ONESERVE LIMITED Customer Agreement
COMMERCIAL TERMS AND CONDITIONS
The online registration form (the “Registration Form”) together with Tthese commercial terms (the "Commercial Terms") together with the terms and conditions (the "Terms and Conditions") and the schedules both attached to these Commercial Terms together constitute a contractual agreement (the "Agreement") between you and the entity that you represent (referred to as "you", "your") and Oneserve Ltd (whose registered office is at: Unit 4 Silverdown Office Park, Fair Oak Close, Clyst Honiton, Exeter, England, EX5 2UX, registered number 07387807) for the supply of an Oneserve Ltd’s internet-accessed software service.
Your confirmation that you wish to use Oneserve Ltd software and services, by clicking the “I agree” button or in any other form, or any actual use of them constitutes acceptance of the Agreement. Your use of the software and services is subject to the terms and conditions of this Agreement and your attention is drawn to those terms and conditions (shown overleaf or available from Oneserve Ltd).
Note: Oneserve Ltd reserves the right not to accept any orders for software and services. No terms or conditions endorsed upon, delivered with or contained in your order, acknowledgement or confirmation of order or similar document will form part of this Agreement and you hereby waive irrevocably any right which you otherwise might have to rely on such terms and conditions.
Oneserve Ltd provides the software application and related services, known as Oneserve and described in the Service Schedules referencing this agreement.
System version: Oneserve v7
Fees: As per the Oneserve Offer attached as a schedule to this Agreement
Initial Period: 36 months from date of purchase order
Licensed number of users: As per the Oneserve Offer or Statement of Work attached as a Schedule to this Agreement
Implementation Services: As per the Oneserve Offer or Statement of Work attached as a Schedule to this Agreement
Additional Services: As per the Oneserve Offer or Statement of Work attached as a Schedule to this Agreement
1. ADDITIONAL SERVICES SCHEDULE
Oneserve Ltd shall discuss any Additional Services proposed by you and such discussion may result in a written request for Additional Services by you (or by such other person as is authorised by you to request such Services).
Where a written request for Additional Services is received from you or from a third party on your behalf, Oneserve Ltd shall, unless otherwise agreed, submit a statement of work to you within the period agreed between the parties, or inform you in writing that Oneserve Ltd is not able to comply with such written request for those Additional Services.
Each statement of work shall contain:
the title of the Additional Services to be provided;
the originator and the date of the request or recommendation for the Additional Services;
the full details of the Additional Services, including a specification of the deliverable(s);
the price, if applicable, of or associated with the Additional Services as calculated in accordance with the rates set out in the rate card below or a statement that the Additional Services shall be provided on a time and materials basis; and
a timetable for implementation, together with (if appropriate) any proposals for acceptance of any deliverables.
Oneserve Ltd Terms and Conditions
1.1 These Terms and Conditions contain terms allowing you to access and use the application portal services in order to use the Software (as defined in Clause 1.2 below), to receive agreed customer support in accordance with the Service Level Agreement (attached as a schedule to this Agreement) Registration Form and such other services as may be agreed in any Additional Services Schedule writing from time to time and in each case to be provided by Oneserve Ltd (together “the Services”), and to use the Software (as defined below) on the terms of this Agreement. Together, the Software and the Services constitute the “System”.
1.2 As used herein, the term “Software” means the applications accessible via the internet as part of the System (the “Online Software”) and any applications supplied on disk or otherwise for use on your computer(s), PDAs (personal digital assistants) or other equipment (the “Client Software”) in each case as indicated in the Commercial Terms and/or the SchedulesRegistration Form, together with their enhancements/derivatives and all supporting documentation, if any, as well as all updated versions thereof. Software, as used herein, does not refer to source code, and no licence is granted in respect of source code of any kind.
2 USE OF SYSTEM AND LICENCE
2.1 In consideration of the obligations that you undertake in this Agreement and, in particular but without limitation, in consideration of the payment of the Monthly Fees (as defined in clause 78.1 below), Oneserve Ltd agrees to allow you to use the System. This includes a non-exclusive, non-transferable licence to use the Online Software via the internet, and a non-exclusive, non-transferable licence to use the Client Software in object-code form (meaning an executable program in machine readable binary code) on your own equipment, in both cases for the licensed number(s) of users, clients and/or properties indicated in the Service Schedule Registration Form and for your own internal business purposes only for the duration of the Term (as defined in clause 98.3 below).
2.2 You are prohibited from making any permanent copy of the Online Software in any form, and from reverse engineering or decompiling any of the Software, making derivative works incorporating any of the elements of the Software, or modifying, adapting, translating or copying any of the Software in any way, save as is expressly permitted by this Agreement or required to be permitted by law. All information required to achieve interoperability of the Software with other software programs in accordance with Section 50B of the Copyright Designs and Patents Act 1988, as amended, is available from Oneserve Ltd. You may make copies of the Client Software only to the extent necessary for your proper use of the System in accordance with this Agreement and to the extent necessary for back-up purposes. You shall ensure that all titles, logos, trade marks, copyright and restricted rights notices shall be reproduced in any copies of Client Software made pursuant to this Clause 23.2.
2.3 Title to and ownership of the Software and all other aspects of the System shall at all times remain with Oneserve Ltd and/or its licensors.
2.4 Upon your written request to Oneserve Ltd to be submitted within 30 days of entering this Agreement, and at your cost, Oneserve Ltd agree to put the source code relating to the Software into escrow with NCC or other agreed reputable escrow agent on terms that it will be released to you on the release events specified in the escrow agent’s standard multi-user escrow agreement.
2.5 You acknowledge and agree that Oneserve Ltd may change the System from time to time. Oneserve Ltd will publish any changes on or via the online home-page for the System. If Oneserve Ltd reasonably believes that the change is material and/or adversely affects you ("Material Change"), it shall give you at least 30 days' notice before it takes effect and it shall give you the opportunity to accept or reject the Material Change. If Oneserve Ltd cannot publish the Material Change at least 30 days before it takes effect (for example because the change is necessary for the security of the System, because of regulatory change or because one of Oneserve Ltd's suppliers makes changes to its service at short notice), Oneserve Ltd will publish the Material Change as soon as it reasonably can. In the event of any rejection of a Material Change to this Agreement, this Agreement shall terminate with immediate effect.
3. USE OF SYSTEM
3.1 You are responsible for procuring all necessary equipment and telecommunications facilities and services for your use of the System. Oneserve Ltd may, by written agreement, provide you with certain equipment.
3.2 You may make the System available for use by your consultants, contractors and third party service providers with whom you trade (“Access Parties”), but only for the purposes of your own business use of the System and provided that you give prior written notice to Oneserve Ltd of any such person whom you propose to allow to use the System.
3.3 You agree not to provide or otherwise make available the System in whole or in part in any form to any person other than your employees and the Access Parties without the prior written consent of Oneserve Ltd. You shall ensure that your employees and all Access Parties are aware of and comply with the terms of this Agreement as if they are party to it, and Oneserve Ltd reserves the right to require any Access Party to enter a direct agreement with Oneserve Ltd in relation to its use of the System.
3.4 You will be responsible for your use and the use of the System by Access Parties and will indemnify, defend and hold harmless Oneserve Ltd from and against all claims, actions, proceedings, and all damages, losses, fines, judgements, demands, fees, costs and expenses (including legal fees and disbursements on a full indemnity basis) arising out of or in connection with your use of the System contrary to the terms of this Agreement.
3.5 You may not make the System available to any other person for any purpose other than as specifically permitted by this Agreement, nor may you operate the System on a bureau or similar basis for the benefit of any other person.
3.6 You agree to notify Oneserve Ltd immediately if you become aware of any unauthorised use of the whole or any part of the System by any person.
4. SECURITY AND LIMITATIONS ON USE
4.1 The System must be used in conjunction with unique IDs, usernames and/or passwords supplied by Oneserve Ltd to you, which you must keep safe and confidential. You are also responsible for taking such steps as may be necessary to back up any data stored with the aid of the System.
4.2 You will only use the System in relation to your property, assets, stock etc (whether owned, managed or serviced by you). You acknowledge and agree that you shall not exceed any number of users, clients and/or properties specified in the Service Schedule in the Commercial Terms Registration Form without Oneserve Ltd's prior written agreement. Subject to clause 34.2, you will not allow usage by or on behalf of any other person. You will not attempt to access any part of the System which you are not authorised to access.
4.3 You agree not to use the System for any purpose for which you are not authorised, or for any illegal, immoral or offensive purpose, or for any purpose which infringes a third party’s rights, and not to use the System to communicate any material which is obscene, defamatory, offensive, abusive, illegal, in breach of a third party’s rights or otherwise unacceptable to Oneserve Ltd, or for spamming.
4.4 You acknowledge and agree that Oneserve Ltd shall have the right to attend (at Oneserve Ltd's cost) your premises at all reasonable times on reasonable notice in order to check that the System is being used in accordance with the terms of this Agreement and, including (without limitation) to check that the number of users, clients and/or properties specified in the Service Schedule in the Commercial Terms Registration Form has not been exceeded. If it is revealed that you have underpaid the Monthly Fees (as defined in clause 87.1), you shall pay to Oneserve Ltd an amount equal to such underpayment within ten (10) days of written notice from Oneserve Ltd to that effect.
4.5 Oneserve Ltd reserves the right to suspend your access to and use of the System with reasonable notice (24 Hours) to you if it discovers any activity in breach of clauses 32 or 45, and you agree to indemnify, defend and hold harmless Oneserve Ltd from and against all claims, actions, proceedings, and all damages, losses, fines, judgements, demands, fees, costs and expenses (including legal fees and disbursements on a full indemnity basis) arising from any such breach.
5.1 You will own all data input and processed on the System relating to your activities and you shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of such data. You agree that Oneserve Ltd has the right to use statistical data following removal of any personal identifiers, for its own business purposes; provided that it shall not use such information for any purpose that conflicts with your interests and that you have the option to review such statistical data before release. For the purposes of this clause 56.1, “business purposes” means use of such data to monitor, develop and improve the System and customers' experience, cost of ownership analysis and ensuring the system is setup to maximise performance i.e. load/balance of servers.
5.2 You agree at all times to comply with the Data Protection Act 1998 (the “Act”), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all other data protection, privacy or similar legislation in force from time to time.
5.3 Without prejudice to the generality of clause 56.2, you shall:
5.3.1 ensure that you are entitled to transfer the relevant personal data (as defined in the Act) to Oneserve Ltd so that Oneserve Ltd may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf; and
5.3.2 ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing and transfer as required by all applicable data protection legislation.
5.4 For the purposes of the Act, you are the data controller (as defined in the Act) in respect of all personal data (as defined in the Act) processed for you using the System, and Oneserve Ltd acts as a data processor (as defined in the Act) on your behalf. Accordingly, to the extent that the provision of the System and/or Services involve the processing of personal data in respect of which you are the data controller, Oneserve Ltd shall:
5.4.1 maintain appropriate technical and organisational measures, which are consistent with good industry practice, against unauthorised or unlawful processing, accidental loss or destruction of or damage occurring in relation to such personal data; and
5.4.2 process such personal data in accordance with your written and legally compliant instructions in relation to the processing of such personal data and only as required to perform its obligations under this Agreement.
5.5 Oneserve Ltd backs-up its customer data once every twenty-four hours. In the event of any loss of data, your sole and exclusive remedy shall be for Oneserve Ltd to use reasonable endeavours to restore the lost or damaged data from the latest back-up of such data maintained by Oneserve Ltd in accordance with its back-up procedures. Oneserve Ltd will not be liable for any loss of new data entered or uploaded after its previous scheduled back-up.
6. CUSTOMER SUPPORT AND ADDITIONAL SERVICES
6.1 Customer support services are included within the Services and shall consist of operational assistance and technical support to be rendered via an email and telephone helpdesk operated through Oneserve Ltd’s Call Centre during “Working Hours” (8.30am - 5.30pm Monday to Friday excluding public holidays). Support will be provided in accordance with the Registration FormService Level Agreement attached to this Agreement.
6.2 Additional services, such as training, implementation and field engineers ("Additional Services") are available as agreed in writing between the parties in accordance with the Additional Services Schedule attached to this Agreement. Oneserve Ltd shall discuss any Additional Services proposed by you and such discussion may result in a written request for Additional Services by you (or by such other person as is authorised by you to request such Services).
6.3 Where a written request for Additional Services is received from you or from a third party on your behalf, Oneserve Ltd shall, unless otherwise agreed, submit a statement of work to you within the period agreed between the parties, or inform you in writing that Oneserve Ltd is not able to comply with such written request for those Additional Services.
6.4 Each statement of work shall contain:
a. the title of the Additional Services to be provided;
b. the originator and the date of the request or recommendation for the Additional Services;
c. the full details of the Additional Services, including a specification of the deliverable(s);
d. the price, if applicable, of or associated with the Additional Services as calculated in accordance with Oneserve Ltd’s applicable rates or a statement that the Additional Services shall be provided on a time and materials basis; and
e. a timetable for implementation, together with (if appropriate) any proposals for acceptance of any deliverables.
6.5 No Additional Services shall be performed unless the relevant statement of work has been signed by both parties.
6.6 Oneserve Ltd may undertake Additional Services that comprise of development work for you by agreement in accordance with the Additional Services Schedule. Any such development work must be specifically agreed in writing. The parties acknowledge and agree that time shall not be of the essence in respect of any Additional Services. Oneserve Ltd will use its reasonable endeavours to complete agreed Additional Services within any agreed time-table but will not be liable for any failure to do so. Any developments created for you will become part of the System provided and supported under this Agreement. Unless otherwise agreed, Additional Services will be charged at Oneserve Ltd’s applicablethe daily rates specified in any Additional Services Schedule attached to this Agreement.
7.1 In this Agreement the “Fees” means the monthly fees (“Monthly Fees”) specified in the Service Pricing Schedule attached to the Agreement Registration Form and such other fees as may be specified in the Registration Form or agreed from time to time. Not more than once per year, Oneserve Ltd may increase all Fees by up to the percentage change in the Retail Prices Index since the Fees were last set, or such other amount as may be agreed in writing by the parties. For the purposes of this clause 78.1, “Retail Price Index” means the Retail Price Index (all items) or such index as shall replace it published monthly by the Office for National Statistics (or by any replacement or successor body). The Monthly Fees will be invoiced in advance and other Fees will be invoiced as determined by Oneserve Ltd or as agreed in writing by the parties. All invoices are payable within ten (10) days of receipt. Oneserve Ltd retains the right to increase the daily rates specified in therelation to Additional Services Schedule without prior consent and notice.
7.2 You agree to pay the Fees specified in this Agreement. In the event that you fail to pay any such Fees when due, then without prejudice to any other rights Oneserve Ltd may have, it may:
7.2.1 terminate this Agreement by giving to you not less than 15 days prior written notice to that effect; and/or
7.2.2 suspend your use of the System pending payment of all sums due; and/or
7.2.3 charge interest at the annual rate of 4% over the Bank of England’s base rate on the full amount due from the due date until receipt of full payment, before and after judgement. Such interest shall accrue on a daily basis and shall be payable by you immediately on demand.
7.3 All amounts stated in this Agreement shall be payable in pounds sterling and are stated exclusive of value added tax and all similar taxes and duties payable in respect of such amounts. All such amounts shall be subject to the addition of VAT which you agree to pay.
8.1 Unless terminated earlier under clause 101, this Agreement shall be continue in force from the commencement date (“Commencement Date”) for the the initial period specified in the Registration Form (the “Initial Period”), in each case as specified in the Service Schedule contained in the Commercial Terms.
8.2 On the expiry of the Initial Period and on each anniversary thereof, this Agreement shall automatically renew for a further period of one year unless terminated by either party giving written notice to the other of termination not less than three months before such expiry of the Initial Period or anniversary thereof.
8.3 In this Agreement, any reference to "Term" means the duration of the Agreement as determined in accordance with clauses 98.1 and 89.2.
9.1 You may not transfer any of your rights or obligations under this Agreement to any other person unless Oneserve Ltd gives its prior written consent, which it will not unreasonably withhold.
9.2 Oneserve Ltd may assign all its rights and obligations under this Agreement to any person which is its group undertaking (as defined at s.1161(5) Companies Act 2006) or as part of solvent reorganisation or sale of business, and will give you notice of the assignment. Oneserve Ltd will not otherwise transfer this Agreement to another person without your consent, which you may not unreasonably withhold.
10.1 Either party may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect by written notice to the other party if :
10.1.1 the other commits a material breach of this Agreement, and if that breach is capable of remedy, it fails to remedy the breach within thirty (30) days of being given notice by the non-breaching party to do so; or
10.1.2 the other becomes insolvent, unable to pay its debts as they fall due or the subject of a members or creditors arrangement or if bankruptcy, liquidation, winding up, administration, receivership or similar proceedings are commenced or issued by or against it, or if it is a partnership or trust, any of the above events occur in relation to all or any of its current partners or trustees or the partnership or trust as a whole.
10.2 Upon termination for any reason, you shall immediately cease using the System, destroy or return to Oneserve Ltd all Client Software and supporting documentation and certify to Oneserve Ltd that you have done so. Oneserve Ltd reserves the right to remove any Client Software from your systems either remotely or by entering your premises to do so. Oneserve Ltd will provide reasonable assistance in returning your data to you.
10.3 In the event of any termination of this Agreement other than by you under clause 101.1, then any fees payable hereunder shall continue to be payable for the remainder of the then current Term of this Agreement and any subsequent Term which has become binding pursuant to clause 89.2 as at the date of such termination.
10.4 The parties shall have no further obligations or rights under this Agreement after the end of the Term, without prejudice to any obligations or rights which have accrued to either party at the time when the Term ends save that clauses 23.3, 34.4, 54.5, 110.2, 101.3, 121.2, 132, 143, 154, 176 and this clause 101.4 together with those other clauses the survival of which is necessary for the interpretation or enforcement of this Agreement, shall continue to have effect after the end of the Term.
11. WARRANTIES AND INDEMNITY
11.1 Oneserve Ltd warrants that it has title or authority to grant the licences in accordance with this Agreement and permit your use of the System.
11.2 Subject to clause 132.1, Oneserve Ltd shall indemnify you from and against all claims, actions, proceedings, and all damages, losses, fines, judgements, demands, fees, costs and expenses (including legal fees and disbursements on a full indemnity basis) arising as a result of any action or claim of infringement of copyright, database, and software rights, trade and service marks or names, design rights, patents, rights to apply for any of them, and any other intellectual property rights of a third party arising from your use of the System during the Term in accordance with this Agreement but excluding any materials that you provide or any data processed using the System, provided that:
11.2.1 Oneserve Ltd is given prompt notice of such claim;
11.2.2 you provide information and reasonable co-operation to Oneserve Ltd in the defence and settlement of such claim;
11.2.3 Oneserve Ltd is given sole authority to defend or settle the claim; and
11.2.4 to the extent permitted to do so by law, you shall not make any admissions which may be prejudicial to the defense or settlement of any such claim.
11.3 Oneserve Ltd further warrants that the Services will be provided with reasonable skill and care and that the Software and any equipment (at the time of delivery) provided by Oneserve Ltd will, in all material respects, match any description given to it by Oneserve Ltd. Your sole remedy for breach of this warranty will be the re-performance by us of any defective Services and the repair or replacement of defective Software or equipment free of additional charge.
11.4 Oneserve Ltd will use reasonable endeavours to keep the System in working order. If the System is not working during Working Hours, Oneserve Ltd will use reasonable endeavours to reinstate it through the provision of support. Due to the nature of the internet, Oneserve Ltd cannot be responsible for any failure of telecommunications or other third party systems needed for use of the System nor shall it be responsible for any other loss or damage resulting from the transfer of data over telecommunications networks and facilities, including the internet. Oneserve Ltd does not warrant that the System will operate error-free or uninterrupted.
11.5 Oneserve Ltd will use reasonable endeavours to ensure that any anticipated live date is met, but will not be liable for any delays, and timing is not of the essence of the Agreement for these purposes or for the purposes of clause 67.2.
12.1 No warranties, conditions or other terms, whether expressed or implied, including without limitation those relating to quality or fitness for a particular purpose, are made by Oneserve Ltd and all such terms are excluded, save as expressly set out in this Agreement. The System is made available on an “as is” basis. Subject to clause 123.4, in no event will Oneserve Ltd be liable to you or any other party whether in contract, tort (including negligence) or otherwise:
12.1.1 for any indirect or consequential loss; or
12.1.2 any loss of profits, time, business, money, goodwill or data, or any failure to process data adequately or at all; and/or
12.1.3 for any other loss relating to this Agreement, in a total aggregate amount exceeding a sum equal to the fees received by Oneserve Ltd from you in relation thereto in the twelve months preceding the date on which such liability arose.
12.2 You must use the System in accordance with all instructions relating to its use that Oneserve Ltd provides and you shall assume sole responsibility for results obtained from your use of the System and any conclusions drawn from such use. Oneserve Ltd will not be liable, in contract, tort (including negligence) or otherwise for any failure, defect, damage, loss or liability to the extent caused by:
12.2.1 your failure to use the System in accordance with those instructions;
12.2.2 your use of the System beyond the scope authorised by this Agreement;
12.2.3 your use of the System in conjunction with equipment or software not supplied or authorised by Oneserve Ltd; and/or
12.2.4 any incorrect or inaccurate data stored or processed on the System;
and Oneserve Ltd may charge at its normal rates for any support required as a result of any such failure or use.
12.3 Oneserve Ltd will not be liable for any use, misuse or abuse of the System made by Access Parties (if any) and you will indemnify, defend and hold harmless Oneserve Ltd from and against all claims, actions, proceedings, and all damages, losses, fines, judgements, demands, fees, costs and expenses (including legal fees and disbursements on a full indemnity basis) arising in relation to such use. Oneserve Ltd may, without liability to you, terminate or suspend any Access Party’s use of the System if they breach any term of their agreement with Oneserve Ltd (if any) or if they do anything which would, if done by you, constitute a breach of this Agreement.
12.4 The foregoing limitations upon liability shall not apply to any liability for death or personal injury caused by the negligence of Oneserve Ltd or for fraud, or to liability under clause 112.2. The parties agree that, given the nature of this Agreement, the above limitations are fair and reasonable.
13. INTELLECTUAL PROPERTY
13.1 You acknowledge and agree that you hereby acquire only the right to use the Software and, subject to your rights to your data in accordance with clause 56.1, Oneserve Ltd or its licensors (as the case may be) own all copyright, database, and software rights, trade and service marks or names, design rights, patents, rights to apply for any of them, and any other intellectual property rights, in all jurisdictions, relating to the System and all developments to it. Oneserve Ltd reserves the right to grant licences to use the Software to third parties.
13.2 You will not do anything to alter or remove any of Oneserve Ltd’s trade marks, copyright notices or other markings from any aspect of the System or materials supplied to you.
14.1 Neither party shall disclose to another person or use for any purpose other than the performance of this Agreement any information obtained from the other which is of a confidential nature or marked as confidential. In particular, but without limitation, you will not disclose to any other person, or use for any other purpose, any of the knowhow, structures, code or other information relating to the System.
14.2 The restriction at clause 145.1 shall not apply to information that:
14.2.1 is already in the public domain other than through the act or omission of a party to this Agreement;
14.2.2 was in the other party's lawful possession prior to the disclosure;
14.2.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
14.2.4 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, provided that the party subject to such requirement to disclose gives the other prompt written notice of the requirement, to the extent it is permitted to do so by law.
15. FORCE MAJEURE
If circumstances beyond the reasonable control of the parties (including, but not limited to Acts of God, severe weather, strikes, telecommunications or other service failures or natural disasters) temporarily make it impossible for either or both of them to perform their obligations under this Agreement, then the obligations of the parties will be temporarily suspended during the force majeure period to such extent as is reasonable in the circumstances and they will not be liable to the other party to that extent. You will not be liable to pay fees in respect of any period of suspension under this clause.
16.1 Any notice to be given under this Agreement shall be delivered or sent to the relevant party’s registered office, or such other address as is notified for this purpose, by hand or by registered post or by fax to the number stated in this Agreement, in each case for the attention of the party’s Company Secretary or Financial Director. Notices will be deemed received on the working day following delivery by hand, two working days after posting and upon evidenced successful completion of transmission by fax. For the avoidance of doubt, notice given under this Agreement shall not be validly served if sent by email.
16.2 In this Agreement (except where the context otherwise requires) a reference to "writing" does not include email.
16.3 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
16.4 Subject to any changes notified in accordance with clause 23.5, no amendment or variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.5 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.6 If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
16.7 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
16.8 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
16.9 This Agreement shall be governed and construed in accordance with English law and you hereby submit to the exclusive jurisdiction of the English Courts in connection with the determination of all disputes arising under this Agreement.