Terms of Business
1.1 The following definitions and rules of interpretation apply in these conditions.
Acceptance Tests: the tests of the Goods after installation to be carried out by the Customer with the support of the Supplier.
Computer Hardware: the computer hardware used by the Customer to operate the Supplier Software, which is either supplied by or approved by the Supplier (as set out in the order acknowledgement).
Contract: the Customer's order and the Supplier's acceptance of it in accordance with condition 3.3.
Customer: the person, firm or company who purchases the Goods and Services from the Supplier
Goods: the product comprising the Supplier Software and Open-Source Software (and where purchased from the Supplier the Computer Hardware), details of which are set out in the order acknowledgement.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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.
Restrictions: the Export Administration Regulations.
Supplier Software: the software specified in Schedule 1 and all subsequent amendments and updates to, or new versions of, such software as may be provided under the Contract.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's definition (http://www.opensource.org/osd) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at http://www.gnu.org/licenses/gpl.html), or anything similar, included or used in, or in the development of, the Supplier Software or with which the Supplier Software is compiled or to which it is linked.
Services: the services set out in the order acknowledgment.
Supplier: Innova Engineering Limited trading as The Packet Company
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any pre-existing supply contract with the Customer and inconsistent terms or conditions contained in or referred to in the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
2.3 Both the Customer and the Supplier agree to act in accordance with all applicable laws and the Customer agrees that it shall be bound by the Restrictions in the event that the Restrictions apply to the Contract.
3. BASIS OF SALE
3.1 Any quotation is valid for a period of 30 days only, unless specified otherwise on the quotation, and the Supplier may withdraw it at any time by notice to the Customer. The quotation is subject to change due to factors outside of the Supplier's control, including but not limited to exchange rate variations.
3.2 Each order or acceptance of a quotation for Goods by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.
3.3 A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order acknowledgement to the Customer and the Supplier receives the deposit from the Customer in clear funds (the "Deposit").
3.4 It is agreed between the parties that the Deposit is non-refundable and shall be 50% of the price of the Goods, unless otherwise agreed in writing.
3.5 Each delivery under an order that the Customer places shall be a separate Contract and no cancellation or termination by either party of any one Contract shall entitle the Customer to repudiate or cancel any other Contract.
3.6 No order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
3.7 Where a Customer cancels an order, and subject to condition 3.4, it shall be entirely at the Supplier's discretion whether to provide a refund to the Customer, and the Supplier shall charge a re-stocking fee which will be 10% of the price of the Goods.
4. QUANTITY AND DESCRIPTION
4.1 The quantity and description of the Goods, including whether Computer Hardware is supplied to the Customer, shall be set out in the Supplier's acknowledgement of order.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4.4 The Supplier reserves the right (but does not assume the obligation) to make any changes in order to upgrade the specification of the Goods and the Supplier is not obligated to provide notice to the Customer of a change. The Supplier shall transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier in accordance with condition 10.
4.5 The Supplier's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Goods or Services.
5.1 All prices shall be as stated in the Supplier's acknowledgement of order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties unless stated otherwise on the order acknowledgment.
5.2 The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods prior to delivery to reflect any increase in the cost to the Supplier which is due to market conditions or any factor beyond the control of the Supplier (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation or significant increase in the costs of labour, materials or other costs of manufacture).
6.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier may invoice the Customer for the price of the Goods and Services on or at any time after delivery of the Goods.
6.2 The terms of payment shall be:
(a) in the case of Goods delivered in the United Kingdom, within 30 days of the date of the Supplier's invoice (unless otherwise agreed in writing), whether or not delivery has taken place or title in the Goods has passed to the Customer; or
(b) in the case of export sales, in accordance with condition 12.5.
6.3 Time for full payment of the price shall be of the essence of the Contract.
6.4 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Goods and Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
(a) terminate the Contract;
(b) charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether or not after judgment), at the annual rate of 4% above the base lending rate from time to time of Barclays Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and/or
(c) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full.
6.5 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition 6.5 is without prejudice to any right to claim for interest under the law, or any right under the Contract.
6.6 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7. DELIVERY OF GOODS AND ACCEPTANCE
7.1 The Supplier shall use its reasonable endeavours to deliver the Goods on the date or dates specified in the Supplier's acknowledgement of order, but any such date is approximate only. If no dates are specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Goods and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
7.2 The Goods may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
7.3 Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer's request.
7.4 The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Goods and for the provision of all necessary access and facilities reasonably required to deliver and install the Goods. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.
7.5 The Customer shall be deemed to have accepted the Goods when the Customer has had 24 hours to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 10.
7.6 The Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier within 24 hours of delivery or the proposed delivery date of the Goods and that the Goods have been handled in accordance with the Supplier's stipulations. Any remedy under this condition 7.6 shall be limited, at the option of the Supplier, to the replacement or repair of any Goods which is proven to the Supplier's satisfaction to have been lost or damaged in transit.
8. RISK AND PROPERTY
8.1 The Goods shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Supplier's acknowledgement of order.
8.2 Ownership of the Goods shall pass to the Customer when the Supplier has received in full and in cleared funds all sums due to the Supplier for the Goods.
8.3 Where the Supplier is supplying Computer Hardware, conditions 8.3 to 8.6 shall apply to the Contract. Until ownership of the Goods has passed to the Customer under condition 8.2, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier's bailee;
(b) store the Goods (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer's other Goods or that of a third party, so that it remains readily identifiable as the Supplier's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) keep the Goods insured on the Supplier's behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of the Supplier, ensure that the Supplier's interest in the Goods is noted on the policy, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.4 The Customer's right to possession of the Goods before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 18 arise or if the Customer encumbers or in any way charges the Goods, or if the Customer fails to make any payment to the Supplier on the due date.
8.5 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect it, or where the Customer's right to possession has terminated, to remove them. All costs incurred by the Supplier in repossessing the Goods shall be borne by the Customer.
8.6 On termination of the Contract for any reason, the Supplier's (but not the Customer's) rights in this condition 8 shall remain in effect.
9. INSPECTION AND TESTING OF GOODS
The Customer shall test and inspect the Goods (including the electrical safety of Computer Hardware if supplied under the Contract) on delivery and prior to use in order to ensure that it complies with the requirements of the Contract.
10.1 The Supplier warrants to the Customer that the Goods are free from material defects of workmanship and materials. The Customer acknowledges that the Supplier does not guarantee the suitability of the Product for any particular use. Where Computer Hardware is supplied to the Customer, it is covered under a 12 month warranty if the Customer registers the Goods with the Supplier within 7 days of receiving the Goods. Provided the Goods are registered with the Supplier within 7 days of delivery, the Supplier undertakes (subject to the remainder of this condition 10), at its option, to repair or replace Computer Hardware which is found to be defective as a result of faulty materials or workmanship within 12 months of delivery and installation within the United Kingdom. For the avoidance of any doubt, the warranty does not apply to the Supplier Software and the Customer's attention is drawn to the specific warranty conditions at Schedule 2.
10.2 The Supplier shall not in any circumstances be liable for a breach of the warranty contained in condition 10.1 unless:
(a) the Customer gives written notice of the defect to the Supplier within seven days of the time when the Customer discovers or ought to have discovered the defect; and
(b) after receiving the notice, the Supplier is given a reasonable opportunity of examining such Goods and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost for the examination to take place there.
10.3 The Supplier shall not in any circumstances be liable for a breach of the warranty in condition 10.1 if:
(a) the Customer makes any use of Goods in respect of which it has given written notice under condition 10.3(a);
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods;
(c) the Customer alters or repairs the relevant Goods without the written consent of the Supplier; or
(d) the Customer uses the Supplier Software on hardware that has not been provided or approved by the Supplier.
10.4 Any repaired or replacement Goods shall be under warranty for the unexpired portion of the 12 month period.
10.5 The Supplier shall not in any circumstances be liable for any damage or defect to the Goods caused by improper or illegal use of the Goods or use outside its normal application.
10.6 In circumstances where a Customer is not able to return failed parts to the Supplier for repair and/or replacement, the parties may agree that the Supplier will access the site where the Goods are installed in order to diagnose any faults and replace defective components where necessary. If the Supplier is required to access the site where the Goods are installed, it may be at an additional cost to the Customer.
10.7 Where the Goods have been installed outside the mainland United Kingdom, and it has been agreed in writing between the parties and set out on the order acknowledgment, the Supplier will at its absolute discretion use reasonable endeavours to assist the Customer in sending an employee abroad in order to undertake fault diagnosis and repair, at the Customer's cost.
11. SOFTWARE LICENCE
11.1 The Customer acknowledges that the Goods contain the Supplier Software that is owned by the Supplier and Open-Source Software that is licensed by the Supplier (collectively "the Software"). The price of the Goods includes the licence fee for the Customer's right to use the Software and a list of Open-Source Software used in the Goods and the applicable licences is provided with the Goods on a "shrink-wrap" basis.
11.2 The Customer hereby accepts a non-exclusive, non-transferable licence to use the Supplier Software on the following conditions:
(a) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Goods), reproduce, translate, adapt, reverse engineer, nor communicate it to any third party, without Supplier's prior written consent;
(b) subject to clause 11.2 (c), the Customer shall not (without the Supplier's written consent or unless specified in an order acknowledgment), use the Supplier Software on any hardware other than the Computer Hardware and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Supplier Software on the medium on which it resides;
(c) the Customer shall only be permitted to use the library part(s) of the Supplier Software on any platform for the sole purpose of development work but Computer Hardware must be used by the Customer when using the Supplier Software for any other non-developmental purpose;
(d) such licence shall be terminable by either party on 28 days' written notice, provided that the Supplier terminates only if the continued use or possession of the Supplier Software by the Customer infringes the developer's or a third party's rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and
(e) on or before the expiry of this licence, the Customer shall return to the Supplier all copies of the Supplier Software in its possession.
12.1 Where the Supplier provides the Customer with the Computer Hardware, the Customer shall not copy, reproduce, translate, adapt or reverse engineer any part of the Computer Hardware and system configuration.
12.2 For the avoidance of doubt, the Customer shall not use the Computer Hardware in order to develop a product that competes with the Goods.
13. EXPORT TERMS
13.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 13 shall (subject to any contrary terms agreed in writing between the Customer and the Supplier) override any other provision.
13.2 The Customer shall be responsible for complying with any legislation governing:
(a) the importation of the Goods into the country of destination; and
(b) the export and re-export of the Goods,
and shall be responsible for the payment of any duties on it.
13.3 The Supplier shall be responsible for arranging for the testing and inspection of the Goods at the Supplier's premises before shipment.
13.4 The Customer shall pay the price for the Goods in pounds sterling. The Deposit will be required in accordance with clause 3.3 with the balance becoming due to the Supplier when the Goods are ready for shipment.
14.1 The Supplier shall not in any circumstances be liable for any non-delivery of Goods (even if caused by the Supplier's negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within seven days after the scheduled delivery date.
14.2 Any liability of the Supplier for non-delivery of the Goods shall in all circumstances be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
14.3 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under condition ), the Customer shall in all circumstances be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect.
14.4 In the event of any claim by the Customer under the warranty given in condition 10.1, the Customer shall notify the Supplier in writing of the alleged defect. The Supplier shall have the option of testing or inspecting the Goods at its current location or moving it to the Supplier's premises (or those of its agent or sub-contractor) at the cost of the Customer if required. If the Customer's claim is subsequently found by the Supplier to be outside the scope or duration of the warranty in condition 10, the costs of investigation and repair shall be borne by the Customer.
15. LIMITATION OF LIABILITY
15.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of the Contract howsoever arising; and
(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
15.3 Nothing in these conditions excludes or limits the liability of the Supplier for:
(a) death or personal injury caused by the Supplier's negligence;
(b) fraud or fraudulent misrepresentation; or
(c) anything else which is unable to be excluded or limited by law.
15.4 Subject to condition 15.2 and condition 15.3:
(a) the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits;
(ii) loss of revenue;
(iii) loss of business or business opportunity;
(iv) loss of goodwill;
(v) loss or corruption of data or information; or
(vi) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable by the Customer for the Goods and Services under the Contract.
15.5 The Supplier accepts no liability for the effect that a customisation of the Goods may have on the Goods or for any loss that may arise as a result of the Customer customising the Goods for the desired end-use.
15.6 The Supplier shall not in any circumstances be liable if the Customer makes any illegal use of Goods.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 If the Supplier manufactures the Goods, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by the Supplier in connection with, or paid or agreed to be paid by the Supplier in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Supplier's use of the Customer's specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Supplier.
16.2 The Supplier warrants that it owns the Intellectual Property Rights in the Supplier Software, and has licensed the Intellectual Property Rights in the Open-Source Software.
16.3 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods are and shall remain the sole property of the Supplier or (as the case may be) third party owner.
16.4 The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.
16.5 The Supplier's Intellectual Property Rights in and relating to the Goods shall remain the exclusive property of the Supplier, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
16.6 In relation to the Software:
(a) the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals;
(b) nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals;
(d) the Supplier reserves the right to grant a licence to use the Software to any other party or parties.
17. CONFIDENTIALITY AND SUPPLIER'S PROPERTY
17.1 The Customer 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 Customer by the Supplier or its agents, and any other confidential information concerning the Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
17.2 All materials, Goods and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation.
17.3 This condition 16 shall survive termination of the Contract, however arising.
18.1 Without prejudice to any other right or remedy available to the Supplier, the Supplier may terminate the Contract without liability to the Customer and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable if:
(a) the Customer materially breaches these conditions and fails to remedy a breach within 28 days of the Supplier notifying the Customer of a breach;
(b) the Customer breaches the licence terms in relation to the Software;
(c) the ability of the Customer to accept delivery of the Goods is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control;
(d) the Customer 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the Customer 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;
(f) 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 Customer;
(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 Customer;
(h) the holder of a qualifying floating charge over the assets of Customer 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 Customer;
(j) a creditor or encumbrancer of the Customer 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 the Customer's assets and such attachment or process is not discharged within 14 days;
(k) 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 condition 18.1(c) to condition 18.1(h) (inclusive); or
(l) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
18.2 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
18.3 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
19. FORCE MAJEURE
The Supplier reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Goods ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications 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 sub-contractors.
20.1 Where the Goods and Services are purchased by the Customer for the purposes of (a) resale to or (b) on behalf of the end-user, the Customer shall ensure that the end-user accepts the terms of this Contract and agrees to be bound by the same.
20.2 The Customer shall indemnify the Supplier and keep the Supplier fully and effectively indemnified for any losses, liabilities, claims or costs incurred as a result of the end-users breach or failure to comply with the terms of the Contract.
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
22. RIGHTS AND REMEDIES
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
23.1 If any provision or part-provision of this 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 condition shall not affect the validity and enforceability of the rest of this Contract.
23.2 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.
24. ENTIRE AGREEMENT
24.1 This 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.
24.2 Each party acknowledges that in entering into this 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 this Contract.
25.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
25.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
26. THIRD PARTY RIGHTS
No one other than a party to this Contract, or the end-user (if applicable) shall have any right to enforce any of its terms.
27.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by fax to its main fax number.
27.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
28. GOVERNING LAW
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).