These Terms (defined below) shall be incorporated into and govern any purchase orders placed by Owlstone Medical Limited (“Customer”) with the Supplier, subject to clause 2.1 below. Accordingly, the Supplier is advised to keep a copy of these Terms. If you have any questions or concerns about these Terms, please either phone +44 (0)1223 428200 or email info@owlstone.co.uk.

 

1. Interpretation

1.1 Definitions:

“Business Day”: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Business Hours”: the period from 9.00 am to 5.00 pm on any Business Day.

“Confidential Information”: means a party’s commercially sensitive or highly valuable information relating to the Contract which the disclosing party or its representatives (or any of its affiliates or group companies) directly or indirectly discloses, or makes available, to the receiving party or its representatives (or any of its affiliates), before, on or after the date of this Contract, not limited to: all confidential or proprietary information relating to the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or any of its affiliates); the operations, processes, product information, know-how, technical information, designs, trade secrets or software of the disclosing party (or any of its affiliates); any information, findings, data or analysis derived from Confidential Information; and any other information that is identified as being of a confidential or proprietary nature.

“Contract”: the contract between the Customer and the Supplier formed in accordance with clause 2.

“Control”: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

 “Customer”: Owlstone Medical Limited, a company registered in England and Wales with company number 04955647 and its address at 183 Cambridge Science Park, Milton Road, Cambridge CB4 0GJ, UK.

“Customer Materials”: has the meaning set out in clause 9.

“Data Protection Legislation”: means as defined in clause 14.

“Deliverables”:  all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

“Delivery Date”: the date specified in the Order, and in any event no earlier than 3 days before or 3 days later than the date so specified.

“Delivery Location”: the address for delivery of Goods as set out in the Order.

“Goods”: the goods (or any part of them), including any Deliverables, set out in the Order and Specification to be delivered by the Supplier in accordance with these Terms.

“Intellectual Property Rights”: patents, utility models, rights to inventions, copyright and neighbouring 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.

“Order”: the Customer’s order for the Goods and/or Services (as applicable), as set out in the relevant purchase order form or a quotation.

“Services”: the Services, including any Deliverables, set out in the Order and Specification to be provided by the Supplier in accordance with these Terms.

“Specification”: any specifications concerning the Goods or Services, including any related plans and drawings, industry standards or regulatory body requirements (which are known or ought to be known to the Supplier) that are applicable to the Order.

“Supplier”: the party from which the Customer purchases the Goods and/or Services.

“Terms”: these terms and conditions (version 2.0), as amended from time to time in accordance with these Terms.

1.2            Interpretation:

(a)             A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)            A reference to a party includes its successors and permitted assigns.

(c)             A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d)            Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

(e)             A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1           These Terms apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing, save where:

(a)            the Customer and Supplier have expressly agreed in writing that the Supplier’s terms apply to the Order; or

(b)            these Conditions have been superseded by another fully executed agreement between the Customer and Supplier concerning the same subject matter.

2.2            The Order constitutes an offer by the Customer to purchase the Goods and/or Services on a non-exclusive basis.

2.3            The Order shall be deemed to be accepted on the earlier of:

(a)             the Supplier issuing a written acceptance of the Order; and

(b)             the Supplier doing any act consistent with fulfilling the Order,

at which point the Contract shall come into existence (“Commencement Date”).

2.4            The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Terms.

3. The goods

3.1            The Supplier shall ensure that the Goods shall:

(a)             correspond with their description and any applicable Specification;

(b)             be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgement;

(c)             where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and

(d)            comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

3.2            The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.3             In providing the Goods, the Supplier shall (i) perform all its obligations with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade; and (ii) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract.

3.4              The Customer may inspect and test the Goods at any time before delivery, upon providing a reasonable notice of intention to inspect and/or test the Goods to the Supplier. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.

3.5               If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.6               The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. Delivery of goods

4.1            The Supplier shall ensure that:

(a)             the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

(b)             each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number and/or a contract number or reference (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(c)             if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2            The Supplier shall deliver the Goods:

(a)             on the Delivery Date;

(b)             at the Delivery Location; and

(c)             during the Customer's normal business hours, or as instructed by the Customer.

4.3             Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location, or where the Customer elects to use own courier service, upon collection of the Goods by the courier from the Supplier’s premises (or a location set out in the Order).

4.4             If the Supplier:

(a)             delivers less than 95% of the quantity of Goods ordered, the Customer may reject the Goods; or

(b)             delivers more than 105% of the quantity of Goods ordered, the Customer may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier's risk and expense.

If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

4.5             The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in clause 6.

5. Services

5.1                Supplier shall from the Commencement Date (or such later date as may be set out in the Order) and for the duration of the Contract supply the Services to the Customer in accordance with these Terms.

5.2                The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.

5.3                Supplier shall meet any performance dates for the Services that the Customer notifies to the Supplier.

5.4                Time is of the essence in relation to any performance dates communicated by the Customer to the Supplier.

5.5                 In providing the Services, the Supplier shall:

(a)                  co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;

(b)                  perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

(c)                  use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract (the Customer reserves the right to request copies of relevant qualifications);

(d)                  ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;

(e)                  provide all equipment, tools and vehicles and such other items as are required to provide the Services;

(f)                   use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;

(g)                 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

(h)                 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises;

(i)                  hold all Customer Materials in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose of or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation;

(j)                  not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services;

(k)                 comply with any additional obligations as set out in the Specification.

6. Customer remedies

6.1                 If Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or where the Goods or Services do not comply with the relevant undertakings set out in these Terms, the Customer shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies:

(a)                  to terminate the Contract;

(b)                  to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;

(c)                  to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

(d)                  to refuse to accept any subsequent delivery of the Goods or performance of Services which the Supplier attempts to make;

(e)                  to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods or services from a third party;

(f)                   to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided or Goods that it has not delivered; and

(g)                  to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.

6.2                 These Terms shall extend to any substituted or remedial services or  repaired or replacement goods supplied by the Supplier.

6.3                 The Customer's rights and remedies under these Terms are in addition to its rights and remedies implied by statute and common law.

7. Title and risk

Title and risk in the Goods shall pass to the Customer on completion of delivery, as follows:

(a)                 where the Supplier uses own subcontractors for courier services, delivery shall be deemed completed and title and risk shall pass to the Customer upon Customer’s receipt of the Goods, as delivered by the Supplier’s courier; and

(b)                 where the Supplier engages courier services requested by the Customer or where the Customer engages its own third-party courier services, delivery shall be deemed completed and title and risk shall pass to the Customer upon the collection of the Goods by the Customer’s courier from the Supplier.  

8. Charges and payment

8.1                   The total price of the Goods and/or Services (plus VAT) shall be the price set out in the Order.

8.2                   The price of the Goods ) includes the costs of packaging, insurance up to the point of delivery (in accordance with clause 7 above), and carriage of the Goods, unless stated otherwise within the Order.

8.3                   No extra charges shall be effective unless agreed in writing with the Customer.

8.4                   The Supplier may invoice the Customer for price of the Goods (plus VAT) on or at any time after the completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. The Supplier shall ensure that each invoice includes the date of the Order, the invoice number, the Customer's purchase order number, the Supplier's VAT registration number and any supporting documents that the Customer may reasonably require.  

8.5                    The Customer shall pay correctly rendered invoices within 60 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.

8.6                    If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party 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 will accrue each date 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 the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.

8.7                     The Customer may at any time set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

9. Intellectual property

9.1                    The Supplier acknowledges that (to the extent applicable) all materials, equipment and tools, drawings, specifications, Customer confidential information and data supplied by the Customer to the Supplier (“Customer Materials”) and all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, clearly marked as Customer Materials, maintain them secure in good condition until returned to the Customer and not dispose of or use the same other than in accordance with the Customer's written instructions or authorisation.

9.2                     All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier, unless agreed otherwise between the parties in writing.

9.3                     The Supplier 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 copy and modify the Deliverables (excluding Customer Materials) for the purpose of receiving and using the Services and the Deliverables.

9.4                      The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy (and modify, if strictly required) any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

10.  Indemnity

10.1                    The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:

(a)                       any claim made against the Customer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods or receipt, use or supply of the Services (excluding the Customer Materials), to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

(b)                       any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods (including any safety requirements under applicable law) or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.

10.2                    This clause 10 shall survive termination of the Contract.

11. Insurance

During the term of the Contract and for a period of 12 months thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

12. Confidentiality

12.1            Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any Confidential Information of the other party, and except as permitted by clause 12.2.

12.2            Each party may disclose the other party's Confidential Information:

(a)               to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 12; and

(b)               as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3            Neither party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

13. Compliance with relevant laws and policies

13.1            In performing its obligations under the Contract, the Supplier (and any of its affiliates or group companies) shall comply with all applicable laws, statutes, regulations and codes from time to time in force.

13.2            In particular, the Supplier shall comply, and use all reasonable endeavours to ensure compliance within its own supply chain, with all applicable laws relating to the prevention of bribery and corruption, modern slavery and human trafficking (where applicable), anti-facilitation of tax evasion, security of personal data and wider environmental, social and governance issues.

13.3            Anti-bribery and corruption. The parties must comply with all applicable laws, statutes, regulations and otherwise relating to anti-bribery and anti-corruption including the Bribery Act 2010, or such other equivalent domestic legislation which the Supplier  is subject to (“Relevant Requirements”). In demonstrating compliance, parties must establish, maintain and enforce its own policies and procedures, including adequate procedures to ensure compliance with the Relevant Requirements.  In particular, a party must: (a) notify the other party (in writing) if it becomes aware of any breach of clause 13.3, or has reason to believe that it has received a request or demand for any undue financial or other advantage in connection with the performance of this Contract; (b) immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of that party; each party warrants that it has no foreign public officials as officers or employees at the date of this Contract; (c) upon a party’s request, certify to the that party in writing, compliance with this clause 13.3; (d) ensure that any of its Representatives agents, consultants, contractors, subcontractors and other persons engaged in performance of a party’s obligations under this Contract do so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the parties in this clause 13.3.

13.4            Breach of this clause 13 by a party shall be deemed a material breach of the Contract.

14.                Data protection

14.1            The following definitions apply in this clause 14:

(a)             “Personal Data”: as defined in the Data Protection Legislation.

(b)             “Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).

14.2            The parties may exchange certain Personal Data of each party’s officers, directors, employees, third-party contractors or suppliers in the course of and for the purposes of contractual discussions contemplated in these Terms. Such Personal Data will be limited to the name and business contact details of those representatives involved in the Contract. Each party acts as a controller for the Personal Data so entrusted.

14.3            Both parties will comply with all applicable requirements of the Data Protection Legislation at all times during the Contract.

14.4            Where, as part of the Contract, the Supplier is required to process Personal Data on behalf of the Customer or where the Supplier is located outside the United Kingdom or the European Economic Area, the Supplier shall enter into such additional agreement(s) as the Customer may reasonably require in order to comply with Data Protection Legislation.

15. Audit

The Supplier shall allow the Customer or the Customer's authorised representatives or agents to have access to the Supplier's premises at all reasonable times in order to audit and take copies of the Supplier's hard copy and digital books and records related to this Contract, and other documents and relevant records as may be necessary to verify the Supplier's compliance with these Terms.

16. Suspension of work

16.1            The Customer may, on reasonable written notice to the Supplier, require the Supplier to suspend or delay the performance of all or any part of the Services or the supply of any Deliverables (“Suspension Notice”). The Supplier must comply with the requirements of the Suspension Notice.

16.2            If the Customer issues a Suspension Notice for a period longer than 60 days, the parties shall use their reasonable commercial endeavours to resolve any issues relating to costs (if any) unnecessarily and directly incurred as a result of the Suspension Notice, provided that: (a) the issuance of the Suspension Notice was not caused by the Supplier's breach of the Contract or a Force Majeure event (under clause 18); and (b) the Supplier uses all reasonable endeavours to avoid and mitigate any such costs.

16.3            The Supplier shall resume the full performance of the Services and provision of Deliverables as soon as reasonably practicable after receiving the Customer’s cancellation of the Suspension Notice.

17. Termination

17.1            The Customer may terminate the Contract in whole or in part at any time before delivery of the Goods, Deliverables or performance of the Services with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work (including any sub-contracted work) on the Contract. The Customer shall pay the Supplier undisputed invoices for any work in progress or work completed and any non-cancellable costs incurred by the Supplier at the time of termination, excluding for the avoidance of doubt any loss of anticipated profits or any consequential or other indirect loss.

17.2             Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:

(a)               the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of the Supplier being notified in writing to do so;

(b)               the Supplier 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), obtaining a moratorium, 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;

(c)               the Supplier takes any step or action in connection with the Supplier being made bankrupt (where individual), entering any composition or arrangement with its creditors, 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;

(d)               there is a change of Control of the Supplier;

(e)               the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(f)                the Supplier's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

17.3             On termination or expiry of the Contract, the Supplier shall immediately return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

17.4             Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at 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.

17.5             Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

18. Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 10 Business Days' written notice to the affected party.

19. Publicity

19.1            The Customer may, from time to time, issue a press release relating to the Goods, Deliverables and/or Services, or create non-confidential case studies, presentations and marketing materials which may include references to the Supplier, the Goods, Deliverables and/or Services.

19.2            The Supplier must not use the Customer's name or branding (including any related domain names) in any promotional material, marketing material, similar material or announcement without the prior written consent of the Customer. Where such consent is provided, the Supplier must take care to use the Customer’s branding accurately, in the form and manner agreed by the Customer.

20. General

20.1            Assignment and other dealings

(a)              The Customer may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

(b)               The Supplier may not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Customer.

20.2             Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

20.3             Entire agreement.

(a)                The Contract, together with the Order, Specification and any Schedules constitutes the entire agreement between the parties.

(b)                Each party acknowledges that in entering into the Contract it does not rely on 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 based on any statement in the Contract.

20.4             Variation. Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and Terms, shall be effective unless it is agreed in writing and signed by the Customer.

20.5             Waiver.

(a)               Except as set out in clause 2.4,a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b)                A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

20.6            Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 20.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

20.7            Notices.

(a)               Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i)                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

(ii)                sent by email to the addresses specified in the Order.

(b)               Any notice shall be deemed to have been received:

(i)                if delivered by hand, at the time the notice is left at the proper address;

(ii)               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; or

(iii)              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.

(c)               This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

20.8            Third party rights.

Unless it expressly states otherwise, 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.

20.9            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 and Wales.

20.10         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.

 

**END OF TERMS** (version 2.0, June 2023)

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