SEQUELIZE LIMITED

Standard Terms and Conditions for Software Development and Hosting Services

05 November 2018

These Terms and Conditions shall govern any agreement formed for the development of software and/or hosting of data and/or services between the customer (“you”, “your(s)”) and Sequelize (“us”, “we”, “ours”) together “ourselves” and, will apply from the date of each Order (each, “this Agreement”).

1. Definitions

1.1 In these Terms and Conditions, unless the context otherwise requires, the following terms shall have the meanings given to them under this clause 1:

“Acceptance Date” means the date on which the New Software is accepted (or deemed to be accepted) by you.

“Acceptance Tests” means the tests specified in the Statement of Work and/or such other tests as may be agreed in writing between you and us;

“Additional Services” means any other services not including software development services and hosting services, such as training, support and maintenance in relation to the New Software;

“Change Request” means a request for a change made by you or us;

“Confidential Information” means, but is not limited to, all information which is not publicly known including the business, finances, technology (including without limitation the Source Software, the New Software and the Documentation) trade secrets, and any other commercially sensitive information of you or we regardless of its nature.

“Development Services” means the software development, procurement, consulting and computer programming services required to produce the New Software as set forth at clause 2;

“Documentation” means the information, instructions (including system specifications and integrations required) Source Software, materials, and intellectual property which belongs to you or to which you have evidence of a licence of rights which permit us to use it for our Purpose and which you provide to us for use in providing the Development Services;

“Hosting Services Provider” means the hosting services partner, chosen by us for the development and hosting services of the New Software as specified by us in the Statement of Work;

“Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;

“New Software” means the software being developed or customised by us for you, for which an initial specification is set out in the Statement of Work and including any enhancements, modifications made and adequate instructions as to system usage and operation;

“Order” means instructions or a Statement of Work agreed between you and us and including the commercial terms of this Agreement;

“Payment Schedule” means the payment schedule set out in the Statement of Work;

“Planned Acceptance Date” means the date specified in the Statement of Work on which the New Software is expected to be accepted by you;

“Price” means the amount agreed between ourselves in the Statement of Work for the provision of the New Software;

“Purpose” means the purpose for which you instruct us to undertake work for you on these Terms and Conditions which may variously include New Software development and/or Hosting of data, services and/or software and which shall be specified in your instructions to us;

“Rates” means our daily rate for Software Development Services, set out in the Order.

“Representative” means the person you or we identify to be responsible for Project Acceptance;

“Specified Equipment” means the equipment and systems specified by you within the Documentation;

“Source Software” means any software which we have previously developed on your behalf, or which has been developed by others, which you and we agree we shall use in creating the software for you;

“System” means the Specified Equipment and the New Software;

“Working days” means the period 09.00 hrs to 17.00 hrs, Monday to Friday excluding Bank Holidays.

1.2 In these Terms and Conditions, unless the context otherwise requires:

1.2.2 words importing the singular number include the plural number and vice versa;

1.2.3 references to numbered clauses and schedules are references to the relevant clause in these Terms and Conditions;

1.2.4 the headings to the clauses and paragraphs of this Agreement will not affect the interpretation;

1.2.5 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;

1.2.6 any obligation not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

1.2.7 In the case of conflict or ambiguity between any provision contained in these Terms and Conditions and any provision contained in any Order agreed between you and us, the provision in the agreed Order shall take precedence.

2. The Development Services

2.1 We shall provide you with Development Services for the Purpose detailed in your instructions to us; install and test the New Software on the Specified Equipment; and carry out any Additional Services you have agreed with us.

2.2 We shall carry out the obligations set out in your instructions to us. If we encounter challenges during delivery of services, we shall raise these with you as they arise or become if known to us, so that you and we can agree any change to our obligations and/or your instructions.

2.3 We shall license the New Software to you for the Purpose and for additional purposes if agreed.

2.4 Where you require us to provide training, support and maintenance in relation to the New Software, we will make these available to you:

2.4.1 as Additional Services; or

2.4.2 you and we shall enter into a separate support and maintenance agreement,

as we determine in our sole discretion, depending on the complexity of your requirements.

3. Personnel

3.1 We shall ensure that the personnel engaged in the Project:

3.1.1 have the necessary skills, expertise and diligence to undertake such work and will conform to the professional standards generally observed in the computer industry for similar services; and

3.1.2 comply with the provisions in relating to Confidential Information.

4. Your Obligations

You shall:

4.1 deliver any Source Software and Documentation to us in a form suitable for us to carry out the Development Work;

4.2 undertake to us that you will have all the necessary rights in place which permit us to use the Source Software for the Purpose;

4.3 where you wish the Development Services to be delivered at a particular location and not remotely, give us all necessary access to such location(s) and at your cost make available to us such computer facilities (including but not limited to unhindered access to any Specified Equipment necessary in delivery of the Development Services) office and secretarial services necessary to enable us to carry out your instructions;

4.4 ensure that your employees and other independent contractors co-operate reasonably with us in carrying out your instructions;

4.5 if we are delivering the Development Services at your specified location(s) make us aware of all health and safety and security policies which are applicable to our safe and secure use of your site and facilities;

4.6 promptly furnish us with any other information and documents as we may reasonably request for the proper performance of our obligations;

4.7 ensure that your Representative is available as reasonably required by us;

4.8 pay us for our services in accordance with clause 12 of these Terms and Conditions, promptly and without limitation, restriction, condition or deduction;

4.9 undertake all user acceptance testing within five (5) working days of delivery of New Software releases;

4.10 without undue delay notify us of any faults, inconsistencies and/or other errors found in the operation of the New Software as tested for compliance with your instructions to us or issue your acceptance of the New Software; and

4.11 identify, document and advise us of any amendments to your instructions which you wish us to make, which we will then address under the Change Control procedure.

5. Change Control

5.1 If you or we identify a requirement for a change, a Change Request will be sent to the other party detailing the change requirements. If sent by us, the Change Request will state the effect such a change has on the New Software, the Planned Acceptance Date and the Price. If sent by you, the Change Request will constitute a request to us to state in writing the effect such a change will have on the New Software, the Planned Acceptance Date and the Price. We will use reasonable endeavours to supply the necessary details within such period as may be agreed or otherwise within 15 working days from receipt of the Change Request.

5.2 Where a change is required, the indicative rates for Additional Services published on our website will be used to estimate the cost of the change when and wherever you and we have not separately agreed rates for changes to your instructions. You and we will then agree whether or not it is necessary to implement the change. If the change is implemented, the amended New Software, Planned Acceptance Date and Price shall then become the New Software, Planned Acceptance Date and Price for the purpose of this Agreement.

5.3 We shall not implement any changes unless instructed to do so, in writing by you.

6. Acceptance Tests and Liquidated Damages

6.1 The Acceptance Tests shall be agreed by you and us to meet the requirements of your instructions.

6.2 We shall use reasonable endeavours to ensure that the New Software is ready for acceptance testing by the Planned Acceptance Date.

6.3 You agree to accept the New Software as soon as the New Software passes the Acceptance Tests.

6.4 In the event that the New Software release fails user acceptance testing you and we shall identify the requirements in your instructions which remain to be met and we shall execute a revised release of the New Software addressing the identified failings.

6.5 If at any time before you have notified us of your Acceptance of the New Software you commence live running of the whole or any part of the New Software (other than in the Acceptance Tests) then you shall be deemed to have accepted the New Software.

6.6 If you have not accepted the New Software on or after the third occurrence of the events specified in clause 6.4, then you shall be entitled, without prejudice to any other rights or remedies you may have under this Agreement or at law, to terminate forthwith this Agreement by written notice to us.

7. Representatives and Progress Updates

7.1 You and we shall each nominate a person who will act as your / our Representative for the purposes of this Agreement and who will be responsible for providing any information which may be required by the other to perform its obligations under this Agreement.

7.2 The Representatives shall meet on the dates agreed between you and us, to discuss and minute the progress of the Project.

8. The Hosting Services

8.1 On your instructions we will host the New Software we develop for you for the monthly or annual hosting fee agreed between ourselves and set forth in the Order forming part of this Agreement.

8.2 On each anniversary of the date of this Agreement as determined by the date of your Order, the agreement to provide the hosting services shall renew for a further twelve (12) months until you or we provide no less than three (3) months’ notice of their wish to terminate the hosting services agreement.

8.3 We shall abide by the terms of our chosen Hosting Services Provider, as set forth in the Order forming part of this agreement.

9. Warranties

9.1 We warrant that:

9.1.1 We meet all the corporate, regulatory and legal requirements necessary to enter into this Agreement and that we are entitled to grant Licences in accordance with this Agreement

9.1.2 the New Software shall perform substantially in accordance with your instructions for a period of no less than thirty (30) days following Acceptance on the Specified Equipment, minor interruptions and errors excluded;

9.1.3 any documentation provided supporting a release of New Software will detail adequate instructions as to system usage and operation;

9.1.4 the development of the New Software will be carried out in a professional manner conforming to current industry practices;

9.2 We shall not be liable under clause 9.1.2 if a failure to meet the warranty is caused by:

9.2.1 anything other than the New Software running on the Specified Equipment detrimentally affecting the performance of the New Software running on the Specified Equipment; or

9.2.2 modifications or customisation made by or on behalf of you to the New Software, without our authorisation.

9.3 If we receive a written notice from you identifying a breach of the warranties set out in clause 9.1, or otherwise become aware of our failure to comply with the warranties set out in clause 9.1, then we shall, at our expense, promptly remedy such breach or failure. We shall have no liability or obligations under the warranties unless we have received written notice of the defect or error within the Warranty Period.

9.4 We offer no other warranty in respect of the New Software, its fitness for the Purpose or for any other purpose, the Development Services or the reliability of any statement we may make or have made prior to this Agreement.

10. Undertakings

10.1 We shall:

10.1.1 observe and obey all directions and regulations as may from time to time be reasonably given to or imposed on us by or on behalf of you for the purposes of this Agreement;

10.1.2 hold the Source Software strictly in accordance with the provisions of clause 16.1 and, on completion of the Project, return to you the Source Software, Documentation and any Confidential Information belonging to you and all copies of the whole or any part thereof or, if requested by you, shall destroy the same and certify in writing to you that it has been destroyed;

10.1.3 not incur unauthorised expenditure or costs on behalf of you without your written consent in advance;

10.1.4 ensure that we and our employees, agents and sub-contractors take all reasonable precautions to ensure that no known viruses for which detection and antidote software is generally available are coded or introduced into the New Software.

10.2 If we wish to use material (in any medium) owned by third parties as part of the New Software, we shall (having first obtained your prior written agreement), obtain from those third parties such written assignments, releases, waivers, permissions and licences as necessary to permit such use and to enable you to exploit any program containing that material in the New Software in all present and future media. We shall deliver copies of any documentation relevant to third party clearances to you upon request.

11. Proprietary Rights

11.1 The Intellectual Property Rights in the Source Software (including the source and object code) together with any related materials or documentation are and shall remain your property. We shall notify you immediately if we become aware of any unauthorised use of the whole or any part of the Source Software by any person.

11.2 You grant us a non-exclusive, free licence to use the Source Software in any New Software developed for you or on your behalf.

11.3 Once you have accepted successful delivery of New Software we will grant you a limited licence to the use of such part of that New Software as we have developed for a period such as you and we agree and you detail in your Order which shall not be accepted unless signed by an authorised signatory on behalf of each of you and us. The terms of any licence shall be as set forth in these Terms and Conditions subject to any additional permissions and/or limitations detailed in your Order.

11.4 In licensing New Software to you for the Purpose (or for any additional purpose agreed) we will account for the proportion of Source Software in the New Software and only license to you the newly written and/or newly incorporated code within the New Software.

11.5 We own and retain all ownership and Intellectual Property Rights relating to those elements of New Software which are not Source Software, including, but not limited to, HTML code, program code, graphical code, design, technique, etc., (collectively “Developer Materials”). This Agreement does not transfer, sell, assign, or entitle you to any of our source codes, programming documentation, or trade secrets. During the term of this Agreement, we grant to you, your successors and assignees, a non-exclusive license to use Developer Materials in connection with the use and maintenance of the New Software, Hosted Software and websites, consistent with the terms of this Agreement.

12. Charges and Expenses

12.1 In consideration of our providing the Development Services, you shall pay to us the Price which shall be invoiced to you in the specified proportions agreed between you and us, set out in the Order and subject to the terms set out in clause 13.

12.2 In consideration of any work effort which does not form part of your agreed instructions, Change Requests for example (“Additional Services”) you shall pay to us the amounts invoiced by us to you based on the rates for Additional Services set out on our website.

12.3 You shall also pay or procure the payment to us of all reasonable out-of-pocket expenses incurred on behalf of you during the course of the Project.

13. Terms of Payment

13.1 Payment of sums due by you to us shall be made on receipt of an invoice from the us. All payments under this Agreement shall be made in Pounds Sterling.

13.2 Unless otherwise agreed you will pay all our invoices upon receipt of the invoice.

13.3 All payments under this Agreement are exclusive of VAT, which shall be payable by you at the rate and in the same manner for the time being prescribed by law against submission of a valid tax invoice.

13.4 In respect of payment for invoices raised for the Software Development Services, Hosting Services and Additional Services time shall be of the essence.

14. Liability

14.1 We shall indemnify you for personal injury or death caused by the negligence of our employees in connection with our performance under this Agreement or by defects in any product supplied pursuant to this Agreement.

14.2 Save in respect of claims for death or personal injury arising from the our negligence, in no event will we be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages which may arise or be claimed as an direct or indirect consequence of any act or omission of ours whether or not such damages were reasonably foreseeable or foreseen.

14.3 Except as provided above in the case of personal injury, death and damage to tangible property, our maximum liability to you under this Agreement or otherwise for any cause whatsoever will be for direct costs and damages only and will be limited to a sum equivalent to the price paid to us for the products or services that are the subject of your claim, plus damages limited to 25% of the same amount for any additional costs directly, reasonably and necessarily incurred by you in obtaining alternative products and/or services.

14.4 You and we acknowledge and agree that the limitations contained in this clause 14 are reasonable in the light of all the circumstances.

14.5 Your statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other legal theory. For the purposes of this clause, any reference to us includes our employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999.

14.6 Nothing in this Agreement shall exclude or limit your or our liability for fraudulent misrepresentation.

15. Termination and the consequences of termination.

15.1 This Agreement shall continue until completion of the Development Services unless you or we give to the other no less than 30 days’ prior written notice of termination or unless the Agreement is terminated in accordance with any of the remaining provisions of this clause 15.

15.2 Either you or we shall be entitled to terminate this Agreement forthwith at any time by written notice to the other if:

15.2.1 the other commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or

15.2.2 the other becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other’s property or assets; the other enters into an arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.

15.3 Forthwith upon the termination of this Agreement, we shall return to you the Source Software, all Documentation and any Confidential Information belonging to you and all copies of the whole or any part thereof or, if requested by you, shall destroy the same and certify in writing to you that it has been destroyed.

15.4 Any termination of any licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either you or us nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

16. Confidentiality

16.1 Both during this Agreement and after its termination, you and we shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other or to its suppliers or customers, nor permit its use or disclosure. In particular, you and we shall maintain any source code provided by the other under maximum security conditions.

16.2 The provisions of clause 16.1 shall not apply where Confidential Information is divulged to:

16.2.1 your own or to our own employees and then only to those employees who need to know the same;

16.2.2 your or our auditors, an officer of Inland Revenue, an officer of HM Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other and then only in pursuance of such right, duty or obligation.

16.3 You and we undertake to ensure that persons and bodies referred to in clause 16.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the owner of the Confidential Information.

16.4 You or we shall promptly notify the owner of the Confidential Information if you or we become aware of any breach of confidence by any person to whom you or we divulge all or any part of the Confidential Information and shall give the owner of the Confidential Information all reasonable assistance in connection with any proceedings which the owner of the Confidential Information may institute against such person for breach of confidence.

16.5 The provisions of this clause shall survive the termination of this Agreement but the restrictions contained in this clause 16 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.
16.6 Nothing in this clause 16 shall prevent us from exploiting any inventions or software that it develops during the term of this Agreement.

17. Data Protection

For the purpose of this Agreement, “Data Protection Legislation” means:
national laws implementing the Data Protection Directive (95/46/EC) and the Directive on Privacy and Electronic Communications (2002/58/EC); the General Data Protection Regulation (2016/679) (‘GDPR’); and any other similar national privacy law; as applicable from time to time

“Controller”, “Data Subject”, “Processor”, “Personal Data” and “Personal Data Breach” in this Agreement shall have the meanings as defined in the Data Protection Legislation.

You and we will comply with Data Protection Legislation when processing Personal Data as Controller or Processor and following a written request from the other, will provide such documentary information as may reasonably be requested by the other to demonstrate such compliance.

If either you or we process Personal Data as Processor, the following provisions shall apply:

We and you acknowledge and agree that this sub-clause is an accurate description of the details of the processing of Personal Data;
The Personal Data shall be data captured through your website belonging to and identifying users of your website and the data of employees, advisors and agents of yours and ours.

We and you agree that any processing which takes place shall be incidental to the negotiation, agreement and management of this Agreement; or to the delivery of Software Development Services, Software Hosting Services and Additional Services.

Unless otherwise specified in your Order to us any Personal Data processed shall not be special category data as defined by Article 9.1 GDPR. The data shall be personal identifiers, contact details and opinions / comments of data subjects.

Data subjects shall fall into two categories:

Data subjects who work for or deliver services to you and/or us; and
Data subjects who are users of your website and services.

Processor shall only process Personal Data in accordance with Controller’s documented instructions unless required to process such Personal Data for other purposes by applicable laws or regulatory authorities. In such circumstances, Processor shall provide notice to Controller unless the relevant law or regulatory authority prohibits the giving of notice on important grounds of public interest.

The provisions of Articles 28(3)(b) to 28(3)(h) inclusive of the GDPR shall be incorporated into this agreement by reference and Processor shall comply with the express obligations of a processor as articulated in Articles 28(3)(b) to 28(3)(h) inclusive of the GDPR as so incorporated, provided that Controller may not instruct Processor to delete data that Processor holds on its own behalf as Controller; and (b) the requirements of Article 28(3)(b) of the GDPR shall not apply to persons that Processor is required by applicable laws or regulatory requirements to grant access to Personal Data.

Processor has responsibility to the relevant Data Subjects for the processing of such Personal Data and shall notify Controller of any assistance that Controller may require.

Controller provides a general authorisation to Processor to engage further Processors to process Personal Data upon and subject to the remaining provisions of this agreement. A list of those further Processors (if any) will be available [Insert Details] and Processor shall give Controller prior notice of any intended addition to or replacement of those further Processors by updating that list. If Controller reasonably objects to a change to this list and has the right to object to such change pursuant to the express terms of the Data Protection Legislation, Controller may (within 30 days of such change) escalate any reasonable objection to the relationship manager for discussion. Processor shall only engage Processors where they meet the requirements of Article 28(1) of the GDPR and where Processor considers them to be capable of providing the levels of protection for Personal Data required by this agreement. Processor will monitor and review the performance of all such Processors regularly and Processor shall by liable for the acts and omissions of such Processors as if they were the acts and omissions of Processor.

You or we may transfer Personal Data outside of the European Economic Area only where it has a lawful basis for that transfer under Articles 44 to 49 (inclusive) of the GDPR.

You or we shall notify the other promptly and without undue delay on becoming aware of a Personal Data Breach.

You or we shall reimburse the other for all legal and other costs, incurred in connection with any Personal Data Breach and any associated remedial action (including without limitation any costs associated with the investigation of the issue, notifications to affected individuals, regulators and other activities undertaken to remedy or minimise the impact of the breach). Where any Personal Data Breach occurs (either as Controller or Processor), the breaching party shall (at its own cost) take such actions as are reasonably required to remedy, or where that is not possible, to mitigate as much as possible the effects of the Personal Data Breach, including making any required notifications to affected Data Subjects and any applicable regulators.

Insofar as a Controller in relation to Personal Data is you or us, they shall:
provide to the other a privacy notice in relation to the Personal Data it processes under this agreement that complies with the requirements of the Data Protection Legislation, along with a link to the same, and either:
incorporate a summary of the notice and a link to it in its own privacy notice to relevant Data Subjects; or
provide such notice directly to the affected individuals; and
immediately notify the other in writing if it receives any complaint, notice or communication which relates to the processing of such Personal Data, and provide the other such information and co-operation as the other may reasonably require in relation to the matter.

18. Agency, Partnership

This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between you and us other than the contractual relationship expressly provided for in this Agreement.

19. Amendments

Any amendment to this agreement must be in writing and signed by you and us.

20. Assignment

20.1 Neither this Agreement nor any rights, licences or obligations under it may be assigned by you without our prior written approval.

20.2 We may assign this Agreement to any acquirer of all or of a controlling proportion of our business, or to any business controlled by us, one that controls us, a business which is under the same ownership as us. Any attempted assignment in violation of this clause will be void and without effect.

21. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between you and us and constitutes the entire agreement between you and us relating to the subject matter of this Agreement. You confirm that you have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

22. Force Majeure

22.1 We shall have no liability under or be deemed to be in breach of this Agreement for any delays or failures in our performance of this Agreement which result from circumstances beyond our reasonable control. If such circumstances continue for a continuous period of more than 6 months, we may terminate this Agreement by written notice to you.

22.2 Should circumstances as described in this clause 22 arise and we decide to terminate, before we commence delivery of the Development Services or Hosting Services then we will return to you any payment received in advance of such delivery.

23. Notices

23.1 All notices under this Agreement shall be in writing.

23.2 Notices shall be deemed to have been duly given:

23.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient;
23.2.2 at 09.00 hrs on the first Working Day following delivery, if delivered by courier or other messenger (including registered mail) outside normal business hours of the recipient; or

23.2.2 when sent, if transmitted by fax or e-mail if a successful transmission report or return receipt is generated; or

23.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or

23.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid,
in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

23.3 Notice of legal proceedings must be sent by post or by courier for the attention of your, or our Managing Director, whichever is applicable.

24. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent necessary, be severed from this Agreement and rendered ineffective, as far as possible without affecting the remaining provisions of this Agreement, and shall not in any way affect the validity or enforcement of this Agreement.

25. Successors and Assignees

25.1 This agreement shall be binding upon, and inure to the benefit of, you and us and your and our respective successors and permitted assignees, and references to you or us in this Agreement shall include your or our successors and permitted assignees.

25.2 In this Agreement references to you or us include references to any person:

25.2.1 who for the time being is entitled (by assignment, novation or otherwise) to your, or to our rights under this Agreement (or any interest in those rights); or

25.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving you, or us. For this purpose, references to our, or to your rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

26. Waiver

No delay, neglect or forbearance on the part of us in enforcing against you any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any of our rights under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for us is exclusive of any other right, power or remedy available to us.

27. Counterparts

This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

28. Sub-contracting

With the prior written consent of you (such consent not to be unreasonably withheld or delayed) us may perform any or all of its obligations under this Agreement through agents or sub-contractors, provided that we shall remain liable for such performance of such agents or sub-contractors.

29. Costs and Expenses

You and/or we shall bear your and/or our own legal costs and other costs and expenses arising in connection with the drafting, negotiation and performance of this Agreement subject to any provision of this Agreement to the contrary or to one of you or us bringing a claim for costs and expenses against the other.

30. Set-off

Where you incur any liability to us, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, we may set off the amount of such liability against any sum that would otherwise be due to you under this Agreement.

31. Third parties

Your and our intent in entering into this Agreement is not to confer any rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

32. Dispute Resolution

32.1 You and we will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Agreement or any breach of it.

32.2 If any such dispute cannot be settled amicably through ordinary negotiations between ourselves, or either or both is or are unwilling to engage in this process, you or we may propose to the other in writing that structured negotiations be entered into with the assistance of a fully accredited mediator before resorting to litigation.

32.3 If you and we are unable to agree upon a mediator, or if the mediator agreed upon is unable or unwilling to act and an alternative mediator cannot be agreed, within 14 days of the date of knowledge of either event one of you or us shall apply to LawBite to appoint a mediator under the LawBite Mediation Procedure.

32.4 Within 14 days of the appointment of the mediator (either by mutual agreement between ourselves or by LawBite in accordance with their mediation procedure), you and we will meet with the mediator to agree the procedure to be adopted for the mediation, unless otherwise agreed between ourselves and the mediator.

32.5 All negotiations connected with the relevant dispute(s) will be conducted in confidence and without prejudice to our rights or yours, in any further proceedings.

32.6 If you and we agree on a resolution of the dispute at mediation, the agreement shall be reduced to writing and, once signed by your and our duly authorised representatives, shall be final and binding on you and us.

32.7 If you and we fail to resolve the dispute(s) within 60 days (or such longer term as may be agreed between ourselves) of the mediator being appointed, or if you or we withdraw from the mediation procedure, then the other may exercise any right to seek a remedy through arbitration by an arbitrator to be appointed by LawBite under the Rules of the LawBite Arbitration Scheme.

32.8 Any dispute shall not affect your and our ongoing obligations under this Agreement.

33. Applicable Law and Jurisdiction

This Agreement and all matters arising from it shall be governed by and construed in accordance with English law and you and we submit to the exclusive jurisdiction of the Courts of England in resolving any dispute.