Terms and Conditions

Table of Contents

Table of Contents

I. Interpretation

  1. Application of Terms
  2. The Definitions and Rules
  3. Agreement Interpretation
  4. In Case of Agreement Uncertainty

II. License of IPv4 Numbers

  1. Licensing
  2. Customer Commitments

III. Use Restrictions

  1. Service Usage and Policy
  2. Supplier Rights

IV. Charges and Audit

  1. Customer Charges
  2. Agreement Audit
  3. Unauthorized Use

V. Announcements

  1. Agreement Announcements

VI. Data Protection and Intellectual Property Rights

  1. Data Protection
  2. Intellectual Property Rights Ownership

VII. Third Party Claims and Rights

  1. Third Party Claims
  2. Third Party Rights

VIII. Indemnity and Liability

  1. Indemnity Conditions
  2. Limitation of Liability and Indemnity

IX. Terms and Terminations

  1. Agreement Commencement Date
  2. Agreement Termination
  3. Force Majeure

X. Entire Agreement

  1. Entire Agreement Application
  2. Agreement Assignment
  3. Waiver
  4. Agreement Remedies
  5. Agreement Notice
  6. Variation
  7. Severance
  8. No Partnership or Agency

XI. Governing Law and Jurisdiction

  1. Governing Law
  2. Jurisdiction

I. Interpretation

1. Application of Terms

1.1. Supplier – incorporated and registered company that provides services for the Customer.

1.2. Customer – a person or entity that use services in accordance with this Agreement signed with the service Supplier.

1.3. The Supplier owns rights in and to the IPv4 Numbers (as defined below) and has agreed to license the use of the IPv4 Numbers on the terms set out in this Agreement.

1.4. This Agreement has been entered into on the commencement date, specified in Part 1, section 2.

2. The Definitions and Rules

2.1. The definitions and rules of interpretation in this part apply in this Agreement and in any other agreement between the parties.

2.2. Bulk Mailing: bulk email messages having identical or substantively identical content sent to multiple recipients, where the sender has no verifiable, explicit and still-revocable consent or permission to send the email message to each of the recipients of such email messages.

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

2.4. Charges: the charges specified in Part 4, section 1.

2.5. Commencement date – date upon which the Customer was given an access to the services provided by the Supplier.

2.6. Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or by its employees, officers, representatives, advisers or sub-contractors (Representatives) to the other party and that party’s Representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and the manner of its disclosure.

2.7. Consumer: an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.

2.8. Data Protection Requirements: the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and all applicable laws and regulations relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction.

2.9. Event Outside Our Control: any force majeure or act or event beyond reasonable control of the Supplier, including without limitation any action, omission or intervention by IANA or by any RIR, any strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.

2.10. Good Industry Practice: in relation to any undertaking and any circumstances, the exercise of skill, diligence, prudence, foresight and judgement and the making of any expenditure that would reasonably be expected from a skilled person engaged in the same type of undertaking under the same or similar circumstances.

2.11. IANA: Internet Assigned Numbers Authority operated by the Internet Corporation for Assigned Names and Numbers (ICANN).

2.12. Initial Period: the initial period of this Agreement, commencing on the Commencement Date, specified in Part 1, section 2.

2.13. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor 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.

2.14. IPv4: Internet Protocol Version 4 address space.

2.15. IPv4 Numbers: the IPv4 numbers provided by the Supplier to the Customer.

2.16. Licence: the licence granted in part 2.

2.17. Procure: when used with respect to the initiation of an email message, means intentionally to pay or provide other consideration to, or induce, another person to initiate such an email message on one’s behalf.

2.18. Renewal Period: each successive period after the Initial Period for which this Agreement is renewed and where notice is given by the Customer to the Supplier not less than 5 days before, as the case may be, the end of the Initial Period or any Renewal Period.

2.19. RIRs: any of the regional internet registries which manages the allocation and registration of internet number resources within a particular region of the world, including without limitation:

  • African Network Information Centre (AfriNIC) for Africa;
  • American Registry for Internet Numbers (ARIN) for the United States, Canada, several parts of the Caribbean region, and Antarctica;
  • Asia-Pacific Network Information Centre (APNIC) for Asia, Australia, New Zealand, and neighbouring countries;
  • Latin America and Caribbean Network Information Centre (LACNIC) for Latin America and parts of the Caribbean region, and
  • Réseaux IP Européens Network Coordination Centre (RIPE NCC) for Europe, Russia, the Middle East, and Central Asia.

2.20. Spamhaus: The Spamhaus Project Ltd.

2.21. Spamming: the sending of any email message where the recipient has not granted verifiable, explicit and still-revocable consent or permission for the message to be sent including without limitation (a) an email message where (i) the personal identity and context of the recipient are irrelevant inasmuch as the email message may be equally applicable to a number of other potential recipients and (ii) the sender of the email does not have verifiable, explicit, and still-revocable consent or permission for the email message to be sent to the recipient; or (b) any email message which would be considered to be spam by Spamhaus; or (c) any email message which would, mutatis mutandis, be treated as being in breach of any of the provisions of the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, on the assumption that that Act applied to the sender of the email message.

2.22. Term: the Initial Period and any Renewal Periods.

2.23. Trader: a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.

2.24. Unacceptable Use: (i) Spamming; or (ii) Bulk Emailing; or (iii) creating a large or abnormal burden on any network, including, without limitation, using, uploading, posting, publishing, transmitting, modifying, reproducing, broadcasting, disseminating or otherwise distributing or making available a Virus or any other feature, programme or code which may be harmful or destructive or limiting or debilitating in any way; impeding the ability of any third party to send or to retrieve information through generating large levels of traffic; or (iv) disrupting any backbone network nodes or network service, or otherwise restricting, inhibiting, disrupting or impeding the ability to monitor or deliver any goods or services, any transmissions or data; or (v) hacking; or (vi) interfering with computer networking or telecommunications service to or from any Internet user, host, provider or network, including, without limitation, denying service attacks, overloading a service, improperly seizing or abusing operator privileges or attempting to crash a host.

3. Agreement Interpretation

3.1. Part, section and sub-section headings shall not affect the interpretation of this Agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. A reference to writing or written includes faxes and e-mail. References to parts and to the sections are to the parts and sections to this Agreement and references to sub-sections are to sub-sections of the sections. Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words.

4. In Case of Agreement Uncertainty

4.1. If there is any uncertainty between:

  • any provision contained in the body of this Agreement, the provision in the body of this Agreement shall prevail;
  • the terms of any accompanying invoice or other documents annexed to this Agreement and any provision contained in the appendices, the provision contained appendices shall prevail.

II. License of IPv4 Numbers

1. Licensing

1.1. Subject to the terms and conditions of this Agreement, in consideration of the Charges, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, limited, revocable licence to use the IPv4 Numbers during the Term and solely for the Client’s own business operations (“License”).

2. Customer Commitments

2.1. The Customer agrees and warrants and undertakes to the Supplier that:

  • the License is not a sale, transfer, allocation or assignment of the IPv4 Numbers or any of them; all right, title and interest in and to the IPv4 Numbers is and shall remain the absolute property of the Supplier; the IPv4 Numbers are not the property (real, personal or intellectual) of the Customer; the Customer does not have and will not acquire any property in or to the IPv4 Numbers for any reason, including but not limited to pursuant to this Agreement, or through its use of the IPv4 Numbers; the Customer shall not attempt, directly or indirectly, to obtain any form of property, proprietary or intellectual right in or to the IPv4 Numbers;
  • it shall comply with Good Industry Practice in relation to its use of the IPv4 Numbers and in all its dealings with the Supplier;
  • (whether or not the Customer has any direct responsibility to do so) it shall comply with any rules, policies, practices, procedures and directions of IANA or of any of the RIRs in relation to the IPv4 Numbers, as if it was responsible to (or its use of the IPv4 Numbers was governed by) IANA or any of the RIRs;
  • it shall take no action which shall or may damage the reputation of the Supplier or the value of the IPv4 Numbers including without limitation Unacceptable Use, Spamming or Bulk Mailing using the IPv4 Numbers.

2.2. The Customer shall not license, sell, rent, lease, transfer, assign, distribute, deal in the IPv4 Numbers or otherwise make the IPv4 Numbers available for use (or Procure their use) by any third party. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the IPv4 Numbers and, in the event of any such unauthorised access or use, shall promptly notify the Supplier.

2.3. If and to the extent that any of the IPv4 Numbers appear in the Spamhaus Block List (or any equivalent spam register maintained from time to time by Spamhaus) then the Customer shall take immediate steps, at its cost, to have them removed and they shall forthwith be removed, and in the event of any failure or delay to do so, then the Supplier shall be entitled to do so (and to bill the Customer for its charges and expenses in doing so) and the Customer shall indemnify the Supplier against any loss, cost, damage or expense which it may suffer or incur.

III. Use Restrictions

1. Service Usage Policy

1.1. During the Term, the Customer shall use the IPv4 Numbers solely in accordance with Good Industry Practice and all applicable laws and in doing so shall:

  • not engage in any Spamming;
  • not engage in any Bulk Mailing (unless specifically permitted in writing to do so by the Supplier);
  • not engage in any Unacceptable Use;
  • not access, store, distribute or transmit any Viruses;
  • not use, upload, post, publish, transmit, modify, reproduce, broadcast, disseminate or otherwise distribute or make available to any third party any material (or use the IPv4 Numbers to engage (or to permit or Procure any third party to engage) in any activity) which (i) is unlawful, harmful, threatening, defamatory, slanderous, libellous, obscene, infringing, harassing or racially or ethnically offensive; or (ii) is illegal or facilitates illegal activity; or (iii) depicts sexually explicit images; or (iv) promotes unlawful violence; or (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or (vi) causes damage, injury, loss, cost or expense to any third party or the property of any third party; or (vii) breaches the copyright or other intellectual property rights of any third party; or (viii) is fraudulent, deceptive or misleading; or (ix) impersonates or seeks to impersonate any third party or their electronic, digital or manual signature; or (x) invades the privacy of any third party; or (xi) collects or stores the personal data of any third party without their informed knowledge and consent; or (xii) stalks or harasses any third party; or (xiii) accesses any computer or software or data of any third party without their informed knowledge and consent;
  • and the Customer shall not Procure any third party to carry out any such actions using the IPv4 Numbers.

2. Supplier Rights

2.1. The Supplier reserves the right without liability or prejudice to any of its other rights:

  • to suspend, null-route or deny use of or access to any or all of the IPv4 Numbers if it suspects or has cause to believe that any breach of this Agreement may occur, has occurred (or may recur), and that for such time and on such conditions as it may in its discretion determine from time to time; or
  • if it suspects or has cause to believe that any breach of this Agreement may occur, has occurred (or may recur), then the Supplier may carry out such investigations as it in its discretion deems necessary and, during the period of such investigation, the Supplier shall be entitled to suspend, null-route or deny use of or access to any or all of the IPv4 Numbers.

IV. Charges and Audit

1. Customer Charges

1.1 The Customer shall pay the Charges to the Supplier for the License.

1.2. Time shall be of the essence regarding the Customer’s obligations to make payment of the Charges and this obligation is a material obligation for the purpose of part 9 of section 2, sub-section 2.1., point second.

1.3. The Supplier may charge interest at an annual rate of 5% above the base rate from time to time of Barclays Bank PLC calculated on a daily basis in respect of any sum which is due and unpaid, that interest to run from the date on which that sum is due and payable until receipt by the Supplier of the full amount, whether before or after judgment.

1.4. All Charges are exclusive of VAT or any other applicable sales tax, which shall be paid by the Customer at the rate and in the manner for the time being prescribed by law.

1.5 The Supplier may, on giving prior notice to the Customer, at any time vary the Charges.

2. Agreement Audit

2.1. The Customer shall keep, in paper and electronic form, detailed, accurate and up-to-date records (Records) showing the steps taken by the Customer to comply with the provisions of this Agreement (including without limitation parts 2 and 3 and shall in particular ensure that the Records are sufficient to enable the Supplier to verify the Customer’s compliance with its obligations under parts 2 and 3).

2.2. The Customer shall permit the Supplier and its third party representatives, on reasonable notice (but without notice in case of any reasonably suspected breach of parts 2 or 3) to gain physical and remote electronic access to, and take copies of, the Records and any other information held at the Customer’s premises or by or on behalf of the Customer on any computer system for the purpose of auditing the accuracy of the Records and the Customer’s compliance with its obligations under this Agreement. Such audit rights shall continue for three years after termination of this Agreement. The Customer shall give all necessary assistance to the conduct of such audits during the Term and for a period of three years after termination of this Agreement.

3. Unauthorized Use

3.1. If any unauthorised use is made of the IPv4 Numbers and such use is attributable to the act or default of the Customer then, without prejudice to the Supplier’s other rights and remedies, the Customer shall immediately be liable to pay the Supplier an amount equal to the Charges that the Supplier would have charged, had the Supplier authorised the unauthorised user at the beginning of the period of that unauthorised use together with interest at the rate provided for in part 4, section 1, sub-section 1.3. from the date of that unauthorised use to the date of payment.

V. Announcements

1. Agreement Announcements

1.1. Subject to part 6, section 2, sub-section 2.2., no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

VI. Data Protection and Intellectual Property Rights

1. Data Protection

1.1. The Customer warrants that, in its use of the IPv4 Numbers and in all its actings pursuant to this Agreement, it shall comply with all Data Protection Requirements and shall not breach any of the Data Protection Requirements nor cause the Supplier to be in breach of any of the Data Protection Requirements.

2. Intellectual Property Rights Ownership

2.1. The Customer acknowledges that all Intellectual Property Rights in the IPv4 Numbers are the property of the Supplier; that it shall have no rights in or to the IPv4 Numbers other than the right to use them in accordance with the express terms of this Agreement; and any goodwill generated through the Customer’s use of the IPv4 Numbers shall belong only to the Supplier.

2.2. If required by the Supplier, the Customer shall acknowledge and confirm to any third party that it is the licensee of the IPv4 Numbers; that it is solely responsible for all actions arising from use of the IPv4 Numbers during the Term and that the Supplier is not responsible for such actions and is not to be taken to be, the publisher, producer, author, originator, or distributor of any email message or material transmitted using the IPv4 Numbers.

VII. Third Party Claims and Rights

1. Third Party Claims

1.1. The Customer undertakes to defend the Supplier from and against any claim or action by any third party that the terms of this Agreement (or the provision, receipt or use by the Customer of the IPV4 Numbers) (wholly or in part) infringes any third party rights (Third Party Claim) (including without limitation any Third Party Claim arising from any breach by the Customer of any of its obligations under this Agreement). If any Third Party Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then the Supplier may at its discretion (and without prejudice to all its other rights and remedies) suspend, null-route or deny use of or access to any or all of the IPv4 Numbers for any period or periods of time during which such Third Party Claim remains in existence.

2. Third Party Rights

2.1. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

2.2. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.

VIII. Indemnity and Liability

1. Indemnity Conditions

1.1. The Customer shall indemnify the Supplier from and against all liabilities, costs, expenses, damages and losses (including but not limited to 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 the Supplier arising out of or in connection with:

  • the Customer’s breach or negligent performance of or failure or delay in performance or non-performance of any provision of this Agreement;
  • the enforcement of this Agreement;
  • any claim made against the Supplier for an actual or alleged Third Party Claim.

1.2. This indemnity shall apply whether or not the Supplier has been negligent or at fault but shall not apply to the extent that a claim under it results from the Supplier’s negligence or wilful misconduct.

2. Limitation of Liability and Indemnity

2.1. Except as expressly stated in this Agreement, the Supplier does not give any representation, warranties or undertakings in relation to the IPv4 Numbers. Any representation, condition or warranty which might be implied or incorporated into this Agreement by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, the Supplier will not be responsible for ensuring that (i) the IPv4 Numbers are suitable for the purposes of the Customer or (ii) that the IPv4 Numbers remain available for use at all times during the continuance of this Agreement.

2.2. Neither party excludes or limits liability to the other party for:

  • fraud or fraudulent misrepresentation;
  • death or personal injury caused by negligence;
  • a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
  • any matter in respect of which it would be unlawful for the parties to exclude liability.

2.3. Subject to part 2, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

  • any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
  • any loss or corruption (whether direct or indirect) of data or information;
  • loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
  • any loss or liability (whether direct or indirect) under or in relation to any other contract.

2.4. Subject to part 2, the Supplier’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited to a sum equal to the total Charges received by it from the Customer.

2.5. The Supplier will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under this Agreement that is caused by an Event Outside Our Control.

IX. Term and Terminations

1. Agreement Commencement Date

1.1. This Agreement shall commence on the Commencement Date. Unless terminated earlier in accordance with part 9 of section 2 or this part of section 1, this Agreement shall continue for the Initial Period and shall (if extended) extend for a Renewal Period. If not so extended, it shall expire at the end of, as the case may be, the Initial Period or a Renewal Period. Either party may give written notice to the other party, not later than 5 days before the end of the Initial Period or the relevant Renewal Period, so that this Agreement shall expire at the end of the Initial Period or the relevant Renewal Period, as the case may be.

2. Agreement Termination

2.1. Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

  • the other party fails to pay any amount due under this Agreement on the due date for payment;
  • the other party commits a material breach of any term of this Agreement;
  • IANA or any RIR requires that this Agreement be terminated;
  • the other party:
    • suspends, or threatens to suspend, payment of its debts;
    • is unable to pay its debts as they fall due or admits inability to pay its debts;
    • (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
    • (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986; or
    • (being a partnership) has any partner to whom any of part 9, section 2, sub-section 2.1., point fourth, sub-points 1 and 4 apply;
    • 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 other than (in the case of a company) 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;
    • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) 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;
    • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
  • the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  • a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party’s assets and that attachment or process is not discharged within 14 days;
  • any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in part 9 of section 2, sub-section 2.1, the fourth point to part 9 of section 2, sub-section 2.1., the tenth point (inclusive);
  • the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
  • there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

2.2. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

2.3. Termination or expiry of this Agreement 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 this Agreement which existed at or before the date of termination or expiry.

2.4. On any termination of this Agreement for any reason or expiry of the Term, the Customer shall immediately pay any outstanding amounts owed to the Supplier under this Agreement and, forthwith following such termination or expiry ensure that there is no further use of the IPv4 Numbers.

2.5. On any termination of this Agreement for any reason or expiry of the Term, the Supplier shall not be obliged to refund any Charges paid by the Customer before the date of termination or expiry.

3. Force Majeure

3.1. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations

X. Entire Agreement

1. Entire Agreement Application

1.1. This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.

1.2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement

2. Agreement Assignment

2.1. This Agreement is personal to the Customer and it shall not assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the Supplier.

2.2. The Customer confirms that it is acting as a Trader and not as a Consumer, is acting on its own behalf and not for the benefit of any other person.

2.3. The Supplier may at any time assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the consent of the Customer.

3. Waiver

3.1. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

4. Agreement Remedies

4.1. 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.

5. Agreement Notice

5.1. Any notice or other communication given to a party under or in connection with this Agreement 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 fax to its main fax number; or
  • sent by email.

5.2. Any notice or communication shall be deemed to have been received:

  • if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
  • 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 at the time recorded by the delivery service;
  • if sent by fax, at 9.00 am on the next Business Day after transmission;
  • if sent by email, when the recipient, by an email sent to the email address for the sender or by a notice delivered by another method in accordance with this part, acknowledges having received that email (and an automatic “read receipt” shall not constitute acknowledgment of an email for the purposes of this part).

5.3. This part 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. For the purposes of this part, “writing” shall include email.

6. Variation

6.1. Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

7. Severance

7.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this part shall not affect the validity and enforceability of the rest of this Agreement.

7.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

8. No Partnership or Agency

8.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

8.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

XI. Governing Law and Jurisdiction

1. Governing Law

1.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

2. Jurisdiction

2.1. Each party irrevocably agrees, for the sole benefit of the Supplier that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction over 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). Nothing in this part shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

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