The following terms shall have the following meanings:
The “Supplier” shall mean Hopes Sustainability C.I.C. and/or any of its subsidiaries from time to time.
The “Client” shall mean the organisation whose details are set out in the Form.
“Available” means that equipment in the Premises is able to modulate utility consumption within the equipment manufacturer’s tolerances and “Availability” shall be construed accordingly.
Commencement Date means the date that data begins to be collected by the Supplier following the installation of the Supplier’s sensor technology.
Confidential Information means all confidential information and data which is acquired from or made available (directly or indirectly) by the disclosing Party, or by any member of the disclosing Party’ s Group or the disclosing Party’s representatives or subcontractors, including but not limited to any information or document relating to the disclosing Party’s (or any of its Group’s) business, operations, processes, product information, know-how, trade secrets, market opportunities, Clients or suppliers (whether relating to this Agreement or otherwise) either orally, in writing, or in whatever form obtained or maintained.
Equipment means any equipment provided by or installed at the Premises by the Supplier (or on its behalf by a Subcontractor) in order for the Services to be provided to the Client.
Force Majeure Event has the meaning set down in Clause 10.1.
Form means the order form (online or physical) signed by the Supplier and the Client which forms part of the Agreement.
Group means, in relation to any company, that company and any other company which, at the relevant time, is that company’s Holding Comp any or Subsidiary, or the Subsidiary of any such Holding Company and “member of a Group” has a corresponding meaning.
Hazardous Substances means any substance which when encountered or disturbed could have an adverse effect on human health, habitability of a site or the environment.
Holding Company and Subsidiary have the meanings given to those expressions by Section 1159 of the Companies Act 2006.
Intellectual Property Rights means patents, designs, trademarks, service marks, trade names, logos, get-up, domain names, copyright (including rights in computer software), data base rights, rights in performances, moral right, confidential information and know-how, whether registered or not including applications for registration and all similar forms of protection anywhere in the world.
Law means the laws of England and Wales and, where applicable, the European Union and any other laws, regulations, regulatory policies, guidelines or industry codes that apply to the provision of the Supplier’s Equipment and/or Services.
Minimum Term means the period of 12 months from the date of this Agreement (and as updated in respect of any future Premises), and updated annually on the anniversary date of the agreement, unless cancelled by either party within 60 days from the anniversary date.
Notice means a notice given in accordance with Clause 14.
Payments means those amounts payable by the Client from time to time as set out in the Form
Premises means the Client’s premises in respect of which the Services are provided as detailed on the Form. If additional Premises are added to the scope of this Agreement from time to time, the Form will be updated to reflect the details of such additional Premises and such revised premises shall be the Premises for the purposes of this Agreement.
Services means the services operated by (or on behalf of) the Supplier using the Premises, as listed in the Form. From time to time, the scope of the Services may be amended or extended by written agreement between the Supplier and the Client, at which point the provision of such amended or extended services shall become subject to the provisions of this Agreement.
Subcontractor means any subcontractor engaged by the Supplier from time to time to provide certain Works to the Supplier to enable (or assist) it to provide the Services (or part thereof) to the Client.
Term has the meaning set out in Clause 12.1.
Utility Supplier means a person that has contracted with the Client to provide electricity, gas or another utility to the Premises.
Works means the installation of Equipment at the Premises prior to the Supplier commencing delivery of the Services.
1.2 References to enactments. Any reference in any terms to an enactment includes a reference to:
(a) that enactment as amended or re-enacted, with or without amendment, whether before this Agreement or not; or
(b) any enactment which that enactment re-enacts, whether with or without amendment; or any subordinate legislation under the enactment referred to or under any such enactment as is described in Clauses 1.2(a) or 1.2(b)
and a reference to things done or failing to be done under or for the purpose of any enactment shall be construed accordingly.
1.3 References to Clauses etc. References in these Terms to Clauses means the clauses of these Terms.
1.4 Singular, plural and genders. Words importing the singular include the plural and vice versa and words importing a gender include every gender.
1.5 Headings. Headings are only for convenience and shall not affect the meaning of the provisions of these Terms.
1.6 General Words. General words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words or introduced by the word “other” and preceded by words indicating a particular class of acts, matters or things.
1.7 References to documents. References to, or to a provision of, a document are references to it as amended or supplemented or replaced, whether before the date of this Agreement or otherwise.
1.8 References to periods. References to day, weeks, months and years mean, respectively, calendar days, weeks, months and years.
1.9 A reference to any “Party” shall include that Party’s personal representatives, successors and permitted assigns and Affiliates.
2. SUPPLIER SERVICES
2.1 Equipment and operations
(a) The Supplier shall carry out the Works at the Premises and ensure that the Equipment continues to be operational and compliant with applicable Law.
(b) The Supplier shall use reasonable endeavours to ensure that the Client’s plant and equipment at the Premises which does not need to be used or accessed in connection with the Services is not interfered with by the Supplier or any Subcontractors.
2.2 Regulatory Compliance: In respect of the Works, the Supplier will adhere to (and will procure that its Subcontractors adhere to) all applicable Laws, any reasonable health and safety policies for the Premises notified to it in advance by the Supplier, and electricity and other codes and engineering recommendations.
3. CLIENT OBLIGATIONS
3.1 Availability of Premises: The Client agrees to use reasonable endeavours to ensure that the Premises are available at all times except during a Force Majeure Event.
3.2 Notification of events: The Client agrees to notify the Supplier as soon as reasonably possible of:
(a) any circumstance which may affect the Availability of the Premises, including any maintenance the Client needs to carry out; and
(b) any circumstance which could affect the ability of the Equipment to collect data.
3.3 Access and assistance: The Client agrees to allow the Supplier and its Subcontractors to access any relevant parts of the Premises during working hours for all purposes in connection with the Works and provide reasonable assistance as occupier of the Premises during the Works, including providing such information and completing such documents, declarations and applications as are reasonably required by the Supplier and its Subcontractors in relation to the Works and/or Services.
3.4 Exclusivity: Save where expressly agreed between the Client and the Supplier in writing, the Client shall not enter into any contractual obligations with any person to the extent such activity would adversely affect the ability of the Supplier to provide the Services.
3.5 Hazardous Substances: The Client shall ensure that there are no Hazardous Substances at the Premises in circumstances which would present a risk to the health and safety of any representative of the Supplier during the course of the Works or the Services.
3.6 Meter Readings: Where the Supplier requires that the Utility Supplier installs a meter at the Premises for the purposes of the Services, the Client shall ensure that the meter installed is capable of giving the Supplier minute by minute meter readings for each Premises in real time and the Client agrees that such information can be accessed by the Supplier throughout the period of the Services.
(a) Title to all Equipment installed on the Premises shall remain with the Supplier (or where applicable its Subcontractor) notwithstanding their installation at the Premises, until the value of this order has been paid in full, after which title will pass to the Client.
4. DATA PROTECTION
(a) Agreed Purposes: any personal data to be held only for the performance by each party of its obligations under this agreement, and the promotion of the Services.
(b) Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
(c) Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
(d) Permitted Recipients: The parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement, and their solicitors.
(e) Shared Personal Data: the personal data to be shared between the parties under this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
Name and Contact Details
Any information that identifies any person
4.2 Shared Personal Data. The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:
(a) ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this Agreement;
(f) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
(g) not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.
4.3 Compliance: Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
4.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting with and obtaining the consent of the other party.
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data.
4.5 Anonymised data. The Supplier shall be entitled to anonymise personal data obtained in the course of performance of the Services and to sell to third parties or otherwise deal with, as it sees fit, such anonymised data.
5.1 Payment Mechanism: Payment for the Services shall be as set out in the Form.
5.2 Late payment: The Supplier may charge interest on any amount which has not been paid by its due date. Such interest shall accrue on a daily basis at the rate of 4% above the base lending rate of the Bank of England from time to time in force.
5.3 VAT on invoices: VAT shall be charged by the Supplier at the appropriate rate.
6. APPOINTMENT OF SUBCONTRACTORS
6.1 The Client acknowledges and agrees that the Supplier may engage Subcontractors to provide all or part of the Works to enable the provision of the Services.
7. INTELLECTUAL PROPERTY
7.1 As between the Client and the Supplier, all Intellectual Property Rights and all other rights in the assets provided or developed by (or on behalf of) the Supplier under this Agreement shall be owned by the Supplier. The Supplier shall not be deemed to have granted or agreed to grant a licence (or any other right) to the Client, in respect of any of its Intellectual Property Rights by any term of this Agreement.
8.1 This Agreement and its subject matter shall remain confidential between the Parties and the provisions of this Clause 8.1 shall survive any termination of this Agreement. Neither Party shall without the other’s prior written consent (save as is necessary to enable it to perform this Agreement) use confidential information in any medium whatsoever relating to the other’s business or affairs or disclose it to any third party except to Third Parties, the disclosing party’s own professional representatives, contractors, funders or advisers on a confidential basis or as required by Law.
9. FORCE MAJEURE
9.1 Force Majeure Event shall mean any event beyond the reasonable control of the Party seeking to rely on it and which is unavoidable including, but not limited to, the following events: epidemics, storms, floods, hurricanes, tempest, acts of God, state or public enemy, wars, revolutions, uprisings, hostilities, civil disturbances, blockades, embargoes, government restraints or similar disruptions or interferences with trade, riots, civil war, insurrection, invasion, explosions, fires and, in the case of the Supplier, any such event which is affecting a Subcontractor’s ability to provide the Works. Strikes, lockouts and shutdowns of a Party or any of its Group (or of any person engaged by any of them) shall not be a Force Majeure Event for that Party.
9.2 Neither Party shall in any circumstances be liable to the other Party for any delay or non-performance of its obligations under this Agreement to the extent that such delay or non-performance is due to a Force Majeure Event. The date for performance of any affected obligations will be suspended for a period equal to the delay caused by the Force Majeure Event.
9.3 If a Party is delayed in or prevented from performing its obligations under this Agreement by a Force Majeure Event, such Party shall give notice in writing of such delay or prevention to the other Party specifying the nature and extent of the Force Majeure Event immediately on becoming aware of it and use all reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations under this Agreement.
10.1 This Clause 10 sets out each Party’s entire financial liability (including any liability for the acts or omissions of employees, agents and Subcontractors) to the other Party in respect of any breach of this Agreement, any use made of all or part of the Services and any representation, statement, act or omission (including negligence) arising under or in connection with this Agreement.
10.2 Each Party’s total liability arising out of or in connection with this Agreement whether arising in contract, (including negligence), misrepresentation, breach of statutory duty or otherwise shall be limited to £10,000.
10.3 Without prejudice to Clauses 11.5, the Supplier shall be under no liability in respect of:
(a) any defect in the Services arising from reliance on any information supplied by the Client; and/or
(b) any loss or damage arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure by the Client to follow the instructions (whether oral or in writing) of the Supplier or any Subcontractor and/or any misuse, alteration or repair of any Equipment without the Supplier’s prior approval; and/or
(c) any adverse effects of temperature, humidity and ventilation conditions created by installation and operation of the Equipment at the Premises.
10.4 The Client acknowledges that the Supplier and its Subcontractors will have access to electrical, gas and any other appliances at the Premises needed in order to optimise savings on energy consumption. The Client acknowledges that the Supplier shall rely on information provided by the Client regarding perishable and non-perishable contents contained in the Client’s appliances at the Premises and the Client agrees and acknowledges that the Supplier shall not be liable for any loss or damage to perishable items.
10.5 Subject to Clause 11.6, the Supplier shall not be liable to the Client for any reason whatsoever (contractual or non- contractual), for loss of profit, loss of revenue, loss of use, loss of contracts or for any indirect, economic, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with this Agreement or the use of the Services by the Client.
10.6 Nothing in the Agreement limits or excludes liability for:
(a) wilful default (being any act or failure to act by a Party which was intended to cause a breach of that Party’s obligations under this Agreement or which was in reckless disregard or wanton indifference to such obligations):
(b) fraud (including fraudulent misrepresentation); and/or
(c) anything for which a Party cannot limit or exclude or attempt to limit or exclude its liability under applicable Law;
10.7 The Supplier will collect and process data from Equipment as part of providing the Services and may inform the Client of any matters of concern. Any such information is provided in good faith and the Supplier accepts no liability for any consequences or losses suffered by the Client in any way connected with the supply or failure to supply such information.
10.8 During the Term, each Party shall maintain in force, with a reputable insurance company, public liability insurance in an amount not less than £1 million and shall, on the other Party’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
11.1 Commencement and the Term: The Agreement shall come into force on the Commencement Date and continue for the Minimum Term and thereafter annually unless terminated by either party giving not less than one month’s notice prior to the end of each Term. (the “Term”).
12.1 General termination rights: Either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
(a) the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 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 30 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 Client 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 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 IA 1986 or (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 IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Client 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 any of its creditors other than (being 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;
(f) the other party applies to court for, or obtains, a moratorium under Part A1 of the IA 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 the other party (being a company, limited liability partnership or partnership) 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 all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(k) the other party (being an individual) is the subject of a bankruptcy petition, application or order;
(l) 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;
(m) 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 clause 13.1(d) to clause 13.1(l) (inclusive);
(n) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(o) the aggregate liability of the other Party reaches the cap set out in Clause 11.2 without the other Party agreeing on request to refresh such aggregate liability cap.
12.2 Termination right for prolonged Force Majeure: If a Force Majeure Event continues for a period of 30 (thirty) days or more following notification in a manner which substantially affects the ability of the relevant Party to comply with its material obligations under this Agreement, the Party not affected by the Force Majeure Event may terminate this Agreement by giving not less than 10 (ten) days ‘ prior written notice to the other Party.
12.3 Supplier right to terminate: The Supplier may immediately upon giving notice to the Client terminate this Agreement if:
(a) the Client ceases to be in commercial occupation of the Premises; or
(b) there is a persistent failure of Availability of the Premises (in excess of three (3) times in aggregate) when it has been agreed that it will be Available;
12.4 Client right to terminate: The Client may, by giving the Supplier not less than one hundred and twenty days (120) days’ notice, terminate this Agreement if the Client wishes to withdraw from the Agreement for any reason. In such event the Client shall pay any remaining fees due for such period.
12.5 Consequences of termination of the Agreement:
(a) Upon termination of this Agreement:
(i) any outstanding amounts payable to the Supplier shall become immediately due and the Supplier shall be entitled to issue an invoice to the Client in respect of those amounts;
(ii) notwithstanding such termination, the Supplier shall remain entitled to issue statements and invoices to the Client in respect of amounts, adjustments, reconciliations and corrections relating to the period up to the termination date;
(iii) termination shall not affect any rights, remedies or obligations of the Parties that have accrued or become due prior to termination;
12.6 Terms surviving termination: The following Clauses shall survive termination of this Agreement: 7, 8, 11, 12, 13, 15, 16 and 17.
13. USE OF THE SUPPLIER’S WEBSITE
13.1 The website and any support and resources therein are provided to the Client as part of the system and for use only by the Client’s school, pupils and their parents. Any support provided to the Client is for information purposes only. The Supplier reserves the right to make changes to the website at any time and for whatever reason, without any prior notification to the Client.
13.3 The Client undertakes not to post to or send via the website any materials that are or could reasonably be construed as: (i) defamatory, libellous, obscene, offensive, abusive, liable to incite racial hatred, discriminatory or blasphemous; (ii) in breach of any obligation of confidence or privacy or any trade secret; (iii) infringing the proprietary rights of any third party or for which the Client has not obtained all necessary licences and/or approvals; or (iv) violating any other law.
13.4 The Client also agrees not to transmit to or send via the website any materials which could reasonably be held to constitute or encourage conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of any country or other competent authority, or infringe the rights of any third party enforceable in any part of the world.
13.5 The Supplier reserves the right to remove any materials from the website where it reasonably suspects that such material is prohibited by this section or is otherwise inappropriate. Notwithstanding the foregoing, the Client acknowledges that the Supplier has no control over content on the website provided by other users, neither does it purport to monitor the content of the website to ensure its accuracy, appropriateness or conformity with the principles outlined in these terms and conditions.
13.6 The Client must not link to the website any other websites that are indecent or inappropriate, and must forthwith remove any link if the Supplier in its discretion so requests.
13.7 All materials (including, but not limited to, text, music, sound, photographs, graphics, images, video, data compilations, digital downloads and software) included on the website (“materials”) are the property of the Supplier and its suppliers and protected by copyright laws of any and all jurisdictions.
13.8 The Supplier authorizes the Client to view and download the materials only for the Client’s non-commercial use; provided, that the Client does not modify or create any derivative work of the materials in any way, or reproduce or publicly display, perform, or distribute or otherwise use them for any public or commercial purpose. Any use of the materials on any other website or networked computer environment for any purpose is prohibited.
13.9 if the Client wishes to use the materials beyond the scope as authorized above, it needs to obtain prior approval by the relevant copyright owners or licensors of such materials, i.e. The Supplier , its suppliers or others.
13.10 If the Client wishes to directly quote any portion of the contents in any printed or electronic material, it should contact the webmaster for permission.
13.11 the Client agrees to indemnify the Supplier against any claim, demand, loss or damage suffered as a result of breach of this section.
14.1 A notice or communication given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address or email address given in this Agreement or as otherwise notified in writing to the other party.
14.2 This Clause 14.2 sets out the delivery methods for sending a notice to a party under this agreement and, for each delivery method, the date and time when the notice is deemed to have been received or given (provided that all other requirements of this clause have been satisfied and subject to the provision in Clause 14.3).
(a) if delivered by hand, at the time the notice is left at the address;
(b) if sent by pre-paid first class post or other next working day delivery service providing proof of delivery, at 9.00am on the Business Day after posting; or
(c) if sent by email, at the time of transmission.
14.3 If deemed receipt under Clause 14.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this Clause 14.3 business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
14.4 This clause 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.
15.1 The Supplier may freely assign, novate, charge and /or otherwise transfer its rights and /or obligations under this Agreement to:
(a) any of the Supplier’s Group companies;
(b) any of its Subcontractors;
(c) any funder of the Supplier; and/or
(d) any special purpose company established by the Supplier or any funder pursuant to any financing, private equity financing and/or refinancing,and the Client shall promptly execute any documents reasonably required by the Supplier to effect such assignment, novation, charging or other transfer.
15.2 The Client be entitled to assign its rights but shall not be entitled to transfer, subcontract or delegate any of its obligations under this Agreement without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).
16. DISPUTE RESOLUTION
16.1 Technical/Financial disputes: Any dispute or difference arising between the Parties which is of a technical or financial nature shall be referred to an independent expert for determination, in which case:
(a) if the Parties are unable to agree on the appointment of the expert, in the case of a technical matter, he shall be appointed by the President of the Institution of Engineering and Technology and in the case of a financial matter, he shall be appointed by the President of the Institute of Chartered Accountants in England and Wales, at the request of either Party;
(b) the person appointed shall act as an expert not as an arbitrator;
(c) the fees and expenses of the expert shall be borne in the proportions determined by him; and
(d) a determination or certification by an expert under the Agreement is, in the absence of manifest error, conclusive and binding on both Parties.
16.2 Non-technical/financial disputes: Subject to Clause 16.1, if any dispute arises out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts.
17. PROVISIONS RELATING TO THIS AGREEMENT
17.1 This Agreement constitutes the entire agreement between the Parties regarding the subject matter of this Agreement and supersedes all earlier agreements of any kind regarding the same all of which are hereby terminated and shall cease to have effect in all respects, and there are no collateral or supplemental agreements relating to this Agreement other than those (if any) executed contemporaneously with this Agreement.
17.2 This Agreement shall be binding on and enure for the benefit of each Party’s successors and permitted assigns.
17.3 In its sole and absolute discretion, any Party may waive (in whole or in part) any provision of, or any of its rights under, this Agreement or any related document, and may do so unconditionally or subject to any terms which it thinks fit.
17.4 Any variation of this Agreement, or any waiver connected with this Agreement, shall be void for all purposes unless:
(a) in the case of a variation, it is agreed to in writing signed by on behalf of each of the Parties; or
(b) in the case of a waiver, it is set out in writing signed by or on behalf of the Party granting the waiver.
17.5 Except as specifically stated in a variation or waiver signed in accordance with Clause 17.4, no Party shall lose, or be precluded (permanently or temporarily) from exercising, any right or remedy which is conferred on it by this Agreement or any right or remedy which it has in connection with this Agreement under the general law as a result of any delay, acquiescence or lack of diligence on its part in seeking relief or by any act or course of conduct by it which would otherwise imply that it was affirming this Agreement (or a related agreement) after a breach by the other Party, nor shall any single or partial exercise of any right or remedy preclude the exercise of any other right or remedy.
17.6 No Person shall have any rights under the Contracts (Rights of Third Parties) Act 1999.