Terms and Conditions - Open Velocity

THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 9 (LIMITATION OF LIABILITY).

Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions:

“Applicable Data Protection Laws”

(a) To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Open Velocity is subject, which relates to the protection of personal data.

“Applicable Laws”

(a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom.
(b) to the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which Open Velocity is subject.

“Business Day”

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

“Charges”

the charges payable by the Client for the supply of the Services in accordance with clause 6.

“Client Default”

has the meaning set out in clause 5.2.

“Client Materials”

all documents, information, items and materials in any form, whether owned by the Client or a third party, which are provided by the Client to Open Velocity in connection with the Services, including the items provided pursuant to clause 5.1.4.

“Client Personal Data”

any personal data which Open Velocity processes in connection with the Contract, in the capacity of a processor on behalf of the Client.

“Client”

the person or firm who purchases Services from Open Velocity.

“Commencement Date”

has the meaning given in clause 2.2.

“Conditions”

these terms and conditions as amended from time to time in accordance with clause 12.5.

“Contract”

the contract between Open Velocity and the Client for the supply of Services in accordance with these Conditions.

“Control”

has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

“Deliverables”

the deliverables set out in the Proposal produced by Open Velocity for the Client.

“EU GDPR”

the General Data Protection Regulation ((EU) 2016/679).

“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, 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.

“Open Velocity Materials”

has the meaning set out in clause 5.1.7.

“Open Velocity”

Open Velocity Limited registered in England and Wales with company number 13913473.

“Order”

the Client’s written acceptance of a Proposal.

“Project”

where the Services are to be provided on a one-off basis.

“Proposal”

the description or specification of the Services provided in writing by Open Velocity to the Client.

“Purpose”

the purposes for which the Client Personal Data is processed, as set out in 8.5.

“Retainer”

where the Services are to be provided on an ongoing basis.

“Services”

the services, including the Deliverables, supplied by Open Velocity to the Client as set out in the Proposal.

“UK GDPR”

has the meaning given to it in the Data Protection Act 2018.

Interpretation:
1. A reference to legislation or a legislative provision:
  1. is a reference to it as amended, extended or re-enacted from time to time; and
  2. shall include all subordinate legislation made from time to time under that legislation or legislative provision.
2. 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.
3. A reference to writing or written includes email.

Basis of contract
1. The Order constitutes an offer by the Client to purchase Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted when Open Velocity issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date“).
3. Any samples, drawings, descriptive matter or advertising issued by Open Velocity outside of a Proposal, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
4. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. Any quotation given by Open Velocity in a Proposal shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
Supply of Services
1. Open Velocity shall supply the Services to the Client in accordance with the Proposal in all material respects.
2. Open Velocity shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3. Open Velocity reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Open Velocity shall notify the Client in any such event.
4. Open Velocity warrants to the Client that the Services will be provided using reasonable care and skill.
Amendments to Proposals
1. The Client may request, and Open Velocity may recommend, a change to a Proposal (a “Change“) at any time before completion of the relevant Project. Where the Client requests any Change, Open Velocity shall promptly provide the Client with a detailed note (“Change Control Note“), signed by Open Velocity. Where Open Velocity proposes any Change it shall submit an appropriate Change Control Note signed by Open Velocity to the Client. Each Change Control Note shall set out:
  1. the title of the Change;
  2. the originator and date of the request or recommendation for the Change;
  3. the reason for the Change;
  4. full details of the Change;
  5. the effect on the Charges and expenses, if any, of the Change;
  6. details of the likely impact, if any, of the Change on other aspects of this Agreement including:
    1. the timetable for the provision of the Services;
    2. the personnel to be provided;
    3. other contractual issues; and
    4. the date of expiry of validity of the Change Control Note; and
  7. provision for signature by the Client and Open Velocity.
2. Where any change to a Proposal has been requested by the Client or proposed by Open Velocity, the parties will continue to perform their respective obligations under the Contract, without taking account of that requested or proposed change, until that change takes effect in accordance with clause 4.4.
3. Following receipt of a Change Control Notice, the Client shall evaluate the Change Control Note within its period of validity and do one of the following:
  1. request further information;
  2. arrange for two copies of the Change Control Note to be signed by or on behalf of the Client and return one of the copies to Open Velocity; or
  3. notify Open Velocity of the rejection of the Change Control Note.
4. A Change Control Note signed by the Client and Open Velocity shall constitute an amendment to the Contract.
5. Where Open Velocity has proposed a Change it may not, unless otherwise agreed by the Client, make any charge for time spent in the preparation of Change Control Notes or in dealing with requests for Changes. Where the Client has requested a Change, Open Velocity may make a reasonable charge for its time so spent, calculated by reference to the Charges.
Client’s obligations
1. The Client shall:
  1. ensure that the information provided to Open Velocity in order to produce the Proposal and the terms of the Order (including information contained in the Proposal) are complete and accurate;
  2. co-operate with Open Velocity in all matters relating to the Services;
  3. where relevant, provide Open Velocity, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by Open Velocity;
  4. provide to Open Velocity in a timely manner all documents, information, items and materials in any form (whether owned by the Client or third party) required under the Proposal or otherwise reasonably required by Open Velocity in connection with the Services and ensure that they are accurate and complete;
  5. where relevant, prepare the Client’s premises for the supply of the Services;
  6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  7. keep all materials, equipment, documents and other property of Open Velocity (“OV Materials“) at the Client’s premises in safe custody at its own risk, maintain the OV Materials in good condition until returned to Open Velocity, and not dispose of or use the OV Materials other than in accordance with Open Velocity’s written instructions or authorisation;
  8. comply with any additional obligations as set out in the Proposal; and
  9. provide Open Velocity with access to ad accounts, analytics accounts and marketing performance data.
2. Once a Proposal has been agreed by the parties, Open Velocity shall submit to the Client, materials including copy, layouts, artwork, storyboards (including concept artwork) and scripts, for written approval. The Client may request Open Velocity to submit to the Client several alternative ideas which will then be reviewed by the Client or may at the Client’s request be taken to target consumers by Open Velocity for input and feedback.
3. The Client will provide written approval or an update to Open Velocity within seven Business Days of receipt of individual Deliverables produced by or on behalf of Open Velocity.
4. During the Term, Open Velocity shall immediately advise the Client of any material changes in plans, schedules or work-in-progress previously approved by the Client in accordance with the Contract.
5. If Open Velocity’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default“):
  1. without limiting or affecting any other right or remedy available to it, Open Velocity shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Open Velocity’s performance of any of its obligations;
  2. Open Velocity shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Open Velocity’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
  3. the Client shall reimburse Open Velocity on written demand for any costs or losses sustained or incurred by Open Velocity arising directly or indirectly from the Client Default.
6. In order to protect the legitimate business interests of Open Velocity, the Client covenants with Open Velocity that it shall not (except with the prior written consent of Open Velocity):
  1. attempt to solicit or entice away; or
  2. solicit or entice away,

from the employment or service of Open Velocity the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of Open Velocity.

The Client shall be bound by the covenant set out in clause 5.6 during the term of the Contract, and for a period of 12 months after termination or expiry of the Contract.
For the purposes of clause 5.6, a “Restricted Person” shall mean any firm, company or person employed or engaged by Open Velocity during the term of the Contract, who has been engaged in the provision of the Services or the management of the Contract either as principal, agent, employee, independent contractor or in any other form of employment or engagement.

Charges and payment
1. The Charges for the Services shall be set out in the Proposal and shall be:
  1. a fixed fee;
  2. a retainer arrangement; or
  3. calculated on a time and materials basis.
2. Where the Charges are calculated on a time and materials basis:
  1. the Charges shall be calculated in accordance with Open Velocity’s daily fee rates, as set out in the Proposal;
  2. Open Velocity’s daily fee rates for each individual are calculated on the basis of an seven and a half hour day from 8.00 am to 5.00 pm worked on Business Days;
  3. unless agreed otherwise in the Proposal, Open Velocity shall be entitled to charge £200 per hour for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.2.2; and
  4. Open Velocity shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom Open Velocity engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Open Velocity for the performance of the Services, and for the cost of any materials.
3. Where the Services are provided on a Retainer basis, Open Velocity reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date and the first such increase shall take effect on the first anniversary of the Commencement Date.
4. Open Velocity shall invoice the Client:
  1. as set out in the Proposal; or
  2. where no detail of invoicing is set out in the Proposal:
    1. where the Services are provided on a Project basis, 50% before the start of the supply of the Services and 50% on the completion of the Services; or
    2. where the Services are provided on a Retainer basis, monthly in arrears.
5. The Client shall pay each invoice submitted by Open Velocity:
  1. within 14 days of the date of the invoice; and
  2. in full and in cleared funds to a bank account nominated in writing by Open Velocity, and

time for payment shall be of the essence of the Contract.

All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT“). Where any taxable supply for VAT purposes is made under the Contract by Open Velocity to the Client, the Client shall, on receipt of a valid VAT invoice from Open Velocity, pay to Open Velocity such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
If the Client fails to make a payment due to Open Velocity under the Contract by the due date, then, without limiting Open Velocity’s remedies under clause 10, the Client 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 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

Intellectual property rights
1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials) shall be owned by Open Velocity.
2. Open Velocity grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding the Client Materials) for the purpose of receiving and using the Services and the Deliverables in its business.
3. The Client shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2.
4. In relation to the Client Materials, the Client:
  1. and its licensors shall retain ownership of all Intellectual Property Rights in the Client Materials; and
  2. grants Open Velocity a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify the Client Materials for the term of this agreement for the purpose of providing the Services to the Client.
5. The Client:
  1. warrants that the receipt and use of the Client Materials in the performance of the Contract by Open Velocity, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
  2. shall indemnify Open Velocity in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect 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 professional costs and expenses) suffered or incurred by Open Velocity arising out of or in connection with any claim brought against Open Velocity, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this agreement of the Client Materials.
Data protection
1. For the purposes of this clause 7.4, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
2. Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Applicable Data Protection Laws.
3. The parties have determined that, for the purposes of Applicable Data Protection Laws Open Velocity shall process personal data as a processor on behalf of the Client under the Contract.
4. Without prejudice to the generality of clause 8.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Client Personal Data to Open Velocity or lawful collection of the same by Open Velocity for the duration and purposes of the Contract.
5. In relation to the Client Personal Data, the Proposal shall set out the particulars of processing, purpose of processing, duration of the processing, types of Personal Data and categories of Data Subject:
6. Without prejudice to the generality of clause 8.2 Open Velocity shall, in relation to Client Personal Data:
  1. process that Client Personal Data only on the documented instructions of the Client, which shall be to process the Client Personal Data for the purposes set out in the Proposal, unless Open Velocity is required by Applicable Laws to otherwise process that Client Personal Data. Where Open Velocity is relying on Applicable Laws as the basis for processing Client Processor Data, Open Velocity shall notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Client on important grounds of public interest. Open Velocity shall inform the Client if, in the opinion of Open Velocity, the instructions of the Client infringe Applicable Data Protection Laws;
  2. implement technical and organisational measures to protect against unauthorised or unlawful processing of Client Personal Data and against accidental loss or destruction of, or damage to, Client Personal Data, which are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
  3. ensure that any personnel engaged and authorised by Open Velocity to process Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
  4. assist the Client insofar as this is possible (taking into account the nature of the processing and the information available to Open Velocity), and at the Client’s cost and written request, in responding to any request from a data subject and in ensuring the Client’s compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  5. notify the Client without undue delay on becoming aware of a personal data breach involving the Client Personal Data;
  6. at the written direction of the Client, delete or return Client Personal Data and copies thereof to the Client on termination of the agreement unless Open Velocity is required by Applicable Law to continue to process that Client Personal Data. For the purposes of this clause 8.6.6 Client Personal Data shall be considered deleted where it is put beyond further use by Open Velocity; and
  7. maintain records to demonstrate its compliance with this clause 8.
7. The Client hereby provides its prior, general authorisation for Open Velocity to:
  1. appoint processors to process the Client Personal Data, provided that Open Velocity:
    1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Open Velocity in this clause 8;
    2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Open Velocity; and
    3. shall inform the Client of any intended changes concerning the addition or replacement of the processors, thereby giving the Client the opportunity to object to such changes provided that if the Client objects to the changes and cannot demonstrate, to Open Velocity’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Client shall indemnify Open Velocity for any losses, damages, costs (including legal fees) and expenses suffered by Open Velocity in accommodating the objection,
  2. transfer Client Personal Data outside of the UK as required for the Purpose, provided that Open Velocity shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Client shall promptly comply with any reasonable request of Open Velocity, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the UK Information Commissioner from time to time (where the UK GDPR applies to the transfer).
8. Either party may, at any time on not less than 30 days’ notice, revise clause 8 by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or forming part of an applicable certification scheme or code of conduct (“Amended Terms“). Such Amended Terms shall apply when replaced by attachment to the Contract, but only in respect of such matters which are within the scope of the Amended Terms.
Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
1. References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in this clause 9 shall limit the Client’s payment obligations under the Contract.
3. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation; and
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
4. Subject to clause 9.3 (Liabilities which cannot legally be limited):
  1. where the Services are provided on a Project basis, Open Velocity’s total liability to the Client shall not exceed the total amount of the Charges paid under the Contract; and
  2. where the Services are provided on a Retainer basis, Open Velocity’s total liability to the Client shall not exceed the Charges paid by the Client in the twelve months prior to the event or events giving rise to the liability.
5. Subject clause 9.3 (Liabilities which cannot legally be limited), this clause 9.5 sets out the types of loss that are wholly excluded:
  1. loss of profits.
  2. loss of sales or business.
  3. loss of agreements or contracts.
  4. loss of anticipated savings.
  5. loss of use or corruption of software, data or information.
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.
6. Open Velocity has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7. Unless the Client notifies Open Velocity that it intends to make a claim in respect of an event within the notice period, Open Velocity shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire 6 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8. This clause 9 shall survive termination of the Contract.
Termination
1. Without affecting any other right or remedy available to it, where the Services are provided on a Retainer basis, either party may terminate the Contract by giving the other party one months’ written notice.
2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
  2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
  3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
3. Without affecting any other right or remedy available to it, Open Velocity may terminate the Contract with immediate effect by giving written notice to the Client if:
  1. the Client fails to pay any amount due under the Contract on the due date for payment; or
  2. there is a change of control of the Client.
4. Without affecting any other right or remedy available to it, Open Velocity may suspend the supply of Services under the Contract or any other contract between the Client and Open Velocity if:
  1. the Client fails to pay any amount due under the Contract on the due date for payment;
  2. the Client becomes subject to any of the events listed in clause 10.2.3 or clause 10.2.4, or Open Velocity reasonably believes that the Client is about to become subject to any of them; and
  3. Open Velocity reasonably believes that the Client is about to become subject to any of the events listed in clause 10.2.2.
Consequences of termination
1. On termination or expiry of the Contract:
  1. the Client shall immediately pay to Open Velocity all of Open Velocity’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Open Velocity shall submit an invoice, which shall be payable by the Client immediately on receipt; and
  2. the Client shall return all of the OV Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then Open Velocity may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
2. Termination or expiry of the 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.
3. 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.
General
1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
2. Assignment and other dealings.
  1. Open Velocity may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  2. The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Open Velocity.
3. Confidentiality.
  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 concerning the business, affairs, Clients, clients or suppliers of the other party, except as permitted by clause 12.3.2.
  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 carrying out the party’s 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 12.3; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
4. Entire agreement.
  1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
5. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
7. 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 or part-provision of this Contract deleted under this clause 12.7 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.
8. Notices.
  1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Proposal.
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    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; or
    3. if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.8.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  3. This clause 12.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
9. 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.
10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.