The following terms and conditions (“Terms”) apply to all transactions with LAN3 Ltd (except to the extent that the LAN3 Master Services Agreement, is stated to apply) to the exclusion of all other terms and conditions, irrespective of the date of any alternative terms and conditions which may be sent to LAN3. These Terms shall become binding on the Customer on the earlier of: (i) An Order is accepted by LAN3; (ii) The Customer signing or agreeing in writing to an Order; (iii) the Customer agreeing these Terms in writing (which may include email or acceptance through RightSignature; (iv) the Customer paying any amount towards any item specified in the Service Schedule; (v) LAN3 delivering or installing (where applicable) any Product or Service; or (vi) the Customer using or accessing any Product or Service.
1.1 In these Terms, the following expressions shall have the meanings prescribed: -
“Confidential Information” All information, technical data or know-how, (whether written, oral or by another means and whether directly or indirectly) relating to the disclosing party (“Disclosing Party”) whether created before or after these Terms come into force including, but not limited to, research, products, services, customers markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances, which is reasonably deemed to be confidential or proprietary. Confidential Information includes the information of a Third Party that is in the possession of one of the parties hereto and is disclosed to the other party hereto in confidence. Confidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time of disclosure, as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (ii) prior to or after the time the disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party, or (iii) is expressly approved in writing for release by the disclosing party or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party.
“Consultancy Services” Specialist advisory and reporting work which LAN3 may undertake for the Customer from time to time pursuant to an Order.
"Customer" The person, company or other body purchasing the Products and/or Services from LAN3 pursuant to an Order.
“EULA” The end user licence agreement applicable to the relevant Product, as stipulated by the manufacturer or licensor (as the case may be) of that Product.
"Hardware" Any information technology and/or computer and communications hardware to be supplied to the Customer by LAN3 pursuant to an Order.
"Intellectual Property Rights” Rights of any nature whatsoever, whether registered or unregistered including, without limitation, any patent, right in a design, copyright, trade mark, utility model, design right, service mark, database right and other intellectual property right whether or not capable of registration as may exist anywhere in the world, now or in the future.
"Maintenance" Any support and maintenance service(s) to be provided to the Customer by LAN3 pursuant to an Order.
"Order" A written or oral tender, offer, quotation, agreement, delivery relating to the supply of Products or the delivery of Services by or on behalf of LAN3.
"Particular Losses" Without limitation, pure economic loss, loss of profit, loss of revenue, loss of data, loss of business and/or depletion of goodwill or anticipated savings, legal costs and any other indirect, consequential, special or punitive loss.
“Products” Any Hardware or Software or other goods supplied by LAN3 to the Customer pursuant to an Order.
“Quotation” The written statement provided by LAN3 to the Customer prior to concluding an Order, setting out the specification, scope, price and any other relevant details in respect of, and summarising any specific terms for, any Products and/or Services to be provided.
“Service Schedule” The document setting out the agreed charges and fees for Products and or Services and all other information relevant to the Order (including, without limitation, any specification or scope of works), which may take the form of an Order, (where it has subsequently been accepted by both parties as forming an Order) a Quotation or such other document as contains that information.
"Services" The services to be supplied by LAN3 to the Customer pursuant to an Order, which may include (without limitation) delivery, installation, implementation, Maintenance and Consultancy Services.
“LAN3” LAN3 Ltd, a company registered in England & Wales under 6580268 whose registered office is at 1 & 2 Bankside, Hanborough Business Park, Long Hanborough, Oxfordshire, OX29 8LJ.
“Software” The pre-packaged software or electronic licence supplied to the Customer by LAN3 pursuant to an Order.
"Third Party" Any person, company or other body not being LAN3 or the Customer.
"Working Day" Monday to Friday excluding public holidays in England and Wales (or, if the supply of Products and/or Services is to a country other than England and Wales, excluding the public holidays in England, Wales and the country to which the supply is made).
"Working Hours" The hours of 9.00 a.m. to 5.30 p.m. during a Working Day.
2.1 Until an Order has been accepted by an authorised representative of LAN3, all prices are subject to change without prior notice.
2.2 No Order which has been accepted by LAN3 may be cancelled by the Customer unless written agreement is obtained from an authorised representative of LAN3, however the Customer shall remain liable for and shall indemnify LAN3 in full for any costs, damages, losses, charges and expenses incurred by LAN3 as a result of any cancellation of an Order.
2.3 LAN3 may make any changes to the specifications of Products or Services to conform with any applicable health and safety or legal requirement, or which do not materially affect their quality or performance.
2.4 LAN3’s policy is to supply Products and Services only to business customers (i.e. those who are not private consumers). In accepting these Terms, the Customer warrants that it is not purchasing the Products or Services as a private consumer.
2.5 All descriptions, specifications, photographs, weights, dimensions, capacities, prices, performance ratings and other information quoted (whether online or in hard copy format) or otherwise provided by LAN3 or included in any sales literature, Quotation, price list, acknowledgement of order, invoice or other document are to be deemed approximate only (except where stated in writing to be exact) and shall not form part of the contract or Order other than as approximations.
2.6 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acknowledgement of order, invoice or other document (whether hard or electronic copy) or any other information issued by LAN3 shall be subject to correction by LAN3 without liability. Quotations cease to have effect on the acceptance by LAN3 of an Order, unless that Quotation forms the Service Schedule at that time (which shall not be the case where an alternate Service Schedule is provided). Quotations will automatically lapse after a period of 14 days, unless expressly stated to the contrary on that Quotation.
2.7 In the event of any discrepancy or conflict between the Service Schedule, Order, these Terms or a Quotation, the conflict shall be resolved with the earlier listed document taking precedence over those documents listed later.
3.1 LAN3 shall use its reasonable endeavours to deliver the Products to the premises stated in the Order (and/or, in the case of electronic delivery of Products, to the email address or other electronic location as agreed) and/or to supply the Services by any delivery date estimated by LAN3 and for the avoidance of doubt the Customer acknowledges that such delivery date is not guaranteed or of the essence and LAN3 shall in no circumstances be liable to the Customer for any losses, damages or charges (including but not limited to Particular Losses) incurred by the Customer due to the late delivery of Products and/or Services.
3.2 The Customer agrees that it will inspect the Products immediately upon the earlier of delivery or collection and in all cases shall inform LAN3 in writing within 48 hours of delivery of any damage, shortages, defects or non-delivery of the Products, and any failure to do so shall be deemed to constitute acceptance by the Customer of the Products.
3.3 If the Customer fails to take delivery of or, where agreed, collect the Products or fails to give LAN3 adequate delivery instructions at the time stated for delivery (save for circumstances beyond the Customer’s reasonable control or by reason of LAN3’s fault) then without prejudice to any other rights or remedies available to it LAN3 may at its sole discretion: -
3.3.1 store the Products until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
3.3.2 sell the Products at the best price readily available and charge the Customer any shortfall below the price obtained under the Order.
4.1 Risk of damage to, or loss of, Products shall pass to the Customer at the earlier of: -
4.1.1 the time when the Customer collects the Products from LAN3’s (or, if applicable, the manufacturer or other supplier’s) premises, or where clause 3.3 above applies to Products being collected, the time by which those Products were expected to have been collected; or
4.1.2 the time at which Products are delivered to the Customer; or
4.1.3 the time when LAN3 has attempted to deliver the Products to the Customer and any inability to complete such delivery is due to an inaction or action of the Customer.
4.2 Notwithstanding when risk in the Products passes to the Customer, title in the Products shall not pass to the Customer until: (i) LAN3 has received cleared and full payment for the price of the Products and all other Products and Services (if applicable) supplied to the Customer for which payment is then due; (ii) on the Customer’s resale of those Products, in which case title passes to the Customer immediately prior to such resale; or (iii) in the event that the Customer fails to meet the terms of payment for those Products, immediately prior to LAN3 bringing an action for the price.
4.3 Until such time as title in the Products pass to the Customer the Customer shall keep the Products separate from the Customer’s other goods and those of any other third parties and properly stored, protected and insured and identified as LAN3’s property.
4.4 Until such time as title in the Products passes to the Customer, LAN3 shall be entitled at any time to require the Customer to deliver up the Products to LAN3 and if the Customer fails to do so immediately the Customer shall allow (or procure permission for) LAN3 or its agents or representatives to enter upon the Customer’s premises or any premises of any Third Party where the Products are stored and repossess the goods.
5.1 The following conditions shall apply to all Services provided by LAN3 to Customers.
5.2 LAN3 warrants and undertakes to the Customer that:
5.2.1 LAN3’s employees, agents and sub-contractors will have the necessary skill and expertise to provide the Services described in the Service Schedule in accordance with good industry practice;
5.2.2 LAN3 will provide independent and unbiased advice and will exercise reasonable skill and care in the provision of the Services; and
5.2.3 The Services will be provided in a diligent and professional manner.
5.3 Where LAN3 agrees to provide Services to the Customer, the Customer shall at its own expense during and prior to the delivery of those Services comply with LAN3’s reasonable requests in order to allow LAN3 to provide those Services.
5.4 Should the Customer become dissatisfied with the performance of any personnel assigned by LAN3 to perform the Services, the Customer shall notify LAN3 in writing with details of the unsatisfactory performance, and provided that LAN3 is satisfied that the Customer’s dissatisfaction is reasonable, LAN3 shall re-assign personnel as soon as reasonably practicable.
5.5 Where LAN3 agrees to provide Services, any estimate or indication by LAN3 as to the number of man days or man hours required by LAN3 to undertake a specific task shall be construed as being an estimate only.
5.6 LAN3 shall in no circumstances be liable for a delay or for any other loss, damage or other cost of whatsoever nature (including without limitation Particular Losses) suffered or incurred by the Customer where such estimate or indication is incorrect.
5.7 The charges agreed for the Services do not include travel, accommodation and subsistence expenses, nor the cost of time spent travelling incurred in the provision of the Services for which LAN3 shall charge its or its sub-contractors’ (as applicable) then current rates, available on request.
5.8 LAN3 will normally carry out the Services during Working Hours but may, on reasonable notice, require the Customer to provide access to the Customer’s premises at other times.
5.9 At the Customer’s request LAN3 may agree to work outside Working Hours however this shall be subject to any reasonable additional charge that may be made by LAN3 for complying with such request. Such charges shall be agreed in writing prior to commencement of any out of hours’ work.
5.10 All personnel required for the Services will be provided by LAN3 and will be facilitated wherever appropriate and/or possible by use of the Customer’s own staff; however, LAN3 reserves the right to sub-contract the whole or any part of the Order to any person or company.
5.11 LAN3 expects that the Customer has adequate inspection, testing and approval processes and, on completion of any Services provided by LAN3, the sign off by the Customer of such services shall be considered the Customer’s absolute acceptance of the satisfactory completion of such Services. Unless:
5.11.1 a reasonably detailed inspection and testing procedure by the Customer to ascertain that the Services had been undertaken correctly and in full, and
5.11.2 Such inspection would not have been expected to identify the defect causing loss due to the latent and uncheckable nature of such defect, no liability shall accrue to LAN3 as a result of any defects in the delivery of the Services.
6.1 Where LAN3 agrees to provide support and/or maintenance services in respect of Products supplied to the Customer, this will generally comprise reasonable assistance in the resolution of queries via a telephone call originated by the Customer’s licensed users of such Products during Working Hours for the agreed period (limited to first line support only). Except as provided under clause 6.3, if the query is unable to be resolved during a telephone call, the Customer may be required to contact the distributor or manufacturer of the Product directly.
6.2 Where LAN3 agrees to provide Maintenance in respect of the Software, this shall be provided in all material respects in accordance with LAN3’s applicable Service Schedule as provided to the Customer by LAN3.
6.3 Any additional Maintenance which LAN3 agrees to supply to the Customer in relation to the Software or Hardware shall be provided on a time and materials basis at LAN3’s or its sub-contractors’ (as applicable) then current rates for same, available on request, unless otherwise agreed.
7.1 Where LAN3 agrees to assist a Customer with the installation or delivery of Products, the Customer shall at its own expense and prior to the delivery of the Products comply with LAN3’s reasonable requests in order to allow LAN3 to provide the installation and/or delivery services.
7.2 Personnel provided by LAN3 will remain under the management and conditions of employment of LAN3 or its nominated sub-contractor.
7.3 The Customer must provide reasonable access and assistance to LAN3’s staff for the purpose of enabling LAN3’s staff or officers or agents or subcontractors to fulfil their duties. Such access shall be during Working Hours unless specifically agreed otherwise.
8.1 The terms of reference for the Consultancy Services to be performed by LAN3 shall be as specified in the Service Schedule. The Customer may from time to time wish to vary the terms of reference. Under these circumstances, LAN3 will use reasonable commercial endeavours to accommodate that variation. Any changes in the charges and/or timescales as a result of that variation shall be negotiated between the Customer and LAN3.
8.2 Although consultancy work is undertaken with reasonable skill and care, LAN3 cannot guarantee the accuracy of any advice, solution, compliancy report or (in the case of software asset management) effective licence position.
8.3 Where reports, whether of an ongoing progress update nature or on completion of the Consultancy Services, are to be provided in accordance with the Service Schedule, LAN3 shall render such reports at the time and in the manner specified or as otherwise agreed between LAN3 and the Customer.
8.4 LAN3 expects that the Customer will provide them, and any consultant undertaking Consultancy Services on their behalf, with any and all relevant assistance and information (which shall include sufficient detail in that information) pertaining to the undertaking and completion of such Consultancy Services, and LAN3 shall not be liable for any advice, conclusions or reports which are erroneous or incomplete as a result of a failure to supply such information.
9.1 The price payable by the Customer for the supply of Product(s) or Services shall be that which is set out and agreed between the Customer and LAN3 each time LAN3 accepts an Order placed by the Customer and as specified in the Service Schedule or Quotation as appropriate (unless varied by the Order and LAN3’s acceptance). All prices quoted are deemed exclusive of value added tax, unless expressly stated to the contrary.
9.2 Any increase in price for the Services shall be applied no more often than once per year at or around each anniversary of the commencement of those Services, and shall not exceed the increase in the UK RPI or CPI (whichever is lower) calculated over the preceding 12 months unless LAN3 can demonstrate that its costs in providing such Service have unavoidably increased by a sum exceeding that figure. LAN3 shall notify the Customer in writing at least 90 days in advance of any increase in the price for the Services.
9.3 Unless otherwise agreed between the parties, invoices will be raised and dated by LAN3 on or after the date of delivery of the Products, or on or after commencement of the Services. Where both Products and Services are supplied against the same Order, a separate invoice will be raised for each of those two elements.
9.4 The Customer shall pay each invoice in full (subject to a bona fide dispute), together with any VAT at the appropriate rate and other expenses, to LAN3 within 30 (thirty) days of the date of a valid invoice (“due date”). The time of payment shall be of the essence. If the Customer fails to pay any sums due by the due date or does not comply with an obligation imposed upon the Customer, whether in these Terms, any Service Schedule or any other relevant contractual document, then without prejudice to any other right or remedy available to LAN3, LAN3 shall be entitled to withhold the supply of any Products or Services to be provided to the Customer by or on behalf of LAN3 until such payment is made or the Customer complies with its obligations to LAN3’s reasonable satisfaction.
9.5 If the Customer fails to pay any sums due by the due date or does not comply with an obligation imposed upon the Customer, whether in these Terms, any Service Schedule or any other relevant contractual document, then without prejudice to any other right or remedy available to LAN3, LAN3 shall be entitled to withhold the supply of any Products or Services to be provided to the Customer by or on behalf of LAN3 until such payment is made or the Customer complies with its obligations to LAN3’s reasonable satisfaction.
9.6 Without prejudice to LAN3’s other rights and remedies, LAN3 reserves the right to charge interest to the Customer on any sums, fees or other charges which are not paid on the due date and that interest may be charged from the date such payment falls due at the statutory rate of 2 (two) per cent per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis.
9.7 LAN3 or its agent shall deliver the Products to any premises (whether in the United Kingdom or in any country) notified to LAN3 by the Customer and for the avoidance of doubt the Customer shall be liable for any costs incurred by LAN3 in relation to carriage, postage and packing and any other applicable taxes and duties.
9.8 Where the price of a Product is in a currency other than pounds sterling, the price provided to the Customer in a Quotation in pounds sterling is based on LAN3’s currency exchange rates (including any applicable commissions for currency conversion) on the day of that Quotation, is given by way of convenience only and is subject to currency fluctuation. The sum in pounds sterling to be paid on LAN3’s acceptance of the Customer’s Order will be calculated on the day of acceptance based on the currency exchange rates applicable that day (with any relevant commissions for currency conversion to be added), and that price calculated will become automatically binding at that time.
9.9 The Customer shall not be entitled to make a set-off or counter-claim or claim a lien in respect of any amounts owed by LAN3 and shall pay all amounts due without making a deduction of any kind.
10.1 LAN3 normally allows Customers to return unopened Products within 30 days of delivery, however all returns are at LAN3’s sole and absolute discretion, and will depend on our suppliers’ returns policies.
10.2 Under no circumstances will LAN3 accept returns of opened Products unless those Products are faulty and the provisions of the remainder of this clause 10 are met. For the avoidance of doubt, no Software on which the seals have been broken can be returned. Software licences are non-refundable.
10.3 In circumstances where return of Product(s) is permitted by LAN3, it will issue a credit note on a Customer’s account so that the invoice for the relevant Product is deemed cancelled. In the event a Customer has paid for goods in full, a refund will be granted.
10.4 The refund or replacement of faulty or defective Products is subject strictly to individual manufacturer’s warranty or “Dead On Arrival” (“DOA”) policies.
10.5 Individual manufacturer’s DOA policies may be obtained by the Customer by contacting LAN3’s sales department.
10.6 The Customer must notify LAN3 of a defect in the Products within the time limit provided for in the applicable manufacturer’s DOA policy.
10.7 The Customer may be required to contact the manufacturer’s technical department to troubleshoot and/or to obtain DOA authorisation which shall be retained by the Customer and presented to LAN3 upon request.
10.8 The Customer is also required to make a note of any call/case reference numbers issued by the manufacturer to assist LAN3 with return of a DOA product.
10.9 In the case where it is established that Products are faulty or defective LAN3’s sales department will arrange with the Customer to have the Products collected. In some instances, the manufacturer’s warranties require the Customer to contact the repair agent directly. If this is the case, the Customer will be so informed by LAN3’s sales department.
10.10 Where LAN3 has indicated to the Customer that the return of a Product is permitted, the Customer is responsible for ensuring that the Products are returned to LAN3 in their original packaging together with all disks, manuals, cables and any other peripherals, accessories, consumables and other parts or items with which they were boxed or inseparably supplied so as to ensure satisfaction of the manufacturer’s DOA policy and/or warranty stipulations (as appropriate), safe transit and ease of identification.
10.11 The external packaging must not be damaged or defaced so it is recommended the goods are re-boxed for transport.
10.12 The Products will be tested on receipt. If no fault is found the Products shall be returned to the Customer at the Customer’s cost.
10.13 If a fault is found and an applicable manufacturer’s DOA period is exceeded, then the Products will be repaired and/or replaced under the terms of the manufacturer’s warranty, to the extent that such warranty remains in force at that time.
10.14 In the event that the manufacturer’s DOA cover period and/or warranty period have expired or did not apply, LAN3 shall have no liability to the Customer for such Product(s).
11.1 The Customer shall: -
11.1.1 comply with and use the Services in accordance with these Terms and all applicable laws and shall not breach any obligations regarding acceptable use of the Services;
11.1.2 take all reasonable precautions to protect the health and safety of LAN3’s or its sub-contractors’ (as applicable) personnel whilst at any location of the Customer;
11.1.3 allow LAN3 or its sub-contractors (as applicable) to exercise a right of entry over all premises in the possession of or under the control of the Customer in order for LAN3 to fulfil its obligations under these Terms;
11.1.4 be responsible for ensuring that its premises are ready to receive the Products or Services concerned;
11.1.5 promptly furnish LAN3 with any information required by LAN3 in order to provide the Products or the Services;
11.1.6 ensure its employees or agents co-operate with LAN3;
11.1.7 in the event that the Customer fails for any reason to complete any purchase of any Products or Services within the period notified to the Customer at any time by LAN3, the Customer shall indemnify LAN3 against any loss, damage or other cost of whatsoever nature suffered or incurred by LAN3 reasonably relating to that failure on the part of the Customer;
11.1.8 if a Service is delayed other than through LAN3’s fault, pay any sums required by LAN3 in respect of idle-time incurred for the delay, including delay as a result of the Customer’s agents or sub-contractors. Any agreed time schedules shall be deferred to a reasonable period of time or no less than the period of the delay;
11.1.9 promptly provide LAN3 with all accurate and complete information and assistance that LAN3 may reasonably require.
11.2 Unless LAN3 undertakes Consultancy Services with an expressly required outcome of advising a Customer in writing on the Products which it recommends for a particular solution, the Customer acknowledges that it is relying solely upon its own skill and judgement, and not that of LAN3, in determining the suitability of any Products and their fitness for any general or specific purpose.
11.3 The Customer warrants that any of its representatives, who enter into these Terms and any order with LAN3, have the Customer’s authority to do so and that the Customer will take responsibility for any employee, ex-employee or other person who holds themselves out to be the authorised representative of the Customer.
12.1 The title to and the Intellectual Property Rights in the Product(s) and in the media containing such Product(s) does not pass to the Customer. The Customer is licensed to use such Product(s) in accordance with these Terms and in accordance with the applicable EULA applicable to those Product(s), and by entering into these Terms and any Order pursuant to them, the Customer agrees to enter into and comply with the terms of such EULA(s).
12.2 The parties agree that all Intellectual Property Rights which existed prior to the date of the Order in relation to any items used in the performance of any Services shall remain the property of the existing owner of those Intellectual Property Rights.
12.3 LAN3 shall own and be fully entitled to use in any way it deems fit any Intellectual Property Rights, including (without limitation) skills, techniques, materials, concepts or know-how acquired, developed or used in the course of performing any Services and any improvements made or developed during the course of Services. For the avoidance of any doubt, this shall include any improvements or modifications to Software during the duration of the Order. Nothing herein shall be construed or shall give effect to any transfer of right, title or interest in LAN3’s Intellectual Property Rights.
13.1 Save where the relevant EULA permits such copying, the Customer shall not copy or reproduce in any way the whole or a part of the user manual or any other documentation relating to any Products or Services which is supplied to the Customer without LAN3’s prior written consent.
14.1 To the maximum extent permissible in law, all conditions and warranties which are to be implied by statute or general law into these Terms or relating to the Products or the Services are excluded. Notwithstanding this, any Products supplied under these Terms will conform substantively to any specifications given in relation to them and any Services provided under these Terms will be provided with reasonable skill and care.
14.2 LAN3 warrants it has the right to provide or procure the provision of the Products and Services.
14.3 The only additional warranties which the Customer may receive are those which are given by the manufacturer or licensor (as the case may be) of such Products to the Customer and are subject to any relevant limitations and exclusions imposed by such manufacturer or licensor (as the case may be). LAN3 shall provide the Customer with details of such warranties upon request.
15.1 Nothing in these Terms shall limit LAN3's liability to the Customer for liabilities which cannot be limited or excluded as a matter of law including:
15.1.1 death or personal injury resulting from the negligence of LAN3, its employees, agents or sub-contractors; and
15.1.2 fraud or fraudulent misrepresentation.
15.2 LAN3 shall not in any circumstances be liable for Particular Losses, whether direct, indirect or consequential, even if a party has been advised of the possibility of such losses.
15.3 The Customer agrees that the limitations on liability in these Terms are reasonable, given the parties’ respective commercial positions and the Customer’s option to purchase appropriate insurance in respect of arising risks. The total liability which LAN3 shall owe to the Customer in respect of all claims under all Orders shall not exceed 125% of the purchase price paid by the Customer in respect of the Products or Services to which the claim(s) relate, up to a maximum of £5,000,000.
15.4 No actions regardless of form arising out of these Terms may be brought by the Customer more than two years after the Customer becomes aware or should reasonably have become aware of the facts constituting the cause of action.
15.5 The Customer shall indemnify and keep LAN3 indemnified in respect of any losses, costs, damages, claims and/or expenses incurred by LAN3 due to any claims by any Third Party arising out of any use of, access to or modification of the Customer’s computer systems by LAN3 on the Customer’s instructions and/or use of any materials supplied to LAN3 by the Customer. This indemnity shall survive termination or expiry of an Order to which it relates.
16.1 Neither party shall be liable to the other party in any manner whatsoever for any failure or any delay or for the consequences of any delay in performing its obligations under these Terms (save in respect of any obligation to pay money) due to any cause beyond the reasonable control of the party in question which for the avoidance of doubt and without prejudice to the generality of the foregoing shall include governmental actions, war, riots, civil commotion, fire, flood, epidemic, labour disputes including labour disputes involving the work force or any part thereof of the party in question, restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials, currency restrictions and acts of God.
17.1 LAN3 shall be entitled to terminate any Order and suspend all or any work on current or future deliveries and instalments of Products or the provision of any Services and on written notice to the Customer shall be entitled to cancel the undelivered or unperformed portion of the Order between LAN3 and the Customer and deem that the whole of the price payable under the Order or any other agreement shall be payable immediately in the event of:
17.1.1 any distress, execution or other legal process being levied upon any of the Customer’s assets;
17.1.2 the Customer entering into any arrangement or composition with its creditors, committing any act of bankruptcy or (being a corporation) an order being made or an effective resolution being passed for its winding up, except for the purposes of amalgamation or reconstruction as a solvent company, or a receiver, manager receiver, administrative receiver or administrator being appointed in respect of the whole or any part of its undertaking or assets;
17.1.3 the Customer ceasing or threatening to cease to carry on business;
17.1.4 any breach of these Terms by the Customer which is not capable of remedy or which it fails to remedy as required by LAN3;
17.1.5 non-payment by the Customer of any amount due from it to LAN3 (beyond the date on which that sum was due), or other material breach of these Terms; or
17.1.6 LAN3 reasonably apprehending that any of the events mentioned above is about to occur.
17.2 In the event of such termination LAN3 shall, for the avoidance of doubt, be entitled to recover as damages from the Customer all reasonable costs which LAN3 sustains due to such termination.
17.3 In the event of such termination, should the Customer have failed to make payment in full for the Software, then the Customer shall immediately cease use of all Software (and any updates of same) and at its own expense, remove from all computers, communications systems and other electronic devices under its control all copies of the Software (and updates) and return or destroy them (certifying in writing to LAN3 that such destruction has taken place).
17.4 For a period of six months following termination of the Order the Customer shall, on not less than two days’ notice, permit authorised representatives of LAN3 to enter its premises during normal business hours for the purposes of confirming that the Customer has complied with its post termination obligations.
17.5 The exercise of the rights conferred by this clause 17 shall be without prejudice to any other right enjoyed by LAN3 pursuant to these Terms or by law.
18.1 If a provision in these Terms is held by any competent authority to be invalid or wholly or partly unenforceable such invalidity or unenforceability shall not in any way affect the remainder of these Terms.
18.2 If any provision or part-provision of these Terms or any Order is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms or Order (as appropriate).
18.3 If any provision or part-provision of these Terms or any Order is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.1 The Customer will not be entitled to assign the benefit or delegate the burden of the Order without the prior written consent of LAN3 which it may in its absolute discretion refuse.
19.2 LAN3 will be entitled to assign the benefit or delegate the burden of the Order.
20.1 LAN3 shall be free to sub-contract any or all of its rights and obligations under these Terms as it sees fit. The Customer will not be entitled to sub-contract all or any part of its obligations under these Terms without the prior written consent of LAN3. LAN3 will not withhold such consent unreasonably.
21.1 Each party agrees with the other in respect of all Confidential Information:
21.1.1 to keep the Confidential Information in strict confidence and secrecy;
21.1.2 not to use the Confidential Information save for complying with its obligations under these Terms;
21.1.3 not to disclose the Confidential Information to a Third Party; and
21.1.4 to restrict the disclosure of the relevant and necessary parts of the Confidential Information to such of its employees, agents, sub-contractors and others who of necessity need it in the performance of their duties as envisaged by the Order and in those circumstances to ensure that those employees and others are aware of the confidential nature of the Confidential Information; provided however that where a part of the Confidential Information is already or becomes commonly known in the trade (except through a breach of the obligations imposed under these Terms) then the foregoing obligations of confidentiality in respect of such part shall not apply or shall cease to apply (as the case may be).
21.2 This obligation of confidentiality shall survive the termination of any Order.
22.1 The Customer will not solicit, induce to terminate employment, or otherwise entice away whether directly or indirectly through another firm or company, any employee of LAN3 professionally or otherwise directly associated with LAN3 during the term of the Order or for 12 months thereafter.
22.2 For the avoidance of doubt, there is no restriction on the Customer employing any person who is employed or acting for LAN3 where that person responds to a bone fide public advertisement for employees.
23.1 No amendment of these Terms during the period of an Order shall be binding in respect of that Order unless executed in writing and signed by an authorised representative of LAN3 and by an authorised representative of the Customer. Notwithstanding the foregoing, LAN3 reserves the right to alter these Terms at such time and in such manner as it sees fit, shall publish the then-current version of the Terms at www.LAN3.co.uk/terms-and-conditions, and shall supply hard copies on Customer request.
23.2 The failure of LAN3 at any time to enforce a provision of these Terms shall not be deemed a waiver of such provision or of any other provision of these Terms or of LAN3's right thereafter to enforce any such provision(s).
24.1 Any demand, notice or other communication shall be in writing and may be served by hand, prepaid first class post or facsimile.
24.2 No Third Party may enforce any provision of these Terms by virtue of the Contracts (Rights of Third Parties) Act 1999 or any other method.
24.3 These Terms (and any licence proffered by or on behalf of the owner of the Products, whether a EULA or otherwise) supersedes all previous written or other documents or agreements (written or oral) relating to the subject matter of these Terms.
24.4 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party (and on any resale of a Product by the Customer, such resale shall be made by the Customer as principal), or authorise any party to make or enter into any commitments for or on behalf of any other party.
24.5 The formation, construction, performance, validity and all aspects whatsoever of these Terms shall be governed by English Law and the parties hereby submit to the exclusive jurisdiction of the English courts.