Terms and conditions - BN Information Security

BN Information Security Standard Terms and Conditions for the Supply of IT Services, Hardware and Software

Background

These terms shall govern the supply of goods and services generally provided by the Supplier to the Customer from time to time (other than any goods and services defined in the Retained Consultancy Agreement, if entered between the parties).

Interpretation

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

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;
“Contract”	these terms and conditions, the Supplier’s quotation and the Supplier’s acceptance of the Customer’s order under these conditions;
“Customer”	the person, firm or company who purchases Services and/or Equipment from the Supplier, as may be set out in the Customer’s order or the Supplier’s quotation;
“Equipment“	the Hardware and/or Software agreed in the Contract to be purchased by the Customer from the Supplier (including without limitation any part or parts of it).
“Deliverables”	all products and materials developed by the Supplier in relation to the Services in any media, including computer programs, data, diagrams, reports and specifications (including drafts);
“Hardware“	the computer hardware set out in the Supplier’s acknowledgement of order;
“Intellectual Property Rights”	patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Pre-existing Materials”	materials which the Supplier makes available as part of the Services;
“Project Milestone”	a date by which a part of the Services is estimated to be completed, as set out in the Project Plan;
“Project Plan”	the detailed plan or specification describing the Services and setting out the estimated timetable (including Project Milestones) and responsibilities of each of the parties for, or in connection with, the provision of the Services by the Supplier in accordance with the Contract, as may be set out in the Supplier’s quotation or acknowledgement of order;
“Retained Consultancy Agreement”	a separate agreement (if entered between the parties) relating to the provision of ongoing consultancy services provided by the Supplier (such services as set out and defined in that agreement and distinct from ad hoc, order-based services and equipment provided under this agreement);
“Services”	the services to be provided by the Supplier under the Contract as set out in the Project Plan;
“Software“	any computer program or operating system embedded on the Hardware or any other software subject to a separate Software Licence as set out in the Supplier’s acknowledgement of Order;
“Software Licence“	the third party licence to use the Software, including any other terms and use restrictions on Software that are reasonably notified to the Customer;
“Supplier”	BN Information Security Limited (company no: 06677101 whose registered office is at 11 Portland Street, Southampton SO14 7EB); and
“VAT”	value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes email but not fax.
1.9 References to conditions and Schedules are to the conditions and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.10 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.

Application of conditions
1. These conditions shall:
  1. apply to and be incorporated in the Contract; and
  2. subject to condition 22.2, prevail over any 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. 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.
Orders
1. Any quotation for the supply of the Services or Equipment will be valid for the period set out in the quotation and the Supplier may withdraw it at any time by notice to the Customer.
2. Each order or acceptance of a quotation for the supply of Services or Equipment 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. 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, or the Supplier delivers the Equipment and/or Services to the Customer (whichever occurs earlier).
4. 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.
5. The Supplier may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
6. 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.
7. 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.
8. The Supplier’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
9. If the Supplier refers to a software licence in the acknowledgment of order, the price of the Hardware includes the licence fee for the Customer’s right to use the Software embedded in the Hardware.
Supply of Hardware
1. The quantity and description of the Hardware shall be as set out in the Supplier’s acknowledgement of order or (if there is no acknowledgment of order) the Supplier’s quotation.
Supply of Services
1. The Project Plan shall be set out in the Supplier’s acknowledgement of order or (if there is no acknowledgement of order) the Supplier’s quotation.
2. The Supplier shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Project Plan.
3. The Supplier shall use reasonable endeavours to meet the performance dates specified in the Project Plan, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
Supply of Software
1. The Software shall be set out in the Supplier’s acknowledgement of order or (if there is no acknowledgement of order) the Supplier’s quotation.
2. The Customer shall comply with the Software Licence applicable to the use and installation of the Software.
Customer’s obligations
1. The Customer shall:
  1. co-operate with the Supplier in all matters relating to the Contract;
  2. provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
  3. provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects; and
  4. be responsible (at its own cost) for preparing the relevant premises for the supply of the Services or the installation of the Equipment.
2. If the Supplier’s performance under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it, subject to the Supplier confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.
Change control
1. If either party requests a change to the scope or execution of the Contract, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
  1. the likely time required to implement the change;
  2. any variations to the Supplier’s charges arising from the change;
  3. the likely effect of the change on the Project Plan; and
  4. any other impact of the change on the terms of the Contract.
2. If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
3. If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Project Plan and any other relevant terms of the Contract to take account of the change.
Charges
1. All prices for the Equipment and Services shall be as stated in the Supplier’s acknowledgement of order, quotation or Project Plan as applicable, or if no price has been quoted (or a quoted price is no longer valid) the price shall be calculated in accordance with the Supplier’s price list and the rates set out in the Supplier’s BN-IS rate card in date at the date of acceptance of the order. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
2. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered 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, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
3. In relation to the supply of Services, if the Services are to be provided on a time-and-materials basis and condition 9.5 and condition 9.6 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 9 shall apply in either case.
4. Where the Services are provided on a time-and-materials basis:
  1. the Supplier shall ensure that all members of the project team complete time sheets recording time spent on the Services, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition 9.4.2; and
  2. the Supplier shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 9. Any expenses, materials and third party services shall be invoiced by the Supplier at cost. Each invoice shall set out the time spent by each member of the project team and provide a detailed breakdown of any expenses and materials, accompanied by the relevant receipts.
5. Where the Services are provided for a fixed price, and where the parties have agreed a Project Plan, the total price for the Services shall be paid to the Supplier in instalments as set out in the Project Plan on its achieving the corresponding Project Milestone. On achieving a Project Milestone, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 9.1.
6. Any fixed price contained in the Project Plan or other quotation excludes:
  1. the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier at cost; and
  2. VAT, which the Supplier shall add to its invoices at the appropriate rate.
7. Notwithstanding anything else in this Contract, where no price is set out in the Supplier’s acknowledgement of order, quotation or Project Plan, then the price shall be calculated in accordance with the Supplier’s then current up to date BN-IS rate card.
Payment
1. The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 30 days of receipt.
2. Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
  1. charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
  2. suspend all Services until payment has been made in full; and
  3. suspend the Software Licence and any associated third party services, the Supplier shall provide the Customer with 7 days’ notice of its intention to suspend the Software Licence and any associated third party services.
3. Time for payment shall be of the essence of the Contract.
4. All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
5. All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 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.
Delivery of Equipment and Acceptance
1. The Supplier shall use its reasonable endeavours, at the Customer’s cost (including any applicable duties), to deliver the Equipment at the location agreed between the parties and on the date or dates specified in the Supplier’s acknowledgement of order, but any such date is approximate only. If no dates are so 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 Equipment and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
2. The Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
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.
4. The Customer shall be responsible (at the Customer’s cost) for preparing the agreed delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. 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.
5. The Customer shall be deemed to have accepted the Equipment when the Customer has had 3 days to inspect it after delivery.
Risk and property
1. The Hardware 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. The Supplier shall off-load the Hardware at the Customer’s risk.
2. Ownership of the Hardware shall pass to the Customer on the later of completion of delivery (including without limitation off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of:
  1. the Hardware; and
  2. all other sums which are or which become due to the Supplier from the Customer on any account.
3. Until ownership of the Hardware has passed to the Customer under condition 12.2, the Customer shall:
  1. hold the Hardware on a fiduciary basis as the Supplier’s bailee;
  2. store the Hardware (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as the Supplier’s property;
  3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Hardware; and
  4. keep the Equipment 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 Hardware 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.
4. The Customer’s right to possession of the Hardware before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 17.1 arise or if the Customer encumbers or in any way charges the Hardware, or if the Customer fails to make any payment to the Supplier on the due date.
5. Until ownership of the Hardware is transferred to the Customer in accordance with condition 12.2, the Customer grants the Supplier, its agents, contractors and employees an irrevocable licence at any time to enter any premises where the Hardware is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Hardware shall be borne by the Customer.
6. On termination of the Contract for any reason, the Supplier’s (but not the Customer’s) rights in this condition 12.5 shall remain in effect.
7. The Supplier may appropriate payments by the Customer to such Hardware as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.
Hardware Warranty
1. The Customer acknowledges that the Supplier is not the manufacturer of the Hardware. The Supplier shall use reasonable endeavours, at the Customer’s cost, to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
2. The Customer shall notify the Supplier in writing of the failure to deliver Hardware within seven days after the scheduled delivery date.
3. The Customer’s sole and exclusive remedy for non-delivery of the Hardware shall in all circumstances be limited to replacing the Hardware within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Hardware.
Intellectual Property Rights
1. All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, non-transferable and worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties, and provided that such licence is also limited to the same extent as the end-user licence referred to in condition 14.2. If the Supplier terminates the Contract, this licence will automatically terminate.
2. The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer, and the Customer agrees to comply at all times with such end-user licence (or sub-licence).
3. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Hardware are and shall remain the sole property of the Supplier or (as the case may be) third party rights owner.
4. The Supplier’s, and its licensors’, Intellectual Property Rights in and relating to the Hardware shall remain the exclusive property of the Supplier or the third party, 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.
5. In relation to the Software:
  1. the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals;
  2. nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
  3. the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Software and user manuals, and shall comply with all licence contracts, terms of use and registration requirements relating to them.
6. On termination or expiry of the Contract for any reason all rights and licences granted under the Contract shall terminate immediately.
Confidentiality and Supplier’s property
1. Each party undertakes that it shall not disclose to any person any confidential information including all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature, concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by condition 15.2.
2. Each party may disclose the other party’s confidential information:
  1. 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 or in connection with this 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 condition 15; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that the disclosing party shall give the other party as much notice of such disclosure as possible. Where notice of disclosure is not prohibited and is given in accordance with this condition, the disclosing party shall take into account the reasonable requests of the other party in relation to the content of such disclosure.
3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
4. A party’s confidential information shall not be deemed to include information that:
  1. is or becomes publicly known other than through any act or omission of the receiving party;
  2. was in the other party’s lawful possession before the disclosure;
  3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
  4. is independently developed by the receiving party, which independent development can be shown by written evidence.
5. All materials, equipment and tools (other than Equipment owned by the Customer in accordance with this Contract), 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.
6. The above provisions of this condition 15 shall survive termination of the Contract, however arising.
Limitation of liability
1. The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
  1. any breach of the Contract however arising;
  2. any use made by the Customer of the Services, the Deliverables, the Equipment or any part of them; and
  3. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
2. All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.
3. Nothing in these conditions excludes the liability of the Supplier:
  1. for death or personal injury caused by the Supplier’s negligence;
  2. for fraud or fraudulent misrepresentation; or
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
4. Subject to condition 16.2 and condition 16.3:
  1. the Supplier shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
    1. loss of profits;
    2. loss of sales or business;
    3. depletion of goodwill or similar losses;
    4. loss of anticipated savings;
    5. loss of goods;
    6. loss of agreements or contracts;
    7. loss of use;
    8. loss of use or corruption of software, data or information; or
    9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
  2. The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty however 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 paid for the Services and/or Equipment.
Termination
1. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
  1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
  2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
  3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
  4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
  5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors or an event occurs or proceeding is taken that is equivalent or similar, other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
  6. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
2. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
3. Termination of this agreement 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 agreement which existed at or before the date of termination.
Force majeure
1. The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation:
  1. strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party);
  2. pandemic or epidemic;
  3. failure of a utility service or transport network;
  4. act of God, war, riot or civil commotion;
  5. malicious damage;
  6. compliance with any law or governmental order, rule, regulation or direction; and
  7. accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
1. If any provision or part-provision of this agreement 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 this agreement.
2. If any provision or part-provision of this agreement is deemed deleted under condition 21.1, the parties shall negotiate in good faith to amend such provision so that, to the greatest extent possible, the amended provision achieves the intended commercial result of the original provision.
Entire agreement
1. This agreement constitutes the entire agreement between the parties in relation to the Hardware, Software or Services, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the provision of Hardware, Software or Services in accordance with this agreement.
2. If signed between the parties, the terms of a Retained Consultancy Agreement shall apply in place of this agreement to certain services (as agreed in the Retained Consultancy Agreement). With respect only to the services it covers, the Retained Consultancy Agreement will take priority over this agreement in the event of a conflict.
3. Each party acknowledges that, in entering into this agreement, 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 agreement.
4. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Assignment
1. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
2. The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
Notices
1. Any notice given to a party under or in connection with this contract shall be:
  1. 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
  2. sent by email as a PDF attachment to the email provided by the Supplier in the case of notices sent to the Supplier, and to the email provided by the Customer in the case of notices sent to the Customer.
2. Any notice or communication shall be deemed to have been received:
  1. if delivered by hand, on signature of a delivery receipt;
  2. 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;
  3. if sent by email, on the next Business Day after sending (provided that such notice shall not be deemed to have been received if a delivery failure notification or automatically generated out of office notification is received after sending).
3. This condition 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.
Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).