1.INTERPRETATION

 

1.1         Terms defined in any Addendum which makes reference to these terms and conditions shall have the same meaning in these terms and conditions. The following definitions and rules of interpretation apply in these terms and conditions.

 

Business Day: a day other than a Saturday, Sunday or public holiday in South Africa.

 

control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and controls, controlled and the expression change of control shall be construed accordingly.

 

Input: in relation to a party, the services, resources, workforce or other tangibles or intangibles that such party provides in accordance with the Addendum.

 

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

 

1.2)        Clause headings shall not affect the interpretation of these terms and conditions.

 

1.3)         References to clauses are to the clauses of these terms and conditions.

 

1.4)         A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

 

1.5)         A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

 

1.6)         Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

 

1.7)         Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

 

1.8)         These terms and conditions shall be binding on, and enure to the benefit of, the parties to these terms and conditions and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.

 

1.9)         A reference to legislation or a legislative provision is a reference to it as amended, extended or re- enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.

 

1.10)       A reference to writing or written includes email but not fax.

 

1.11)       Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

 

1.12)       Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2. COMMENCEMENT AND DURATION

 

The agreement comprised of these terms and conditions and an Addendum (agreement) shall commence on the date when the Addendum has been signed by both the parties and shall continue, unless terminated earlier in accordance with clause 18 (Termination of agreement), until terminated by either party giving at least [90] days’ written notice to the other party.

 

3. EXISTING ARRANGEMENTS

 

Nothing in this agreement shall restrict either party’s right to continue to conduct its business activities or arrangements that existed before the date of this agreement or that otherwise come into being outside the scope of this agreement.

 

4. OBLIGATIONS

 

4.1)         An Addendum that has been signed by both parties may be amended at any time in accordance with clause 24 (Variation).

 

4.2)         Each party shall in relation to the obligations allocated to it under this agreement:

 

(a)          perform such obligations, including by providing the Inputs, in accordance with timeframes or milestones (if any) specified in the Addendum;

 

(b)          use reasonable care and skill in performing such obligations;

 

(c)           comply with good industry practice;

 

(d)          comply with all laws applicable to it;

 

(e)          obtain and maintain consents, licences and permissions (statutory, regulatory, contractual or otherwise) that are necessary to enable it to comply with such obligations;

 

(f)           ensure that the Inputs it provides conform with descriptions and specifications (if any) set out in the Addendum; and

 

(g)          if on the other party’s premises, comply with that party’s health and safety and site regulations made known to it.

 

4.3)         Each party shall ensure that it uses employees or agents in performing its obligations under this agreement who are suitably qualified and experienced.

 

 

 

5. CUSTOMERS

 

5.1)         Each party agrees that it has no right to bind the other party in contract or otherwise in relation to any customers or potential customers and it shall not represent that it has such right.

 

5.2)         Nothing in this agreement constitutes one party a partner, employer, employee or agent of the other party.

 

5.3)         Neither party may provide to any of its customers any information, or make any representation, relating to the other party’s products or services, unless that information or representation is approved in writing by that party for use in those circumstances.

 

6. INFORMATION FLOW AND ADDENDUM MANAGEMENT

 

6.1)         To enable the parties to maximise the benefits of their collaboration, each party shall:

 

(a)          engage the other in planning discussions in relation to the Addendum from time to time;

 

(b)          keep the other party informed about its own progress in relation to the Addendum; and

 

(c)           facilitate regular discussions between appropriate members of its personnel and those of the other party in relation to the Addendum, including in relation to:

 

(i)            performance and issues of concern in relation to the Addendum;

 

(ii)           new developments and resource requirements;

 

(iii)          compliance with deadlines; and

 

(iv)          such other matters as may be agreed between the parties from time to time.

 

6.2)         Each party shall:

 

(a)          supply to the other party information and assistance reasonably requested by it relating to this agreement as is necessary to enable that other party to perform its own obligations in relation to this agreement;

 

(b)          review documentation, including draft specifications or service descriptions or other technical documentation, for use when performing its obligations under this agreement, as soon as reasonably practicable at the request of the other party, and notify it of any errors or incorrect assumptions made in any such documents so far as it is aware; and

 

(c)           keep full and proper books of account and records in relation to its activities under this agreement and allow the other party (or its nominee, including without limitation its designated accountants or auditors), on reasonable notice, access to all accounts and records relating to this agreement to the extent necessary to audit compliance with this agreement.

 

7. FEES

 

7.1)         Except as provided for in clause 7.2, each party shall:

 

(a)          not be entitled to charge the other party for the provision of anything (including Inputs) it provides in connection with this agreement; and

 

(b)          be otherwise responsible for its own costs incurred in connection with this agreement, including all Inputs it provides.

 

7.2)         If the Addendum provides that a party is responsible for paying the other party any Fees, such Fees shall be invoiced and paid for in accordance with clause 8 (Invoicing and payment).

 

8. INVOICING AND PAYMENT

 

8.1)         If the Addendum provides that a party will pay the other party any Fees, the other party may issue invoices for such Fees:

 

(a)          in accordance with the Payment Terms (if any) provided for in the Addendum; or

 

(b)          if no invoicing procedure is provided for in the Addendum, at the end of each month.

 

8.2)         Unless otherwise provided in the Addendum, the Fees specified in the Addendum are exclusive of VAT, which shall be included in invoices and payable, if applicable, in addition to the Fees.

 

8.3)         Fees shall be payable in the Currency.

 

8.4)         Each party shall promptly notify the other in writing of the following:

 

(a)          the date it enters into a contract the subject of the Addendum;

 

(b)          the amount of the Fees due under the Addendum as a result; and

 

(c)           the dates on which Fees are payable.

 

8.5)         A party shall pay an invoice issued to it in accordance with this agreement within [30] days of the date of receiving the invoice.

 

8.6)         If a party fails to make a payment due to the other party under this agreement by the due date, then, without limiting the other party’s remedies under clause 18 (Termination of agreement), the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.

 

8.7)         Interest under this clause will accrue each day at 2% a year above the Bank of England’s base rate from time to time, but at 2% a year for any period when that base rate is below 0%.

 

8.8)         If any dispute arises as to the amount of Fees payable under this agreement, the same shall be referred to Celerity’s auditors for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.

 

9. SET-OFF

 

All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

 

10. CONFIDENTIALITY

 

10.11)       Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives to the other party and that party’s Representatives in connection with this agreement, including:

 

(a)          the existence and terms of this agreement;

 

(b)          any information that would be regarded as confidential by a reasonable business person relating to:

 

(i)            the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and

 

(ii)           the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party; and

 

(c)           any information that is developed by the parties in the course of carrying out this agreement.

 

10.2)       Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

 

10.3)       The provisions of this clause shall not apply to any Confidential Information that:

 

(a)          is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

 

(b)          was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

 

(c)           was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or

 

(d)          the parties agree in writing is not confidential or may be disclosed.

 

10.4)       Each party shall keep the other party’s Confidential Information confidential and shall not:

 

(a)          use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or

 

(b)          disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause.

 

10.5)       A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

 

(a)          it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

 

(b)          at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.

 

10.6)       A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.

 

10.7)       Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.

 

10.8)       On termination of this agreement each party shall:

 

(a)          destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;

 

(b)          erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

 

(c)           certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party.

 

10.9)       The provisions of this clause 10 shall continue to apply after termination of this agreement in accordance with clause 19 (Survival).

 

11. ANNOUNCEMENTS

 

11.1)       Subject to clause 11.2, neither party shall make, or permit any person to make, any public announcement, communication or circular (announcement) concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). The parties shall consult together on the timing, contents and manner of release of any announcement.

 

11.2)       Where an announcement is required by law or any governmental or regulatory authority (including any relevant securities exchange), or by any court or other authority of competent jurisdiction, the party required to make the announcement shall promptly notify the other party. The party concerned shall make all reasonable attempts to agree the contents of the announcement before making it.

 

12. DATA PROTECTION

 

12.1)       Definitions.

 

(a)          Agreed Purposes: fulfilment of the provisions of this agreement.

 

(b)          Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation.

 

(c)           Data Discloser: a party that discloses Shared Personal Data to the other party.

 

(d)          Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

 

(e)          UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

 

(f)           Permitted Recipients: the parties to this agreement, the employees of each party and any third parties engaged to perform obligations in connection with this agreement.

 

12.2)       This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

 

12.3)       Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.

 

12.4)       Each party shall:

 

(a)          ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

 

(b)          give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

 

(c)           process the Shared Personal Data only for the Agreed Purposes;

 

(d)          not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

 

(e)          ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;

 

(f)           ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;

 

(g)          not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

 

12.5)       Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

 

(a)          consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;

 

(b)          promptly inform the other party about the receipt of any data subject rights request;

 

(c)           provide the other party with reasonable assistance in complying with any data subject rights request;

 

(d)          not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible;

 

(e)          assist the other party, at the cost of the other party, 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, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;

 

(f)           notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

 

(g)          at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Shared Personal Data;

 

(h)          use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;

 

(i)            maintain complete and accurate records and information to demonstrate its compliance with this clause 12; and

 

(j)           provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

 

13. INTELLECTUAL PROPERTY

 

13.1)       This agreement does not transfer any interest in Intellectual Property Rights. All Intellectual Property Rights in a party’s products (and improvements and developments to them) shall be owned by that party (Product IPR).

 

13.2)       Each party grants to the other party a non-exclusive, personal, royalty-free licence during the term of this agreement to use the Product IPR to the extent necessary for that party to carry out its obligations under this agreement.

 

13.3)       On termination of this agreement, each party shall cease to use that Product IPR and shall return any physical embodiment of the Product IPR (including any copies) in its possession or control to the other party.

 

13.4)       Each party shall, at the expense of the other party, take all such steps as the other party may reasonably require to assist it in maintaining the validity and enforceability of its Intellectual Property Rights during the term of this agreement.

 

13.5)       Without prejudice to the right of either party or any third party to challenge the validity of any Intellectual Property Rights of the other party, neither party shall do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the other party and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

 

13.6)       The Partner shall not:

 

(a)          copy Celerity Products or any part of any of them except to the extent and for the purposes expressly permitted by this agreement; or

 

(b)          modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in Celerity Products except and only to the extent that it is expressly permitted by applicable law.

 

13.7)       The Partner shall ensure that each reference to, and use of, any of Celerity’s trade marks (Trade Marks) by the Partner is in a manner approved from time to time by Celerity and accompanied by an acknowledgement in a form approved by Celerity that the same is a trade mark (or registered trade mark) of Celerity.

 

13.8)       The Partner shall not:

 

(a)          use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Celerity therein;

 

(b)          use in relation to Celerity Products any trade marks other than the Trade Marks without obtaining the prior written consent of Celerity; or

 

(c)           use any trade marks or trade names so resembling any trade mark or trade names of Celerity as to be likely to cause confusion or deception.

 

13.9)       Other than the licences expressly granted under this Agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Partner shall have no rights in respect of any trade names or trade marks used by Celerity in relation to Celerity Products or their associated goodwill, and the Partner hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, Celerity.

 

13.10)     The Partner shall promptly give notice in writing to Celerity in the event that it becomes aware of:

 

(a)          any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to Celerity Products; and

 

(b)          any claim that any Celerity Product or the use of any Celerity Product, whether or not under the Trade Marks, infringes the rights of any third party.

 

13.11)     In the case of any matter falling within clause 13.10(a):

 

(a)          Celerity shall, in consultation with the Partner, determine what action if any shall be taken in respect of the matter; and

 

(b)          Celerity shall have sole control over and shall conduct any consequent action as it shall deem necessary; and

 

(c)           Celerity shall pay all costs in connection with that action and shall be entitled to all damages and other sums which may be paid or awarded as a result of any such action.

 

13.12)     In the case of any matter falling within clause 13.10(b):

 

(a)          Celerity shall defend the Partner, its officers, directors and employees against any claims that the marketing, advertising or distribution of Celerity Products in accordance with this agreement infringes any Intellectual Property Right and shall indemnify the Partner for and against any amounts awarded against the Partner in judgment or settlement of such claims provided that:

 

(i)            Celerity is given prompt notice of such claim;

 

(ii)           the Partner provides reasonable co-operation to Celerity in the defence and settlement of such claim, at Celerity’s expense; and

 

(iii)          Celerity is given sole authority to defend or settle the claim.

 

(b)          In the defence or settlement of the claim, Celerity may obtain for the Partner the right to continue promoting Celerity Products in the manner contemplated by this agreement, modify the Celerity Product so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement forthwith by notice in writing and without liability to the Partner. Celerity shall not in any circumstances have any liability if the alleged infringement is based on:

 

(i)            the Partner Products, whether in whole or in part;

 

(ii)           a modification of Celerity Products by anyone other than Celerity;

 

(iii)          the Partner’s marketing, advertising, distribution or use of Celerity Products in a manner contrary to the instructions given to the Partner by Celerity;

 

(iv)          the Partner’s marketing, advertising, distribution or use of Celerity Products after notice of the alleged or actual infringement from Celerity or any appropriate authority; or

 

(v)           use or combination of Celerity Products with the Partner Products in circumstances where, but for such combination, no infringement would have occurred.

 

(c)           The foregoing states the Partner’s sole and exclusive rights and remedies, and Celerity’s entire obligations and liability, in the case of any matter falling under clause 13.10(b).

 

13.13)     Each party shall, at the request and expense of the other, provide all reasonable assistance to the other (including, but not limited to, the use of its name in, or being joined as a party to, proceedings) in connection with any action to be taken by the other party, provided that that party is given such indemnity as it may reasonably require against any damage to its name.

 

14. NON-SOLICITATION AND NON-EMPLOYMENT OF EMPLOYEES AND CONTRACTORS

 

Each party agrees that it shall not without the prior written consent of the other party, at any time during this term of this agreement and for a period of [12] months after the termination of this agreement, solicit or entice away or attempt to solicit or entice away from that party or employ any person who is, or has been, engaged as an employee, consultant or subcontractor of that party in relation to this agreement.

 

15. ANTI-BRIBERY

 

15.1)       Each party shall in relation to this agreement:

 

(a)          comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including the Bribery Act 2010 (Relevant Requirements);

 

(b)          not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

 

(c)           have and shall maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 15.1(b), and will enforce them where appropriate;

 

(d)          promptly notify the other party (in writing) if it becomes aware of any breach of clause 15.1(a) or clause 15.1(b)), or it or any person associated with it receives a request or demand for any undue financial or other advantage in connection with the performance of this agreement

 

(e)          immediately notify the other party (in writing) if a foreign public official becomes an officer or employee of it or acquires a direct or indirect interest in it and warrants that it has no

 

foreign public officials as direct or indirect owners, officers or employees at the date of this agreement.

 

15.2)       Each party shall ensure that any person associated with it who is performing obligations in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on that party in this clause 15 (Relevant Terms). Such party shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the other party for any breach by such persons of any of the Relevant Terms.

 

15.3)       For the purpose of this clause 15, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 15, a person associated with a party includes any subcontractor of that party.

 

16. WARRANTIES

 

16.1)       Each party warrants that it has full power and authority to carry out the actions contemplated under this agreement.

 

16.2)       Except as expressly provided in this agreement, there are no conditions, warranties or other terms binding on the parties with respect to the actions contemplated by this agreement. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this agreement, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this agreement.

 

17. INSURANCE

 

During the term of this agreement and for a period of six years thereafter, the Partner shall maintain in force, with a reputable insurance company, professional indemnity insurance appropriate to its obligations under this agreement and shall, on Celerity’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.

 

18. TERMINATION OF AGREEMENT

 

18.1)       Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

 

(a)          the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of

 

[15] days after being notified in writing to do so;

 

(b)          the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

 

(c)           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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

 

(d)          the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;

 

(e)          the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

 

(f)           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;

 

(g)          an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

 

(h)          the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

 

(i)            a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

 

(j)           a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

 

(k)           any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.1(c) to clause 18.1(j) (inclusive);

 

(l)            the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

 

(m)         the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or

 

(n)          in accordance with clause 20 (Force majeure).

 

18.2)       Without affecting any other right or remedy available to it, Celerity may terminate this agreement with immediate effect by giving written notice to the Partner if there is a change of control of the Partner.

 

19. SURVIVAL

 

19.1)       On termination of this agreement:

 

(a)          those clauses intended by the parties to survive termination shall continue in force; and

 

(b)          each party shall, and shall procure that its Representatives shall, as soon as reasonably practicable return or destroy (as directed in writing by the other party) any documents, handbooks, or other information or data provided to it by the other party for the purposes of this agreement.

 

19.2)       Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.

 

20. FORCE MAJEURE

 

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for [four] weeks, the party not affected may terminate this agreement by giving [seven] days’ written notice to the affected party.

 

21. ASSIGNMENT AND OTHER DEALINGS

 

Neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).

 

22. ENTIRE AGREEMENT

 

22.1)       This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

22.2)       Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this agreement. No party shall have any claim for innocent or negligent misrepresentation based on any statement in this agreement.

 

23. CONFLICT

 

Where there is a conflict between the provisions of this agreement and the Addendum, the provisions of the Addendum shall prevail.

 

24. VARIATION

 

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  

25. NOTICES

 

25.1)       A notice given to a party under or in connection with this agreement shall be in writing and sent to the party at the address given in this agreement or as otherwise notified in writing to other party.

 

25.2)       This clause 25.2 sets out the delivery methods for sending a notice to a party under this agreement and, for each delivery method, the date and time when the notice is deemed to have been received (provided that all other requirements of this clause have been satisfied, and subject to the provisions of clause 25.3):

 

(a)          if delivered by hand, at the time the notice is left at the address; or

 

(b)          if sent by Courier or other delivery service providing proof of delivery, at 9.00am on the Business Day after receipt; or

 

(c)           if sent by email, at the time of transmission.

 

25.3)       If deemed receipt under clause 25.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

 

25.4)       This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

 

 

26. SEVERANCE

 

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

 

27. RIGHTS AND REMEDIES

 

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

 

28. WAIVER

 

28.1)       A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

 

28.2)       A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

 

29. COUNTERPARTS

 

This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

 

30. THIRD PARTY RIGHTS

 

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

 

31. FURTHER ASSURANCE

 

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.

 

32. GOVERNING LAW

 

This agreement 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 the law of England and Wales.

 

33. JURISDICTION

 

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) provided that either party may enforce any judgment of the courts of England and Wales in the courts of any jurisdiction.