Terms and Conditions for Professional Services
BACKGROUND:
Alliantist Limited trading as ISMS.online (“the Supplier”) provides a range of professional services related to its compliance services to business Customers. These Terms and Conditions are incorporated into Agreements for the provision of professional services by ISMS.ONLINE to a Customer.
1 Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Agreement” means (i) these terms and conditions and (ii) the Proposal between the Supplier and the Customer for the provision of the Services.
“Agreement Term” has the meaning given in condition 3.1;
“Authorised User” has the meaning given in the Software Terms;
“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;
“Change” means an amendment to the SOW / Specification; or any other term or schedule of the Agreement:
“Change Control Note” means the written record of any Change agreed or to be agreed by the parties pursuant to the Change Control Procedure:
“Change Control Procedure” means the procedure for agreeing a Change, as set out in condition 6.
“Customer” means the party procuring the Services from the Supplier under the Agreement and as identified in the Proposal;
“Customer Equipment” means any and all equipment including computer hardware, systems and the relevant Software Licence provided or otherwise made accessible by the Customer to the Supplier in relation to the provision of the Services (whether directly or indirectly);
“Customer Materials” means any and all data sets, information, documents, and other materials provided by the Customer to the Supplier in relation to the provision of the Services;
“Deliverables” means the outputs to be produced or delivered by the Supplier under the Agreement, as expressly specified in the Agreement;
“Excluded Claims” means any claim or proceedings relating to:
(a) the non-payment of invoices, recovery of undisputed or disputed sums, or enforcement of payment obligations under the Agreement; and
(b) any application for summary judgment, debt recovery, or interim or injunctive relief;
“Effective Date” has the meaning given in condition 2.1;
“Fees” means any and all sums due under the Agreement from the Customer to the Supplier in consideration of the Services, as set out in the Proposal;
“Intellectual Property Rights” means patents, 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, or to claim priority from, those 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;
“Project Manager” the representative of each party with authority to make decisions and give instructions in respect of the Agreement;
“Proposal” means a written proposal, signed by both parties in accordance with condition 2.1 and detailing:
(i) the Specification;
(ii) the Fees, and any other fees payable by the Customer; and
(iii) any amendments to these terms as agreed by the Customer and the Supplier;
“Services” means the services identified as professional services to be provided by the Supplier to the Customer in accordance with the Agreement, as fully defined in the Proposal;
“Services Start Date” means the date given in the Proposal;
“Session” has the meaning given in condition 5.13;
“Software Licence” means the licence to use the relevant Software as relevant to the Services and which is procured by the Customer subject always to Software Terms;
“Software” means the online software applications provided under the Software Terms;
“Software Terms” Means the current version of the ISMS Online Customer Licence Agreement as found at https://www.isms.online/about/terms-conditions/
“SOW / Specification” means the full description and specification of the Services as provided or referred to in the Proposal.
“Supplier Equipment” means any and all equipment including computer hardware and systems provided and used by the Supplier in relation to the provision of the Services (whether directly or indirectly) but excluding the Software Licence;
1.2 Any reference to “writing”, and any similar expression, includes a reference to any communication sent by email (but not fax or other electronic means of communication).
1.3 Unless expressly stated otherwise, legislation or a provision thereof is a reference to that legislation or provision as amended or re-enacted from time to time.
1.4 Unless expressly stated otherwise, legislation or a provision thereof, shall include all subordinate legislation made from time to time under that legislation or provision.
1.5 A reference to “these Terms and Conditions” is a reference to these Terms and Conditions.
1.6 A reference to a “Party” or the “Parties” refer to the parties to the Agreement.
1.7 Any obligation on either Party not to do a particular thing includes an obligation to not allow that thing to be done.
1.8 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of the Agreement.
1.9 Words communicating the singular number shall include the plural and vice versa.
1.10 References to any gender shall include any other gender.
1.11 References to persons shall include natural persons, corporate, or unincorporated bodies (whether or not the same have a separate legal personality).
1.12 References to a company shall include companies, corporations, or other bodies corporate, however so and wherever incorporated or established.
2 Basis of Agreement
2.1 Once the Customer receives the Proposal, the Customer shall sign the Proposal at which point, and on which date the Agreement will come into existence (the “Effective Date”).
2.2 Any Proposal or quotation given by the Supplier shall only be valid for a period of 30 days from the date of its issue.
2.3 These Terms and Conditions together with the Proposal shall form the basis of the Agreement. Subject to changes made in accordance with condition 6 (Change Control Procedure), any other terms that the Customer seeks to impose or incorporate into the Agreement, or which are implied by trade custom, practice, or course of dealing shall be excluded from the Agreement.
2.4 No advertising, promotional literature, descriptive matter, drawings, samples, catalogues, brochures, or similar material issued or published by the Supplier in any format or medium shall form part of the Agreement or have any contractual force. Such material is provided by the Supplier only for promotional purposes and for providing an approximate description of the services available from the Supplier.
3 Provision of the Services and the Supplier’s Obligations
3.1 The Supplier shall provide the Services from the Services Start Date until the Services are completed or, where stated in the Agreement, the Service End Date (the “Agreement Term”).
3.2 The Supplier warrants that, on completion of the Services, the Services will conform with the Specification in all material respects.
3.3 The Supplier shall provide the Services with reasonable skill and care.
3.4 The Supplier shall use reasonable endeavours to meet any performance dates set out in the Agreement or as may be agreed in writing from time to time. Such dates shall be estimates only, however, and time shall not be of the essence in the provision of the Services.
3.5 The Supplier shall act in accordance with all reasonable instructions issued by the Customer provided that such instructions are compatible with the Specification.
3.6 The Supplier shall ensure that any and all of its personnel involved in the provision of the Services are suitably skilled, qualified, and experienced to perform the part(s) of the Services to which they are assigned.
3.7 The Supplier shall provide the Supplier Equipment.
3.8 The Supplier shall use any Customer Materials provided by the Customer from time to time only to the extent reasonably necessary for and only for the purposes of the provision of the Services. The Supplier shall hold any and all Customer Materials in safe custody, at its own risk, and shall maintain the same in good condition. The Supplier shall return or dispose of Customer Materials in its possession at the Customer’s option and on the Customer’s written instruction.
3.9 The Supplier shall use any Customer Equipment provided (or made available) by the Customer from time to time only to the extent reasonably necessary for and only for the purposes of the provision of the Services. The Supplier shall use all such Customer Equipment with care and in accordance with best practice at all times. The Supplier shall return Customer Equipment in its possession on the Customer’s written instruction.
3.10 In the event that the Customer provides access to the Customer’s premises and any other facilities that is or are agreed upon by the Parties or as otherwise reasonably required from time to time by the Supplier to enable the Supplier to provide the Services, the Supplier shall use the same only to the extent reasonably necessary for and only for the purposes of the provision of the Services and shall comply with health and safety rules and regulations and security requirements as notified to it prior to access to the premises.
4 Customer’s Obligations
4.1 The Customer shall ensure that all information that it provides to the Supplier shall be complete and accurate.
4.2 The Customer shall appoint a Project Manager.
4.3 The Customer shall provide:
a) in a timely manner, all co-operation that is reasonably required by the Supplier to enable the Supplier to provide the Services;
b) any and all Customer Materials that are agreed upon by the Parties or as otherwise reasonably required from time to time by the Supplier together with any necessary written authorisation and instructions relating to the Customer Materials, to enable the Supplier to provide the Services;
c) (or make available) any and all Customer Equipment (or access thereto) that is agreed upon by the Parties or as otherwise reasonably required from time to time by the Supplier together with any necessary written authorisation and instructions relating to the Customer Equipment, to enable the Supplier to provide the Services;
d) where required, access to and availability and use of the Customer’s premises and any other facilities that is or are agreed upon by the Parties or as otherwise reasonably requested from time to time by the Supplier to enable the Supplier to provide the Services and shall inform the Supplier of any applicable health and safety rules and regulations and security requirements; and
e) that the Project Manager has access to the Software as an Authorised User where required to provide the Services.
4.4 The Customer may from time to time issue reasonable instructions to the Supplier in relation to the Supplier’s provision of the Services. Any such instructions shall be compatible with the Specification.
4.5 In the event that the Supplier requires the decision, approval, consent, authorisation, or any other communication from the Customer to continue with the provision of the Services (or any part thereof) at any time, the Customer shall provide the same in a reasonable and timely manner.
4.6 In the event that any licences or consents are required to enable the Supplier to provide the Services, including the Software Licence, the Customer shall obtain the same before the date on which the provision of the Services is due to begin, and shall maintain the same to the extent required for the provision of the Services.
4.7 Any failure or delay in the provision of the Services by the Supplier which results from the Customer’s failure or delay in complying with any of its obligations under the Agreement or any other act or omission of the Customer shall not be the responsibility or fault of the Supplier.
5 Fees, Payment, and Records
5.1 The Agreement sets out the Fees payable by the Customer and when invoices may be rendered by the Supplier.
5.2 In default of any detail in the Agreement on scheduling of invoices, the Fee for the Services will be invoiced in full on signature of the Agreement.
5.3 Fees are exclusive of expenses and the Supplier shall have the right to charge the Customer for any reasonable expenses incurred in the provision of the Services. The prevailing expenses policy of the Supplier is available on request.
5.4 Payments due to third parties for audit (external) and certification are excluded from the Fees unless otherwise stated in the Agreement.
5.5 Subject to condition 5.5, the Services will not commence, or a Session (as defined in condition 5.1.2) scheduled unless or until the relevant Fees have been paid.
5.6 Where the Agreement sets out the scheduling of invoices, the Customer shall pay an invoice within 30 days of the Invoice date.
5.7 All payments required to be made pursuant to the Agreement in consideration of the Services shall be made in the currency stated in the Agreement in cleared funds to such bank in England as the Supplier may nominate in writing.
5.8 Where any payment is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.
5.9 All sums payable by the Customer under the Agreement shall be exclusive of VAT. In the event that any taxable supply for VAT purposes is made under the Agreement by the Supplier to the Customer, the Customer shall, upon receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional sums in respect of VAT as are chargeable on the supply of the Services at the same time that payment is due for the provision of the Services.
5.10 Without prejudice to condition 13.1(a) (termination for late payment), any sums which remain unpaid by the due date for payment under the Agreement shall incur interest on a daily basis at a rate of 4% per annum above the base rate of the Supplier’s bankers in the UK from time to time from the due date for payment until payment is made in full of any such outstanding sums, whether before or after judgment.
5.11 All sums due under the Agreement shall be paid in full without any set-off, withholding, deduction, or counterclaim except any withholding or deduction (if any) of tax that is required by law.
5.12 The Supplier shall:
a) keep or procure that are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated; and
b) at the reasonable request of the Customer, allow the Customer or its agent to inspect those records and books of account.
5.13 Without prejudice to any other rights or remedies, if the Customer fails to pay any undisputed invoice in accordance with the payment terms of the Agreement, the Supplier may, on giving no less than 10 Business Days’ written notice, suspend the provision of the Services until payment is made in full.
5.14 The Customer acknowledges that the Supplier allocates resources and undertakes preparation in advance of any scheduled consultancy day, training session, meeting or other timetabled session (each a “Session”) as set out in the Agreement, and that cancellation or non-attendance of a Session may result in a loss to the Supplier.
5.15 The relevant Fee for the Session shall remain due and payable (where or, if paid already, shall not be refunded nor the Session rescheduled without further charge where:
a) the Customer cancels a Session on receipt of notice by the Supplier not less than 10 clear days prior to the date of the Session; or
b) the Customer does not attend a Session.
5.16 The Customer may request a postponement of a Session provided notice of request for postponement is provided in accordance with 5.16 on not less than 10 clear days before the date of the Session. Failure to postpone will be deemed to be a cancellation and condition 5.14 will apply.
5.17 All notices for cancellation or notices under condition 5.15 for postponement of a Session must be provided to the Supplier in writing (by email to enquiries@isms.online and shall be deemed to have been received in accordance with condition 16.3(a).
5.18 The provisions of condition 5.14 and condition 5.15 represent a genuine pre-estimate of the Supplier’s loss arising from late cancellation or non-attendance, including preparation time, allocated resources and lost opportunity, and do not constitute a penalty.
5.19 Where condition 5.14 applies and the Customer requests a replacement Session, this will be agreed by way of a new Proposal.
5.20 No refunds will be given where a Customer does not use all the Services (i.e. uses only 4 out of 5 consultancy days) within the Agreement Term.
6 Change Control Procedure
6.1 Changes to date of delivery of Sessions will be discussed by the Project Managers of the parties and may be amended by agreement in writing from time to time. Such changes do not require the Change Control Procedure.
6.2 Either party may submit a written request for Change to the other party in accordance with this condition 6, but no Change will come into effect until a Change Control Note has been signed by the authorised representatives of both parties.
6.3 If the Customer requests a Change:
a) the Customer will submit a written request to the Supplier containing as much information as is necessary to enable the Supplier to prepare a Change Control Note; and
b) within 10 Business Days of receipt of a request, unless otherwise agreed in writing by the parties, the Supplier will send to the Customer a Change Control Note.
6.4 If the Supplier requests a Change, it will send to the Customer a Change Control Note.
6.5 A Change Control Note must contain sufficient information to enable the Customer to assess the Change, including as a minimum:
a) the title of the Change;
b) the originator of the Change and date of request;
c) description of the Change;
d) details of the effect of the proposed Change on:
e) the Services;
f) the Fees;
g) the timeline (if any); and
h) any term of the Agreement (including proposed changes to wording); and
i) provision for signature by the Customer and the Supplier.
6.6 If, following the Customer’s receipt of a Change Control Note pursuant to condition 6.2 or condition 6.3:
a) the parties agree the terms of the relevant Change Control Note, they will sign it and that Change Control Note will amend the Agreement;
b) either party does not agree to any term of the Change Control Note, then the other party may refer the disagreement to be dealt with in accordance with the condition 17 (Dispute Resolution).
6.7 Each party will bear its own costs in relation to compliance with the Change Control Procedure.
7 Intellectual Property Rights
7.1 The Customer (and, where applicable, its licensors) shall retain ownership of the Intellectual Property Rights subsisting in any and all Customer Materials.
7.2 The Customer shall grant to the Supplier a non-exclusive, fully paid-up, royalty-free, licence to use, copy, and modify the Customer Materials for the Agreement Term only to the extent reasonably necessary for and only for the purposes of the provision of the Services.
7.3 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and Deliverables. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Services and Deliverables.
7.4 Subject to payment of the Fees in full, the Supplier grants to the Customer a perpetual, worldwide, non-exclusive, non-transferrable, non-assignable, non-sub-licensable, royalty free, revocable licence to access and use the Deliverables for internal business purposes only and not for any commercial exploitation.
7.5 In respect of the Deliverables the Customer must not amend, create derivative works from or vary the Deliverables.
8 Confidentiality
8.1 Each party undertakes that it shall not, at any time whether before, during or after the termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, Customers or suppliers of the other party, except as permitted by condition 8.2.
8.2 Each party may disclose the other party’s confidential information:
a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this condition 8;
b) to any member of its group; and
c) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
9 Data Protection
The Supplier shall only use the Customer’s personal data as set out in the Supplier’s privacy notice, available from https://www.isms.online/about/privacy/.
10 Data Processing
10.1 The parties agree that the provisions of condition 6 and Schedule One (and the definitions used therein) of the Software Terms are deemed to be incorporated in this Agreement.
10.2 The Customer hereby consents to the Supplier appointing its authorised consultants in relation to the provision of the Services and so acting as the sub-processor of the Supplier.
11 Liability
11.1 Any reference to liability in this condition 11 means every kind of liability arising under or in connection with this Agreement including but not limited to liability in Agreement, tort (including negligence), misrepresentation, under an indemnity, in restitution or otherwise.
11.2 The Customer shall defend, indemnify and hold harmless the Supplier against all liabilities, costs, expenses, claims, demands, actions, proceedings, fines and any damages or 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) arising out of or in connection with the Customer’s, or any members of its Group, use of the Services and/or Deliverables.
11.3 Except as expressly and specifically provided in the Agreement:
a) the Customer assumes sole responsibility for results obtained from the use of the Services and Deliverables by the Customer, and for conclusions drawn from such use. Use of the Services is not a guarantee of certification by an external awarding body and the Services and Deliverables are on an “as is” basis.;
b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.
11.4 Nothing in the Agreement excludes the liability of either party:
a) for death or personal injury caused by the Supplier’s negligence; or
b) for fraud or fraudulent misrepresentation;
c) any other liability which cannot be lawfully limited.
11.5 Subject to 11.3
a) The Supplier shall have no liability for any:
i. loss of profits,
ii. loss of contract,
iii. loss of opportunity,
iv. loss of business,
v. wasted expenditure,
vi. depletion of goodwill, reputation and/or similar losses,
vii. loss or corruption of data or information, or
viii. any special, indirect or consequential losses, costs, damages, charges or expenses.
11.6 Subject to conditions 11.3 and 11.4, the Supplier’s total aggregate liability to the Customer for the Services for any and all claims or series of connected claims arising from the Agreement (for the purposes of this condition, a claim or series of connected claims arises when the first event giving rise to the relevant claim or series of connected claims arises and any claim arising after termination of the Agreement shall be deemed to arise on the last day prior to termination) shall not exceed the net Fees payable by the Customer to the Supplier under the Agreement.
12 Force Majeure
Neither party shall be in breach of the Agreement or otherwise liable for any delay or failure in the performance of its obligations for so long as, and to the extent that, such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Agreement by giving not less than 14 days’ written notice to the affected party.
13 Termination
13.1 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
b) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010); or
c) the Customer, engages in any act or omission that causes any detriment to the Supplier’s goodwill or reputation.
13.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
a) 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 7 days after being notified in writing to do so;
b) 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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
c) 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;
d) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
e) 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;
f) 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, partnership or limited liability partnership);
g) 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;
h) 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;
i) 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;
j) 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 13.2(b) to condition 13.2(i)(i) (inclusive);
k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
l) 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.
14 Effects of Termination
Upon the termination or expiry of the Agreement for any reason:
14.1 any sum owing by either Party to the other Party under the Agreement shall become immediately due and payable;
14.2 The Supplier shall immediately return any and all Customer Materials and Customer Equipment in its possession. The Supplier shall be fully and solely responsible for Customer Materials and Customer Equipment in its possession until they are returned to the Customer and shall not use the same for any purpose which is not connected with the Agreement. This condition shall not affect the Customer’s use of the Software (subject to the Software Licence and Software Terms);
14.3 each Party shall (except to the extent referred to in condition 8 (Confidentiality) immediately cease to use, either directly or indirectly, any confidential information belonging to the other Party, and shall immediately return to the other Party any documents in its possession or control which contain or record any confidential information;
14.4 termination or expiry shall not affect or prejudice any rights, remedies, obligations, or liabilities of the Parties that have accrued up to the date of termination or expiry including, but not limited to, the right to claim damages or any other remedy in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
14.5 any provision of the Agreement which either expressly or by implication is intended to continue in force or come into force after or upon the termination or expiry of the Agreement shall remain in full force and effect.
15 General Provisions
15.1 No Waiver: No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
15.2 Further Assurance: Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.
15.3 Variation: Other than as set out in these Terms and Conditions, no variation of the Agreement including, but not limited to, the introduction of any additional terms and conditions, shall be effective unless it is made in writing and signed by the Parties (or their authorised representatives).
15.4 Severance: In the event that one or more of the provisions of the Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.
15.5 Assignment and Sub-Contracting: The Contract shall be personal to the Customer. The Supplier shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of the Contract, be deemed to be an act or omission of the Supplier.
15.6 Third Party Rights: No part of the Agreement shall be intended to confer rights on any third parties and accordingly the Agreements (Rights of Third Parties) Act 1999 shall not apply to the Agreement. Subject to this condition 15.6, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.
15.7 Relationship of the Parties: Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency, or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.
15.8 Entire Agreement: The Agreement constitutes the entire agreement between the Parties with respect to its subject matter. Each Party acknowledges that, in entering into the Agreement, it shall not rely on any representation, warranty, assurance or other provision (made innocently or negligently) except as expressly provided in the Agreement.
16 Notices
16.1 Any notice given under the Agreement must be in writing and sent by pre-paid first-class post or email.
16.2 Notices shall be sent to the postal address or email address given in the Proposal for such purposes.
16.3 A notice shall be deemed received:
a) if sent by email, at the time of transmission, provided it is sent during the hours of 9.00am to 5.00pm on a Business Day, or otherwise at the start of the next Business Day; and
b) if sent by post, at 9.00 a.m. on the second Business Day after posting.
17 Dispute Resolution
17.1 If a dispute arises out of or in connection with the Agreement or its performance, validity or enforceability (Dispute), then, except as expressly provided in the Agreement, the parties shall follow the procedure set out in this condition:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Project Managers of each party shall attempt in good faith to resolve the Dispute;
(b) if the respective Project Managers are for any reason unable to resolve the Dispute within 20 Business Days of service of the Dispute Notice, the Dispute shall be referred to the Chief Revenue Officer of the Supplier and the Finance Director or similar position of the Customer who shall attempt in good faith to resolve it;
(c) if the Chief Revenue Officer of the Supplier and the Finance Director or similar position of the Customer are for any reason unable to resolve the Dispute within 15 Business Days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute and will do so in accordance with the CEDR Model Mediation Procedure.
(d) To initiate the mediation, a party must give notice in writing (ADR Notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the Dispute notice should be sent to CEDR who will nominate the mediator; and
(e) unless otherwise agreed between the parties, the mediation will start not later than 60 Business Days after the date of the ADR Notice.
17.2 Subject to condition 17.4 no party may commence any court proceedings in relation to the whole or part of the Dispute until it has attempted to settle the Dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
17.3 If for any reason the Dispute is not resolved within 90 Business Days from the date of the ADR Notice the Dispute shall be referred to and finally resolved in accordance with condition 18.
17.4 Nothing in this condition shall prevent either party from commencing court proceedings in relation to an Excluded Claim at any time, without first engaging in the dispute resolution or mediation procedures set out in this condition.
18 Law and Jurisdiction
18.1 The Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
18.2 Subject to condition 17, any Excluded Claim and other dispute, controversy, proceedings or claim between the Parties relating to the Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
