Testplant Europe and Eggplant group of companies
Real Customer Insights Terms and Conditions

 

1 Definitions and Interpretation

1.1 “Acceptable Use Policy” means Testplant Europe’s then current acceptable use policy (if any) that is applicable to the Portal and the Services to be notified to the Customer and/or the Users (including by making the same available via the Portal) and as may be updated by Testplant Europe from time to time;

1.2 “Affiliate” means in respect of a party any entity that directly or indirectly Controls or is Controlled by, or is under common Control with another entity;

1.3 “Anti-Bribery Laws” means any and all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws (including any common law, judgment, demand, order or decision of any court, regulator or tribunal) which relate to anti-bribery and/or anti-corruption, including the Bribery Act 2010;

1.4 “Cookies” means HTTP cookies and all similar technologies involving persistent data storage on an End User’s computer;

1.5 “Commencement Date” means the date that a signed copy of the Order is received by Testplant Europe from the Customer;

1.6 “Conditions” means these terms and conditions;

1.7 “Confidential Information” means any information (whether written, oral, in electronic form or in any other media) that is disclosed by or on behalf of a party to or otherwise accessed by the other party or its employees, agents and/or subcontractors in connection with the Contract and/or the provision of the Services and that relates (in whole or in part) to the disclosing party or its business, including all tangible and intangible information designated as confidential by any party in writing and all other information which, by its nature, would be reasonably regarded as confidential including procedures, network configuration and topology, the User Credentials and details of Testplant Europe’s methodologies;

1.8 “Contract” means the contract formed by these Conditions together with the Order, as may be varied from time to time in writing between the parties;

1.9 “Control” means the ability to direct the affairs of an entity, whether by virtue of the ownership of the majority of shares in that entity or the legal power to direct or cause the direction of the general management of that entity and Controls and Controlled shall be construed accordingly;

1.10 “Customer” means the individual(s) and/or organisation(s) to whom Testplant Europe provides the Services as identified in the Order;

1.11 “Data Protection Legislation” means: (i) the Data Protection Act 1998 (“DPA”) until 25 May 2018; (ii) in substitution for the DPA from 25 May 2018, the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) unless and until the GDPR is no longer directly applicable in the UK, together with any national implementing laws, regulations and secondary legislation as amended or updated from time to time in the UK; and then (iii) any successor legislation to the GPDR or the DPA;

1.12 “End Users” means users of the Website operated by the Customer;

1.13 “Fees” means Testplant Europe’s fees for the Services as detailed in the Order;

1.14 “Insolvency Situation” means a party:

(a)enters liquidation;

(b)has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets;

(c)proposes to make arrangements with its creditors or goes into liquidation; or

(d)suffers an event which, under the law of any jurisdiction, is equivalent to any of the acts or events specified above.

1.15 “Intellectual Property Rights” means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, registered trademarks, registered designs, models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, rights in formulae, methods, plans, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;

1.16 “Testplant” means Testplant Europe Limited, trading as Eggplant, company registration number 06673424;

1.17 “Order” means Testplant’s order from which, unless otherwise agreed by Testplant in writing, must be signed and returned by the Customer to order Services;;

1.18 “Output” means the data and results of the Services produced by Testplant and made available via the Portal;

1.19 “Page Impression” means each individual impression of a web page resulting in a beacon being received by Testplant’s servers as a result of an End User viewing a page of the Website that contains a Tag;

1.20 “Personal Data” means personal data as defined in the Data Protection Legislation;

1.21 “Portal” means the online portal made available by Testplant for the Customer to access the Output at the location specified to the Customer by Testplant from time to time;

1.22 “RUM” means real user monitoring, also known as Real Customer Insights;

1.23 “Services” means the RUM services described in the Order and these Conditions which include the collection of data from End Users and the provision of Output via the Portal in accordance with the Contract;

1.24 “Tag” means an excerpt of JavaScript code provided by Testplant for incorporation into the Customer’s website necessary to facilitate RUM;

1.25 “Term” the term for which the Customer will receive the Services as described in the Order;

1.26 “Users” means employees and staff of the Customer who are authorized to use the Services;

1.27 “User Credentials” means the usernames, passwords and/or any other authentication tokens provided to the Customer by Testplant (notwithstanding that Testplant may permit the Customer to change or customise the same) to enable the Users to access the Portal and/or use the Services from time to time; and

1.28 “Website” means the Customer’s website(s) made available at the hostname(s) as identified in the Order.

The singular includes the plural and vice versa, and references to any gender includes the other genders.

1.30 References to a “person” includes an individual, corporation (whether incorporated or unincorporated), partnership, trust, unincorporated association and any other entity or association of any nature.

1.31 Any words following the terms “including”, “include”, “for example” or any similar expression are by way of illustration and emphasis only and shall not limit the generality or extent of any other words or expressions.

1.32 References to any legislation include any modification or re-enactment of that legislation and any subordinate legislation made (before or after this Agreement) under that legislation.

2 Provision of the Services

2.1 Following the Commencement Date, Testplant shall carry out implementation work to prepare the Tag and configure the Services to be supplied to the Customer. Testplant shall provide the Tag together with reasonable instructions for its use to the Customer within three working days of the Commencement Date, although time for provision of the Tag and performance of the Services more generally shall not be of the essence.

2.2 The Customer shall:

2.2.1 insert the Tag into the HTML code of each individual page of the Website in relation to which it wishes Testplant to perform RUM. Testplant recommends that, for maximum effectiveness, the Tag be included in all web pages that comprise the Website;

2.2.2 only use the Tag in respect of the Website; and

2.2.3 comply with the reasonable instructions and requests of Testplant regarding the incorporation of the Tag into the Website.

2.3 The Customer accepts and acknowledges that the Output from the Services may not be meaningful unless it complies with its obligations under clause 2.2. The Customer further accepts and acknowledges that it may receive less accurate and/or useful Output if it does not include the Tag in all pages of the Website. Subject to clause 9.1, Testplant shall have no liability in respect of the failure or degradation of the Services or the Output as a result of the Customer’s failure to properly include the Tag in the Website or otherwise comply with its obligations as described herein and advised by Testplant.

2.4 Effectiveness of the Services is dependent on the computer being used by the End Users being able to communicate with the servers operated by Testplant to deliver the Services. Such communication will take place over standard HTTPS connections. The Customer accepts and acknowledges that such communication with Testplant servers may not be possible in all circumstances (for example, if a firewall operated by the End User does not allow such communication, or if the End User does not have JavaScript enabled), and this may affect the Output. Subject to clause 9.1, Testplant shall have no liability in respect of the circumstances described in this clause 2.4.

2.5 Testplant shall provide the Customer with User Credentials to enable it to access the Portal during the Term in order to view the Output of the Services, provided that the Customer shall be solely responsible for maintaining its own internet connection necessary to use the Portal. The Customer’s access to the Portal will expire following the end of the Term or (if sooner) following expiry or termination of the Contract as described in clause 11.

2.6 The Customer shall be responsible for all activities of anyone using User Credentials, provided that the same were not obtained as a Direct result of a failure of Testplant to meet its obligations regarding information security set out in these Conditions. The Customer shall, and shall ensure that the Users shall, maintain the secrecy and security of the User Credentials.

2.7 Should the Customer or any User disclose to a third party its User Credentials so that the third party may access and use the Portal, this shall be entirely at the Customer’s risk, and subject to clause 9.1 Testplant has no liability for any use or misuse of the Portal or Output by the third party.

2.8 Subject to clause 6, the Customer shall ensure that the Website is constructed and operates in such a way as to minimise any disclosure of Personal Data of End Users where such Personal Data would be captured by the Services (for example by using badly formed URLs that contain such Personal Data in plain text).

2.9 Testplant is permitted a limited right, strictly in accordance with this clause 2.9, to:

2.9.1 use the Output and other data generated by the Services for its own business purposes, provided that such use is for the exclusive purpose of monitoring the performance of the RUM services, and developing and enhancing the features and functionality of the same for all Testplant customers; and

2.9.2 publish such data along with the data of other customers of Testplant in an aggregated and anonymized form for the purposes of advertising the RUM services,

and in all cases these Conditions will apply to any data of the Customer used in this way by Testplant.

2.10 The Customer shall comply (and shall ensure that the Users comply) with the Acceptable Use Policy with regards to all use of the Portal, the Tag and receipt of the Services generally.

3 Trial Services

3.1 If identified in the relevant Order, Testplant may provide the Services to the Customer on a free trial basis for a limited period (a “Free Trial”).

3.2 Notwithstanding any term to the contrary contained herein, these Conditions shall apply to any such Free Trial for the duration of the same subject to the following modifications:

3.2.1 both the Customer and Testplant shall be entitled to terminate the Contract immediately at any time without penalty on written notice to the other;

3.2.2 Clause 0 (Fees and Payment) of these Conditions shall not apply; and

3.2.3 Testplant’s liability to the Customer as set out in clause 9.4 shall be reduced from £500,000 to £5,000.

3.3 If the Customer’s usage of the Services during the Free Trial exceeds that reasonably anticipated by Testplant, then Testplant reserves the right to contact the Customer and discuss ways of reducing the scope of such usage. The Customer agrees to participate in such discussions in good faith. If the Customer’s usage of the Services cannot be reduced to what Testplant determines to be a reasonable level, Testplant reserves the right to terminate the Free Trial in accordance with clause 3.2.1.

4 Fees and Payment

4.1 Unless stated otherwise in the Order, the Fees:

4.1.1 will be payable to Testplant by the Customer in advance, and Testplant shall invoice the Customer on or after the Commencement Date; and

4.1.2 will apply for a set number of Page Impressions to be received during the Term (the “Banding”) as specified in the Order.

4.2 Should the Customer reach the upper limit of the purchased Banding at any point during the Term, Testplant will require the Customer to purchase a higher Banding to continue using the Services. Should the Customer elect not to purchase a higher Banding, then Testplant reserves the right to suspend provision of the Services. The Fees payable for such higher Banding will be calculated on a pro-rata basis until the end of the Term based on the Fees payable for the initial level of Banding (the “Additional Fees”. Testplant shall not be required to provide the higher level of Banding until the Customer has the Additional Fees in accordance with clause 4.4.

4.3 Each invoice will be payable in full and cleared funds to a bank account nominated in writing by Testplant within 30 days of the date on which the invoice is issued. All payments due under this Contract shall become due immediately upon termination of this Contract despite any other provision herein. All payments due under this Contract shall be made without any deduction by way of set off, counterclaim, discount or abatement or otherwise except where the Customer is expressly permitted to do so by Order of Court. Testplant shall not be required to commence provision of the Services until the Customer has paid the Fees in accordance with this clause 4.3.

4.4 The parties agree that any Fees paid in relation to the Services are non-refundable. This includes where the actual number of Page Impressions is less than the relevant Banding purchased (including any additional Banding purchased pursuant to clause 4.2. Accordingly, if the Contract is terminated, Testplant will be entitled to retain such Fees (and be paid for all amounts that are as at that date invoiced but unpaid) and no refunds or credits will be given.

5 Confidentiality

5.1 Each party will be entitled to disclose Confidential Information to its Affiliates and its and their employees, agents and sub-contractors, provided that the same are under a duty of confidentiality no less onerous than as set out in these Conditions. Save as provided in the preceding sentence, neither party will disclose or permit its Affiliates, employees, agents and sub-contractors to disclose any Confidential Information entrusted to it by the other party provided always that this restriction shall not apply to information already in the receiving party’s possession, or which comes into the public domain other than by breach of this obligation by the receiving party or its Affiliates, employees, agents and sub-contractors, or which is disclosed to the receiving party by a third party lawfully entitled to disclose the same, or which is developed by the other party or its Affiliates, employees, agents or sub-contractors independently of the Confidential Information or which is required to be disclosed pursuant to any law or regulation or by the rules of any stock exchange or by a court of competent jurisdiction.

5.2 Nothing in this Contract will prevent or restrict Testplant from providing services to other clients (even if those services are the same as or similar to the Services) or using or sharing for any purpose any knowledge, experience or skills gained during or arising from the performance of the Services, subject to the specific obligations of confidence set out in clause 5.1. The Customer acknowledges that Testplant shall have no obligation to provide any information Testplant has in its possession that is subject to an obligation of confidence to a third party even if that information would be helpful to the Customer or assist in the provision of the Services.

5.3 Any data (including the Output) provided to the Customer by or on behalf of Testplant, any of Testplant’s Affiliates and/or the Consultant remains the property of Testplant and may not be quoted, published or otherwise made known to any person who is not an employee of the Customer without Testplant’s prior written consent.

6 Data Protection

6.1 Subject to clause 6.3, both the Customer and Testplant accept and acknowledge that no Personal Data will be intentionally collected or processed by Testplant via the Services, and that the Services are not designed to be used for this purpose. Any Personal Data that is collected or processed by Testplant shall be unintentional, and the Customer shall comply with clause 2.8 to ensure the risk of such unintentional capture of Personal Data is minimized.

6.2 Testplant shall not be required to verify whether Personal Data has been processed by Testplant as a result of providing the Services. If, however, Testplant realises that Personal Data is captured and processed by Testplant as a result of its provision of the Services, it shall notify the Customer and may suspend provision of the Services. The Customer shall take all necessary steps (including reconstructing the Website or adapting the operation of the Website) to ensure that that the provision of the Services by Testplant will not result in Testplant processing Personal Data. If Testplant has unintentionally obtained Personal Data as a result of providing the Services, the Customer shall instruct Testplant to return or delete the Personal Data with which it has been provided. If the Customer fails to provide any instructions to Testplant within 5 (five) Business Days of Testplant notifying the Customer of the Personal Data it holds, Testplant shall be entitled to delete such Personal Data. Testplant shall not be required to recommence provision of the Services until it has received confirmation from the Customer that it has taken the steps necessary to ensure Testplant shall not process Personal Data as a result of providing the Services.

6.3 Notwithstanding clause 6.2, the parties acknowledge that Testplant may capture IP addresses and geolocation data which may constitute Personal Data. If Testplant obtains such Personal Data, it shall ensure the IP addresses and geolocation data are anonymized so that they no longer constitute Personal Data. If such anonymization is not possible, Testplant shall be entitled to cease provision of the Services in accordance with clause 6.2 above.

7 Consents and Permissions

7.1 The Customer warrants to Testplant that it has validly obtained all necessary permissions and consents (from End Users and otherwise) that are required to enable Testplant to perform the Services. This obligation shall include (but is not limited to) providing the legally required information and obtaining the legally required consent from End Users regarding the use of Cookies which are necessary for the Services to operate. Testplant will, upon written request, provide the Customer with all information regarding the Cookies used by the Services that is reasonably necessary to enable the Customer to comply with its obligations under this clause 7.1.

7.2 The Customer specifically warrants to Testplant that:

7.2.1 it has fully complied with all of its obligations under the Data Protection Legislation; and

7.2.2 it shall not do or omit to do anything that would place Testplant in breach of the Data Protection Legislation, the Computer Misuse Act 1990, the Regulation of Investigatory Powers Act 2000 or any other relevant laws.

7.3 The Customer shall immediately notify Testplant in the event of any act or omission by the Customer, User, end user or any third party which impacts on Testplant’s rights or obligations under or in connection with the Contract or in anyother scenario whereby the Customer may no longer lawfully share the data with Testplant for the purpose of its provision of the Services under this Contract.

7.4 The Customer shall indemnify, keep indemnified and hold harmless Testplant, its officers, employees, agents, contractors and sub-contractors on demand as a debt from and against any and all claims, fines, losses, damages, demands, costs, expenses, fees (including court and legal fees on an indemnity basis) and liabilities (in each case whether direct, indirect or consequential) of whatever nature suffered, incurred or sustained by Testplant directly or indirectly because of or in connection with any breach of the Customer’s obligations or warranties under clauses 7.1 to 7.3.

8 Intellectual Property Rights

8.1 All Intellectual Property Rights in the Services (including in the Portal) shall at all times be and remain vested solely in Testplant or the relevant third-party owners. Ownership of any Output shall also remain with Testplant, but the Customer is hereby granted a non-exclusive, non-transferable licence to copy and use such Output (in the ways made possible by the functionality available via the Portal) for its own internal business purposes only. The Customer shall not modify any Output, transfer it to a third party nor incorporate it into its own materials, reports, portals or presentations (except to the extent such materials, reports, portals or presentations are used internally by the Customer).

8.2 The Customer is granted from the Commencement Date a non-exclusive, non-transferable licence to access and use the Portal for the purposes of receiving the Output from the Services for the duration of the Contract and subject to these Conditions.

8.3 Any Intellectual Property Rights which come into existence as a result of the performance by Testplant of the Services will be the property of Testplant.

9 Liability

9.1 Nothing in the Contract excludes or limits the liability of Testplant for:

9.1.1 fraud or fraudulent misrepresentation;

9.1.2 death or personal injury caused by Testplant’s (or its employees’, agents’ or sub-contractors’) negligence; or

9.1.3 any matter for which it is not permitted by law to exclude or limit its liability.

9.2 Without prejudice to clause 9.1, the following provisions set out the entire financial liability of Testplant (including any liability for the acts or omissions of its employees, agents and sub-contractors) because of or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, under statute or otherwise, howsoever caused including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of Testplant’s obligations under the Contract.

9.3 Subject to clause 9.1, Testplant shall not be liable for any loss, claims, demands, actions, costs, expenses or liabilities arising because of or in connection with any materials and/or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible or defective in any other way.

9.4 Subject to clause 9.1, Testplant shall not be liable for any loss or damage caused to the Customer except to the extent that such loss or damage is caused by the negligent acts or negligent omissions of or a breach of the Contract by Testplant, its employees, agents or sub-contractors in performing the Services and in such event (subject to clause 9.1) Testplant’s maximum aggregate liability arising because of or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, under statute or otherwise shall be limited to £500,000 (five hundred thousand pounds).

9.5 Subject to clause 9.1, Testplant shall not be liable whether in contract, tort (including negligence), misrepresentation, under statute or otherwise to the Customer for any:

9.5.1 indirect, consequential and/or special loss or damage;

9.5.2 loss of profit (direct or indirect);

9.5.3 loss of revenue, loss of production or loss of business (in each case whether direct or indirect);

9.5.4 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct or indirect);

9.5.5 loss of anticipated saving or loss of margin (in each case whether direct or indirect);

9.5.6 loss of use or value of any data or software (in each case whether direct or indirect);

9.5.7 wasted management, operational or other time (in each case whether direct or indirect);

9.5.8 loss or damage arising out of any failure by the Customer to keep full and up to date back-ups, security copies of any computer program and/or data held or used by or on behalf of the Customer; and/or

9.5.9 liability of the Customer to any third parties (whether direct or indirect).

9.6 The Customer shall assume all liability and shall indemnify, keep indemnified and hold harmless Testplant, its officers, employees, agents, contractors and sub-contractors on demand as a debt from and against any and all liability, losses, damages, demands, costs, expenses, fees (including court and legal fees on an indemnity basis) in each case whether direct, indirect or consequential, of whatever nature suffered, incurred or sustained by Testplant directly or indirectly as a result of the Customer’s use of the Services or Output for any illegal purpose or for any purpose other than that permitted by the Contract.

10 Availability and Maintenance

10.1 Testplant does not make any representation or warranty that the Services will operate uninterrupted or error-free.

10.2 Testplant may make the Portal or the Services generally unavailable from time to time as necessary to carry out maintenance or similar activities. Testplant will ensure that any such unavailability is kept to the minimum reasonably necessary to operate and maintain the Services for all customers of Testplant. If the Portal is unavailable for whatever reason, Testplant shall to the extent reasonably possible ensure that Page Impressions are still being collected by the Services and will still be included in the Output for later viewing. Subject to clause 9.1, Testplant shall not be liable for any unavailability of the Portal or Services.

10.3 If, despite reasonable technical measures employed by Testplant (e.g. traffic filtering), Testplant is unable to support the volume of data being processed as part of the Services, Testplant reserves the right to temporarily suspend the Services or the Portal and/or to discard Page Impressions and other data received from the End Users and/or the Customer until such situation can be resolved. The Customer shall provide reasonable cooperation to Testplant upon request in connection with resolving an issue as described in this clause 10.3.

11 Term and Termination

11.1 Testplant shall provide the Services to the Customer throughout the Term subject to these Conditions and the Order.

11.2 Testplant reserves the right to immediately suspend the Services or withdraw from the Services without notice if, in its opinion (acting reasonably), information required for satisfactory completion of the Services and requested by Testplant in writing is either not provided or, if provided, is inaccurate or inadequate. Without prejudice to clause 4.4, the Customer shall be liable for Fees and expenses incurred by Testplant up to and including the date of withdrawal or termination by either party.

11.3 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if:

11.3.1 the other commits any material breach of these Conditions and (if capable of remedy) fails to remedy the breach within thirty (30) days after being required by written notice from the other party to do so; or

11.3.2 the other party ceases to trade or is unable to pay its debts or enters into an Insolvency Situation.

11.4 Testplant may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than ten days after being notified in writing to make such payment.

11.5 As soon as reasonably practical following termination or expiry of the Contract for any reason, the Customer shall remove the Tag from the Website and cease to utilize the Portal and the Services.

11.6 The Customer accepts and acknowledges that its access to the Portal will cease once the Term has expired or (if earlier) the Contract has been terminated in accordance with its terms. The Customer will only be able to access the Output while the Contract remains in force. Any Output or other data of the Customer contained within the Services will be deleted by Testplant following the end of the Term.

12 Bribery

Each party will comply with all applicable Anti-Bribery Laws and neither party will offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act.

13 Third Party Rights

13.1 The parties do not intend that any term of the Contract will be enforceable by any person who is not a party to the Contract under the Contracts (Rights of Third Parties) Act 1999.

14 Force Majeure

Subject to clause 9.1, Testplant will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract and it reserves the right to defer the date of provision of the Services if it is prevented from or delayed in performing its obligations under the Contract due to circumstances beyond its reasonable control including any act of God; governmental actions; war or national emergency; acts of threat of terrorism; protests; riot; civil commotion; fire; explosion; flood; epidemic; lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce); restraints or delays affecting carriers; inability or delay in obtaining supplies of adequate or suitable materials; inability to access premises; breakdown or failure of technology or machinery; changes in law which result in the provision of Services as set out in the Contract being or becoming illegal; theft or malicious damage to Testplant’s property (whether physical or intangible); and/or failure of a utility service or transport or telecommunications network provided that, if the event in question continues for a continuous period in excess of thirty (30) days, either party shall be entitled to terminate the Contract immediately by giving notice in writing to the other party.

15 Changes

The Customer accepts and acknowledges that RUM is an evolving service provided by Testplant and that aspects of the Services are therefore subject to change. In connection with this, Testplant may change these Conditions at any time by giving notice of such change on the Testplant website (for example, to accommodate new features and functionality added to the Services). Any change which is required to comply with any legislation, regulation or code of practice (on Testplant or otherwise) or as a result of a direction by any supplier on whom Testplant is dependent in providing the Services will not give the Customer a right to terminate the Contract or any part of it. If, however, any change: (i) is made for a reason other than that set out in the previous sentence; and (ii) is (in the reasonable opinion of Testplant) a change that operates to the material detriment of the Customer, then the Customer shall have the right to terminate the part of the Services to which the change relates by giving 30 calendar days’ written notice from the date of Testplant’s notice of the change.

16 General

16.1 These Conditions together with the Order shall constitute the entire agreement between the parties and supersede any previous agreement or understanding and may not be varied except in writing between the parties and signed by their respective authorized signatories. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law. Neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract.

16.2 In the event of any conflict between any of the terms of these documents the following order shall prevail:

(1) the Order; and

(2) these Conditions.

16.3 If any sum payable under this Contract is not paid on or before the due date for payment the non-defaulting party will be entitled to charge the defaulting party interest on that sum at 4% per annum above the base lending rate from time to time of Barclays Bank plc from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis. The defaulting party shall pay the interest together with the overdue amount.

16.4 Any notice sent under the Contract shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may be notified by each party to the other time to time. Notices required to be given under this Agreement shall not be sent by email. Notices shall be deemed to have been duly received:

16.4.1 if delivered personally, when left at the registered address of the relevant party or otherwise the address notified by the recipient to the other party in writing; or

16.4.2 if sent by pre-paid first class post or recorded delivery, at 9.00am on the second day (excluding weekends and public holidays) after posting; or

16.4.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

16.5 Some of the Services may be provided to the Customer by associates or partners of Testplant. Subject to clause 9.1, Testplant excludes all liability where the Customer contracts directly with such third party or with a partner of Testplant.

16.6 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, nor prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.

16.7 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract or to sub-contract any of its obligations under the Contract. Testplant will be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its right under the Contract.

16.8 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.

16.9 Calls between the Customer (or any of its employees, agents, subcontractors) and Testplant may be recorded for quality and training purposes.

16.10 The Contract shall be governed by the laws of England and the parties hereby submit to the exclusive jurisdiction of the English courts, except for enforcement proceedings where the English courts shall have non-exclusive jurisdiction.