1. Interpretation
1.1 In these Conditions, the following definitions apply:
“Agreed Purposes” means for the purpose of supplying or receiving (as appropriate) the Goods and/or Services in accordance with the Contract.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
"Commercially Sensitive Information" means the information of a commercially sensitive nature relating to the Supplier, its Intellectual Property Rights or its business or which the Supplier has indicated to the Authority that, if disclosed by the Authority, would cause the Supplier significant commercial disadvantage or material financial loss.
"Conditions" means these terms and conditions as amended from time to time in accordance with clause 18.7.
“Confidential Information” means all confidential information (however recorded or preserved) disclosed by a party or its representatives to the other party and that party's representatives in connection with the Contract, including but not limited to: a) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, suppliers or plans of the disclosing party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; b) any information developed by the parties in the course of carrying out the Contract; c) Personal Data; d) any Commercially Sensitive Information.
“Contract” means these Conditions and the Order.
"Control" has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
“Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures” has the meaning as set out in the UK Data Protection Legislation in force from time to time.
“Data Discloser” means a party that discloses Shared Personal Data to the other party.
"Deliverables" means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
"Delivery Location" has the meaning given in clause 4.2.
"Environmental Information Regulations" means the Environmental Information Regulations 2004 (SI 2004/3391) together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such regulations.
"FOIA" means the Freedom of Information Act 2000, and any subordinate legislation made under the Act from time to time, together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.
“Goods” means the goods (or any part of them) set out in the Order.
"Information" has the meaning given under section 84 of FOIA.
"Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” means any order placed by Solent University (SU) in writing under which the Supplier agrees to supply Goods and/or Services to SU.
“Permitted Recipients” means the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with the Contract.
“Personnel” means the employees, contractors, agents or otherwise of the Supplier that are engaged by the Supplier in the performance of the Contract.
“Services” means the services (including any Deliverables) (or any part of them) set out in the Order and to be provided by the Supplier under the Contract, and if applicable, as set out in the Specification.
“Shared Personal Data” means the personal data to be shared between the parties under clause 15 of these Conditions.
“Specification” means any specification for the Goods and/or Services, including any related plans, drawings and instructions that are supplied to the Supplier by SU, or produced by the Supplier and agreed in writing by SU.
“SU” means Solent University (incorporated under The Education (Higher Education Corporations) (No 5) Order 1989), of East Park Terrace, Southampton, Hampshire, SO14 0YN.
“Supplier” means the person or firm from whom SU purchases the Goods and/or Services, as specified in the Order.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its successors and permitted assigns.
1.4 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.5 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.
1.6 A reference to writing or written includes email.
2. Basis of Contract
2.1 The Order constitutes an offer by SU to purchase the Goods and/or Services in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of: (a) the Supplier issuing a written acceptance of the Order; or (b) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall be formed.
2.3 The Supplier shall not act on any ‘order’ from SU (or any variation to an existing Order) placed verbally unless such ‘order’ or variation is confirmed in writing.
2.4 Unless stated otherwise on the Order, these Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.6 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. Supply of Goods
3.1 The Supplier warrants that the Goods shall:
a) correspond with the relevant description and the Specification and be free from defects in design, material and workmanship and remain so for 12 months after delivery;
b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by SU , expressly or by implication, and in this respect SU relies on the Supplier's skill and judgement;
c) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods and any policies or procedures notified by SU to the Supplier; and
d) not infringe the Intellectual Property Rights of any third party.
3.2 Without prejudice to any other rights or remedies of SU if, within twelve (12) months of delivery of the Goods or, if longer, within any period specified in the Specification, it is discovered that the Goods do not comply with the requirements of the Contract then SU shall have the right at its discretion to require the Supplier, free of charge and within a reasonable period (as agreed between the parties), to either remedy any defect in the Goods or to supply replacement Goods which comply with the requirements of the Contract.
3.3 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number, the type and quantity of the Goods, special storage instructions (if any) and, if SU has agreed to delivery of the Goods by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall deliver the Goods:
a) on the date specified in the Order, or, if no such date is specified, within 14 days of the date of the Order;
b) to the location set out in the Order, or as instructed by SU prior to delivery (“Delivery Location”); and
c) during SU's normal business hours on a Business Day, or as instructed by SU.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 If delivery of the Goods is not made in accordance with clause 3.2(a), SU may, without prejudice to any other remedy, terminate the Contract and/or reject the Goods and the Supplier will promptly collect these Goods at its own risk and expense and repay SU any monies it has paid for the Goods. If the Supplier delivers more or less than the quantity of Goods ordered, and SU accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5 Title in the Goods shall pass to SU on the earlier of
(i) delivery or
(ii) payment, and risk in the Goods shall pass to SU on completion of delivery in accordance with clause 4.3.
5. Supply of Services
5.1 The Supplier warrants that the Services shall:
a) be performed with all due skill, care and diligence in accordance with good industry practice and wholly in accordance with the Contract (including any Specification), and any proposal submitted to and approved in writing by SU and that any Deliverables shall be fit for any purpose that SU expressly or impliedly makes known to the Supplier;
b) be provided from the date specified in the Order and for the duration specified in the Order in accordance with the terms of the Contract, or at such time(s) as SU may specify to the Supplier and shall meet any performance dates for the Services specified in the Order or notified to the Supplier by SU and time shall be of the essence in relation to such performance dates;
c) be performed by appropriately qualified, trained and competent Personnel who shall be properly supervised and shall be in sufficient number to ensure that the Supplier’s obligation under the Contract are fulfilled;
d) not infringe the intellectual property rights of any third party; and
e) comply, and the Supplier in performing its obligations under the Contract shall comply, fully with all relevant legislation for the time being in force and any codes of practice or policies issued by SU to the Supplier from time to time.
5.2 In providing the Services, the Supplier warrants that it shall:
a) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
b) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to SU, will be free from defects in workmanship, installation and design;
c) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
d) observe all health and safety rules and regulations and any other security requirements that apply at any of SU’s premises;
e) hold all materials, equipment and tools, drawings, specifications and data supplied by SU to the Supplier (“SU Materials”) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to SU, and not dispose or use the Customer Materials other than in accordance with the SU's written instructions or authorisation;
f) not do or omit to do anything which may cause SU to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that SU may rely or act on the Services; and
g) comply with any additional obligations as set out in the Service Specification.
5.3 The Supplier warrants that its Personnel will comply with all applicable staff, contractors’ and other applicable regulations of SU whilst at SU’s premises.
5.4 The Supplier warrants and agrees that it shall not at any time, during the term of the Contract, permanently assign any of the Personnel to provide the Services for the majority of their time during any period of employment or engagement.
5.5 In the event of any breach of any of the warranties set out in clauses 5.1 and 5.2, in addition to any other remedies available to SU under the Contract or otherwise, the Supplier agrees promptly to take whatever action is necessary to remedy such breach, at no additional cost or expense to SU, and without interruption to SU’s ongoing business, time being of the essence.
5.6 SU may revise the scope of the Services in a manner which does not materially vary the nature of the Supplier’s work or materially increase the burden on the Supplier.
6. SU Remedies
6.1 If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, SU shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies:
a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
c) to recover from the Supplier any costs incurred by SU in obtaining substitute goods and/or services from a third party;
d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and
e) to claim damages for any additional costs, loss or expenses incurred by SU which are in any way attributable to the Supplier's failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the warranties set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, SU shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:
a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
e) to recover from the Supplier any expenditure incurred by SU in obtaining substitute goods from a third party; and
f) to claim damages for any additional costs, loss or expenses incurred by SU arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
6.3 If the Supplier has supplied Services that do not comply with the requirements of clause 5.1 then, without limiting or affecting other rights or remedies available to it, SU shall have one or more of the following rights and remedies:
a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
b) to return the Deliverables to the Supplier at the Supplier's own risk and expense;
c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services [(if paid)];
d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
e) to recover from the Supplier any expenditure incurred by SU in obtaining substitute services or deliverables from a third party; and
f) to claim damages for any additional costs, loss or expenses incurred by SU arising from the Supplier's failure to comply with clause 5.1.
6.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.5 SU’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
7. SU's obligations
7.1 SU shall:
a) provide the Supplier with reasonable access at reasonable times to SU’s premises for the purpose of providing the Services; and
b) provide such necessary information for the provision of the Services as the Supplier may reasonably request.
8. Indemnity
8.1 The Supplier shall indemnify SU in full against all costs, expenses, damages and losses, including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred by SU as a result of or in connection with:
a) any breach of the Contract or any negligence or breach of statutory duty by the Supplier; and/or
b) any claim made against SU for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, or the provision of the Services.
9. Liability
9.1 Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; or
c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) any other liability which cannot be limited or excluded by applicable law.
9.2 Nothing in this agreement shall limit the Supplier's liability under:
(b) Clause 8.1b) (IPR indemnity); and
(c) Clause 15 (Data Protection).
9.3 Subject to clauses 9.1and 9.2, the Supplier’s total liability to SU in connection with the Contract shall be the higher of
(i) £1,000,000 (one million pounds) and
(ii) the amount recoverable under the policies of insurance maintained by the Supplier.
9.4 Subject to clause 9.1, SU’s total liability to the Supplier in connection with the Contract shall not exceed £1,000,000 (one million pounds).
9.5 Any indirect or consequential loss or damage (including loss of profits, anticipated savings, opportunity, reputation or goodwill) are wholly excluded.
10. Price and Payment
10.1 SU shall pay the price set out in the Order for the Goods and/or Services and in respect of the Goods such price shall (unless otherwise specified in the Order) be inclusive of the costs of packaging, insurance and delivery. The price set out in the Order for the Goods and/or Services shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services and/or supply of the Goods. Unless otherwise agreed in writing by SU, the price set out in the Order shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services and/or supply of the Goods.
10.2 All amounts are exclusive of VAT which shall be paid by SU in addition on production of a valid VAT invoice. The Supplier shall provide an invoice in the agreed format on completion of delivery of the Goods or on completion of the Services. Such invoice shall, as a minimum, include the relevant SU Order number. Each undisputed invoice shall be paid within thirty days of the end of the month in which SU receives such invoice. If SU disputes any invoice in good faith, it shall promptly notify the Supplier and the Supplier shall (i) issue a credit for the full amount of the original invoice, and (ii) issue a new invoice for any undisputed amount (and SU shall pay such invoice in accordance with this clause 6.2). If the dispute is resolved in the Supplier’s favour, it may issue a further invoice for the remaining amount, which SU shall pay in accordance with this clause 6.2. If any undisputed amount is not paid when due, the Supplier may charge interest at a rate of 2% per annum above the base rate from time to time of the Bank of England until paid.
10.3 SU may set-off any liability of SU against any liability of the Supplier to SU.
10.4 SU will not reimburse any expenses incurred by the Supplier other than as set out in the Order or otherwise agreed in writing in advance by SU.
11. Intellectual Property
11.1 The parties agree that any Intellectual Property Rights existing at the date of the Contract (“Background Intellectual Property”) in the Goods and/or used in providing the Services and in the Deliverables shall at all times remain in the ownership of the relevant party. The Supplier grants to SU an irrevocable, royalty-free, non-exclusive worldwide and perpetual licence to use its Background Intellectual Property to such extent as is necessary to enable SU (and any company within its group) to have the full benefit of the Goods and/or Services for the purpose intended (including the right to sub-licence such Background Intellectual Property to any third party engaged by SU where required). The Supplier warrants that it has obtained all necessary permissions for any third party intellectual property rights in the Goods and/or used in the provision of the Services. The Supplier acknowledges that any rights granted by SU to use or exploit any of SU’s Intellectual Property Rights will terminate immediately upon the expiry or termination of the Contract for any reason. All goodwill in respect of SU’s intellectual property rights shall remain with SU at all times.
11.2 The Supplier assigns to SU all intellectual property rights in any Deliverables acquired or created by the Supplier or on the Supplier’s behalf for SU, commissioned by SU or which are made to SU’s specification and shall provide such assistance and execute any documents required to perfect SU’s title in all such Deliverables. The Supplier shall ensure all the Supplier’s employees, contractors and agents are bound by the undertakings within this clause.
12. Insurance
12.1 During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, adequate levels of insurance to cover such heads of liability as may arise under or in connection with the Contract, and shall, on SU's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
13. Confidential Information
13.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information of the other party, except as permitted by clause 13.2.
13.2 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 the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 13; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13.4 Upon request, and in any event upon expiry or termination of the Contract, the Supplier shall promptly destroy, and provide evidence of such destruction, (or at SU’s written request, promptly return to SU) any confidential information provided.
14. Compliance with relevant laws and policies
14.1 In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.
15. Data Protection
15.1 This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the “Data Discloser”) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
15.2 Each party shall comply with all the obligations imposed on a controller under the UK Data Protection Legislation, and any material breach of the UK Data Protection Legislation by one party 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.
15.3 Each party shall:
a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
b) give full information to any data subject whose personal data may be processed under the Contract of the nature such processing. This includes giving notice that, on the termination of the Contract, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
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 onerous than those imposed by these Conditions;
f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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 of the UK without the prior written consent of the other party.
15.4 Each party shall assist the other in complying with all applicable requirements of the UK 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 the other party wherever possible;
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 UK Data Protection Legislation with respect to security, personal data breach notifications, data protection 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 UK 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;
h) maintain complete and accurate records and information to demonstrate its compliance with this clause 15; and
i) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the UK Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the UK Data Protection Legislation.
15.5 Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the other party arising out of or in connection with the breach of the UK Data Protection Legislation by either party, its employees or agents, provided that it gives to the other party prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
16. Freedom of Information
16.1 The Supplier acknowledges that SU is subject to the requirements of the FOIA and the EIRs. The Supplier shall:
a) provide all necessary assistance and cooperation as reasonably requested by SU to enable SU to comply with its obligations under the FOIA and EIRs;
b) transfer to SU all Requests for Information relating to the Contract that it receives as soon as practicable and in any event within 2 Working Days of receipt;
c) provide SU with a copy of all Information belonging to SU requested in the Request For Information which is in its possession or control in the form that SU requires within 5 Working Days (or such other period as SU may reasonably specify) of SU’s request for such Information; and
d) not respond directly to a Request for Information unless authorised in writing to do so by SU.
16.2 The Supplier acknowledges that SU may be required under the FOIA and EIRs to disclose Information (including Commercially Sensitive Information) without consulting or obtaining consent from the Supplier. SU shall take reasonable steps to notify the Supplier of a Request for Information (in accordance with the Cabinet Office's Freedom of Information Code of Practice issued under section 45 of the FOIA) to the extent that it is permissible and reasonably practical for it to do so but (notwithstanding any other provision in the Contract) SU shall be responsible for determining in its absolute discretion whether any Commercially Sensitive Information and/or any other information is exempt from disclosure in accordance with the FOIA and/or the EIRs.
17. Termination
17.1 The Contract will terminate immediately without notice on the completion of the Order in accordance with the Contract.
17.2 SU may terminate the Contract in whole or in part at any time on giving the Supplier seven (7) days written notice.
17.3 SU may terminate the Contract with immediate effect by giving written notice to the Supplier if:
a) the Supplier is in material breach of any of its obligations under the Contract and fails to remedy the breach (if capable of remedy) within 14 days of the date of a written notice by the Supplier specifying the breach and requiring it to be remedied;
b) the Supplier ceases, or threatens to cease to trade, becomes insolvent, is unable to pay its debts as they fall due, has a receiver, administrative receiver, administrator or manager appointed over the whole or any part of its assets or business, makes any composition or arrangement with its creditors or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) and such right to terminate falls within the exceptions permitting termination of this Contract as stipulated in sections 233B(5) and (6) and Schedule 4ZZA of the Insolvency Act 1986) or, if an individual, the Supplier dies or is the subject of a bankruptcy petition.
c) if there is a change of Control to which SU objects, except where SU has given its prior written consent to the particular change of Control, which subsequently takes place as proposed.
17.4 Upon receipt of any termination notice from SU, the Supplier shall discontinue the provision of the Goods and/or Services on the date and to the extent specified in the notice and SU shall only be liable to pay any charges incurred by the Supplier in the performance of its obligations under the Contract up to the date on which termination takes effect. For the avoidance of doubt, SU shall not be liable to pay any charges to the Supplier where SU has terminated the Contract for the default or insolvency of the Supplier in accordance with clause 10.3.
17.5 On termination of the Contract, the Supplier shall immediately deliver to SU all Deliverables whether or not then complete, and return all SU Materials. If the Supplier fails to do so, then SU may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
17.6 Termination of the Contract, however arising, shall not affect any rights or remedies that have accrued as at the date of termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
18. General terms
18.1 The Supplier shall have no right to assign, sub-contract or transfer any of its rights or obligations under the Contract without the prior written consent of SU.
18.2 All notices served under the Contract shall be in writing and sent to the recipient party at its registered office address or where the recipient is not a company at the last known address. Notices sent to SU shall be marked for the attention of the Finance Director, with a copy to the Procurement Manager. Notices may be sent by first class, recorded delivery mail or delivered by hand. Notices sent by post shall be deemed to have been received two (2) Business Days after the date of posting. Notices delivered by hand shall be deemed to have been received upon delivery. Notices sent by email shall be deemed to be received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours’ resume. In this clause 18.2, 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.
18.3 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall be deleted, and the remainder shall stand in full force and effect. If any provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.4 Any failure by SU to insist upon strict performance of the Contract shall not be deemed a waiver of SSU’s rights nor of any subsequent default by the Supplier under the Contract.
18.5 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18.6 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999.
18.7 Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by SU.
18.8 The Contract sets out the entire agreement between the parties and shall supersede any other arrangements, communications (verbal or written), or any other documents relating to its subject matter (including, but not limited to, purchase orders or other terms and conditions pertaining to the Goods and/or Services issued by, or referred to, by the Supplier).
18.9 The Contract shall be subject to English Law and the exclusive jurisdiction of the English courts.
