SMARTER TECHNOLOGIES TRADING LIMITED:
STANDARD CONDITIONS FOR THE SUPPLY OF leisure PRODUCTS AND SERVICES.
1. INTRODUCTION
1.1 These terms and conditions (these “terms”) apply to all sales of products and services (each as defined below) supplied by Smarter Technologies Trading Limited and/or any subsidiary of Smarter Technologies Group of Companies (hereafter referred to in this agreement as “ST”). By placing an order with, or accepting a quotation from, ST for any products or services, you accept and are bound by these terms.”
2. DEFINITIONS AND INTERPRETATION
2.1 In these terms, the following definitions apply:
2.1.1 “Charges” means the charges payable by the customer for the supply of the products and/or services in accordance with clause 7.
2.1.2 “Contract” means the contract between ST and the customer for the supply of the products and/or services, comprising (a) the applicable order form; and (b) these terms.
2.1.3 “Customer” means the person identified as the customer of the products and/or services in the applicable order form.
2.1.4 “Data Protection Legislation” means the General Data Protection Regulation ((EU)2016/679) (or any successor legislation to that regulation) along with the Data Protection Act 2018 and applicable secondary legislation, as amended or updated from time to time, in the UK.
2.1.5 “Group”, in relation to a party to the contract, means that party, that party’s subsidiaries,
that party’s holding company, and any subsidiaries of any such holding company – and the
terms “subsidiary” and “holding company” shall have the meanings given to them in the
Companies Act 2006.
2.1.6 “Intellectual Property Rights” means all patents, rights to inventions, utility models,
copyright and related rights, trademarks, service marks, trade, business and domain
names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair
competition rights, rights in designs, rights in computer software, database rights,
topography rights, moral rights, rights in confidential information (including know -how
and trade secrets) and any other intellectual property rights, in each case whether
registered or unregistered and including all applications for and renewals or extensions
of such rights, and all similar or equivalent rights or forms of protection in any part
of the world.
2.1.7 “Order Form” means a quotation issued by ST and accepted by the customer, or an order
confirmation issued by ST accepting an order placed by the customer, in each case
setting out:
2.1.7.1 the products and services that the customer has agreed to purchase, together with any
associated specifications or schedules relating to such products and services;
2.1.7.2 the location(s) for delivery of any products;
2.1.7.3 the charges and any special payment terms;
2.1.7.4 the duration of the contract; and
2.1.7.5 any other special terms or conditions to be incorporated into the contract.
2.1.8 “Orion Gateway” means an internet-enabled device that collects location and other data
from Orion-enabled devices and transmits such data (via GSM, internet, radio, or other
means) to other Orion gateways or to ST’s servers to enable ST to provide location
tracking, monitoring, and other smart technology services to its customers.
2.1.9 “Products” means any goods supplied or to be supplied by ST to the customer pursuant to
the contract, including sensors, cameras, network devices, other hardware, and software.
2.1.10 “Services” means any services provided or to be provided by ST to the customer
pursuant to the contract.
2.1.11 “Software” means any software product provided by ST to the customer in connection
with the contract.
2.2 In these terms, the following rules of interpretation apply:
2.2.1 a “person” includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality);
2.2.2 a reference to a party includes its successors or permitted assigns;
2.2.3 any phrase introduced by the terms “including”, include”, “in particular”, or any similar
expression shall be construed as illustrative and shall not limit the sense of the words
preceding those terms;
2.2.4 a reference to a statute or statutory provision is a reference to such statute or statutory
provision as amended or re-enacted. A reference to a statute or statutory provision
includes any subordinate legislation made under that statute or statutory provision, as
amended or re-enacted;
2.2.5 the headings of the clauses of these terms are provided for convenience only and shall not
contribute to or affect the meaning or construction of the said clauses; and
2.2.6 a reference to “writing” or “written” includes e-mail and faxes.
3. BASIS OF CONTRACT
3.1 The applicable order form and these terms apply to the contract to the exclusion of
any other terms that the customer seeks to impose or incorporate or which are implied by
trade, custom, practice, or course of dealing.
4. DESCRIPTION AND DELIVERY OF PRODUCTS OR SERVICES
4.1 The products or services to be supplied pursuant to the contract shall be as set out in the
relevant order form.
4.2 ST shall have the right to make any changes to the products or services which are
necessary to comply with any applicable law or safety requirement, or which do not
materially affect the nature or quality of the services, and ST shall notify the customer in
any such event where it is appropriate to do so.
4.3 Orders for products not stocked by ST are subject to availability and may be cancelled by
ST if they cease to be available.
4.4 ST shall use all reasonable endeavours to meet any delivery or performance dates
specified in the order form, but any such dates shall be estimates only and ST shall not be
liable in damages for failure to meet such estimated delivery or performance dates.
4.5 ST shall deliver the products to the location set out in the applicable order form or such
other location as the parties may agree at any time.
4.6 Any work requests not expressly detailed in the applicable order form that arise during
the term of the contract, such as installation, changes to software configuration
requirements or development work to be undertaken by ST, shall be subject to an
additional charge and will be quoted for separately or carried out at any pre-agreed rates.
The customer may request quotes for, and order, additional work at its discretion.
5. TITLE AND RISK
5.1 Risk in the products shall pass to the customer on delivery.
5.2 Title to the products (other than title to the intellectual property rights comprised in
software, which shall remain with the applicable licensor) shall pass to customer upon
receipt of payment in full by ST for the relevant products or services.
5.3 Title to Orion gateways remains with ST at all times.
5.4 All non-gateway products remain the property of ST until payment has been made in full.
Until title to the products has passed to the customer, the customer shall maintain the
products in a satisfactory condition and keep them insured against all risks for their full
price on ST’s behalf from the date of delivery.
5.5 If, before title to the products passes to the customer, the customer becomes subject
to any of the events listed in clauses 13.2.2 to clause 13.2.5, or ST reasonably believes
that any such event is about to happen and notifies the customer accordingly, then,
without limiting any other right or remedy ST may have, where the products are stored, in
order to recover them, ST may at any time require the customer to deliver up the products
and, if the customer fails to do so promptly, enter any premises of the customer or of any
third party.
6. CUSTOMER’S OBLIGATIONS
6.1 Subject always to ST conforming with all reasonable normal security and safety
requirements of the customer, the customer shall afford to employees of ST and its agents
and subcontractors all information reasonably requested and/or necessary to enable ST to
carry out the services (if relevant), and full and safe access to facilities at the customer’s
premises at all reasonable times as necessary for the purpose of ST’s performance of
obligations under the contract, including but not limited to:-
6.1.1 access to site as required by ST to undertake the work when acceptable dates have been
pre-agreed between ST and the customer;
6.1.2 the full availability of the customer’s personnel that are required for configuration/
training/meetings on the agreed dates such that they are able to give their full attention to
the scheduled work; and
6.1.3 full access to appropriately configured computer and network systems in order to
undertake the scheduled work.
6.2 The customer shall ensure that:
6.2.1 all customer personnel involved in implementation and training must be suitably
competent to understand the processes involved in the use of the system; and
6.2.2 all third parties that are involved in the delivery of work affecting ST’s provision of the
products or the services supply their services in the pre-agreed manner, without delays or
system problems occurring.
6.3 In the event that appropriate resources are not made available when required, ST reserves
the right to charge for any additional time and expenses incurred as a result of the lack of
resource availability. If customer resources are not available for a previously arranged
appointment, at least 24 hours’ notice should be given by the customer to ST; otherwise
ST reserves the right to charge a fee in accordance with clause 14.1.
6.4 If additional training is required to improve the competency of the customer’s personnel,
to ensure compliance with clauses 6.2.1, a further charge may be incurred that is not
covered by the scope of the original order form and will be quoted separately.
6.5 Where the applicable order form provides for payment to be made on approval or sign -off
by the customer in relation to an installed system, the customer shall:
6.5.1 make available a suitable individual with the authority of the customer to confirm the
acceptance and delivery of the work on behalf of the customer as soon as reasonably
practicable following completion of the relevant work;
6.5.2 provide such approval or raise any issues within 5 working days of ST’s completion
of the relevant work;
6.5.3 if the customer does not sign off the system or provide any reasons for not doing so to ST
in writing as soon as possible and, in any case, not more than 5 working days after delivery
of the work; and
6.5.4 make personnel and resources available, as outlined above, for any work ST wishes to
carry out to resolve the issues raised by the customer that are preventing sign-off.
6.5.5 If the customer fails to comply with its obligations in this clause 6.5, ST shall be entitled to
consider the work signed off to the customer’s satisfaction.
6.6 Where the contract involves the provision of services which require ST to access the
customer’s network or computer systems, the customer shall ensure that it has made
working backups of such systems and user data before ST carries out the relevant
services. ST does not accept liability for loss of data or other loss caused by a failure on
the part of the customer to maintain working backups of its systems and user data.
6.7 The customer agrees that ST may install Orion gateways at any customer site to which
it provides products or services. The customer agrees to keep the Orion gateways powered
on and connected to an internet-enabled network throughout the term of this agreement.
The customer acknowledges that each Orion gateway will form part of a nationwide
network of Orion gateways and, as such, may transmit third-party traffic to other devices
on the Orion network. Orion gateways typically use less than 100MB of bandwidth per
month. The customer agrees to the passing of such third-party data through the Orion
gateway(s) installed at its sites.
1Austin Park, Yeoman Road, Ringwood, Hampshire, BH24 3FG
Registered in England and Wales with Company Number 12075211. VAT Reg 346 8009 90
t: 0330 223 5000 e: enquiries@smartertechnologies.com w: www.smartertechnologies.com
7. CHARGES, EXPENSES, AND VAT
7.1 Where products or services (or elements of them) are provided for a fixed price, then,
subject to clause 7.1, the charges for such products or services (or the relevant elements
of them) shall be as set out in the applicable order form.
7.2 Where products or services (or elements of them) are provided on a monthly basis
(for example for software or data subscription services), an annual price increase based on
the published Retail Price Index will be applied.
7.3 Charges set out in quotations issued by ST shall be valid for a period of 30 days from the
date of the quotation. Where the contract includes an order for products not stocked by
ST and the date for delivery of any of the products is more than three months after the
date of the contract, and the cost to ST of purchasing such products from third parties
increases after such three month period, then ST reserves the right, upon giving prior
written notice to the customer, to increase the charges by an amount equal to the increase
in the cost to ST of purchasing such products.
7.4 Where services are to be provided on a time and materials basis, the charges payable for
the services shall be calculated in accordance with the hourly rates set out in the
applicable order form or, failing that, at ST’s standard hourly rates as amended from
time to time.
7.5 ST reserves the right to increase its hourly rates from time to time, provided that such
charges cannot be increased more than once in any 12-month period. ST will give the
customer written notice of any such increase four months before the proposed date
of the increase.
7.6 ST shall be entitled to charge the customer for the following costs and expenses:
7.6.1 where ST provides installation services or other bespoke services carried out at the
customer’s site, any expenses reasonably incurred by the individuals whom ST engages
in connection with the services including, but not limited to, travelling expenses, hotel
costs, subsistence, and any associated expenses.
7.6.2 any shipment costs for products not expressly indicated as included in the price
of the sale.
7.7 Unless expressly indicated at the time of sale, VAT is not included in the prices for the
products or services. Where applicable, the customer shall, subject to the receipt of a
valid VAT invoice, pay to ST (in addition to and at the same time as the charges) a sum
equal to the amount of VAT payable on all supplies made by ST to the customer under
this agreement.
8. PAYMENT
8.1 Unless otherwise stated on the order form, payment shall be made in advance of delivery
of the products.
8.2 If the order form provides for payment for products in instalments, then (unless otherwise
stated on the order form) payment of the first instalment shall be made prior to delivery
of the products and all subsequent instalments must be paid by direct debit. If any
instalment is not paid on its due date, the whole amount shall become immediately due
and payable. Unless otherwise specified on the order form, all payments in instalments
shall be payable in equal quarterly instalments over a period of two years.
8.3 Unless otherwise stated on the order form, if the contract requires ST to provide services,
ST shall be entitled to invoice the customer:
8.3.1 monthly in advance for any ongoing subscription-based services, including (without
limitation) subscriptions for cloud-based software services;
8.3.2 monthly in arrears for any “pay as you go” type; and
8.3.3 upon completion of the services for any other services such as installation services.
8.4 The order form may depart from the above payment terms and may include provisions for
stage payments for services and for payment in instalments for products.
8.5 If the performance of the services or delivery of products or their approval is delayed as
a result of any act or omission of the customer, ST reserves the right to invoice the
customer for the relevant products and/or services on the date when it would have been
entitled to invoice for those products or services if the delay had not occurred.
8.6 Clauses 8.1 and 8.3 are subject to this clause 8.6. All invoicing in arrears is subject to
credit status. ST reserves the right to require individual customers to pay for products or
services in advance if there is a change in the customer’s credit rating after the contract
has been entered into. Where the order form provides for extended payment terms (such
as payment for products over 24 months) and the customer defaults on a payment, the full
balance payable for the relevant product(s) shall become immediately due and ST reserves
the right to take payment using any direct debit or credit card details provided by
the customer.
8.7 The customer shall pay each invoice submitted by ST in full and in cleared funds to a bank
account nominated in writing by ST within the time period noted on the invoice or, if not
so noted, then within 30 days of the date of the invoice. ST will accept payment by bank
transfer, payment card, and direct debit. Time for payment shall be of the essence of
the contract.
8.8 Without limiting any other right or remedy of ST, if the customer fails to make any
payment due to ST under the contract by the due date for payment, ST shall have the
right to charge interest on the overdue amount at the rate of 4 percent per annum
above the then current base rate of Barclays Bank Plc accruing on a daily basis from
the due date until the date of actual payment of the overdue amount, whether before or
after judgment, and compounding monthly.
8.9 ST, without waiving any other rights or remedies to which it may be entitled, shall have
the right to suspend or terminate any or all services or product deliveries until all overdue
amounts under the contract or any other contract between ST and the customer have
been paid.
8.10 The customer shall pay all amounts due under the contract in full without any set -off,
deduction, or withholding except as required by law.
9. INTELLECTUAL PROPERTY RIGHTS AND USE OF SOFTWARE
9.1 All intellectual property rights of ST existing at the date of the contract and used to
perform the services or deliver the products (if any) are and shall remain the exclusive
property of ST and its licensors.
9.2 All intellectual property rights in or arising out of or in connection with the provision of
services (if any) shall, unless otherwise agreed and set out in the applicable order form,
belong to ST. ST grants the customer a non-exclusive, non-transferable license to use
such intellectual property rights to such extent as is necessary to allow the customer to
enjoy the benefit of the services.
9.3 ST grants the customer a non-exclusive license to use any of its software included
in the products.
9.4 Sometimes ST may supply third-party software to the customer. The customer
acknowledges that its use of rights in such software may be conditional on the customer
agreeing to the applicable end user license agreement with the relevant software licensor.
It shall be the responsibility of the customer to ensure compliance with the terms
of such licenses.
9.5 The customer shall take all reasonable steps to:
9.5.1 keep its usernames and passwords required to access any software elements of the
products and services secure; and
9.5.2 ensure that nobody other than its authorised personnel access the Orion gateways or any
services using its user accounts.
9.6 The customer shall notify ST as soon possible if it becomes aware that somebody has
gained unauthorised access to any of its user accounts used to access any software
elements of the products and the services.
9.7 The customer may not resell or copy, modify, duplicate, create derivative works from any
of the services or the software in any of the products or services.
9.8 The customer has no right to access any proprietary software supplied in source code
form. Save to the extent permitted by law, the customer shall not copy, reverse engineer,
decompile any software in the products supplied by ST.
10. WARRANTIES
10.1 ST warrants to the customer that the products will be free from defects in workmanship
and materials for a period of 12 months from the date of delivery.
10.2 ST warrants to the customer that it will perform the services using reasonable care and
skill and in accordance with applicable law.
11. MATTERS FOR WHICH ST IS NOT RESPONSIBLE
11.1 To the fullest extent permitted by law, ST accepts no liability arising from failure of the
product or services, including arising from misuse.
11.2 any products designed to detect heat will be completely reliable or accurate or that any
detection of high temperatures or otherwise in humans using heat detection cameras will
be a reliable indicator of the presence or absence of any particular disease;
11.3 Products or services used for facial recognition purposes will be completely reliable
and accurate and the customer acknowledges that the reliability of any software -based
facial recognition tools will depend on the quality and features of the camera selected by
the customer to use in conjunction with such tools.
11.4 ST is not responsible for the failure of any products or services to work as intended
caused by poor system design or incorrect installation carried out by third parties. Correct
system design is particularly important in relation to products designed to detect and
react to the presence of legionella in water monitoring systems.
12. LIABILITY
12.1 Nothing in the contract shall limit or exclude ST’s liability for:
12.1.1 death or personal injury caused by its negligence or the negligence of its employees,
agents, or subcontractors;
12.1.2 fraud or fraudulent misrepresentation; or
12.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 and section 2 of
the Supply of Goods and Services Act 1982 (title and quiet possession).
12.2 Subject to clause 12.1:
12.2.1 ST shall not be liable to the customer, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise for any loss of profit, loss of revenue, loss of data,
or for any indirect or consequential loss arising under or in connection with
the contract; and
12.2.2 ST’s total liability to the customer in respect of all losses arising under or in connection
with the contract, whether in contract, tort (including negligence), breach of statutory
duty, or otherwise, shall not exceed the total value of the charges paid or payable under
the contract.
12.3 Except as set out in the contract, all warranties, conditions, and other terms implied by
statute or common law are, to the fullest extent permitted by law, excluded from
the contract.
12.4 This clause 12 shall survive termination of the contract.
13. TERM AND TERMINATION
13.1 The contract commences on the date specified in the applicable order form, or, where no
commencement date is specified, on the date when ST commences supply of the
relevant products or services. Unless otherwise specified in the order form, and subject to
earlier termination under this clause 13, the contract shall terminate as follows:
13.1.1 where the contract is for the provision of subscription-based services, it shall continue
for any fixed term specified in the contract and thereafter shall continue until terminated
by the customer or ST giving not less than one month’s prior written notice to the other,
such notice to expire on an anniversary of the commencement date of such subscription
based service; or
13.1.2 in the case of any other contract, when the supply of products and/or services required to
be supplied under the contract is complete.
13.2 Without limiting its other rights or remedies, each party may terminate the contract with
immediate effect by giving written notice to the other party if:
13.2.1 the other party commits a material breach of the contract and either such breach is not
capable of remedy or, if such breach is remediable, it fails to remedy that breach within 30
days of being notified in writing of the breach and being requested to remedy it;
13.2.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to
pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay
its debts within the meaning of section 123 of the Insolvency Act 1986;
13.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in
connection with the winding up of that other party;
13.2.4 an administrator is appointed over the other party or a receiver is appointed over the
assets of the other party; or
13.2.5 a creditor or encumbrancer of the other party attaches or takes possession of, or a
distress, execution, sequestration, or other process is levied or enforced on or sued
against, the whole or any part of its assets and such attachment or process is not
discharged within 14 days.
13.3 Without limiting its other rights or remedies, ST may suspend provision of the services
or the supply of products under the contract or any other contract between ST and the
customer if the customer becomes subject to any of the events listed above in clauses
13.2.1 to 13.2.5, or ST reasonably believes that the customer is about to become subject
to any of them, or if the customer fails to pay any amount due under the contract on the
due date for payment.
1Austin Park, Yeoman Road, Ringwood, Hampshire, BH24 3FG
Registered in England and Wales with Company Number 12075211. VAT Reg 346 8009 90
t: 0330 223 5000 e: enquiries@smartertechnologies.com w: www.smartertechnologies.com
14. DELAYS TO SERVICES
14.1 If, pursuant to the contract, ST is required to provide services to the customer at the
customer’s premises or which otherwise require the involvement of the customer, the
parties shall agree suitable date(s) for the provision of such services in advance (the
“Agreed Dates”). If the customer subsequently wishes to change the agreed dates, it shall
give ST as much prior notice as possible and ST and the customer will agree new agreed
dates. If the customer gives less than 24 hours’ notice of any required change to any of
the agreed dates, then the customer shall pay for fifty per cent of the charges for the
services that would have been provided on such agreed dates. If the customer gives ST
less than 4 working hours’ notice (being between the hours of 9 am to 5.30pm UK time),
then ST reserves the right to charge for the full amount for the services that would have
been provided on such agreed dates.
14.2 If the customer delays the agreed dates for performance of any of the services by more
than 6 months, ST shall, at its discretion, be entitled to cancel the relevant order by notice
in writing to the customer.
15. COMPLIANCE WITH APPLICABLE LAWS
15.1 The customer acknowledges that use of the products and services supplied by ST may be
subject to local regulations governing interception of communications and privacy. The
customer also acknowledges that the context purposes for which the products and
services are used are determined entirely by the customer. Accordingly, it is the
responsibility of the customer to ensure that its use of the products and the services is
compliant with applicable local laws and regulations in force from time to time.
15.2 The customer shall indemnify ST and members of its Group against any loss,
liability, or cost incurred by ST (or the relevant member of its Group) arising from
a breach of clause 15.1.
16. DATA PROTECTION
16.1 Both parties will comply with all applicable requirements of the data
protection legislation.
16.2 The parties acknowledge that, for the purposes of the data protection legislation, the
customer is the data controller and ST is the data processor of any personal data
processed in the course of the provision of the services. The order form sets out the
scope, nature, and purpose of processing by ST, the duration of the processing, and the
types of personal data and categories of data subject. In this clause, “Data Controller”,
“Data Processor”, “Data Subject”, and “Personal Data” have the meanings given to them in
the data protection legislation as defined.
16.3 Without prejudice to the generality of clause 16.1, the customer will ensure that it has all
necessary appropriate consents and notices in place to enable lawful processing of
personal data by ST for the duration and purposes of the contract.
16.4 Without prejudice to the generality of clause 16.1, ST shall, in relation
to any personal data processed in connection with the performance by ST of its
obligations under this agreement:
16.4.1 process that personal data only on the written instructions of the customer unless ST
is required by the laws of any member of the European Union or by the laws of the
European Union applicable to ST to process personal data (“Applicable Laws”). Where
ST is relying on laws of a member of the European Union or European Union law as the
basis for processing personal data, ST shall promptly notify the customer of this before
performing the processing required by the applicable laws unless those applicable laws|
prohibit ST from so notifying the customer;
16.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed
and approved by the customer, to protect against unauthorised or unlawful processing
of personal data and against accidental loss or destruction of, or damage to, personal
data, appropriate to the harm that might result from the unauthorised or unlawful
processing or accidental loss, destruction, or damage and the nature of the data to be
protected, having regard to the state of technological development and the cost of
implementing any measures (those measures may include, where appropriate,
pseudonymising and encrypting personal data, ensuring confidentiality, integrity,
availability, and resilience of its systems and services, ensuring that availability of and
access to personal data can be restored in a timely manner after an incident, and regularly
assessing and evaluating the effectiveness of the technical and organisational measures
adopted by it);
16.4.3 ensure that all personnel who have access to and/or process personal data are obliged to
keep the personal data confidential; and
16.4.4 not transfer any personal data outside of the European Economic Area unless the prior
written consent of the customer has been obtained and the following conditions
are fulfilled:
16.4.4.1 the customer or ST has provided appropriate safeguards in relation to the transfer;
16.4.4.2 the data subject has enforceable rights and effective legal remedies;
16.4.4.3 ST complies with its obligations under the data protection legislation by providing an
adequate level of protection to any personal data that is transferred; and
16.4.4.4 ST complies with reasonable instructions notified to it in advance by the customer with
respect to the processing of the personal data;
16.4.5 assist the customer, at the customer’s cost, in responding to any request from a data
subject and in ensuring compliance with its obligations under the data protection
legislation with respect to security, breach notifications, impact assessments, and
consultations with supervisory authorities or regulators;
16.4.6 notify the customer without undue delay on becoming aware of a personal data breach;
16.4.7 at the written direction of the customer, delete or return personal data and copies thereof
to the customer on termination of the agreement unless required by applicable law to
store the personal data; and
16.4.8 maintain complete and accurate records and information to demonstrate its compliance
with this clause 16 and allow for audits by the customer or the customer’s
designated auditor.
16.5 The customer consents to ST appointing Microsoft Azure or a similar successor provider
as a third-party processor of personal data under this agreement. The provider confirms
that it has entered or (as the case may be) will enter with the third-party processor into
a written agreement substantially on that third party’s standard terms of business
incorporating terms which are substantially similar to those set out in this clause 16. As
between the customer and ST, ST shall remain fully liable for all acts or omissions of any
third-party processor appointed by it pursuant to this clause 16.
17. FORCE MAJEURE
ST shall not be liable to the customer for any delay ornon-performance of its obligations under the
contract or for any loss or damage caused by delay where the same is occasioned by any cause
whatsoever that is beyond ST’s control. Should such event occur, ST may suspend the contract
without incurring liability for any loss or damage thereby occasioned. ST shall be entitled to such
extension of time as is required by ST to fulfil its obligations under the contract. Examples include
(but are not limited to) acts of God, governmental act, epidemic, war, fire, flood, explosion, or civil
commotion.
18. CONFIDENTIALITY
A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know -how,
specifications, inventions, processes or initiatives, and other information which is of a confidential
nature (“Confidential Information”) and has been disclosed to the receiving party by the other party
(“Disclosing Party”), its employees, agents, or subcontractors, and any other confidential
information concerning the disclosing party’s business or its products or its services which the
receiving party may obtain. The receiving party shall use the disclosing party’s confidential
information only for the purposes of this agreement. The receiving party shall restrict disclosure of
such confidential information to such of its employees, agents, or subcontractors as need-to-know
if for the purposes of discharging the receiving party’s obligations under the contract, and shall
ensure that such employees, agents, or subcontractors are subject to obligations of confidentiality
corresponding to those which bind the receiving party. The restrictions in this clause 18 shall not
apply to information that is required to be disclosed by law, to information that is already in the
possession of the receiving party without being subject to an obligation of confidentiality, to
information developed by the receiving party interpedently, or to information that is in the
public domain through no fault of the receiving party. This clause 18 shall survive termination of
the contract.
19. WAIVER
The failure of either party at any time to enforce any provisions of the contract shall in no way
affect that party’s rights thereafter to require complete performance by the other party hereto, nor
shall the waiver of any breach of any provision be taken or held to be a waiver of any subsequent
breach of any such provision or to be or held to be a waiver of the provision itself. Any waiver, to be
effective, must be in writing.
20. WHOLE AGREEMENT
The contract constitutes the entire agreement between the parties as to the subject matter hereof
and supersedes all previous communications, representations, and agreements, whether written or
oral, and the customer hereby acknowledges that no reliance is placed on any representation or
warranty made (verbally or otherwise) but not embodied in the contract. Nothing in this agreement
shall exclude either party’s liability for fraud.
21. ASSIGNMENT AND SUBCONTRACTING
21.1 The contract is personal to the customer and the customer shall not assign, transfer,
charge, subcontract, or deal in any other manner with all or any of its rights or obligations
under the contract without the prior written consent of ST.
21.2 ST may at any time assign, transfer, charge, subcontract, or deal in any other manner with
all or any of its rights under the contract and may subcontract or delegate in any manner
any of all of its obligations under the contract to any third party or agent.
22. SEVERABILITY
If any term, part, or provision of the contract is held by a court of competent jurisdiction to be
invalid, void, or otherwise unenforceable as being contrary to applicable law or public policy, such
provision shall, to the extent reasonably possible, be construed in a manner so as to be enforceable
and the remaining provisions thereof shall remain in full force and effect and in no way be affected,
impaired, or invalidated, except when by reason thereof the fundamental nature of the contract is
thereby frustrated.
23. AMENDMENT
The contract may only be amended by written agreement between the parties hereto signed by the
duly authorised representatives of both parties hereto.
24. THIRD PARTY CONTRACTS
No person who is not a party to the contract has any rights under the contracts (Rights of Third
Parties) Act 1999 to enforce any part of the contract, but this does not affect any right or remedy
of a third party which exists or is available apart from such Act. Any rescission, variation,
amendment, or waiver to or of the contract shall not require the consent or approval of any person
who is not a party to the contract.
25. NOTICES
25.1 Any notice required to be given by either party to the other shall be in writing and shall be
served by sending the same by pre-paid first class post or email or by delivering the same
by hand to the registered office for the time being of the relevant party or to such other
address as may be specified for the purpose by that party and any notice so served shall
be deemed to have been served:
25.1.1 if delivered by hand at the time of such delivery;
25.1.2 if sent through the post 48 hours after the time of dispatch and, in proving service, it shall
be sufficient to prove in the case of a letter that such letter was properly delivered or
stamped, addressed, and placed in the post (as the case may be); and
25.1.3 if sent by email at the time of transmission (or, if sent outside business hours, at 9 am on
the next business day) and in proving service it shall be sufficient to prove that such email
was duly dispatched to an email address of the addressee provided for the purpose.
26. GOVERNING LAW
The contract, and any dispute or claim arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes or claims), shall be governed by, and construed in
accordance with, English law and the parties submit to the exclusive jurisdiction of the courts of
England and Wales