Terms and Conditions for the Supply of Service
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions:
“Confidential Information” means all information which is marked as confidential or has otherwise been indicated as being confidential, or information which would be regarded as confidential by a reasonable business person, and disclosed (whether in writing, orally or by any other means) by OMS whether before or after the date of the Contract;
“Contract” means the Customer’s order (whether written or verbal) and OMS’s acceptance of it in accordance with clause 4.3;
“Customer” means the person, firm or company who procures the Services from OMS;
“Deliverables” means an item to be supplied to Customer under the Contract, as identified in OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation;
“IPR” means patents, rights to inventions, copyright and related rights, trademarks, trade names, service marks, 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;
“OMS” means Optical Metrology Services Limited whose registered number is 5169556 and whose registered office is at Unit 9, M11 Business Link, Parsonage Lane, Stansted CM24 8GF UK;
“Services” means those services to be provided to the Customer under the Contract, including the provision of any Deliverables, as further set out in OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation; and
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 In the Contract unless the context otherwise requires:
1.2.1 words importing (i) any gender include every gender, (ii) the singular number include the plural number and vice versa; and (iii) persons include firms, companies and corporations and vice versa;
1.2.2 headings to clauses will not affect the interpretation;
1.2.3 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
1.2.4 any phrase introduced by the words "including", "includes" or similar, shall be construed as illustrative and without limitation to the generality of the related general words.
1.3 If there is any conflict and/or inconsistency between these terms and conditions and OMS’s acknowledgement of order or (if there is no acknowledgment of order) quotation, these terms and conditions shall prevail but only to the extent of such conflict and/or inconsistency.
2 Application of Conditions
2.1 These conditions shall apply to and be incorporated in the Contract and prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s 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 OMS unless in writing and signed by a duly authorised representative of OMS.
2.3 The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Contract. The Customer shall have no authority to make representations, act in the name of, or on behalf of, or to otherwise bind OMS. The relationship of the Customer to OMS will be that of independent contractor and nothing in the Contract shall render it an employee, worker, agent or partner of OMS and accordingly the Customer shall not hold itself out as such.
2.4 At its own expense, the Customer shall, and shall use all reasonable endeavors to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Contract.
3 OMS Liability
3.1 The provisions of clause 3 set out the entire financial liability of OMS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement or tortuous act or omission (including negligence) arising out of or in connection with the Contract.
3.2 Nothing in these terms and conditions excludes or limits the liability of OMS for:
3.2.1 death or personal injury caused by OMS’s negligence or the negligence of its employees, agents or sub-contractors (as applicable);
3.2.2 fraud or fraudulent misrepresentation; or
3.2.3 any other liability which cannot be excluded or limited under applicable law.
3.3 Subject to clauses 3.2 and 3.4, OMS’s maximum aggregate liability to the Customer under or in connection with the Contract, or any collateral contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation (other than where made fraudulently), restitution or otherwise, shall be limited to 100% of the fees payable for the Services under the Contract.
3.4 Subject to clauses 3.2 and 3.5, OMS shall not be liable to the Customer under, or in connection with, the Contract or any collateral contract for:
3.4.1 any loss of profits, loss of contracts, loss of business, loss of use, loss of goodwill, opportunity or reputation, anticipated savings, wasted management time, loss of data (or labour expenses associated with restoring lost data or making any Deliverables operational) or similar losses; or
3.4.2 any special, indirect or consequential loss, costs, damages, charges or expenses,
Howsoever arising even if OMS has been advised of the possibility of such damages.
3.5 In the event that any of the exclusions in clause 3.4 are found to be invalid, illegal or unenforceable by a court of competent jurisdiction, OMS’s aggregate liability for such shall be subject to the financial limit set out in clause 3.3.
3.6 Without prejudice to any other rights or remedies which OMS has, the Customer shall fully indemnify and keep indemnified OMS against all losses, damages, costs, claims, demands, liabilities and expenses (including consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by OMS in connection with or arising out of any breach of the Contract or any collateral contract.
3.7 Subject to clause 3.2, OMS shall be discharged of liability in respect of any claim arising out of any transaction subject to the Contract, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation (other than where made fraudulently), restitution or otherwise, unless formal commencement of legal proceedings is brought within one year after the Customer first becomes (or should reasonably have become) aware of the facts that constitute the cause of action.
4 Basis of Services
4.1 Any quotation produced by OMS for the Services is valid for a period of 30 days only, and OMS may withdraw such quotation at any time by notice to the Customer.
4.2 Each order or acceptance of a quotation for the Services by the Customer shall be deemed to be an offer by the Customer to procure the Services subject to these terms and conditions. The Customer shall ensure that its order is complete and accurate.
4.3 A binding contract shall not come into existence between the parties unless and until OMS issues a written order acknowledgement to the Customer or OMS starts to provide the Services (whichever occurs earlier).
4.4 No order which has been acknowledged by OMS may be cancelled by the Customer, except with the agreement in writing of OMS and provided that the Customer indemnifies OMS in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by OMS as a result of cancellation.
4.5 The Customer shall not, without the prior written consent of OMS, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. OMS may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract. OMS’s measurement personnel will sometimes be provided by a sub-contractor.
5.1 The description of the Services shall be as set out in OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation.
5.2 If OMS agrees to make adaptations to the Services to meet the Customer’s requirements, OMS shall not be liable to the Customer for any losses or damages incurred or suffered by the Customer as a result of such adaptations. It is the Customer’s sole responsibility to ensure that its requirements and the adaptations it has asked OMS to make are complete and accurate. If OMS has made the adaptations in accordance with the Customer’s requirements and such requirements and/or adaptations are incomplete and/or incorrect, the Customer shall still be under an obligation to pay OMS the fees for such adapted Services.
5.3 All samples, drawings, descriptive matter, specifications and advertising issued by OMS, and any descriptions or illustrations contained in OMS’s catalogues, brochures or its website are issued or published for illustrative purposes only and they do not form part of the Contract.
5.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OMS shall be subject to correction without any liability on the part of OMS.
5.5 OMS reserves the right (but does not assume the obligation) to make any changes in the specification of the Services which are required to conform with any applicable legislation or, where the Services are to be supplied to the Customer’s specification, which do not materially affect their quality or performance.
5.6 OMS’s employees, sub-contractors and agents are not authorised to make any contractually binding representations concerning the Services. In entering into the Contract and without prejudice to clause 14.4, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing and signed by an authorised officer of OMS. However, nothing in these terms and conditions limits or excludes OMS’s liability for fraud or fraudulent misrepresentation.
5.7 Any advice or recommendation given by OMS or its employees, sub-contractors or agents to the Customer or its employees, sub-contractors or agents about the storage, application or use of the Deliverables which is not confirmed in writing by an authorised officer of OMS which is followed or acted on entirely at the Customer’s own risk.
6 Service Delivery
6.1 OMS shall use its reasonable endeavours to provide the Services on the date or dates specified in OMS’s acknowledgement of order, but any such date is approximate only. If no dates are so specified or there is no acknowledgement of order, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the performance of the Services and OMS is not liable for any delay in performance, however caused.
6.2 The Deliverable may be delivered by OMS in advance of the quoted delivery date on giving reasonable notice to the Customer.
6.3 Unless stated otherwise in OMS’s acknowledgement of order or (if there is no acknowledgment of order) quotation, the Customer shall be responsible (at the Customer’s cost) for preparing the location for the delivery of the Services and all necessary access and facilities required to perform the Services. If OMS is prevented from carrying out performance on the specified date because no such preparation has been carried out, OMS may levy additional charges to recover its loss arising from this event.
6.4 OMS shall not be responsible or liable to the Customer if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including equipment temperatures below 0°C or above 45°C, strikes, lock-outs or other industrial disputes (whether involving the workforce of OMS or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
6.5 If OMS’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a force majeure event under clause 6.4), the Customer shall be liable to pay to OMS all reasonable costs, charges or losses sustained by it as a result, subject to OMS notifying the Customer in writing of any such claim it might have against the Customer in this respect.
6.6 The Customer shall:
6.6.1 co-operate with OMS in all matters relating to the Services;
6.6.2 provide, for OMS, its agents, sub-contractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by OMS;
6.6.3 provide, in a timely manner, such documentation and other information as OMS may reasonably require to enable it to provide the Services in accordance with the Contract, and ensure that it is accurate in all material respects;
6.6.4 obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation and use of any OMS equipment, in all cases before the date on which the Services are to start; and
6.6.5 keep, maintain and (if required by OMS) insure OMS’s equipment in accordance with OMS’s instructions as notified in writing from time to time and shall not dispose of or use OMS’s equipment other than in accordance with OMS’s written instructions or authorisation.
7 Limited Warranty
7.1 Subject to clauses 7.4 to 7.7 (inclusive), OMS warrants to the Customer that (subject to the other provisions of these terms and conditions) the Services will materially conform with all descriptions and specifications specified in the Contract
7.2 Subject to clauses 7.4 to 7.7 (inclusive), if any of the Services do not conform with the warranty in clause 7.1 OMS shall at its option re-perform the deficient services or refund the price of such deficient Services.
7.3 If OMS complies with clause 7.2 it shall have no further liability for a breach of any of the warranty in clause 7.1 in respect of such deficient Services.
7.4 OMS shall not be liable for a breach of any of the warranty contained in clause 7.1 unless the Customer gives written notice of the deficient Services to OMS within 10 days of the time when the Customer discovers or ought to have discovered the deficiency.
7.5 OMS shall further not be liable for a breach of any of the warranty in clause 7.1 if:
7.5.1 the Customer makes any use of the Deliverables in respect of which it has given written notice under clause 7.4; or
7.5.2 the defect arises as a result of OMS following any drawing, design or specification supplied by the Customer;
7.5.3 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
7.5.4 the Services differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
7.5.5 the defect arises because the Customer failed to follow OMS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Deliverables or (if there are none) good trade practice; or
7.5.6 the Customer alters, modifies or repairs the relevant the Deliverables without the prior written consent of OMS.
7.6 OMS shall not be liable for any damage or defect to the Deliverables caused by improper use of the Deliverables or use of the Deliverables outside their normal application. Subject to payment by the Customer of any additional OMS fees, OMS may agree to repair any damage or defect caused by improper use of the Deliverables or use of the Deliverables outside their normal application.
7.7 The warranty in clause 7.1 shall not apply to any part of the Deliverables which are manufactured by a third party. As far as it is able, OMS will pass on to the Customer the benefits of any third party manufacturer's warranties.
7.8 These terms and conditions set out the full extent of OMS’s obligations and liabilities in respect of the supply of the Services. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on OMS except as specifically stated in these terms and conditions. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, these terms and conditions, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
8.1 The fees for the Services:
8.1.1 shall be as stated in OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation. All fees are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other taxes, charges and duties;
8.1.2 are based on the fees prevailing at the date of OMS’s acknowledgement of the order or (if there is no acknowledgement of order) quotation and OMS may increase the fees to cover any increases due to market conditions (including increases in foreign exchange rates relating to the Services, or in labour, materials, supply or transportation costs) which affect OMS; and
8.1.3 shall be OMS’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the fees listed in OMS’s price list current at the date of acceptance of the order. OMS’s published export fee list shall apply to exports of the Deliverables as appropriate.
8.2 OMS reserves the right, by giving notice to the Customer at any time before delivery, to increase the fees for the Services which have not been performed to reflect any increase in the cost to OMS which is due to any factor beyond the control of OMS (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs), any change in delivery dates, specifications for the Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give OMS adequate information or instructions.
9 Payment Terms
9.1 Subject to any special terms agreed in writing between the parties, OMS may invoice the Customer for the fees in accordance with OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation for the Services.
9.2 The terms of payment shall be within 30 days of the date of OMS’s invoice.
9.3 The Customer shall pay the fees for the Services in pounds sterling unless agreed otherwise by OMS. If an invoice is issued in any other currency the exchange rate which OMS shall apply to such invoice shall be based on the exchange rate in force on the day of payment or, if payment is delayed, the payment due date if the exchange rate is more favourable to OMS. Time for payment of the fees shall be of the essence of the Contract.
9.4 If the Customer fails to make payment in full and in cleared funds on the due date, the whole of the balance of the fees for the Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to OMS, OMS may:
9.4.1 terminate the Contract or suspend any further provision of the Services; and/or
9.4.2 charge interest on the amount outstanding from the due date to the date of receipt by OMS (whether or not after judgment) in accordance with the Late Payment of Commercial Debts (Interest) Act 1998; and/or
9.4.3 suspend all further manufacture, delivery or warranty service until payment has been made in full; and/or
9.4.4 make a storage charge for any undelivered Deliverables at its current rates from time to time; and/or
9.4.5 stop any Deliverables in transit.
9.5 All sums payable to OMS under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This clause is without prejudice to any right to claim for interest under the law, or any right under the Contract.
9.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by applicable law). OMS may, without prejudice to any other rights or remedies it may have, set off any amount owed by the Customer to OMS against any amount owed by OMS to the Customer under the Contract or any other contract between the parties.
10 Export Terms
10.1 Where the Deliverables are supplied for export from the UK, the provisions of clause 10 shall (subject to any contrary terms agreed in writing between the parties) override any other conflicting or inconsistent provision of these terms and conditions (but only to the extent of such conflict or inconsistency).
10.2 The Customer shall be responsible for complying with any legislation governing the importation of the Deliverables into the country of destination and the export and re-export of the Deliverables, and in both cases shall be responsible for the payment of any duties on it.
10.3 Unless otherwise agreed in writing between the parties, the Deliverables shall be delivered free on board the air or sea port of shipment and OMS shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
10.4 OMS shall be responsible for arranging for the testing and inspection of the Deliverables at OMS’s premises before shipment.
11 Intellectual Property Rights
11.1 If OMS develops any Deliverables, or applies any process to them, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall fully indemnify and keep indemnified OMS against all losses, damages, costs, claims, demands, liabilities and expenses (including consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by OMS in connection with, or paid or agreed to be paid by OMS in settlement of, any claim (actual or alleged) for infringement of any third party IPR which results from OMS’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of OMS.
11.2 The Customer acknowledges that all IPR used by or subsisting in the Deliverables are and shall remain the sole property of OMS or (as the case may be) the third party rights owner.
11.3 OMS shall retain the IPR in all Deliverables supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such Deliverables shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of OMS.
11.4 OMS’s (or its third party licensors) IPR in and relating to the Deliverables shall remain the exclusive property of OMS (or its third party licensors), and the Customer shall not at any time make any unauthorised use of such IPR, nor authorise or permit any of its employees, agents, sub-contractors or any other person to do so.
11.5 The Customer shall keep in strict confidence all IPR, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by OMS or its agents, and any other confidential information concerning OMS’s business or its products (including the Deliverables) which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to OMS, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
11.6 All materials, equipment and tools, drawings, specifications and data supplied by OMS to the Customer shall at all times be and remain the exclusive property of OMS.
11.7 At any time, OMS may require the Customer to return to OMS any Deliverables, documents, information, materials (including confidential material), equipment and tools, drawings, specifications and data which are stated in clause 11 to be owned by OMS or any third party licensors. The Customer shall promptly comply with any such request.
11.8 Subject to clause 11.9, OMS licenses all such rights to the Customer free of charge and on a non-exclusive and non-transferable basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Contract is terminated, this licence will automatically terminate.
11.9 The Customer acknowledges that, where OMS does not own any of the Deliverables, the Customer's use of rights in such Deliverables is conditional on OMS obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle OMS to license such rights to the Customer.
12 Data, Confidentiality and Publicity
12.1 The Customer acknowledges that OMS may give access to or disclose personal data to its third party providers/licensors in connection with the performance of the Contract and the Customer consents to such disclosure and confirms it has obtained all necessary consents of data subjects to such disclosure and use.
12.2 Subject to clause 12.3, the Customer shall treat all Confidential Information belonging to OMS as strictly confidential and shall not disclose the Confidential Information to any person.
12.3 The Customer may disclose the Confidential Information if and only to the extent:
12.3.1 such disclosure is a requirement of applicable law placed upon the Customer; or
12.3.2 the Confidential Information has come into the public domain other than by a breach by the Customer of any obligation of confidentiality.
12.4 The Customer shall not acquire any right, title or interest in or to OMS’s Confidential Information.
12.5 The Customer shall not issue or make any public announcement or disclose any information regarding the Contract unless prior written consent has been obtained from OMS.
13.1 Without prejudice to any other right or remedy available to OMS, OMS may terminate the Contract, suspend or terminate the Services without liability to the Customer and, if any or all of the Services have been performed but not paid for, the fees shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
13.1.1 the Customer commits a material breach of the Contract and such breach is irremediable;
13.1.2 the Customer commits any material breach (including failure to make payment in accordance with the Contract) or persistent breach of any term of the Contract and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from OMS to do so, to remedy the breach (or, having so remedied, subsequently commits a similar breach within the next 30 days); or
13.1.3 a petition is filed, a notice is given, an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer; or
13.1.4 an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
13.1.5 a receiver is appointed of any of the Customer’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the Customer’s assets; or
13.1.6 the Customer makes any arrangement or composition with all or any class of its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
13.1.7 the Customer ceases or suspends, or threatens to cease or suspend, to carry on all or a substantial part of its business; or
13.1.8 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect similar or analogous to any of those events mentioned in clauses 13.1.3 to 13.1.7 (inclusive).
13.2 Termination of the Contract, however arising, shall not affect or prejudice any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination. Clauses in the Contract which are expressly stated to survive termination, and clauses 3, 8, 9, 11, 12 13 and 14, shall survive termination.
14.1 Any notice required to be given pursuant to the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class recorded delivery to the address of the Customer (as set out in OMS’s acknowledgement of order or (if there is no acknowledgement of order) quotation) and of OMS as set out in these terms and conditions, or such other address as may be notified by one party to the other.
14.2 The failure to exercise or delay in exercising a right or remedy provided to a party under the Contract shall not constitute a waiver of that right or remedy, and no waiver by a party of any breach of the Contract shall constitute a waiver of any subsequent breach of the same or any other provision. A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.3 If any provision of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed without effect to the remaining provisions. If a provision of the Contract that is fundamental to the accomplishment of the purpose of the Contract is held to any extent to be invalid, illegal or unenforceable the parties shall immediately commence good faith negotiations to remedy that invalidity illegality or unenforceable.
14.4 The Contract sets out the entire agreement between the parties in relation to its subject matter and overrides any prior correspondence, arrangements, understandings, agreements or representations relating to its subject matter. Each of the parties acknowledge and agree that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not, and whether made innocently or negligently) that is not set out in the Contract. Each party agrees that its only liability in respect of those undertakings, promises, assurances, statements, representations, warranties or understanding shall be for breach of contract. Nothing in this clause 14.4 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
14.5 The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended for the benefit of, and shall not be enforceable by, any person who is not named at the date of the Contract as a party to it, or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party. No consent of any person who is not party to the Contract is necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of the Contract.
14.6 The Contract and any disputes or claims arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract, it subject matter or formation (including non-contractual disputes or claims). Nothing in the Contract shall prevent, restrict or hinder OMS from taking proceedings (including injunctive or other equitable relief) to protect its IPRs in any jurisdiction.
14.7 The Contract may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.