during the provision of the Services;
4.1.2 co-operate with Metalyte in all matters relating to the Services;
4.1.3 provide Metalyte, its employees, agents, consultants and subcontractors, with access to the Services Location, the Customer’s premises, office accommodation and other facilities as reasonably required by Metalyte;
4.1.4 provide Metalyte with such information and materials as Metalyte may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5 prepare the Customer’s Services Location for the supply of the Services;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7 comply with all applicable laws, including health and safety laws;
4.1.8 keep all materials, equipment, tooling, documents and other property of Metalyte, including repair materials before their use in the Services, (Metalyte Materials) at the Customer’s premises in safe custody at its own risk, maintain Metalyte Materials in good condition until returned to Metalyte, and not dispose of or use Metalyte Materials other than in accordance with Metalyte’s written instructions or authorisation. Any repair materials not included in the Repair Quotation but brought to the Services Location for contingency purposes remain the property of Metalyte, and if used, the Customer shall pay for such materials used as notified to it by Metalyte in addition to the materials specified in the Repair Quotation; and;
4.1.9 comply with any additional obligations as set out in the Repair Specification or in the Method Statement or as otherwise notified to the Customer by Metalyte.
4.2 If Metalyte’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 without limiting or affecting any other right or remedy available to it, Metalyte shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Metalyte’s performance of any of its obligations;
4.2.2 Metalyte shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Metalyte’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse Metalyte or its Group Company (as the case may be) on written demand for any costs or losses sustained or incurred by Metalyte arising directly or indirectly from the Customer Default.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
5.1.1 the Charges shall be calculated in accordance with Metalyte’s daily fee rates at the date of the Contract, as set out in Metalyte’s Repair Quotation;
5.1.2 the Repair Quotation will include an estimate of the costs of labour, materials and expenses but the Customer acknowledges and agrees that the figures in the Repair Quotation are estimates and the Charges may be more or less than estimated;
5.1.3 labour will be charged at the daily fee rates for any time in excess of the estimated timescale;
5.1.4 Metalyte’s daily fee rates for each individual are calculated on the basis of:
(a) If the Services Location is on-shore, an eight-hour day at agreed business hours, or if business hours have not been agreed, from 8.00 am to 5.00 pm (including one hour for lunch), worked on Business Days; or
(b) If the Services Location is off-shore, a twelve-hour day at agreed business hours, or if business hours have not been agreed, from 7:00 am to 8.00 pm (including one hour for lunch), worked on Business Days;
5.1.5 Metalyte shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1.4; and
5.1.6 Unless a fixed charge for expenses is agreed in writing by the parties, Metalyte shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Metalyte engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Metalyte for the performance of the Services, and for the cost of any materials.
5.2 Where Metalyte provides ongoing Services to the Customer, Metalyte reserves the right to increase the Charges on an annual basis to reflect factors affecting the cost of providing the Services, including increases in the cost of raw materials. Metalyte shall give the Customer not less than 30 days’ prior notice of proposed changes.
5.3 Metalyte shall invoice the Customer on completion of the Services.
5.4 The Customer shall pay each invoice submitted by Metalyte:
5.4.1 In Great British Pounds or Euros or US Dollars;
5.4.2 within 30 days of the date of the invoice or in accordance with any credit terms agreed by Metalyte and confirmed in writing to the Customer; and
5.4.3 in full and in cleared funds to a bank account nominated in writing by Metalyte, and time for payment shall be of the essence of the Contract.
5.5 All payments made, in accordance with section 5.4,in either Euros or US Dollars will be held for one calandar month after such time Metalyte reserve the right to adjust the exchange rate as stated to the exchange rate effective at such date.
5.6 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 Metalyte to the Customer, the Customer shall, on receipt of a valid VAT invoice from Metalyte, pay to Metalyte such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5.7 If the Customer fails to make a payment due to Metalyte under the Contract by the due date, then, without limiting Metalyte’s remedies under clause 9:
5.7.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
5.7.2 The Customer shall reimburse Metalyte all its other reasonable costs and expenses (including legal and out of pocket expenses and any VAT on those costs and expenses) incurred by Metalyte arising out of, or in connection with, any failure by the Customer to pay any sum due to Metalyte by the due date for payment and the exercise and enforcement of any rights under or in connection with the Contract, or any attempt to do so.
5.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. QUALITY OF SERVICES
6.1 The Customer shall, on completion of the Services, inspect the repair and sign the Inspection and Certificate of Completion Form. If the Customer fails to sign the Quality Control Completion & Sign-Off Form and does not give written notice of rejection to Metalyte on account of any defect by reason of which the Customer alleges that the Services delivered do not comply with the warranty in clause 6.2 and which was apparent on reasonable inspection, the Customer shall be deemed to have accepted the Services.
6.2 Metalyte warrants that on completion of the Services and for a warranty period from the date of delivery as set out in the Repair Specification (warranty period), the Repair shall conform in all material respects with the Repair Specification.
6.3 Subject to clause 6.4, if:
6.3.1 The Customer gives notice in writing during the warranty period within a reasonable time of discovery that all or part of the Repair does not comply with the warranty set out in clause 6.2; and
6.3.2 Metalyte is given a reasonable opportunity of examining such Repair, at the Customer’s cost unless it is established that the Repair does not comply with the warranty set out in clause 6.2,
Metalyte shall, at its option, repair or replace the defective Repair, or refund the price of the defective Repair in full.
6.4.1 the defect arises because the Customer failed to follow Metalyte’s oral or written instructions as to the use or maintenance of the Repair or (if there are none) good trade practice;
6.4.2 the defect arises as a result of incomplete or inaccurate information provided by the Customer in the Engineering Assessment Form or otherwise provided to Metalyte or failure to supply information requested by Metalyte;
6.4.3 the defect arises as a result of Metalyte following any instruction, drawing, design or specification supplied by the Customer or the failure of the Customer to permit Metalyte to carry out all steps of the Method Statement or to comply fully with the Repair Specification;
6.4.4 the Customer alters or repairs such Repair without Metalyte’s prior written consent;
6.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.4.6 the Repair differs from the Repair Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5 Except as provided in this clause 6, Metalyte shall have no liability to the Customer in respect of the Repair’s failure to comply with the warranty set out in clause 6.2.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Metalyte.
7.2 Metalyte or its Group Company (as the case may be) grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use and copy the Documentation (excluding materials provided by the Customer) solely for the purpose of receiving the Services and using the Documentation in its business.
7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
7.4 The Customer shall not use any Documentation except to the extent necessary to obtain the benefit of the Services and the Customer shall not disclose the Documentation to any third party nor allow any third party to use the Documentation, without Metalyte’s prior written consent. If the Customer does pass on such Documentation for use by other persons or use them itself without ordering Metalyte’s Services, Metalyte shall be entitled to raise a Charge equivalent to the number of hours taken to prepare the Documentation, chargeable at the prevailing hourly rate, subject to a minimum charge of £[NUMBER] plus VAT.
7.5 The Customer shall not at any time film, record, photograph or produce any other image of Metalyte carrying out all or any part of the Services, the repair method or the repair, at any stage of the carrying out of the Services (Recorded Images), without the prior written consent of Metalyte. If it comes to the attention of Metalyte or Metalyte believes that the Customer is in breach of this clause 7.5, Metalyte reserves the right to suspend supply of the Services with immediate effect, to terminate the Contract with immediate effect and the Customer shall;
7.5.2 certify in writing to Metalyte that it has complied with the requirements of clause 7.5.1.
7.6 The Customer grants Metalyte a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to Metalyte for the term of the Contract for the purpose of providing the Services to the Customer.
8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
8.1 Metalyte has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £10,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Metalyte has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation; and
8.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.3 Subject to clause 8.2, Metalyte’s total liability to the Customer shall not exceed £10,000,000. Metalyte’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
8.4 This clause 8.4sets out specific heads of excluded loss:
8.4.1 Subject to clause 8.2, the types of loss listed in clause 8.4.2 are wholly excluded by the parties.
8.4.2 The following types of loss are wholly excluded:
(a) Loss of profits.
(b) Loss of sales or business.
(c) Loss of agreements or contracts.
(d) Loss of anticipated savings.
(e) Loss of use or corruption of software, data or information.
(f) Loss of or damage to goodwill.
(g) Indirect or consequential loss.
8.5 Metalyte has given commitments as to compliance of the Services with relevant Repair Specifications in clause 3. 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.
8.6 This clause 8 shall survive termination of the Contract.
9. TERMINATION AND CANCELLATION
9.1 The Customer may cancel the Contract by written notice at any time prior to Metalyte completing the Services. If the Customer cancels the Contract, Metalyte may issue an invoice for reasonable costs incurred as a result of the cancellation and if the Services have commenced, for the supply of the Services for the period up to the time when notice of cancellation is given in accordance with clause 11.8. The amount of the Charges will be based on Metalyte’s daily fee rates, as set out in the Repair Quotation. For the avoidance of doubt, in the event of cancellation at any time prior to completion of the Services, the warranty under clause 6.2 shall not apply.
9.2 Where Metalyte provides ongoing Services, except where a fixed Contract term is agreed, without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party one month’s written notice.
9.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.3.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.3.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.3.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.4 Without affecting any other right or remedy available to it, Metalyte may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.5 Without affecting any other right or remedy available to it, Metalyte may suspend the supply of Services under the Contract or any other contract between the Customer and Metalyte if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.3.2 to clause 9.3.4, or Metalyte reasonably believes that the Customer is about to become subject to any of them.
10. CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to Metalyte all of Metalyte’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Metalyte shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2 the Customer shall return all of Metalyte Materials and any Documentation for Services which have not been fully paid for. If the Customer fails to do so, then Metalyte may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
11.2.1 Metalyte may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Metalyte.
11.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or its Group Companies, except as permitted by clause 11.3.2.
11.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
11.4.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. 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.
11.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Repair Quotation.
11.8.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (c),business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
11.8.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
11.9.1 Metalyte Group Companies shall have the right, under the Contracts (Rights of Third Parties) Act 1999, to enforce the terms of the Contract as if it were Metalyte.
11.9.2 Except as set out in clause 11.9.1, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9.3 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.