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1.
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Grant of licence and supply of services
Subject to these Conditions and in consideration of the payment by the Customer
to the Licensor of the Charges in accordance with Condition 2, the Licensor:
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1.1
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undertakes to the Customer to configure the Service and to provide the training
as set out in the Charges section of the Particulars;
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1.2
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grants to the Customer a non-exclusive non-transferable licence to access and use
the Service via the Website in accordance with the Permitted Use and all the provisions
of these Conditions from the Availability Date until the Contract is terminated
in accordance with Condition 9 or otherwise.
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2.
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Charges
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2.1
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The Customer undertakes to pay:
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2.1.1
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the Charges and the User Registration Fees; and
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2.1.2
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the User Subscription Fees
to the Licensor in accordance with the Payment Terms without any set- off, deduction
or other form of withholding, unless otherwise required by law.
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2.2
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All amounts stated in the Contract are exclusive of any VAT, which will be paid
by the Customer provided that the Licensor issues an appropriate invoice.
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2.3
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Any additional services such as further training, consultancy, configuration, development
or archiving will be chargeable at the Licensor's prevailing rates from time to
time in force.
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2.4
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If the Customer wishes to register additional Permitted Users, it shall give the
Licensor written notice. Upon payment of the User Registration Fee and the applicable
User Subscription Fees in respect of those proposed Permitted Users, the Licensor
shall enable those Permitted Users to make Permitted Use of the Service.
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2.5
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The Licensor shall have the right to review the User Registration Fee and the User
Subscription Fees annually, by giving the Customer at least three months' prior
written notice.
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2.6
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If the Customer makes use of the Service which the Licensor deems (in its absolute
discretion) to cause a degradation of the performance of the Service, the Licensor
reserves the right to increase the User Subscription Fees payable by the Customer
or to offer the Customer an alternative service.
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2.7
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The licensor shall charge interest on late payment of any sum due under the Contract at the rate of 4%
per annum above the base rate from time to time of Barclays Bank plc (compounded monthly)
from the due date until payment.
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3.
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Back-ups
The Licensor shall take daily backups of all data processed by the Customer using
the Service.
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4.
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Customer's Obligations
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4.1
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At any time upon the reasonable request of the Licensor the Customer shall suspend
entry or processing of data and shall if it is reasonably necessary to maintain
the integrity of the Customer's data enter or re- enter data and use backed-up versions
of data.
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4.2
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The Customer must maintain the confidentiality of all passwords issued by the Licensor
to the Permitted Users. The Customer is responsible for all use of such passwords,
whether or not such use was actually or expressly authorised by the Customer. The
Customer must immediately notify the Licensor of any unauthorised use of any password
or any other known or suspected breach of security or any copying of any part of
the Service.
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4.3
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The Customer is responsible for obtaining and maintaining, at its own expense, all
computer hardware, communication equipment and access lines necessary to access
and use the Service.
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4.4
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The Customer shall not store, distribute or transmit any material through the Service
that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially
or ethnically offensive, facilitates illegal activity, depicts sexually explicit
images, promotes unlawful violence, discrimination based on gender, colour, religious
belief, sexual orientation, disability or any other illegal activities.
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4.5
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The Customer shall not create internet links to the Service or frame or mirror any
part of the Service.
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4.6
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The Customer shall not use the Service to send bulk email or any unsolicited messages
in violation of any applicable laws.
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4.7
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The Customer shall not interfere with or disrupt the integrity or performance of
the Service or the data comprised in the Service or attempt to gain unauthorised
access to the system on which the Service is hosted or its related systems or networks.
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4.8
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The Customer shall indemnify the Licensor and keep the Licensor at all times fully
indemnified from and against all actions, proceedings, claims, demands, costs (including
without prejudice to the generality of this provision the legal costs of the Licensor
on a solicitor and own client basis) and other liabilities however arising directly
or indirectly as a result of any breach or non-performance by the Customer of any
of the Customer's undertakings, covenants, warranties or obligation under the Contract
to a maximum value of 125% of the annual charges for the Customer’s use of the service.
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5.
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Intellectual Property Rights
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5.1
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The Customer agrees and acknowledges that all Intellectual Property Rights in the
Service (including without limitation the name "Aquarium" and any other names used
by the Licensor in relation to the Service) are and remain the exclusive property
of the Licensor and its licensors.
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5.2
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The Customer shall not:
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5.2.1
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make copies of the software comprised in the Service or attempt to access the Service
in any way other than that provided by the Licensor;
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5.2.2
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adapt or decompile the whole or any part of the software comprised in the Service
save as permitted by law;
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5.2.3
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use the Service on behalf of any third party
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5.2.4
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attempt or procure a third party to reproduce the functionality of the Service;
provided the Service is being provided by the Licensor
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5.3
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The Licensor will indemnify and hold harmless the Customer on an indemnity basis
only against any damages (including costs) that may be awarded or payable by the
Customer to any third party in respect of any claim or action that the Permitted
Use of the Service (excluding the Third Party Components) by the Customer infringes
the Intellectual Property Rights of any third party (an "Intellectual Property Infringement")
provided that the Customer:
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5.3.1
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gives notice to the Licensor of any suspected Intellectual Property Infringement
forthwith upon becoming aware of the same;
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5.3.2
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gives the Licensor the sole conduct of the defence to any claim or action in respect
of an Intellectual Property Infringement and does not at any time admit liability
or otherwise settle or compromise or attempt to settle or compromise the said claim
or action except upon the express instructions of the Licensor; and
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5.3.3
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acts in accordance with the reasonable instructions of the Licensor and gives to
the Licensor such assistance as it shall reasonably require in respect of the conduct
of the said defence including without prejudice to the generality of the foregoing
the filing of all pleadings and other court process and the provision of all relevant
documents.
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5.4
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The Licensor shall reimburse the Customer its reasonable costs incurred in complying
with the provisions of Condition 5.3.
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5.5
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The Licensor shall have no liability to the Customer in respect of an Intellectual
Property Infringement if the same results from any breach of the Customer's obligations
under the Contract.
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5.6
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In the event that the Licensor fails per the criteria set out in 9.3.3, the format
of the Customer’s data, the Customer’s data itself and the process defined by the
Customer for managing the Customer’s data shall be owned by the Customer
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6.
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Warranty
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6.1
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Each party represents and warrants that it has the legal power and authority to
enter into the Contract.
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6.2
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The Customer represents and warrants that all information provided to the Licensor
by the Customer (including without limitation billing information) is true and accurate.
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6.3
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Subject to the exceptions set out in Condition 6.5 and the limitations on its liability
in Condition 7, the Licensor warrants that:
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6.3.1
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its title to and property in the Service is free and unencumbered and that it has
the right, power and authority to license the same upon the terms and conditions
of the Contract;
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6.3.2
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the Service will operate substantially in accordance with the Documentation;
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6.4
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The Licensor shall have no liability to remedy a breach of warranty where such breach
arises as a result of any of the following:
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6.5
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The Licensor shall have no liability to remedy a breach of warranty where such breach
arises as a result of any of the following:
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6.5.1
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the improper use (i.e use for a purpose for which it was not designed) operation
or neglect of the Service and/or the operating system and/or Customer's Environment;
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6.5.2
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the modification of the Service and/or the operating system and/or operating environment,
or its merger (in whole or part) with any other service or software;
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6.5.3
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the failure by the Customer to implement recommendations in respect of or solutions
to faults previously advised by the Licensor;
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6.5.4
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any third party service or software not operated by the Licensor.
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6.6
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The Licensor does not warrant that the Service will meet the Customer's requirements
or that the operation of the Service will be uninterrupted or error free.
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6.7
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Subject to the foregoing, all conditions, warranties, terms and undertakings, express
or implied, statutory or otherwise, in respect of the Service and the Support are
hereby excluded.
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7.
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Limitation of liability
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7.1
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The following provisions set out the entire liability of the Licensor (including
any liability for the acts and omissions of its employees, agents and sub-contractors)
to the Customer in respect of:
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7.1.1
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any breach of its contractual obligations arising under the Contract; and
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7.1.2
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any misrepresentation, misstatement or tortious act or omission including negligence
arising under or in connection with the Contract.
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7.2
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Any act or omission on the part of the Licensor or its employees, agents or sub-contractors
falling within Condition 7.1 shall for the purposes of this Condition 7 be known
as an "Event of Default".
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7.3
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The liability of the Licensor to the Customer for death or injury resulting from
its own negligence or that of its employees, agents or sub- contractors or for fraudulent
misrepresentation or fraud shall not be limited.
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7.4
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The Licensor's liability to the Customer in respect of any disability or inability
of the Licensor lawfully to provide or license or permit the Permitted Use of the
Service or for fraudulent misrepresentation shall not be limited.
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7.5
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Subject to Conditions 7.3 and 7.4, the total liability of the Licensor in respect
of all Events of Default shall be limited to damages of an amount equal to:
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7.5.1
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£2,000,000 in respect of damage or loss to the tangible property of the Customer due to an Event of Default; and
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7.5.2
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in respect of any other damage or loss, an amount equal to 125% of the Charges,
User Registration Fees and User Subscription Fees paid by the Customer during the
twelve month period prior to the Event of Default.
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7.6
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Subject to Conditions 7.3 and 7.4, the Licensor shall not be liable to the Customer
in respect of any Event of Default for loss of profits, goodwill, management data,
turnover or any type of special indirect or consequential loss (including loss or
damage suffered by the Customer as a result of an action brought by a third party)
even if such loss was reasonably foreseeable or the Licensor had been advised of
the possibility of the Customer incurring the same.
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7.7
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Without prejudice to the generality of any other term of these Conditions and subject
to Conditions 7.3 and 7.4, the Licensor shall not be liable for any damage or losses
or for any additional damage or losses arising from an Event of Default arising
from the failure of the Customer to use the Service in accordance with the Licensor's
instructions and best data processing practices nor in respect of damage or loss
arising from an Event of Default which occurs before the Licensor confirmed in writing
to the Customer that the Service was ready to use on live data.
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7.8
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If a number of Events of Default give rise substantially to the same loss, then
they shall be regarded as giving rise to only one claim under the Contract.
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7.9
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Subject to Conditions 7.3 and 7.4, the Licensor shall not be liable for any Event
of Default which arises in whole or in part from any of the circumstances listed
in Condition 6.5, nor for any delays in meeting its obligations due to causes beyond
its reasonable control.
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7.10
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Subject to Conditions 7.3 and 7.4 the Licensor shall not be liable to the Customer
for any losses, damages, costs, expenses which the Customer shall suffer or incur
by reason of:
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7.10.1
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any unauthorised access or use of the Service or its access or use of the Service
in breach of these Conditions;
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7.10.2
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problems caused by software or hardware issues within the Customer's Environment;
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7.10.3
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its failure to undertake essential system management and security functions recommended
by the Licensor;
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7.10.4
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its use of the Service after it became or should have become aware of an Event of
Default but before the Licensor has confirmed that a solution has been completed.
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7.11
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The Licensor will at all times use all reasonable endeavours to maintain an uninterrupted
and error-free service. The Licensor cannot accept any liability for interruption
to the availability or impairment of the performance of the Service if this is due
to circumstances beyond the Licensor's direct control, in particular, interruption
to the availability or degradation of the speed of the internet or the communications
links which are provided to the Licensor or the Customer by third parties.
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7.12
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The Customer acknowledges and agrees that computer software and services including
the Service is not error, fault or bug free, nor secure from persons wishing to
misuse, tamper with, erase, alter or in other ways corrupt computer systems and
that the data, information and records they display, retrieve, collate, transfer,
calculate or disseminate may be affected by such occurrences and the Customer agrees
that the Licensor shall have no liability to the Customer for any such occurrences
arising in respect of or in relation to the Service.
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7.13
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The Service is a tool to aid the Customer, but the Customer should satisfy itself
of the accuracy of any figures calculated using the Service and the accuracy of
any forms or documents generated using the Service. The Customer acknowledges and
agrees that it is responsible for providing all processes and documents stored within
the Service and that the Licensor shall have no liability in connection with the
same. The Customer is responsible for ensuring that any forms and/or precedent documents
comprised within the Service are suitable for each purpose for which the Customer
may use them. The Licensor will not be under any liability if the Service is used
in a manner in breach of this Condition.
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7.14
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The Customer declares and acknowledges that it has considered the provisions of
this Condition 7 in detail including but without limitation the limitations on liability
contained in Conditions 7.5, 7.6, 7.7, 7.9, 7.10, 7.11, 7.12 and 7.13, and considers
them reasonable in the circumstances having taken into account among other factors
the subject matter of the Contract
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8.
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Confidentiality
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8.1
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Each of the parties undertakes to the other to keep confidential all information
(written or oral) concerning the present and future business plans and external
and internal affairs of the other that it shall have obtained or received as a result
of the discussions leading up to or the entering into of the Contract (including
all confidential information in or relating to the Service) save that which is:
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8.1.1
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trivial or obvious;
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8.1.2
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already in its possession other than as a result of a breach of this Condition;
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8.1.3
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in the public domain other than as a result of a breach of this Condition.
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8.2
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Each of the parties undertakes to the other to take all such steps as shall from
time to time be necessary to ensure compliance with the provisions of Condition
8.1 by its employees, agents and sub- contractors.
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8.3
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The Licensor may at its discretion monitor the Customer's use of the Software to
determine and ensure compliance with these Conditions and to protect itself and
the Licensor's other customers from fraudulent, unlawful or abusive use of the Service.
The Licensor may disclose any content, record, use or other information to the extent
reasonably necessary to protect the rights of the Licensor or to comply with any
law, regulation or government request.
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9.
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Termination
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9.1
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The Contract shall continue until terminated in accordance with the provisions of
this Condition 9. For the avoidance of doubt, the Licensor shall have the right
to terminate the Customer's access to the Service immediately on termination.
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9.2
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The Contract may be terminated by the Licensor or the Customer at any time after
the first anniversary of the Availability Date provided at least 3 months' prior
written notice has been sent by the party wishing to terminate to the other party.
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9.3
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The Contract may be terminated forthwith by notice in writing to the Customer by
the Licensor if:
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9.3.1
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the Customer fails to pay any Charges in accordance with the provisions of Condition
2;
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9.3.2
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the Customer commits any material breach of any term of the Contract;
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9.3.3
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(if the Customer is a company or a limited liability partnership) the Customer shall
make a proposal for a voluntary arrangement within Part I of the Insolvency Act
1986 or a proposal for any other composition, scheme or arrangement with (or assignment
for the benefit of) its creditors generally or if the Customer shall be unable to
pay its debts as they fall due within the meaning of Section 123 of the Insolvency
Act 1986 or if a trustee, receiver, administrative receiver or similar officer is
appointed in respect of all or any part of the business or assets of the Customer
or if a petition is presented or a meeting is convened for the purpose of considering
a resolution or other steps are taken for the winding up of the Customer or for
the appointment of an administrator (otherwise than for the purpose of an amalgamation
or reconstruction)
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9.3.4
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(if the Customer is a partnership) the Customer or any of the partners in the Customer
enters into any composition or arrangement with its creditors, has a bankruptcy
order made against it, has been subject to an application for an interim order under
sections 253 or 273 of the Insolvency Act 1986, has a petition presented for an
Administration Order under Part III of the Insolvent Partnerships Order 1994 (the
"Order"), has a petition presented for winding up as an unregistered company under
Parts IV or V of the Order, has an interim receiver of its property appointed under
section 286 of the Insolvency Act 1986, is unable to pay its debts within the meaning
of sections 267 and 268 of the Insolvency Act 1986 or has a receiver or manager
appointed over any of its assets;
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9.4
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In the event of any of the following, the Customer will inform the Licensor of its
intentions in writing and will allow the Licensor the opportunity to review the
ongoing impact of the arrangement in relation to the contract between the Licensor
and the Customer
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9.4.1
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if the Customer transfers or disposes of the whole or a substantial part of its
business or assets;
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9.4.2
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if the Customer ceases or changes the nature of its business, suspends a substantial
part of the present business operations which they now conduct directly or indirectly;
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9.4.3
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if at any time control (as defined in section 840 of the Income and Corporation
Taxes Act 1988) of the Customer is acquired by any person or group of connected
persons (as defined in section 839 of that Act) not having control of the Customer
at the date of commencement of the Agreement;
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9.4.4
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if any material change shall occur in the management, ownership or control of the
Customer;
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9.4.5
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the equivalent of any of the above occurs in relation to the Customer under the
jurisdiction to which the Customer is subject.
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9.5
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On termination of the Contract for any reason:
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9.5.1
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the Customer shall immediately cease to use the Service, shall destroy its passwords
and shall (at the Licensor's option) return to the Licensor or destroy any copies
of the on- line help files in its possession;
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9.5.2
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the Customer shall not be entitled to a refund of the Charges or any part of the
Charges;
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9.5.3
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the Licensor shall make available to the Customer a file of their data within 30
days of termination if so requested at time of termination. The Customer agrees
and acknowledges that the Licensor has no obligation to retain Customer data, and
may delete such Customer data, more than 30 days after termination.
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9.5.4
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any other rights or remedies a party may be entitled to hereunder or at law and
any accrued rights or liabilities of either party nor the coming into or 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 shall not be affected;
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9.5.5
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neither party's obligations under Condition 8 shall terminate but shall continue
in full force following the termination of the Contract.
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10.
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Force Majeure
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10.1
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The parties shall not be liable for any breach of their obligations under the Contract
resulting from an Event of Force Majeure.
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10.2
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Each of the parties agrees to give notice forthwith to the other upon becoming aware
of an Event of Force Majeure such notice to contain details of the circumstances
giving rise to the Event of Force Majeure.
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10.3
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If a default due to an Event of Force Majeure shall continue for more than four
weeks then the party not in default shall be entitled to terminate the Contract.
The parties shall not have any liability in respect of the termination of the Contract
as a result of an Event of Force Majeure.
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11.
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Assignment, sub-licensing and third party rights
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11.1
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The Licensor shall be entitled to delegate any of its obligations under the Contract
to any Associate. Any such delegation shall not affect the obligations and liability
of the Licensor under the Contract.
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11.2
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Notwithstanding anything to the contrary contained in the Contract, the parties
agree and intend that nothing in the Contract shall confer any rights on any third
parties.
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12.
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Data Protection
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12.1
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Each of the parties shall in the course of performing its obligations under the
Contract comply with the provisions of the Data Protection Act 1998 (the "Act")
or, in the case of the Customer, the equivalent laws in the country in which the
Customer is established.
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12.2
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The Customer authorises the Licensor to access and make copies of the Customer's
data processed using the Service for the purposes of performing its obligations
under the Contract and testing the Service.
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12.3
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To the extent that the Licensor's performance of its obligations under the Contract
involve the processing of Personal Data (as defined in the Act) on behalf of the
Customer, the Customer warrants that the individuals to whom such Personal Data
relates consent to their Personal Data being transferred to and processed by the
Licensor.
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12.4
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In the course of performing its obligations under the Contract, the Licensor shall:
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12.4.1
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comply with the provisions of the Seventh Data Protection Act Principle as set out
in Part 1 of Schedule 1 to the Act; and
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12.4.2
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not process any Personal Data except in accordance with the Customer's instructions.
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13.
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Dispute Resolution
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13.1
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Any dispute arising out of or in connection with the Contract shall be determined
as provided in this Condition 13.
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13.2
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For the purpose of this Condition 13, a dispute shall be deemed to have arisen when
one party serves on the other a notice in writing stating the nature of the dispute.
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13.3
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After service of the notice of dispute, the following procedure shall be followed
by the parties and all periods specified in this Condition 13.3 shall be extendable
by mutual agreement):
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13.3.1
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within two days each party's Management Escalation Contacts shall meet to attempt
to settle the dispute;
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13.3.2
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if the Management Escalation Contacts are unable to reach a settlement within seven
days from the date of service of the notice, the Executive Management Escalation
Contacts of each of the parties shall meet within the following seven days to attempt
to settle the dispute.
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13.4
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Each party represents and warrants that it has the legal power and authority to
enter into the Contract.
The number of arbitrators shall be one.
The seat or legal place of arbitration shall be Manchester, England.
The language used in the arbitral proceedings shall be English.
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14.
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General
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14.1
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The waiver by either party of a breach or default of any of the provisions of the
Contract by the other party shall not be construed as a waiver of any succeeding
breach of the same or other provisions of the Contract or these Conditions nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has or may have under the Contract or these
Conditions operate as a waiver of any breach or default by the other party.
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14.2
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Any notice, request, instruction or other document to be given under the Contract
or these Conditions shall be delivered or sent by first class post or by facsimile
transmission (such facsimile transmission notice to be confirmed by letter posted
within 12 hours) to the address or to the facsimile number of the other party set
out in the Contract (or such other address or number as may have been notified)
and any such notice or other document shall be deemed to have been served (if delivered)
at the time of delivery (if sent by post) upon the expiration of 48 hours after
posting and (if sent by facsimile transmission) upon the expiration of 12 hours
after despatch.
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14.3
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If any provision of the Contract shall be found by any court or administrative body
of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability
of such provision shall not affect the other provisions of the Contract and all
provisions not affected by such invalidity or enforceability shall remain in full
force and effect. The parties hereby agree to attempt to substitute for any invalid
or unenforceable provision a valid or enforceable provision which achieves to the
greatest extent possible the economic, legal and commercial objectives of the invalid
or unenforceable provision.
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14.4
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The Customer acknowledges that in entering into the Contract it has not relied on
any warranty, representation, undertaking or agreement other than those contained
or referred to in the Contract. The Customer waives any right or remedy it may have
to claim damages or rescission for any misrepresentation in respect of any representation
not contained in the Contract or for breach of any warranty not contained in the
Contract and acknowledges that its only remedies against the Licensor are for breach
of contract, provided always that nothing in this Condition 14.4 shall exclude or
limit the liability of the Licensor to the Customer in respect of any fraudulent
misrepresentation or warranty fraudulently given and upon which the Customer can
prove it has placed reliance. Subject to the foregoing, the Contract and its Schedules
and the documents referred to herein constitute the entire agreement and understanding
between the parties with respect to all the matters which are referred to in the
Contract.
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14.5
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For the avoidance of doubt time shall not be of the essence for the performance
by the Licensor of any of its obligations hereunder.
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14.6
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The parties agree that nothing in the Contract shall be deemed to create any partnership,
joint venture or relationship of employer and employee between them.
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15.
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Modifications to Terms
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15.1
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The Licensor reserves the right to modify the terms and conditions of this Agreement
or its policies relating to the Service at any time, effective upon posting of an
updated version of the Agreement on the Service. The Customer is responsible for
regularly reviewing this Agreement. Continued use of the Service after any such
changes shall constitute your consent to such changes.
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16.
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Interpretation
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16.1
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In the Contract the following words and expressions will have the following meanings
unless the context otherwise requires:
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16.2
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Any reference in these Conditions to "writing" or cognate expressions includes a
reference to e-mail or facsimile transmission.
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16.3
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Any reference in these Conditions to any provision of a statute shall be construed
as a reference to that provision as amended, re-enacted or extended at the relevant
time.
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16.4
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The headings in the Contract are for convenience only and shall not affect its interpretation.
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16.5
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The headings in the Contract are for convenience only and shall not affect its interpretation.
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16.6
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The headings in the Contract are for convenience only and shall not affect its interpretation.
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16.5
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Any reference to the masculine gender includes the feminine and neuter gender and
vice versa.
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16.6
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Any reference in these Conditions to a Condition is to one of these Conditions.
Any reference to a Schedule is to a Schedule of the Contract.
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16.7
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References to persons in these Conditions can include companies, associations, partnerships
and all other legal entities or groups of legal entities.
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16.8
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If the Customer is more than one person, then the liability of such persons shall
be joint and several.
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