1. INTERPRETATION

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

1.1 Definitions: 

Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors (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. 

Contract: the Customer's purchase order and the Supplier's acceptance of it under condition 3. 

Customer: the person, firm or company who purchases Services and/or Equipment from the Supplier. 

Customer's Project Manager: the Customer's manager for the Project appointed in accordance with condition (a). 

Deliverables: all products and materials developed by the Supplier in relation to the Project in any media, including computer programs, data, diagrams, reports and specifications (including drafts). 

Equipment: the equipment agreed in the Contract to be purchased by the Customer from the Supplier (including any part or parts of it). 

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, 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 existed before the commencement of the Project. 

Project: the project as described in the Project Plan. 

Project Milestone: a date by which a part of the Project is estimated to be completed, as set out in the Project Plan. 

Project Plan: the detailed plan describing the Project 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 and/or Equipment by the Supplier in accordance with the Contract. 

Services: the services to be provided by the Supplier under the Contract. 

Software: any operating system or other software installed on the Equipment. 

Supplier: Pearce IT Limited (company no. 08327729) whose registered office address is at Jigsaw House, Shepherd Road, Gloucester, GL2 5EL. 

Supplier's Project Manager: the Supplier's manager for the Project, appointed in accordance with condition 4.3. 

VAT: value added tax chargeable under English law for the time being and any similar additional tax. 

1.2 Condition 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 faxes but not email. 

1.9 References to conditions are to the conditions of this agreement. 

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. 

2. APPLICATION OF CONDITIONS

2.1 These conditions shall:

A) apply to and be incorporated in the Contract; and 

B) prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. 

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier. 

3. EFFECT OF PURCHASE ORDER

3.1 Any quotation is an invitation to treat and not an offer capable of acceptance. It will be valid for a period of 30 days only, and the Supplier may withdraw it at any time by notice to the Customer.

3.2 The Customer's purchase order constitutes an offer by the Customer to purchase the Services and/or Equipment specified in it on these conditions. Accordingly, the execution and return of the acknowledgement copy of the purchase order form by the Supplier, or the Supplier's commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services and/or Equipment on these conditions. The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.

3.3 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.

3.4 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 loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

4. SUPPLIER'S OBLIGATIONS

4.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Project Plan.

4.2 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.

4.3 The Supplier shall appoint the Supplier's Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier's Project Manager throughout the Project, but may replace that person from time to time where reasonably necessary in the interests of the Supplier's business.

5. QUANTITY AND DESCRIPTION

5.1 The quantity and description of the Equipment shall be as set out in the Supplier's acknowledgement of order or (if there is no acknowledgment of order) quotation.

5.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

5.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

5.4 The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer's specification, which do not materially affect their quality or performance. Where the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.

5.5 The Supplier's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.

6. CUSTOMER’S OBLIGATIONS

The Customer shall: 

A) co-operate with the Supplier in all matters relating to the Project and appoint the Customer's Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Project; 

B) 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; 

C) provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects; and 

D) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and/or Equipment and accepting delivery. 

6.2 If the Supplier's performance of its obligations 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. 

6.3 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services and/or delivery of Equipment, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or subcontractor of the Supplier. The Customer shall not be in breach of this condition 6.3 if it hires an employee or subcontractor of the Supplier as a result of a recruitment campaign not specifically targeted to any employees or subcontractors of the Supplier. 

6.4 Any consent given by the Supplier in accordance with condition 6.3 shall be subject to the Customer paying to the Supplier on demand a sum equivalent to 20% of the then current annual remuneration of the Supplier's employee or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or subcontractor. 

7. CHANGE CONTROL

7.1 The Customer's Project Manager and the Supplier's Project Manager shall meet (physically or virtually) at least once every month to discuss matters relating to the Project. If either party wishes to change the scope of the Services and/or Equipment, it shall submit details of the requested change to the other in writing. 

7.2 If either party requests a change to the scope or execution of the Services and/or Equipment delivery, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of: 

A) the likely time required to implement the change; 

B) any variations to the Supplier's charges arising from the change; 

C) the likely effect of the change on the Project Plan; and 

D) any other impact of the change on the terms of the Contract. 

7.3 If the Supplier requests a change to the scope of the Services and/or Equipment delivery, the Customer shall not unreasonably withhold or delay consent to it. 

7.4 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. 

8. DELIVERY OF EQUIPMENT AND ACCEPTANCE

8.1 The Supplier shall use its reasonable endeavours to deliver the Services and/or Equipment 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 Services and/or Equipment and the Supplier is not in any circumstances liable for any delay in delivery, however caused. 

8.2 The Services and/or Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer. 

8.3 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. 

8.4 The Customer shall be deemed to have accepted the Services and/or Equipment when the Customer has had seven days to inspect it after delivery and has given notice of a defect. 

8.5 The Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with the Supplier's stipulations. Any remedy under this condition 8.5 shall be limited, at the option of the Supplier, to the replacement or repair of any Equipment which is proven to the Supplier's satisfaction to have been lost or damaged in transit. 

9. RISK AND PROPERTY

9.1 The Equipment 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 Equipment at the Customer's risk. 

9.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of: 

A) the Equipment; and 

B) all other sums which are or which become due to the Supplier from the Customer on any account. 

9.3 Until ownership of the Equipment has passed to the Customer under condition 9.2, the Customer shall: 

A) hold the Equipment on a fiduciary basis as the Supplier's bailee; 

B) store the Equipment (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; 

C) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and 

D) 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 Equipment 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. 

9.4 The Customer's right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 18 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due date. 

9.5 Until ownership of the Equipment is transferred to the Customer in accordance with condition 9.2, the Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment 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 Equipment shall be borne by the Customer. 

9.6 On termination of the Contract for any reason, the Supplier's (but not the Customer's) rights in this condition 9 shall remain in effect. 

9.7 The Supplier may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time. 

10. INSPECTION AND TESTING OF EQUIPMENT

The Supplier shall: 

A) test and inspect the Equipment on delivery to ensure that it complies with the requirements of the Contract; and 

B)if so requested by the Customer, give the Customer reasonable advance notice of such tests (which the Customer shall be entitled to attend). 

11. SOFTWARE LICENCE

11.1 If the Supplier refers to a software licence in the acknowledgment of order, the price of the Equipment includes the licence fee for the Customer's right to use the Software. 

11.2 If the Customer is provided with any operating system software licence in respect of the Software, the Customer shall sign and return it to the Supplier within seven days of installation of the software, unless the licence has been supplied on a "shrink-wrap" or "click-wrap" basis. 

11.3 If no software licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions: 

A) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Supplier's prior written consent; 

B) the Customer shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides; 

C) such licence shall be terminable by either party on 28 days' written notice, provided that the Supplier terminates only if the continued use or possession of the Software by the Customer infringes the developer's or a third party's rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract. Note that cancellation by the customer will not, generally entitle the customer to any refund or reduction of software licence fees which are normally annual; and 

D) on or before the expiry of this licence, the Customer shall return to the Supplier all copies of the Software in its possession. 

13. REMEDIES

13.1 The Supplier shall not in any circumstances be liable for any non-delivery of Equipment (even if caused by the Supplier's negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within seven days after the scheduled delivery date. 

13.2 Any liability of the Supplier for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment. 

13.3 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under condition 19), the Customer shall in all circumstances be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect. 

13.4 In the event of any claim by the Customer under the warranty given in condition 12.1, the Customer shall notify the Supplier in writing of the alleged defect. The Supplier shall have the option of testing or inspecting the Equipment at its current location or moving it to the Supplier's premises (or those of its agent or subcontractor) at the cost of the Supplier. If the Customer's claim is subsequently found by the Supplier to be outside the scope or duration of the warranty in condition 12, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer. 

14. CHARGES AND PAYMENT

14.1 All prices shall be as stated in the Supplier's acknowledgement of order. Where Services are provided for a period of more than one year, the Supplier shall be entitled to increase the prices from time to time in line with inflation. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties. 

14.2 The price of the Equipment shall be the Supplier's quoted price adjusted in line with inflation from time to time, or where no price has been quoted (or a quoted price is no longer valid), the price listed in the Supplier's price list current at the date of acceptance of the order.  

14.3 Condition 14.4 shall apply if the Services are to be provided on a time-and-materials basis. condition 14.5 and condition 14.6 shall apply if the Services and/or Equipment are to be provided for a fixed price. The remainder of this condition 8 shall apply in either case. 

14.4 Where the Services are provided on a time-and-materials basis: 

A) the charges payable for the Services shall be calculated in accordance with the Supplier's standard daily fee rates as amended on notice to the Customer from time to time in line with inflation; 

B) the Supplier's standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm on weekdays (excluding weekends and public holidays); 

C) the Supplier shall be entitled to charge at an overtime rate of 125% of the normal rate for part or whole days and for time worked by members of the project team outside the hours referred to in condition (b) on a pro-rata basis; 

D) the Supplier shall ensure that all members of the project team complete time sheets recording time spent on the Project, and the Supplier shall use such time sheets to calculate the charges covered by each monthly invoice referred to in condition (e); and 

E) 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 8. 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. 

14.5 Where the Services and/or Equipment are provided for a fixed price, the total price for the Services and/or Equipment shall be the amount set out in the Project Plan. The total price 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 14.6. 

14.6 Any fixed price contained in the Project Plan excludes: 

A) 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 

B) VAT, which the Supplier shall add to its invoices at the appropriate rate. 

14.7 The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 14 days of receipt. 

14.8 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: 

A) 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; and 

B) suspend all Services and/or Equipment delivery until payment has been made in full. 

14.9 Time for payment shall be of the essence of the Contract. 

14.10 All payments payable to the Supplier under the Contract shall become due immediately on notice of 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. 

14.11 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. 

15. INTELLECTUAL PROPERTY RIGHTS

15.1 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 and/or Equipment as is envisaged by the parties. If the Supplier terminates the Contract under condition 18.1, this licence will automatically terminate. 

15.2 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. 

16. CONFIDENTIALITY AND SUPPLIERS’ PROPERTY

16.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party's Confidential Information shall not be deemed to include information that: 

A) is or becomes publicly known other than through any act or omission of the receiving party; 

B) was in the other party's lawful possession before the disclosure; 

C) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or 

D) is independently developed by the receiving party, which independent development can be shown by written evidence. 

16.2 Each party shall hold the other's Confidential Information in strict confidence, not use the other's Confidential Information for any purpose other than the implementation of this agreement and, subject to condition 16.4 and condition 16.4, not make the other's Confidential Information available to any third party. 

16.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its Representatives in violation of the terms of this agreement. 

16.4 A party may disclose the Confidential Information of the other party to such of the disclosing party's Representatives as need to know it for the purpose of discharging the disclosing party's obligations under this agreement, provided that such Representatives are subject to obligations of confidentiality corresponding to those which bind the disclosing party. 

16.5 A party may disclose Confidential Information of the other party to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction. To the extent it is legally permitted to do so, 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 16.4, the disclosing party shall take into account the reasonable requests of the other party in relation to the content of such disclosure. 

16.6 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier's written instructions or authorisation. 

16.7 The above provision of this condition 16 shall survive termination of the Contract, however arising. 

16. LIMITATION OF LIABILITY

17.1 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: 

A) any breach of the Contract however arising; 

B) any use made by the Customer of the Services and/or Equipment, the Deliverables or any part of them; and 

C) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with the Contract. 

17.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract. 

17.3 Nothing in these conditions excludes the liability of the Supplier: 

A) for death or personal injury caused by the Supplier's negligence; or 

B) for fraud or fraudulent misrepresentation. 

17.4 Subject to condition 17.2 and condition 17.3: 

A) 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: 

i) loss of profits; or 

ii) loss of business; or 

iii) depletion of goodwill or similar losses; or 

iv) loss of anticipated savings; or 

v) loss of goods; or 

vi) loss of contract; or 

vii) loss of use; or 

viii) loss or corruption of data or information; or 

ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses. 

B) 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. 

18. TERMINATION

18.1 Either party may terminate this contract on giving three months’ notice to the other party. Note that where Services are priced on an annual basis, notice of termination shall not affect the obligation to pay for the remainder of the annual term. 

18.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract with immediate effect, without liability to the other if: 

A) 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; 

B) the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; 

C) 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; 

D) 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; 

E) 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 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; 

F) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; 

G) 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 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; 

H) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership); 

I) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; 

J) 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; 

K) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; 

L) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition (d) to condition (k) (inclusive); 

M) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or 

N) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010). 

18.3 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. 

18.4 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. 

19. FORCE MAJEURE

19.1 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: 

A) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party); 

B) failure of a utility service or transport network; 

C) act of God, war, riot or civil commotion; 

D) malicious damage; 

E) compliance with any law or governmental order, rule, regulation or direction; and 

F) accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. 

20. 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.

21. 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.

22. SEVERANCE

22.1 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. 

22.2 If any provision or part-provision of this agreement is deemed deleted under condition 22.1, 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. 

23. ENTIRE AGREEMENT

23.1 This agreement 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. 

23.2 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. 

23.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. 

24. ASSIGNMENT

24.1 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. 

24.2 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. 

25. 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).

26. 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.