1. Definitions and Interpretation
1.1. In these Terms of Business, unless the context requires otherwise, the following words and phrases shall have the meanings opposite them:
- “Agreement” means the agreement between the Supplier and the Customer for the performance of the Services in accordance with the Written Quotation and these Terms of Business;
- “Applicable Laws” means all laws, statutes, regulations and codes from time to time in force applicable to a party to the Agreement, the Agreement and/or the Services;
- “Business Day” means a day, other than a Saturday, Sunday or public holiday in Scotland, when the banks in Edinburgh are open for business;
- “Charges” means the charges payable by the Customer for the supply of the Services in accordance with clause 6 (Charges and Payment);
- “Confidential Information” means all information not publicly known, used in or otherwise relating to a party’s business, customers, or financial or other affairs (in whatever form that may take including written form, electronically stored information, drawings, specifications, code, samples, prototypes, materials) obtained by a party as a result of entering into or performing the Agreement whether or not labelled or designated as confidential including: (a) any information relating to the other party’s business, finances, operations, products and services, marketing affairs and opportunities, customers, and suppliers, plans, inventions, processes, trade secrets, know-how, design rights, software and Intellectual Property Rights or any other information of a confidential or proprietary nature; (b) any information designated as confidential information by the other whether belonging to that party or a third party; and (c) the subject matter of the Agreement and all other documents entered into pursuant to the Agreement;
- “Customer” means the person or firm who purchases Services from the Supplier as identified in the Written Quotation;
- “Customer Materials” means all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by or on behalf of the Customer to the Supplier in connection with the Services;
- “Data Protection Laws” means all legislation and regulations relating to the processing of personal data and privacy applicable in the United Kingdom including the UK GDPR, to the extent it applies the EU GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any regulations or instruments enacted under any of the foregoing and any amendments and/or re-enactments and/or replacements from time to time of any of the foregoing, and all other industry guidelines (whether statutory or non-statutory) or codes of practice issued in each case by the relevant supervisory authority for data protection in the United Kingdom or in the European Union to the extent it has jurisdiction from time to time relating to the processing of personal data or privacy, or any amendments and/or re-enactments thereof;
- “Deliverables” means the relevant deliverables produced by the Supplier for the Customer as set out in the Written Quotation or agreed between the parties from time to time;
- “Effective Date” means the date upon which the Agreement comes into effect in accordance with clause 2.2 (Acceptance of Written Quotation);
- “EU GDPR” means the General Data Protection Regulation (EU) 2016/679;
- “Intellectual Property Rights” means patents, utility models, 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 and trade dress, 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, 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;
- “Services” means the bid consultancy services, including bid writing; bid reviewing; bid gap analysis; bid training and/or bid strategy services, including the Deliverables, to be supplied by the Supplier to the Customer as set out in the Written Quotation;
- “Supplier” means Aspire Bidding Ltd, a company registered in Scotland under number SC872374 and having its registered office at 22 Stafford Street, Edinburgh, EH3 7BD;
- “Terms of Business” means these general terms of business for the provision of services;
- “UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018;
- “VAT” means value added tax chargeable in the UK; and
- “Written Quotation” means the quotation for the provision of the Services prepared by the Supplier and issued to the Customer for acceptance.
1.2. In these Terms of Business, unless the context requires otherwise:
- 1.2.1. Clause headings shall not affect the interpretation of these Terms of Business.
- 1.2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- 1.2.3. A clause, unless the context otherwise requires, is a reference to a clause to these Terms of Business.
- 1.2.4. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- 1.2.5. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
- 1.2.6. A reference to writing or written includes email but excludes fax.
- 1.2.7. 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.
- 1.2.8. If there is a conflict between the provisions of the Written Quotation and these Terms of Business, then the provisions of these Terms of Business shall take precedence unless any term of the Written Quotation expressly provides otherwise.
2. Acceptance of Written Quotation
2.1. The Written Quotation constitutes an offer by the Supplier to provide the Services in accordance with these Terms of Business.
2.2. The Written Quotation shall be accepted or deemed to be accepted (as applicable) on the earlier of (i) the Customer issuing a written acceptance of the Written Quotation to the Supplier via email and (ii) the Supplier commencing the performance of the Services, at which point the Agreement shall come into effect.
2.3. These Terms of Business apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which would otherwise be implied by trade, custom, practice or course of dealing.
3. Commencement and Duration
3.1. The Agreement shall commence on the Effective Date and shall continue, unless terminated early in accordance with its terms, until the completion of the Services by the Supplier.
3.2. Notwithstanding the provisions of clause 3.1, the Supplier shall not be required to commence the provision of the Services until such time as any advance payment of the Charges has been paid to the Supplier by the Customer in accordance with clause 6 (Charges and Payment).
4. Supplier’s Responsibilities
4.1. The Supplier shall:
- 4.1.1. provide the Services, and deliver the Deliverables, in accordance with the Written Quotation;
- 4.1.2. use reasonable skill and care when providing the Services;
- 4.1.3. obtain and maintain all necessary licences, permissions and consents which may be required for the provision or delivery of the Services; and
- 4.1.4. comply with all Applicable Laws.
4.2. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Written Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3. If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
4.4. The parties acknowledge and agree that in providing the Services the Supplier shall not:
- 4.4.1. provide the Customer with any regulated professional advice, including any advice in relation to taxation or in relation to any accounting, commercial, corporate finance or insurance matters and to the extent that the Customer requires such advice, the Customer acknowledges that it shall obtain such advice separately;
- 4.4.2. act as a deal broker;
- 4.4.3. arrange or progress the sale of the Customer’s business to any third party; or
- 4.4.4. be entitled to receive any commission payment arising from any sale of the Customer’s business.
4.5. The Supplier may on occasion refer the Customer to third parties for specialist advice. The Customer acknowledges and agrees that it shall retain sole responsibility for deciding whether to instruct such third parties. The Supplier shall not be responsible in any way for any loss or liability incurred by the Customer as a result of any decision to instruct any third party referred to the Customer by the Supplier.
4.6. Where the Customer obtains specialist advice from third party advisors the Supplier shall be entitled to rely on such advice without having any responsibility to verify its accuracy.
4.7. The Customer acknowledges and agrees that the Supplier may use artificial intelligence (AI) to assist in the provision of the Services and/or the Deliverables.
5. Customer’s Obligations
5.1. The Customer shall:
- 5.1.1. co-operate with the Supplier in all matters relating to the Services;
- 5.1.2. obtain and maintain all necessary licences, permissions and consents which may be required for the performance of the Customer’s obligations under the Agreement; and
- 5.1.3. comply with all Applicable Laws.
5.2. The Customer shall provide, in a timely manner and in accordance with any mutually agreed deadlines set out in the Written Quotation or otherwise agreed between the parties in writing from time to time, such information for the provision of the Services as the Supplier may reasonably request and ensure that all information the Customer provides is accurate in all material respects. The Customer acknowledges and agrees that if the Customer fails to provide such necessary information in a timely manner or if the information provided is not accurate in all material respects, the Supplier shall be entitled to charge an uplift of up to 25% on the Charges to account for any additional work that may be required by the Supplier in providing the Services.
5.3. The Customer shall not disclose the Deliverables to any third party, without the prior written consent of the Supplier save where the disclosure is part of the Customer’s bid, tender or proposal process. The Supplier reserves the right to withhold consent at its absolute discretion.
6. Charges and Payment
6.1. The Charges for the Services shall be set out in the Written Quotation.
6.2. The invoicing arrangements for the Charges shall be set out in the Written Quotation, failing which the Supplier shall issue to the Customer:
- 6.2.1. an invoice for 50% of the Charges on or around the Effective Date, which shall be payable by the Customer within 7 days of receipt; and
- 6.2.2. an invoice for the remaining 50% of the Charges on completion of the Services, which shall be payable by the Customer within 14 days of receipt.
6.3. Unless specified otherwise in the Written Quotation, any Charges set out in the Written Quotation excludes the Supplier’s reasonable and properly incurred expenses in connection with the Services. Such expenses shall be invoiced by the Supplier at cost. The Supplier shall obtain the Customer’s written approval before incurring any such expense.
6.4. The Customer shall pay each invoice submitted to it by the Supplier within the period set out at clause 6.2 above to the bank account nominated in writing by the Supplier from time to time.
6.5. If the Customer disputes any invoice, the Customer shall notify the Supplier in writing as soon as practicable, and in any event within 7 days of the date on which the invoice was received. If the Customer fails to notify the Supplier in writing within 7 days of the date on which the invoice was received, the invoice shall be deemed to have been accepted by the Customer. If a notice of dispute is issued within 7 days of the date on which the invoice was received, the parties shall negotiate in good faith to attempt to resolve the dispute promptly, and in any event within 28 days of the date on which the notice of dispute was received. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in clause 6.2.
6.6. If the Customer fails to make any payment due under the Agreement by the due date, then, without prejudice to any other right or remedy that the Supplier might have, the Supplier may charge interest on the overdue sum at the rate of 5% per annum above the Bank of England’s base rate from time to time, but at 5% per annum for any period where the base rate is below 0%, from the due date until payment of the overdue sum, whether before or after judgement. The parties acknowledge that the Customer’s liability under this clause is a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.
6.7. Unless the Written Quotation specifies otherwise, all sums payable to the Supplier under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.8. Where VAT is chargeable, it shall be added to the Supplier’s invoices at the appropriate rate and be payable by the Customer in addition to the Charges.
7. Intellectual Property Rights
7.1. All Intellectual Property Rights in or arising out of or in connection with the Services and any Deliverables (other than Intellectual Property Rights in any Customer Materials) including any Intellectual Property Rights in any reports, written advice and other materials prepared by the Supplier shall be owned by the Supplier.
7.2. The Supplier grants to the Customer, or shall procure the direct grant to the Customer of a perpetual, worldwide, non-exclusive, royalty-free licence to copy the Deliverables including any reports, written advice and other materials prepared by the Supplier for the purpose of preparing and/or submitting any bid, proposal or tender in respect of which the Services are provided.
7.3. The licence granted by the Supplier to the Customer under clause 7.2 shall only be transferable to third parties with the prior written consent of the Supplier.
7.4. All Customer Materials are, and shall remain, the exclusive property of the Customer.
7.5. The Customer grants the Supplier a worldwide, non-exclusive, royalty-free licence to use any Customer Materials for the term of the Agreement for the purpose of providing the Services to the Customer.
7.6. The Customer shall defend and indemnify the Supplier against all losses, damages, costs and expenses and other liabilities (including all legal fees) incurred by or awarded against the Supplier as a result of or in connection with any claim of infringement or alleged infringement of a third party’s Intellectual Property Rights arising from the Supplier’s possession, use, receipt, development, or modification of any of the Customer Materials.
8. Communications
8.1. Unless the Customer provides the Supplier with written instructions to the contrary, the Supplier shall be entitled to assume that it may take instructions in relation to the Services from those that hold themselves out as having authority to do so (an “Instructing Party”). The Customer shall be entitled to assume that each Instructing Party has the requisite authority to issue instructions to the Supplier.
8.2. The Supplier shall not discuss the Services or take instructions from any individual other than an Instructing Party without the prior written consent of an Instructing Party.
8.3. The Supplier shall be entitled to communicate with and to take instructions from an Instructing Party by telephone (mobile or landline), post, email and any other form of electronic and/or internet communication on the basis that the Customer consents to and accepts the inherent risks (including the security risks of interception of or unauthorised access to such communication, non-delivery or late delivery, the risk of corruption of data and the risk of viruses and other harmful devices).
9. Data Protection
9.1. The Customer is the data controller and the Supplier is the data processor of any personal data which the Supplier processes on behalf of the Customer for the purposes of providing the Services (“Personal Data”).
9.2. The Supplier shall:
- 9.2.1. except as required by law, process the Personal Data only in accordance with the Customer’s documented reasonable and lawful instructions from time to time, for the purposes of providing the Services and for no other purpose;
- 9.2.2. implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of the processing the Personal Data taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing;
- 9.2.3. ensure that persons authorised by the Supplier to process the Personal Data are under appropriate confidentiality obligations in respect of the Personal Data;
- 9.2.4. at the Customer’s cost, provide reasonable assistance on request to the Customer in complying with the rights of data subjects and with the Customer’s statutory obligations relating to data security, data breach notification, data protection impact assessments and related prior consultation procedures taking into account the nature of processing and the information available to the Supplier;
- 9.2.5. save only to the extent required by law, after expiry or termination of the Agreement return to the Customer or destroy, at the request of the Customer at the Customer’s cost, all Personal Data in the possession or control of the Supplier;
- 9.2.6. at the Customer’s cost, make available to the Customer such information as is reasonably necessary to demonstrate the Supplier’s compliance with this clause 9;
- 9.2.7. at the Customer’s cost, allow the Customer to appoint an independent auditor to audit and inspect the Supplier’s compliance with this clause 9. Such audit may occur once per calendar year, unless the Customer can demonstrate that it has genuine suspicion that the Supplier has breached its obligations in this clause 9. Such an audit shall be carried out during business hours and the Customer shall provide at least 30 Business Days’ notice of any such audit, unless the Customer can demonstrate that it has genuine suspicion that the Supplier has breached its obligations in this clause 9 in which case the Customer shall provide at least 3 Business Days’ notice of any such audit. The Supplier will cooperate with any such audit only to the extent that is required to comply with Data Protection Laws; and
- 9.2.8. not transfer the Personal Data to a country outside the UK or EEA without the authorisation of the Customer unless the relevant territory ensures an adequate level of protection or appropriate standard contractual clauses approved by the UK Information Commissioner have been put in place or other appropriate safeguards have been implemented.
9.3. If the Customer requests the Supplier to transfer the Personal Data outside the UK or EEA, the Customer shall ensure that appropriate safeguards are in place to permit the transfer of the Personal Data outside the UK or EEA and that the appropriate data subjects have been properly informed of the proposed transfer.
9.4. If requested by the Supplier, the Customer shall provide the Supplier with such evidence as the Supplier requests to demonstrate that any documented instructions given by the Customer are in compliance with the Data Protection Laws, including circumstances where the Customer instructs the Supplier to transfer the Personal Data outside the UK or EEA.
9.5. The Supplier shall not authorise a third party sub-contractor to process Personal Data without the prior written permission of the Customer (not to be unreasonably withheld or delayed). If such permission is granted, the sub-contractor’s contract must incorporate terms which are substantially the same as those set out in this clause 9.
10. Conflicts of Interest
10.1. The Customer acknowledges and agrees that the Supplier may provide services that are the same or similar to the Services to more than one client or customer, including those participating in the same procurement process, provided that the Supplier maintains the confidentiality of all Customer Materials in accordance with clause 11 (Confidential Information) and only provides services that are the same or similar to the Services to another client or customer participating in the same procurement process as the Customer where that procurement process will result in more than one successful bidder.
10.2. The Supplier is not required to disclose to the Customer that it has been engaged by more than one bidder on the same bid, tender or proposal process. It will be at the Supplier’s sole discretion whether to do so.
11. Confidential Information
11.1. Both parties undertake:
- 11.1.1. to treat and keep the Confidential Information of the other which it has obtained or received as a result of discussions leading up to or the entering into of the Agreement or which it obtains or receives in performance of the Agreement as secret and confidential and not, without the prior written consent of the other party (which may be given on such terms as that other party considers appropriate) directly or indirectly communicate or disclose, or allow to be communicated or disclosed, (whether in writing or orally or in any other manner) any Confidential Information to any other person other than to its officers, employees, professional advisors and agents who need to know it strictly for the purposes of considering, evaluating or performing the Agreement; and
- 11.1.2. not to use the Confidential Information for any purpose other than solely in connection with the performance of the Agreement and in particular not to use the Confidential Information for any competitive or commercial purpose.
11.2. Each party shall ensure that each of its officers, employees, professional advisers and agents to whom the Confidential Information is to be made available are made fully aware of the confidentiality obligations set out in the Agreement and each party shall procure that such persons will observe the terms of this clause.
11.3. Each party shall, at its own expense, take all reasonable and appropriate steps to enforce any duty of confidence owed to it by any person to whom the Confidential Information is made available insofar as such enforcement appears to be necessary for the protection of the confidentiality of the Confidential Information.
11.4. The provisions of clause 11.1 shall not apply to any Confidential Information which:
- 11.4.1. is required to be disclosed by law or, to the extent relevant, the regulations of any stock exchange or listing authority or the Panel on Takeovers and Mergers or any other governmental or regulatory organisation and in those circumstances only after prior consultation with the other party; or
- 11.4.2. is disclosed with the prior written consent of the other party.
11.5. The provisions of this clause shall continue to apply after the termination of the Agreement.
11.6. Each party warrants that it has not made or published any statement relating to, or disclosed, any Confidential Information prior to the date of the Agreement which would constitute a breach of clause 11.1 if it had occurred after the date of the Agreement.
12. Limitation of Liability
12.1. Nothing in the Agreement limits or excludes liability for:
- 12.1.1. death or personal injury caused by breach of duty;
- 12.1.2. fraud or fraudulent misrepresentation; or
- 12.1.3. any other liability that cannot lawfully be limited or excluded.
12.2. Subject to clause 12.1 and 12.3, the Supplier’s total liability to the Customer whether arising from delict (including negligence), breach of contract or otherwise under or in connection with the Agreement in any 12 month period shall in no event exceed (i) the value of the Charges paid in the 12 months preceding any claim and (ii) £25,000.
12.3. Subject to clause 12.1, the Supplier shall have no liability whatsoever to the Customer whether arising from delict (including negligence), breach of contract or otherwise for loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill, or any special, indirect or consequential loss.
12.4. The Supplier’s duties are owed to the Customer only and the Supplier shall have no responsibility or liability to any other person in connection with the Services and/or the Deliverables provided to the Customer under the Agreement. Any Services or Deliverables provided to the Customer are for the benefit of the Customer only and may not be relied on by any other person without the Supplier’s prior written consent.
12.5. The Customer shall retain sole responsibility for deciding on what course of action to take for the management, conduct and operation of its business, including for deciding on the use it makes of, the extent to which it relies on, and the extent to which it implements the advice or recommendations made by the Supplier or uses the Deliverables produced by the Supplier in the course of providing the Services as part of any bid, tender, proposal or otherwise.
12.6. The Customer shall be solely responsible for the submission of bids, tenders and proposals which the Supplier may have assisted with as part of the provision of Services. Any failure to submit bids, tenders or proposals properly or timeously is the sole responsibility of the Customer.
12.7. The Supplier makes no warranty or representation as to the success of any bid, proposal or tender that the Supplier assists with and the Customer accepts that the success of its bid, tender or proposal is dependent on various factors that are not within the Supplier’s control.
13. Termination
13.1. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
- 13.1.1. commits a material breach of any other term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- 13.1.2. fails to make payment of any sum due under the Agreement by the due date for payment and fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- 13.1.3. passes a resolution for its winding up;
- 13.1.4. is subject to an order or notice issued by a court or other authority of competent jurisdiction for its winding up or striking off;
- 13.1.5. has an administrator appointed in respect of it or is the subject of a notice of appointment of an administrator filed at any court;
- 13.1.6. has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income;
- 13.1.7. is subject to a bankruptcy petition or has a bankruptcy order made against them;
- 13.1.8. 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 or 268 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;
- 13.1.9. is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction.
13.2. On termination of the Agreement for whatever reason:
- 13.2.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
- 13.2.2. each party shall, at the request of the disclosing party, return to the disclosing party or destroy or erase any Confidential Information of the disclosing party which it has in its possession in tangible or electronic form exclusively for purposes connected with the Agreement, save to the extent it is necessary to retain such Confidential Information for the purpose of complying with any Applicable Laws; and
- 13.2.3. any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect including the provisions of clauses 5.3 (Customer’s Obligations), 6 (Charges and Payment), 7 (Intellectual Property Rights), 11 (Confidential Information), 12 (Limitation of Liability), 13 (Termination), 18 (Waiver), 19 (Entire Agreement), 20 (Severance), 21 (No Partnership or Agency), 22 (Third Party Rights) and 23 (Governing Law and Jurisdiction).
13.3. Termination or expiry of the Agreement shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
14. Force Majeure
Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
15. Assignation and other dealings
15.1. Subject to the provisions of clause 15.2, neither party shall assign, transfer, charge, sub-contract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without the prior written consent of the other party.
15.2. Notwithstanding the provisions of clause 15.1, the Supplier shall be entitled to:
- 15.2.1. transfer its rights and obligations under the Agreement as part of a transaction involving a sale or other disposition of all or substantially all of the business or operations of the Supplier; and
- 15.2.2. sub-contract the whole or any part of the Agreement without the prior written consent of the Customer, provided that the Supplier remains responsible for the acts and omissions of its sub-contractors and their respective employees, agents and invites as if they were its own.
16. Notices
16.1. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be sent by email to such email address as may from time to time be notified to the party giving such notice or other communication by the party to whom such notice or other communication is given.
16.2. Any notice shall be deemed to have been 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 16.2, business hours means 9.00am to 5.00pm on a Business Day.
17. Variation
No variation of the Agreement shall be effective unless agreed in writing.
18. Waiver
18.1. A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
18.2. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19. Entire Agreement
19.1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2. Each party acknowledges that in entering into the Agreement it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
20. Severance
20.1. If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
20.2. Any modification to or deletion of a provision or part-provision under this clause 20 shall not affect the validity and enforceability of the rest of the Agreement.
21. No partnership or agency
Nothing contained in the Agreement, and no action taken by the parties pursuant to the Agreement, is intended or shall be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has, any authority to act or make any commitments on the other party’s behalf or otherwise bind the other party in any way.
22. Third party rights
The Agreement does not give rise to any rights under The Contract (Third Party Rights) Scotland Act 2017 to enforce any term of the Agreement.
23. Governing Law and Jurisdiction
23.1. The formation, existence, construction, performance, validity and all aspects whatsoever of the Agreement or any term of it shall be governed by the laws of Scotland.
