Terms and Conditions of Barrier Networks Limited
1. Interpretation
The definitions and rules of interpretation in this condition apply in these terms and conditions.
1.1 Definitions:
Barrier Networks: means Barrier Networks Limited a company incorporated in Scotland (Registered No. SC305542) and having its registered office at 272 Bath Street, Glasgow, G2 4JR.
Business Day: a day, other than a Saturday, Sunday or public holiday in Scotland, when banks in Glasgow are open for business.
Business Hours: the period from 8.30 am to 5.30 pm on any Business Day.
Charges: fees and charges payable by the Customer for the Services and the Third Party Products as may be more particularly detailed and described in the Order and/or calculated in accordance with condition 9.
Confidential Information: has the meaning given in condition 11 (Confidentiality).
Conditions: these terms and conditions including the Schedule.
Contract: the Customer's purchase order and Barrier Networks' acceptance of it under condition 3, for the supply of Products and/or Services in accordance with these Conditions (including the Schedule).
Customer: the person, firm or company who purchases Services from Barrier Networks.
Deliverables: the deliverables set out in the Order produced by Barrier Networks for the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, rights in domain names, rights in 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.
Order: the Customer's order for Products and/or Services as set out in the Customer's purchase order form or the Customer's written acceptance of a quotation or statement of work provided by Barrier Networks, as the case may be.
Mandatory Policies: Barrier Network’s or Third Party’s business policies listed in the Schedule, as amended by notification to the Customer from time to time.
Pre-existing Materials: materials which were created or existed before the Commencement Date that are owned or licenced by Barrier Networks.
Services: the services, including the Deliverables and/or professional services, supplied by Barrier Networks (or via a Third Party as applicable) to the Customer as set out in the Specification.
Specification: the description or specification of the Services provided in writing by Barrier Networks to the Customer in the Order or any statement of work signed by Barrier Networks.
Third Party: means persons, corporations, and entities other than Barrier Networks, Customer or any of their group companies.
Third Party Products: means any third party software, deliverables or hardware products used or resold by Barrier Networks to the Customer or used to provide the Services to the Customer which is proprietary to third parties and will be provided to the Customer.
VAT: value added tax imposed by the Value Added Tax Act 1994 or any similar tax chargeable in the UK or elsewhere tax.
Year: the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter during the term of this Contract.
1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of this Contract. References to conditions and the Schedule are to the conditions and the Schedule of this Contract and references to paragraphs are to paragraphs of the Schedule.
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 amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes email but not fax.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Application of the Conditions
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing; and
(b) prevail at all times over any inconsistent terms or conditions contained in, or referred to in, the Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Barrier Networks unless in writing and signed by a duly authorised representative of Barrier Networks.
3. Effect of the Order
3.1 The Customer's Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
3.2 The Customer agrees it has:
(a) reviewed and is satisfied with the Specification prior to the submission of an Order; and
(b) It has assessed its systems and equipment and is satisfied that the Services and Third Party Products (if any) are suitable for its needs and system requirements and fit for the purpose the Customer intends to use the Services and Third Party Products for.
3.3 The Order shall only be deemed to be accepted when Barrier Networks issues written acceptance of the Order or Barrier Networks' commencement or execution of work pursuant to the Order, at which point and on which date the Contract shall come into existence in accordance with these Conditions (the “Commencement Date”). The Customer's standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not apply nor govern the Contract.
3.4 Any quotation given by Barrier Networks shall not constitute an offer. A quotation is only valid for a period of days specified in the quotation.
3.5 Any trials, demos, descriptive matter or advertising issued by Barrier Networks, and any descriptions or illustrations contained in Barrier Networks sales materials, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.6 The Contract shall unless otherwise terminated as provided in condition 13, commence on the Commencement Date and shall continue until its expiry date as set out in the Order, which shall be a minimum of one Year.
4. Barrier Networks' Services
4.1 Barrier Networks shall supply the Services to the Customer in accordance with the Specification in all material respects.
4.2 Barrier Networks shall use all reasonable endeavours to meet any performance dates specified in the written acceptance of the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3 Barrier Networks reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Barrier Networks shall notify the Customer in any such event.
4.4 Barrier Networks warrants to the Customer that the Services will be provided using reasonable care and skill.
4.5 Barrier Networks shall, at Barrier Networks’ sole discretion, either provide the Services via remote web-access, or may visit the Customer’s premises to provide access to the Services.
5. Third Party Products
5.1 Barrier Networks may sell Third Party Products. The costs associated with such Third Party Products shall be set out as Charges in the accepted Order. Such Third Party Products are provided under and always subject to the relevant Third Party’s terms and conditions, warranties and specification. The Customer agrees to be bound by and comply with such terms.
5.2 Barrier Networks is not liable for any action of the Third Party or loss arising in connection with such Third Party Products or the Customer’s use of such Third Party Products.
5.3 The Customer authorises Barrier Networks to purchase such Third Party Products as noted in the Order for an agreed duration as set out in the Order.
5.4 The Customer agrees and undertakes that it nor its personnel shall use the Services in any manner which may result in the infringement of any third party’s rights (including any Third Party Products), or in any other manner incompatible with the intended purpose of the Services.
5.5 Barrier Networks or Third Parties may restrict access to the Services (or parts of the Services) if the Customer is in breach of its obligations under this Contract or under the terms and conditions of the relevant Third Party.
5.6 The Customer agrees to always purchase and renew the support Services associated with any Third Party Products up to and until the Customer stops using the Third Party Products.
5.7 The Order shall specify if the Services or Third Party Products are subject to any automatic renewal period for the relevant support Services.
5.8 Any Third Party Products may be delivered by Barrier Networks or a Third Party to the agreed premises set out in the Order. The risk in the Third Party Products shall pass to the Customer on completion of delivery. Title to the Third Party Products shall not pass until the Customer has paid all relevant Charges. If any of the Goods are found to be defective, Barrier Networks shall, at its option, repair or replace the defective Third Party Products, if the Customer gives notice in writing within a reasonable time of discovery that the Third Party Products are defective and Barrier Networks is given a reasonable opportunity of examining such Third Party Products. The Customer (if asked to do so by Barrier Networks) shall return such defective Third Party Products to Barrier Networks’ place of business at the Customer's cost. The Customer’s sole and exclusive remedy in such an event, shall be a replacement Third Party Product.
6. Customer's obligations
6.1 The Customer shall:
(a) co-operate with Barrier Networks in all matters relating to the Services and appoint a Manager, who shall have the authority to contractually bind the Customer on matters relating to the Services;
(b) provide Barrier Networks with such information and materials as Barrier Networks may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(c) ensure that the users of the Services use the Services in accordance with these Conditions and shall be responsible for any user's breach of these Conditions;
(d) 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 Barrier Networks;
(e) ensure that the systems and network comply with the relevant specification requirements provided by Barrier Networks from time to time;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the Commencement Date;
(g) comply with all applicable laws, the Mandatory Policies and the Third Party terms and conditions applicable to the Third Party Products;
(h) have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer’s data and information (including personal data);
(i) shall operate and strictly adhere to a back up program in respect of all data, files, emails, software, programs and any other information which the Customer wishes to retain;
(j) shall ensure that suitable staff members, for example trained IT personnel, are available to assist Barrier Networks as necessary in the provision the Services;
(k) not copy, rent, lease, sub-license, loan, translate, merge, adapt, vary or modify, make alterations to, or modifications to Barrier Networks’ Pre-Existing Materials, Third Party Products and/or Services or any documentation provided with the Services except with the prior written permission of Barrier Networks;
(l) update, make changes and additions and maintain its systems in accordance with the instructions of Barrier Networks;
(m) be responsible (at its own cost) for preparing the relevant premises for the supply of the Services;
(n) be, to the extent permitted by law and except as otherwise expressly provided in this Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Barrier Networks’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
(o) not, nor permit a third party to, translate, reverse compile or recompile, disassemble, reverse-engineer or otherwise reduce to human readable form all or any part of the Services and/or Third Party Products. The Customer agrees not to access all or any part of the Services in order to create or build a product or service which competes with the Services;
(p) provide in a timely manner such information as Barrier Networks may request, and ensure that such information is accurate in all material respects;
(q) use all reasonable endeavours to prevent unauthorised access to or use of the Services;
(r) acknowledges that no service of the nature of the Services can ever prevent all intrusion incidents in relation to the Customer’s system and confirms that it has taken and will take all necessary steps to minimise any unauthorised incursion into its systems, including software patching, employee training and similar in accordance with best industry practice;
(s) promptly permit and facilitate any audit of data and data security by Barrier Networks or a third party data provider used by the Customer; and
(t) maintain the Third Party Products in satisfactory condition and keep them insured against all risks for their full price on Barrier Networks’ behalf from the date of delivery;
(u) keep all materials, equipment, documents and other property of Barrier Networks (“Barrier Networks Materials”) at the Customer's premises in safe custody at its own risk, maintain Barrier Networks Materials in good condition until returned to Barrier Networks, and not dispose of or use Barrier Networks Materials other than in accordance with Barrier Networks’ written instructions or authorisation; and
(v) comply with any additional obligations as set out in the Order.
6.2 If Barrier Networks' performance of its obligations under the Contract 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 Barrier Networks on demand all reasonable costs, charges or losses sustained or incurred by it, subject to Barrier Networks 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.
6.3 The Customer shall defend, and indemnify Barrier Networks against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services.
7. Acceptance of the Services and/or Third Party Products
7.1 The Customer assumes sole responsibility for results and/or reports obtained from the use of the Services, and for conclusions drawn from such use. Barrier Networks shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by the Customer in connection with the Services, or any actions taken by Barrier Networks at the Customer’s direction.
7.2 Within 7 days of the delivery of the Services and/or Third Party Products (whichever is the later), the Customer shall inspect and test the Services and shall notify Barrier Networks if the Services and/or Third Party Products are defective or do not meet the Specification, providing sufficient detail to allow Barrier Networks (or any Third Party) to inspect and, if agreed that remedial work is required, to remedy the Services and/or Third Party Products.
7.3 If the Customer has not provided any notification, in accordance with clause 7.2 above or has otherwise began using the Services and/or Third Party Products in the normal course of business of the Customer, the Services and the Third Party Products will be deemed to have been accepted by the Customer.
7.4 If upon inspection by Barrier Networks (or any Third Party), the Services and/or Third Party Products require remedial works, Barrier Networks shall undertake work required to ensure the defects are remedied, and shall resubmit such Services and/or Third Party Products for review by the Customer. The Customer shall have 7 days from such resubmission to re-test the Services and/or Third Party Products in accordance with clause 7.2.
7.5 The Customer’s sole and exclusive remedy against Barrier Networks where it does not accept the Services and/or Third Party Products shall be to repeat the process set out in this clause 7.
8. Change control
8.1 Either party may at any time during the term of this Contract propose a change to the scope or Specification of the Services by notifying such proposal in writing to the other party.
8.2 If the Customer requests a change to the scope or Specification of the Services, Barrier Networks has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its Charges, exit fees (if applicable), Third Party costs, the Order and any other relevant terms of the Contract to take account of the change.
9. Charges and payment
9.1 The Customer shall pay the Charges in accordance with the terms set out in the accepted Order. In relation to payment under the Contract, time shall be of the essence.
9.2 Barrier Networks reserves the right to increase the price of the Services and Third Party Products, by giving notice to the Customer at any time before completion of the Services, to reflect any increase in the cost of the Services or Third Party Products to Barrier Networks that is due to:
(a) any factor beyond the control of Barrier Networks (including foreign exchange fluctuations, increases in taxes and duties, and increases in Third Party supplier costs, materials and other costs);
(b) any request by the Customer to change the completion date(s), Services, Deliverables, Third Party Products, Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give Barrier Networks adequate or accurate information or instructions in respect of the Services.
9.3 Barrier Networks reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding Year and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
9.4 Condition 9.5 shall apply if the Services are to be provided on a time-and-materials basis. condition 9.6 and condition 9.7 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 9 shall apply in either case.
9.5 Where the Services are provided on a time-and-materials basis:
(a) the charges payable for the Services shall be calculated in accordance with Barrier Networks' standard daily fee rates as amended from time to time;
(b) Barrier Networks' standard daily fee rates are calculated on the basis of an seven-hour day worked between 8.30 am and 5.30 pm on weekdays (excluding weekends and public holidays in Scotland);
(c) Barrier Networks shall be entitled to charge at an overtime rate of 200% of the normal rate for part days and for time worked by members of the Barrier Networks' team outside the hours referred to in condition 9.5(b) on a pro-rata basis; and
(d) Barrier Networks shall invoice the Customer monthly in arrears for its charges for time, expenses and materials (subject to condition 9.8) for the month concerned, calculated as provided in this condition 9. Any expenses, materials and Third Party services shall be invoiced by Barrier Networks.
9.6 Where the Services are provided for a fixed price, the total price for the Services shall be the amount set out in the accepted Order. The total price shall be paid to Barrier Networks in advance as set out in the Order for the full Year or agreed duration in the accepted Order. On Commencement Date, Barrier Networks shall (subject to condition 9.8) invoice the Customer for the Charges that are then payable, together with expenses and the costs of materials, calculated as provided in condition 9.7.
9.7 Any fixed price contained in the accepted Order excludes the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by Barrier Networks' team in connection with the Services, and the cost of any materials or services reasonably and properly provided by Third Parties required by Barrier Networks for the supply of the Services. Such expenses, materials and Third Party services shall be invoiced by Barrier Networks in addition at rates agreed with the Customer in advance.
9.8 All payments made by the Customer under this Contract are exclusive of VAT. Barrier Networks shall provide the Customer with a valid VAT invoice.
9.9 Without prejudice to any other right or remedy that Barrier Networks may have, if the Customer fails to pay Barrier Networks on the due date Barrier Networks may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Bank of Scotland, accruing on a daily basis until payment is made, whether before or after any judgment; and
(b) suspend all Services and access to Third Party Products until payment has been made in full.
9.10 The Customer shall pay each invoice submitted to it by Barrier Networks in full, and in cleared funds, within 30 days of date of the invoice.
9.11 All payments payable to Barrier Networks under the Contract for the full duration agreed in the Order, shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
9.12 All amounts due under this Contract shall be paid by the Customer to Barrier Networks in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Barrier Networks may, without prejudice to any other rights it may have, set off any liability of the Customer to Barrier Networks against any liability of Barrier Networks to the Customer.
10. Intellectual Property Rights
10.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned or licensed by Barrier Networks or Third Parties. Barrier Networks licenses (to the extent necessary) all such rights to the Customer free of charge and on a non-exclusive, non-transferable limited basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties. If Barrier Networks terminates the Contract under condition 13.1, this licence will automatically terminate.
10.2 The Customer acknowledges that the Customer's use of rights in Pre-existing Materials and Third Party Products is conditional on Barrier Networks obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle Barrier Networks to license such rights to the Customer.
10.3 The Customer warrants that it has all the rights, including but not limited to Intellectual Property Rights, required to allow Barrier Networks to provide the Services.
11. Confidentiality
11.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's representatives whether before or after the date of this Contract in connection with this contract, including but not limited to:
(a) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, assets, affairs, customers, clients, suppliers, or plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
(b) any information developed by the parties in the course of carrying out this Contract; and
(c) excludes any information that becomes publicly available through no fault of the recipient or is in the recipient’s lawful possession before the disclosure.
11.2 Each party shall keep the other party's Confidential Information secret and confidential and shall not use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Contract.
11.3 A party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, suppliers, subcontractors, or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, suppliers, subcontractors, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, 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 and it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.4 Except as expressly stated in this Contract, no party makes any express or implied warranty or representation concerning its Confidential Information.
11.5 The provisions of this condition 11 shall continue to apply after termination or expiry of this Contract.
12. Limitation of liability
12.1 The following provisions set out the entire financial liability of Barrier Networks (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of any breach of the Contract however arising and any use made by the Customer of the Services, the Deliverables or any part of them.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the greatest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes the liability of either party:
(a) for death or personal injury caused by the party’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3, Barrier Networks shall not in any circumstances be liable, whether in delict (including for negligence or breach of statutory duty however arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of profits; or (ii) loss of sales or business; or (iii) depletion of goodwill or similar losses; or (iv) loss of anticipated savings; or (v) loss of goods; or (vi) loss of agreements or contract; or (vii) loss of use; or (viii) wasted expenditure; or (ix) loss or corruption of data or information; (x) any act or omission of any third party over which Barrier Networks has no control over; (xi) loss related to breach of a contract with a third party; or (xii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
12.5 Barrier Networks' total liability in contract, delict (including negligence or breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Charges paid for the Services by the Customer in the previous Year immediately preceding the date on which the claim arose.
13. Termination
13.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate or suspend the Contract without liability to the other if:
(a) the other party fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Contract 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 Contract;
(d) 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;
(e) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(f) 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 condition 13.1(d) to condition 13.1(e) (inclusive); or
(g) 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 Contract is in jeopardy.
13.2 Without prejudice to any other rights or remedies to which the parties may be entitled, Barrier Networks may terminate or suspend the Contract without liability to the Customer, if the Customer:
(a) commits, or causes Barrier Networks to commit, either in whole or in part, directly or indirectly, a breach of any of the Third Party terms and conditions; or
(b) uses the Services and/or Third Party Products in any manner which may result in the infringement of any rights including Intellectual Property Rights of a third party or of Barrier Networks.
13.3 On termination or expiry of this Contract:
(a) each party shall 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, at the choice of that party;
(b) the Customer shall make no further use of any equipment, property, documentation and other items (and all copies of them) and Barrier Networks Materials belonging to Barrier Networks;
(c) each party shall irrevocably 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
(d) each party shall 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 the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority (to which the confidentiality obligations in this Contract shall continue to apply to any such materials retained); and
(e) all licences granted under these Conditions shall immediately terminate and the Customer shall immediately cease all use of the Services.
13.4 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
13.5 Termination or expiry of this Contract 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 Contract which existed at or before the date of termination.
14. Force majeure
14.1 Neither party shall be in breach of this Contract or otherwise liable for any failure or delay in the performance of its obligations if such nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including but not limited to an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, war, epidemic or pandemic, strike, lock-out or other labour problem (whether involving Barrier Network’s workforce or any other party), failure of a utility service or transport or telecommunications network, Third Party Products or denial or service attack, default of suppliers or sub-contractors. 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 12 weeks, the party not affected may terminate this Contract by giving 60 days' written notice to the affected party.
15. General
15.1 Assignation and other dealings. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Barrier Networks.
15.2 Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
15.3 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.4 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.5 Entire agreement. This Contract 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. Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
15.6 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
15.7 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
15.8 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with Scots law.
15.9 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.