SEROCOLD SERVICE AGREEMENT

These are the terms and conditions referred to in the Order Form completed by us, Serocold Limited, and you, the Customer, for the provision of the Hardware and Services referred to in the Order Form.  These terms and conditions are referred to as the “Terms” and with the Order Form and the documents referred to in the Terms comprise the “Agreement”.

 

1          DEFINITIONS & INTERPRETATION

1.1 In this Agreement, the terms defined in the Order Form (as defined below) shall have the meaning given to them in the Order Form and the following terms shall have the following meanings:

“Additional Charges”: any charges or expenses payable by the Customer additional to those listed in the Order Form.

“Assumptions”: Assumptions/Key Points described in Statement of Work in the form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any other assumptions in any similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier

“Business Day”: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Charges”: the amounts payable for the Software Services, the Professional Services and/or the Hardware as set out in the Order Form.

“Confidential Information”: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.

“controller”, “processor”, “data subject”, “personal data”, “personal data breach”, “processing” and “appropriate technical and organisational measures”:  as defined in the Data Protection Legislation.

“Customer Deliverables”: Customer Deliverables (in the final form in which they are delivered) described in Statement of Work form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any specific customer deliverables referred to in any similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier

 “Data Protection Legislation”: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

 “Dependencies”: the Key Dependencies/Prerequisites described in Statement of Work in the form agreed between the Customer, Serocold and the Supplier as from time to time amended and together with any dependencies in similar document describing the scope of work relating to the Project agreed between the Customer, Serocold and the Supplier.    

 “Due Date”: the due date for payment of invoices by the Customer as referred to in the Payment Terms in the Order Form or if none is referred to 14 days following the date of invoice.

            “Effective Date”: the Effective Date as set out in the Order Form and being the date of this Agreement.

“End Customer Terms”: the Supplier End Customer Terms at https://www.serocold.com/condeco-end-user-customer-terms as may be amended from time to time.

“EU” the member states of the European Union as comprised from time to time. 

“Initial Term”: the initial term of this Agreement as set out in the Order Form.

“Hardware”: the hardware products in the Order Form and all substitutions, replacements or renewals, and manuals and instructions. 

“Hardware Delivery Date” the date for delivery of the Hardware specified in the Order Form. 

“Hardware Fee”: the Charges relating to the purchase of the Hardware.

“Intellectual Property Rights”: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, 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.

“Normal Business Hours”: 9.00 am to 6.00 pm local UK time, each Business Day.

“Professional Services”: the professional services in the Order Form and any additional services and training from time to time ordered by the Customer.

“Professional Services Fee”: the Charges relating to the Professional Services. 

“Services”: together and each of the Software Services and the Professional Services.

“Software Services”: the software services in the Order Form and any other software necessary to deliver the Services.

“Software Services Fee”: the Charges relating to the Software Services.

“Subprocessor”: means any person (including any third party and any Supplier Affiliate but excluding an employee of the Supplier or any of its sub-contractors) appointed by or on behalf of the Supplier or any Supplier Affiliate to process Supplier Customer Data on behalf of the Customer in connection with  the supply of any Services and/or the provision of Hardware.

“Supplier Affiliate”: means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with the Supplier, where ‘control’ is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

“Supplier Customer Data”: means any personal data of the Customer processed or to be processed by the Supplier pursuant to the supply of any Services.

“Serocold Account”:  Serocold’s bank account to which payment of the Charges and any Additional Charges. “UK Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK.

1.2       Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

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

1.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.6 Any words following the terms including or include 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 or similar expression. 

1.7       A reference to writing or written includes e-mail but not fax.

1.8       References to clauses and schedules are to the clauses and schedules of this Agreement. 

2          CONDITIONS WARRANTIES AND ACKNOWLEDGEMENT

2.1 The Customer warrants to Serocold that it is free to enter into and perform the Agreement without requiring the consent licence or permission of any third party (including any government or statutory body) and once executed the Agreement will represent a binding legal agreement upon it.  

2.2       The Customer acknowledges and agrees that:

            2.2.1          the prices quoted in the Order Form are valid until the Expiry Date only;

2.2.2 other than as contained in this Agreement, Serocold makes no representation, warranty, promise, guarantee or other commitment about or in relation to the Hardware, the Professional Services or the Software Services and has no authority to contract on behalf of the Supplier.

2.3 The Customer further acknowledges and agrees that compliance by Serocold with its obligations in this Agreement is:

2.3.1          conditional upon performance and fulfilment of its obligations on the Dependencies in a timely manner; 

            2.3.2          subject to as required by the Assumptions.

2.4 Serocold warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations in this Agreement. 

3          PURCHASE OF SOFTWARE SERVICES

This clause 3 shall apply if the Customer purchases Software Services.

3.1 By entering into this Agreement, the Customer agrees to be bound by the End Customer Terms which shall apply to the provision of the Software Services by or for Serocold. 

3.2 Serocold shall not be responsible to for any loss, damage, cost or expense suffered by the Customer arising from or in connection with any subscription to, or use of, the Software Services.

4        SUPPLY OF HARDWARE  This clause 4 shall apply if the Customer purchases Hardware from Serocold under this Agreement

4.1 Subject as provided in these Terms, on the Effective Date Serocold shall sell with full title guarantee and the Customer shall purchase by the Hardware for the Hardware Fee. 

4.2       The Customer shall be responsible for any installation of the Hardware. 

4.3 Serocold reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Hardware as has not been delivered to reflect any increase in the cost to Serocold which is due to market conditions or any factor beyond the control of Serocold (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Hardware which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give Serocold adequate information or instructions.

4.4 Serocold shall use its reasonable endeavours to deliver the Hardware on the Hardware Delivery Date to the Hardware Delivery Address, but the Hardware Delivery Date is an estimate only and time is not of the essence as to the delivery of the Hardware and Serocold is not in any circumstances liable for any delay in delivery, howsoever caused.

4.5       Any samples, drawings, descriptive matter, or advertising produced and any descriptions or illustrations contained catalogues or brochures supplied with the Hardware are produced for the sole purpose of giving an approximate idea of the Hardware described therein and shall not form part of this Agreement or have any contractual force.

4.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Serocold shall be subject to correction without any liability on the part of Serocold.

4.7 Delivery of the Hardware shall be made during Normal Business Hours. Serocold may levy additional charges for any deliveries made outside such hours at the Customer's written request.

4.8 The Customer shall be responsible, at its sole cost, for preparing the Hardware Delivery Address for delivery of the Hardware and for the provision of all necessary access and facilities reasonably required to deliver the Hardware. If Serocold is prevented from carrying out delivery on the Hardware Delivery Date because no such preparation has been carried out, Serocold may levy additional charges to recover its loss arising from this event. 

4.9 The Customer Representative shall be present at the Hardware Delivery Address on delivery of the Hardware. On delivery, the Customer shall examine the Hardware to ensure it is in good working order, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection) (“Examination”).

4.10 The Customer shall be deemed to have accepted the Hardware within one Business Day of Examination in accordance with clause 4.9 provided it has not exercised in writing its right of rejection in accordance with clause 4.11.

4.11 If on Examination, the Customer is not satisfied the Hardware complies with the requirements contained in clause 4.9, the Customer shall be entitled to reject the Hardware by notice to Serocold given within one Business Day of Examination in which event:

            4.11.1        ownership of and title in the Hardware shall remain with Serocold;

4.11.2 the Customer shall, at its sole cost, return the Hardware to Serocold’s address given in the Order Form.

4.12 If the Customer Representative fails to accept delivery of the Hardware in accordance with clauses 4.9, 4.10 and 4.11 then:

4.12.1 delivery of the Hardware shall be deemed to have taken place on the Hardware Delivery Date; 

4.12.2 Serocold may store the Hardware until delivery takes place at the Customer’s sole cost; and 

4.12.3 if the Customer fails to accept delivery within three days of the Hardware Delivery Date, Serocold may without any liability to the Customer resell or otherwise dispose of all or part of the Hardware.

4.13 Serocold may deliver the Hardware by instalments, which shall be invoiced and paid for separately in accordance with the Order Form and clause 10. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. Serocold may also ship all Hardware in a single shipment which the Customer shall be obliged to accept.

4.14 Serocold warrants that on delivery (or deemed delivery) the Hardware shall comply with the Order Form and be of satisfactory quality and fit for any purpose held out by Serocold. Serocold shall use reasonable endeavours to remedy any material defect in the Hardware which manifests itself within 12 months from delivery (or deemed delivery) provided that:

4.14.1 Serocold is notified of any defect in writing within 8 Business Days of the defect occurring or of the Customer becoming aware of the defect;

4.14.2 Serocold or its nominated agent is permitted to make a full examination of the alleged defect;

4.14.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling, accident or unauthorised manipulation by any person other than Serocold’s authorised personnel;

4.14.4 the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf;

            4.14.5          the defect is directly attributable to defective material, workmanship or design;

            4.14.6      Serocold shall not be liable for the Hardware’s failure to comply with the warranty

set out in this clause 4.14 if further use is made of such Hardware after giving notice in accordance with clause 4.14; and

4.14.7 The provisions of this clause 4.14 shall apply to any repaired or replacement Hardware supplied by Serocold.

4.15     Serocold shall, at its option, repair or replace the defective Hardware, or refund the price of the defective Hardware in full.

4.16 Serocold shall not be responsible for any damage to, destruction of, shortage of, or loss of the Hardware in transit.

4.17 The Customer shall not copy, modify, adapt, develop, decompile, reverse engineer, disassemble, create any derivative work, or carry out any act otherwise restricted by Intellectual Property Rights subsisting in the Hardware or the Services.

4.18 The Hardware shall be at the risk of Serocold until delivery (or deemed delivery) to the Hardware Delivery Address. Serocold (or its carrier) shall off-load the Hardware at the Customer’s risk.

4.19 Ownership of the Hardware shall pass to the Customer when Serocold has received the Hardware Fee in full and cleared funds in accordance with clause 10. Risk in the Hardware shall pass to the Customer on delivery. 

5          SUPPLY OF PROFESSIONAL SERVICES

This clause 5 shall apply if the Customer purchases the Professional Services from Serocold under this Agreement.

5.1 Serocold warrants that it shall supply the Professional Services including the Customer Deliverables to the Customer with reasonable care and skill and that the Professional Services shall be in accordance with the Order Form.

5.2 Serocold shall use reasonable endeavours to meet any performance dates in relation to the Professional Services but any such performance dates shall be estimates only and time shall not be of the essence for supply of the Professional Services.

5.3       The Customer shall:

5.3.1          co-operate with Serocold in all matters relating to supply of the Professional Services;

5.3.2 provide in a timely manner such access to the Customer's premises and data, and such office accommodation and other facilities, as is requested by Serocold;

5.3.3 provide in a timely manner such information as Serocold may request, and ensure that such information is accurate and complete in all material respects; and

5.3.4 be responsible (at its own cost) for preparing the relevant premises, Hardware and other equipment for the supply of the Professional Services.

5.4 If Serocold’s  performance of its obligations contained in this clause is prevented or delayed by any act or omission of the Customer or the Customer's agents, subcontractors or employees, the Customer shall in all circumstances be liable to pay to Serocold on demand all reasonable costs, charges or losses sustained or incurred by it, subject to Serocold confirming such costs, charges and losses to the Customer in writing. Such losses shall include, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere.

6          INTELLECTUAL PROPERTY 

6.1 The Customer’s rights in the Intellectual Property Rights in or arising out of or in connection with the Services (including but not limited to the Customer Deliverables) shall be limited to use in and for the purposes of the Project and all rights of the Customer shall cease on termination of this Agreement.  The Customer shall not have nor shall it assert any right to ownership or title to any Intellectual Property Rights in or arising out of or in connection with the Services (including but not limited to the Customer Deliverables. 

7          DATA PROCESSING

7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to Serocold) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

7.2 The parties acknowledge that for the purposes of the Data Protection Legislation and in relation to personal data collected by Serocold from the Customer pursuant to this Agreement but not shared with the Supplier pursuant to clause 8, the Customer is the controller and the Serocold  is the processor. The Data Processing Statement sets out the scope, nature and purpose of processing by Serocold, the duration of the processing and the types of personal data and categories of Data Subject.

7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Serocold and Serocold will ensure that it has all necessary appropriate consents and

notices in place to enable lawful collection of personal data by Serocold on behalf of the Customer for the duration and purposes of this Agreement.

7.4 Without prejudice to the generality of clause 6.1 Serocold shall, in relation to any personal data processed in connection with the performance by Serocold of its obligations under this Agreement:

7.4.1 process that personal data only on the documented written instructions of the Customer provided from time to time unless Serocold is required by Applicable Laws to otherwise process that personal data. Where Serocold is relying on Applicable Laws as the basis for processing personal data, it shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Serocold from so notifying the Customer;

7.4.2 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); 

7.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

7.4.4 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:

7.4.4.1 the Customer or Serocold has provided appropriate safeguards in relation to the transfer;

                              7.4.4.2        the data subject has enforceable rights and effective legal remedies;

7.4.4.3 Serocold complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

7.4.4.4 Serocold complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

7.4.5 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;

7.4.6          notify the Customer without undue delay on becoming aware of a personal data Breach;

            7.4.7       at the written direction of the Customer, delete or return personal data and copies

thereof to the Customer on termination of this Agreement unless required by Applicable Law to store the personal data; and

7.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7 

7.5 The Customer does not consent to Serocold appointing any third party processor of personal data under this Agreement. 

7.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).

  1. DATA SHARING, SUBPROCESSOR APPOINTMENT ETC.

    1. The Customer consents to Serocold and the Supplier sharing with each other personal data collected by Serocold under this Agreement. 

    2. Serocold shall ensure that it has all necessary appropriate consents and notices in place to enable lawful sharing of personal data with the Supplier pursuant to this clause 8. 

    3. The Customer acknowledges and agrees that, with respect to the following categories personal data shared between Serocold and the Supplier  pursuant to this clause 8, each of Serocold and the Supplier is a controller: forenames, middle names, surnames, and e-mail addresses, of the Customer’s employees, agents and consultants.

    4. The Customer shall, as necessary for supply of any Services by the Supplier to the Customer instruct the Supplier (and thereby authorise the Supplier to instruct each Subprocessor) to:

      1. process Supplier Customer Data; and

      2. transfer Supplier Customer Data to any country or territory.

    5. For the purposes of and at the same time as it instructs the Supplier pursuant to clause 8.4 the Customer warrants to the Supplier that such instruction in relation to Supplier Customer Data is lawful.

    6. The Customer will if requested or required by the Supplier authorise the Supplier to appoint (and permit each such Subprocessor appointed to appoint) Subprocessors in accordance with and subject to the Supplier’s appointment procedures.

    7. The Customer shall indemnify and keep indemnified Serocold against any breach of the warranty in clause 8.5 and any costs and expenses arising in relation thereto

9          CONFIDENTIALITY

9.1       Each party shall keep in strict confidence:

9.1.1 all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by either party to the other party, its officers, employees or agents; and

9.1.2 any other confidential information concerning the other party’s business or its products which the either party may obtain (“Confidential Information”).

9.2 The Customer shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer's obligations to Serocold under this Agreement and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer under this Agreement. 

9.3 Each party (a “receiving party”) may be given access to Confidential Information from the other party (a “disclosing party”) in order to perform its obligations under this Agreement. A disclosing party's Confidential Information shall not be deemed to include information that:

9.3.1 is or becomes publicly known other than through any act or omission of the receiving party;

            9.3.2          was in the receiving party's lawful possession before the disclosure;

9.3.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

9.3.4         is independently developed by the receiving party, which independent development can be shown by written evidence to the disclosing party. 

9.4 Subject to clause 9.6 a receiving party shall hold a disclosing party’s Confidential Information in confidence and not make such disclosing party’s Confidential Information available to any third party or use such disclosing party’s Confidential Information for any purpose other than the implementation of this Agreement.

9.5 A receiving party shall take all reasonable steps to ensure that a disclosing party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of this Agreement.

9.6 A receiving 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. To the extent it is legally permitted to do so, a disclosing party shall give a receiving party as much notice of such disclosure as possible. Where notice of disclosure is not prohibited and is given in accordance with this clause 9.6, a receiving party shall take into account the reasonable requests of a disclosing in relation to the content of such disclosure.

9.7       This clause 9 shall survive termination of this Agreement howsoever arising.

10        CHARGES AND PAYMENT

10.1 The Customer shall pay the Charges and any Additional Charges to Serocold in accordance with the Order Form and this clause 10. 

10.2 The Customer acknowledges and agrees that the Hardware Fee is exclusive of exclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and duties.

10.3 The Customer shall on or before the Effective Date  provide to Serocold all valid, up-to-date and complete contact and billing details and the Supplier shall provide details of the bank account to which payment of the Charges and any Additional Charges shall be made if such payment is not to be made to the Serocold Account. 

10.4 The Supplier shall invoice the Customer for the Charges and such invoice shall be immediately payable in accordance with the Order Form.

10.5 The Supplier shall invoice the Customer for any Additional Charges no later than the last Business Day of the month in which such Additional Charges accrue and such invoice shall be immediately payable in accordance with the Order Form.

10.6 If Serocold has not received payment of the Charges or any Additional Charges (as the case may be) by the Due Date, then without prejudice to any other rights and remedies of the Supplier:

10.6.1 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the base rate of the Bank of England from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment; and 

10.6.2 the Supplier shall be entitled to suspend performance of its obligations in this Agreement without any liability to the Customer.

10.7 All Charges and the Additional Charges stated in the Order Form and contained or referred to in this Agreement:

10.7.1 shall be payable in the Currency;

10.7.2 are, subject to clause 12, non-cancellable and non-refundable;

10.7.3 are exclusive of value added tax, which shall be added to Serocold’s invoice(s) at the appropriate rate.

10.8     Serocold shall be entitled to increase the Charges payable after expiry of the Initial Term on giving not less than 30 days’ notice to the Customer prior to expiry of the Initial Term.

11        INDEMNITY

11.1 The Customer shall indemnify Serocold against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential loss, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Serocold arising out or in connection with:

11.1.1      the Customer’s breach of, or delay in performance of, the End Customer Terms;  11.1.2       the enforcement of this Agreement;

11.1.3 any claim made against Serocold by a third party for death, personal injury or damage to property arising out of or in connection with defective Hardware, to the extent that the defect in the Hardware is attributable to the acts or omissions of the Customer, its officers, employees, agents or subcontractors.

11.2     This indemnity shall apply whether or not Serocold has been negligent or at fault.

11.3     Serocold shall be under no duty to mitigate the losses it claims under this indemnity. 

12        LIMITATION OF LIABILITY

12.1 The following provisions of this clause 12 set out the entire financial liability of Serocold (including any liability for the acts or omissions of its officers, employees, agents and subcontractors) to the Customer in respect of:

            12.1.1        any breach of this Agreement howsoever arising;

12.1.2 any use made by the Customer of the Professional Services, the Hardware, the Software Services or any part of them (as the case may be); and

12.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement. 

12.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from this Agreement.

12.3     Nothing in this Agreement excludes the liability of either party:

            12.3.1        for death or personal injury caused by the other party’s negligence; or

            12.3.2        for fraud or fraudulent misrepresentation.

12.4     Subject to clauses 12.2 and 12.3:

12.4.1 Serocold shall not be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation, restitution or otherwise for any special, indirect, consequential or pure economic loss, costs,

damages or expenses of the Customer howsoever arising under this Agreement; and

12.4.2 Serocold’s total aggregate liability in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise arising in connection with Serocold’s performance or anticipated performance of this Agreement shall be limited to an amount equal to the Charges and any Additional Charges to the extent they are recoverable from the Supplier.

12.5     Subject to clause 12.3 and without prejudice to clause 12.4.1:

12.5.1 Serocold shall not be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation, restitution or otherwise for any loss, claim, expense, damage, expense or liability whatsoever arising from or in connection with failure of the Software Services or the Hardware which results from: 

                              12.5.1.1 any malfunction or failure of any equipment outside Serocold’s control;

12.5.1.2 any operation or use of the Hardware or the Software Services contrary to any instructions given by Serocold from time to time; and 

12.5.1.3 any breach by, or delay in performance by, the Customer of the End Customer Terms.

13        TERM AND TERMINATION

13.1 This Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date  and shall continue for the Initial Term and thereafter, this Agreement shall continue in full force and effect until terminated by either party on giving three months’ written notice to the other party or until otherwise terminated in accordance with this Agreement (“Term”).

13.2 Without affecting any other right or remedy available to it, Serocold may terminate this Agreement with immediate effect at any time during the Term by giving written notice to the Customer if:

13.2.1 the ability of the Customer to accept delivery of the Hardware is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control;

13.2.2 the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;

13.2.3 the Customer commits a material breach of any other term of this Agreement which

breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;

13.2.4 the Customer 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;

13.2.5 the Customer 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;

13.2.6 the Customer 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 other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

13.2.7 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 the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

13.2.8 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 Customer;

13.2.9 the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;

13.2.10 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;

13.2.11 a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 7 days;

13.2.12 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.5 to clause 13.2.11 (inclusive);

13.2.13 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or 

13.2.14 Serocold’s contract with the Supplier terminates (for any reason).

13.3 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

13.4     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.

13.5     On termination of this Agreement for any reason:

13.5.1 Serocold shall immediately suspend procurement of supply of the Software Services, delivery of the Hardware; and/or supply the Professional Services (as the case may be) at no liability to the Customer;

13.5.2 any and all outstanding Charges and Additional Charges shall become immediately due and payable by the Customer;

13.5.3 a receiving party shall, at its sole cost and as requested by a disclosing party in writing, destroy or return a disclosing party’s Confidential Information, all documents and materials incorporating, containing, based on or reflecting on a disclosing party’s Confidential Information and any copies, records or reductions to writing thereof in a disclosing party’s possession; and

13.5.4 Serocold shall securely delete or destroy or, if directed in writing by the Customer and at the Customer’s sole expense, return and not retain, any and all personal data related to this Agreement in its possession or control. If any law, regulation, or government or regulatory body requires Serocold to retain any documents or materials that Serocold would otherwise be required to return or destroy, it will notify the Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. 

13.6 On termination of this Agreement under clause 13.2.14, in addition to the provisions of clause 13.5 Serocold shall if requested by the Customer, as far as it is able, procure the continuation of the provision of the Software Services by assignment,  novation, subcontract or otherwise by transfer any of its rights or obligations under such parts of this Agreement which relate to the Software Services to the Supplier and in any event on termination of this Agreement under clause 13.2.14, the Supplier shall have the right (but not the obligation) at any time to step-in and provide the Software Services direct to the Customer and for the Customer to pay any Software Services Fees direct to the Supplier. 

14        FORCE MAJEURE

14.1 Serocold shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including epidemics or pandemics, strikes, lock-outs or other industrial disputes (whether involving the workforce of Serocold or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15        VARIATION

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

16        WAIVER

16.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17        RIGHTS AND REMEDIES

17.1 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18        SEVERANCE

18.1 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.

18.2 If any provision or part-provision of this Agreement is deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19        ENTIRE AGREEMENT

19.1 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.

19.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

20        ASSIGNMENT

20.1 The Customer shall not, without the prior written consent of Serocold, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20.2 Serocold may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21        NO PARTNERSHIP OR AGENCY

21.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

22        THIRD PARTY RIGHTS

22.1 This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23        NOTICES

23.1 Any notice required to be given under or in connection this Agreement shall be in writing and shall be: 

            23.1.1        sent by e-mail to the following addresses in the Order Form 

23.1.2        delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.

23.2     Any notice shall take effect and shall deemed to have been received:

            23.2.1        if delivered by hand, on signature of a delivery receipt;

23.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

23.2.3 if sent by e-mail, at the time of transmission (as shown on a printout obtained by the sender), or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 23.2.3, “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.

23.3 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.

24        GOVERNING LAW

24.1     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.

25        JURISDICTION

25.1 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).