1.Interpretation
1.1 Definitions:
“Agreement” means the agreement between the Customer and onHand for the supply of the Services on the terms set out in these Conditions, any Order Form, Order Confirmation and/or any Special Terms (if applicable).
“Billing Period(s)” means each Month, Quarter or Year (as set out on the relevant Order Form and/or Order Confirmation) commencing on the Launch Date in respect of which onHand issues invoices for Charges under this Agreement. If not specified in the relevant Order Form and/or Order Confirmation, the Billing Period will be monthly.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges” means the Subscription Charges and/or any other fees payable by the Customer for the supply of the Services by onHand, as set out on the relevant Order Form and/or Order Confirmation.
“Commencement Date” means the date when the Order is accepted by onHand, which shall be the date when onHand issues a written or electronic confirmation of its acceptance of the Order (“Order Confirmation”), at which point the Agreement shall come into existence.
“Conditions” means these terms and conditions.
“Customer” means the person or organisation procuring the Services from onHand and named as such on an Order Form.
“Customer Logo” means the logo supplied by the Customer to onHand in connection with the Services (if any).
“Customer Materials” means all materials, images and data, including, but not limited to, Customer Logo, supplied by the Customer to onHand in connection with this Agreement (if any).
“Data Protection Laws” means (i) the Data Protection Act 2018; (ii) the UK GDPR (as defined in the Data Protection Act 2018); (iii) either the Privacy and Electronic Communications (EC Directive) Regulations 2003 or the EU ePrivacy Regulation whichever is in force in the UK at the relevant time; and (iv) all other applicable laws and regulations relating to the processing of personal data and privacy, including statutory instruments and, where applicable, the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority with jurisdiction in the United Kingdom, all as amended, extended, re-enacted or replaced from time to time.
“Employee Volunteering Programme” means the offering of various volunteering opportunities and sustainability actions to End Users via the onHand Platform.
“End User(s)” means: (i) the personnel of the Customer; and (ii) anyone else, designated by the Customer to use and access the onHand Platform.
“End User Data” means any data relating to the End Users provided by the Customer to onHand under, or in connection with, this Agreement.
“End User Terms and Conditions” means the terms and conditions of use of the onHand Platform by the End Users as published on the onHand Platform and website, including any policies, such as privacy policy and/or acceptable use policy, applicable to the use of the onHand Platform by the End Users.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or 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, 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.
“Launch Date” means the date specified as such on the Order Form and/or Order Confirmation, or if no date is specified, the date Customer signed or otherwise completed the Order Form.
“Month” means calendar month.
“Order” means, the Customer’s request for the provision of the Services by onHand, made by: (i) accepting these Conditions online; or (ii) submitting to onHand an Order Form signed by an authorised representative of the Customer.
“Order Form” means a form setting out the details of the Programme(s) and/or Services requested by the Customer and certain other terms of the Agreement.
“onHand” means Beonhand Limited, a company incorporated in England and Wales with registered company number 11824347 whose registered office address is at 19 Main Street, Newcastle, NE20 9NH.
“onHand IPRs” means all Intellectual Property Rights subsisting in the onHand Platform, the Programme(s), and/or any statistical and/or aggregated data generated by the onHand Platform as a result of the End User’s use of the onHand Platform, excluding any Customer Materials incorporated in them (if any).
“onHand Logo” means any logo supplied by onHand to the Customer to be displayed on any promotional or advertising material produced by the Customer in accordance with clause 6.1.7.
“onHand Platform” means the onHand app and onHand data dashboards and any other website, sub-domain and/or mobile application used by onHand from time to time to deliver the Programme(s)and/or Services to the Customer and/or the End Users.
“Programme(s)” means the Employee Volunteering Programme and any other product made available by onHand from time to time via the onHand Platform.
“Quarter” means a period of three consecutive Months.
“Services” means the provision of the Programme(s) and/or Services specified on the relevant Order Form and/or Order Confirmation and provided by onHand pursuant to this Agreement.
“Site(s)” means the locations specified on the Order Form and/or Order Confirmation, if any.
“Subscription Charges” means the Charges payable calculated on the basis of the Total End User Number.
“Total End User Number” means the number of End Users specified on the Order Form and/or Order Confirmation in respect of each Programme as may be updated by Customer from time to time.
“Year” means a period of 12 consecutive Months.
1.2 Interpretation:
1.2.1 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.2 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.3 A reference to writing or written includes email.
If there is any inconsistency or conflict between any of the provisions of these Conditions, any Order Form and/or any Order Confirmation the following order of priority shall apply: (i) these Conditions; (ii) Order Confirmation; and (iii) Order Form.
2. Term
This Agreement shall continue from the Commencement Date until terminated in accordance with its terms.
3. Supply of services
3.1 The Customer may, from time to time, procure any of the Programmes and/or Services by submitting an Order in writing. Following receipt of an Order, onHand shall, as soon as reasonably practicable, either (i) issue an Order Confirmation; or (ii) inform the Customer that it is unable to accept the Order.
3.2 onHand shall supply to the Customer the Programmes and/or the Services specified in an Order Confirmation from the Launch Date.
3.4 onHand shall:
3.4.1 provide the Services in accordance with this Agreement in all material respects;
3.4.2 perform the Services with reasonable care and skill;
3.4.3 use reasonable endeavours to procure an attractive selection of volunteering opportunities;
3.4.4 not use any promotional and advertising material featuring specific information about the Customer without prior written approval by Customer; and
3.4.5 comply with all applicable laws, statutes, regulations and codes from time to time in force (“Applicable Laws”). If there is any change to any Applicable Laws and such change effects onHand’s ability to comply with the terms of the Agreement in a material respect, onHand and the Customer shall negotiate in good faith appropriate changes to the affected provisions of the Agreement to the extent necessary to ensure that onHand’s performance of its obligations under the Agreement is in accordance with such Applicable Laws;
3.5 onHand shall have the right to make any changes to the Programme(s) and/or the Services from time to time: to reflect changes in the volunteering opportunities and/or their conditions of supply to onHand: (i) to address its customers’ or the End Users’ needs; (ii) to comply with any Applicable Laws; and/or (iii) changes that do not materially affect the nature or quality of the Programme(s) and/or the Services.
3.6 onHand shall provide checks on volunteering opportunities, sustainability actions, individuals and charities helped as provided under the Employee Volunteering Programme. Such checks shall be limited to verification via third parties, CO2e reduction metrics and time calculations only. Notwithstanding the above, onHand provides no warranty in relation to such checks and Customer holds onHand harmless in relation to the same including the actions of its End Users, charities and individuals helped.
3.7 If the Customer intends to offer any Programme developed specifically for employees to its non-employee personnel (including, but not limited to, consultants and contractors), the Customer acknowledges and agrees that it shall be solely responsible for notifying onHand about its intention to extend the offering to such personnel.
4.Customer's obligations
4.1 The Customer shall:
4.1.1 co-operate with onHand in all matters relating to this Agreement;
4.1.2 comply with all Applicable Laws in connection with this Agreement;
4.1.3 provide to onHand any information and/or materials required for the provision of the Services in a timely manner and in the format reasonably required by onHand;
4.1.4 use reasonable endeavours to procure that the End Users do not pass on the opportunities listed on any Programme(s) to third parties and/or allow third parties unauthorised access to the onHand Platform;
4.1.5 notify onHand as soon as reasonably practicable of any material changes in: (i) the End User Data relevant to the provision of the Services; and/or (ii) the number of active End Users.
4.1.6 not use any promotional and advertising material featuring specific information about the Programme(s) without prior written approval by onHand; and
4.2 The Customer acknowledges and agrees that it shall not re-sell access to the onHand Platform to any End Users and/or other third parties without prior written consent from onHand.
4.3 The Customer acknowledges and agrees that:
4.3.1 the End User onHand Terms and Conditions shall govern the relationship between onHand and the End Users;
4.3.2 Customer shall be responsible for the actions of its End Users including ensuring compliance with the End User onHand Terms and Conditions;
4.3.3 in the event of a material breach and/or persistent breaches of the End User onHand Terms and Conditions by the End Users, onHand shall have the right, at its sole discretion, to suspend access to the onHand Platform for any such End Users or suspend the provision of the Services under this Agreement; and
4.3.4 all activities performed by Customer and/or its End Users at third party locations are done so at Customers sole risk.
4.4 If onHand's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, onHand shall:
4.4.1 not be liable for any costs, charges or losses sustained or incurred by the Customer and/or End Users that arise directly or indirectly from such prevention or delay;
4.4.2 be entitled to payment of the Charges despite any such prevention or delay.
5. Intellectual property
5.1 onHand and its licensors shall retain ownership of all onHand IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
5.2 onHand grants the Customer a fully paid-up, non-exclusive, royalty-free, non-transferable licence for the duration of this Agreement to use the onHand Logo on any promotional or marketing material approved by onHand in accordance with clause 4.1.6.
5.3 The Customer grants onHand a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use the Customer Materials for the term of this Agreement solely for the purpose of providing the Services to the Customer in accordance with this Agreement.
6. Charges and payment
6.1 In consideration for the provision of the Services, the Customer shall pay onHand the Charges in accordance with this clause 6.
6.2 Unless otherwise specified on the relevant Order Form and/or Order Confirmation, all amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to onHand at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.
6.3 Charges shall be payable within 30 days of invoice receipt.
6.4 onHand shall submit invoices for the Charges (plus VAT if applicable) to the Customer by email, to an email address provided by the Customer from time to time. The Customer shall notify onHand as soon as reasonably practicable to hello@beonhand.co.uk, or any alternative email address designated by onHand for this purpose from time to time, of any changes to the email address where onHand should submit its invoices.
6.5 Each invoice shall include all reasonable supporting information required by the Customer and shall provide the total Charges payable in respect of all Sites (if applicable) for the relevant Billing Period, and the Total End User Number in respect of which the Subscription Charges are being rendered.
6.6 Subscription Charges shall be based on the Total End User Number at the end of the preceding Billing Period, and in case of the First Billing Period, they will be based on the Total End User Number specified on any Order.
6.7 In the event the number of of End Users registered on the onHand Platforms at any point during a Billing Period exceeds the Total End User Number based on which the invoice in respect of such Billing Period was rendered, onHand may, at its sole discretion, include Subscription Charges in respect of such additional End User in any subsequent invoice, or issue a supplementary invoice in respect of such Billing Period. For the avoidance of doubt, any Subscription Charges rendered in accordance with this clause 6.7 shall be based on the rates applicable to such Billing Period, whether or not the Subscription Charges have been subsequently increased pursuant to clause 6.11.
6.8 For the avoidance of doubt, the invoiced amount for each Billing Period shall be not less than the Subscription Charges for the Total End User Number.
6.9 If the Customer fails to make any payment due to onHand under this Agreement by the due date for payment, then, without limiting onHand's remedies under clause 11 (Termination):
6.9.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date specified in clause 6.3 until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
6.9.2 onHand may suspend the availability of the onHand Platform or reduce the Services until payment has been made in full. In the event of suspension or reduction under this clause 6.9.2, onHand reserves the right to notify the End Users of such suspension or reduction.
6.10 All amounts due under this Agreement shall be paid by the Customer to onHand in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.11 onHand reserves the right to adjust pricing on no more than an annual basis providing advance written notice of at least 30 working days, with effect from each anniversary of the Launch Date.
7. Data protection
7.1 onHand and the Customer each acknowledge that the End User Data provided by the Customer to onHand will include personal data.
7.2 onHand acknowledges that during the period between the transfer of End User Data to onHand by the Customer and the acceptance of the End User Terms and Conditions by the relevant End User, onHand shall process such End User Data as a data processor on behalf of the Customer in accordance with clause 7.7 and shall only use such End User Data for the purpose of creation and activation of the End User accounts for the End Users. onHand further confirms that where End Users provide data for DBS checks, processing of such data will be in accordance with the End User Terms and Conditions and End User Data provided in relation to DBS checks will not be held by onHand and will be processed only by government approved DBS providers.
7.3 Without prejudice to the generality of clause 7.5, the Customer warrants and represents that the Customer will at all times have all necessary appropriate consents (or other lawful grounds, as determined in accordance with the Data Protection Laws) in place to enable lawful transfer of any End User Data provided by Customer to onHand for the purposes of the provision of the Services under this Agreement.
7.4 The Customer acknowledges that upon activation of an End User Licence by an End User, an independent contractual relationship will arise between onHand and each End User, and that onHand will be a data controller in relation to any personal data of each such End User. onHand will process such personal data in accordance with the End User Terms and Conditions, including, but not limited to, the processing for the purpose of onHand’s compliance with its contractual obligations to any such End User.
7.5 Each party shall at all times comply with the Data Protection Laws in relation to personal data of End Users.
7.6 If one party receives any complaint, notice or communication that relates directly or indirectly to the processing of personal data or to either party’s compliance with the Data Protection Laws (as it relates to the personal data of the End Users), it shall immediately notify the other party and provide full details and copies of any communication. Each party shall use reasonable endeavours to work with the other party to remedy the situation.
7.7 To the extent onHand processes personal data of End Users as a data processor on behalf of the Customer, onHand shall:
7.7.1 process such personal data only to the extent necessary for the performance of the Services under this Agreement and/or on the written instructions of the Customer, unless onHand is required by the laws of any member of the European Union or by the laws of the European Union applicable to onHand to process such personal data for other reasons (Applicable Data Processing Laws). Where onHand is relying on the Applicable Data Processing Laws as the basis for processing of such personal data, onHand shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit onHand from so notifying the Customer;
7.7.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.7.3 ensure that all personnel who have access to and/or process such personal data are obliged to keep the personal data confidential;
7.7.4 not transfer any personal data outside of the UK unless onHand has put in place appropriate safeguards in relation to the transfer, as required by the Data Protection Laws;
7.7.5 not appoint any third party sub-processors of such personal data without prior consent from the Customer (which shall not be unreasonably withheld or delayed) and provided that onHand will enter with each such third-party processor into a written agreement on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 7.7 or otherwise compliant with the Data Protection Laws. The Customer consents to onHand appointing the third party suppliers notified to the Customer in writing prior to the Commencement Date as third party sub-processors of personal data processed by onHand as data processor on behalf of the Customer;
7.7.6 assist the Customer in responding to any request from an End User to exercise his/her data subject rights and in ensuring compliance with the Customer’s obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.7.7 notify the Customer without undue delay on becoming aware of a personal data breach (as defined in the Data Protection Laws);
7.7.8 at the written direction of the Customer, delete or return such personal data and copies thereof to the Customer on termination of the Agreement unless required by any Applicable Laws to store the personal data; and
7.7.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 7.7 and allow for audits (not more than once in any 12 Months period) by the Customer or the Customer’s designated auditor. Any such audits shall be carried out during onHand’s normal business hours and only upon reasonable prior notice in writing.
8. Limitation of liability and indemnity
8.1 Nothing in this Agreement shall limit or exclude either party's liability: (i) for death or personal injury caused by its negligence, or the negligence or gross misconduct of its personnel, agents or subcontractors; (ii) for fraud or fraudulent misrepresentation; and (iii) any other liability which cannot be limited or excluded by Applicable Laws.
8.2 Subject to clause 8.1, neither party to this Agreement shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, for any indirect or consequential losses arising under or in connection with this Agreement.
8.3 Customer agrees to indemnify onHand against all liabilities, costs, expenses, damages and losses incurred by onHand arising from or connected to the actions of its End Users and/or breaches of this Agreement or the End User Terms and Conditions.
8.4 Subject to clause 8.1, each party’s total liability to the other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to an amount equal to the Charges paid and/or payable by the Customer under this Agreement in the 12 month period immediately preceding any claim(s). Nothing in this clause 8.3 shall affect the Customer’s liability to pay the Charges properly due under this Agreement and no amounts of Charges paid by, or due from, the Customer shall count towards the limit on the Customer’s liability under this clause 8.3.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party to this Agreement may terminate it with immediate effect by giving written notice to the other party if:
9.1.1 the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
9.1.2 the other party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
9.1.3 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, onHand may suspend provision of the Services under this Agreement or any other agreement between onHand and the Customer if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.5, or if onHand reasonably believes that the Customer is about to become subject to any of them. For the avoidance of doubt, suspension of the provision of the Services (for any reason) by onHand shall not affect the Customer’s liability to pay the Charges in accordance with this Agreement.
9.3 Without affecting any other right or remedy available to it, onHand may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
9.4 Subject to clauses 9.1 to 9.3, the terms of the Order Form shall apply and take precedence in relation to term and termination.
9.5 Any notice of termination of this Agreement by the Customer must be delivered to onHand by email on hello@beonhand.co.uk or any alternative email address designated by onHand for this purpose from time to time.
9.6 On termination of this Agreement for whatever reason:
9.6.1 all Charges shall become due and payable within thirty days and shall be calculated based on the last available Total End User Number;
9.6.2 the Customer shall, within 30 days pay to onHand all of onHand's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, onHand may submit an invoice, which shall be payable within 30 days of receipt;
9.6.3 no refunds shall be due to the Customer for any Charges paid to onHand and/or any other sums paid by the Customer to onHand;
9.6.4 any licences granted under this Agreement shall cease automatically;
9.6.5 termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and
9.6.6 any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.7 Clause 9.6.1 and clause 9.6.2 shall not apply in the event of termination of this Agreement by the Customer under clause 9.1 (default and/or insolvency).
9.8 On termination of this Agreement, the Customer shall assist the End Users in respect of any arrangements that may be necessary to ensure that the End Users continue to benefit from volunteering opportunities of a duration extending beyond the duration of this Agreement, as may be required under the End User onHand Terms and Conditions.
10. General
10.1 Force majeure. Other than in respect of Charges payable by the Customer under this Agreement, neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 Assignment and other dealings.
10.2.1 Save as provided in clause 10.2.2 and/or clause 10.2.3, neither party may subcontract, assign, transfer, novate, grant any trust over, or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of the other party, such request not to be unreasonably withheld or delayed.
10.2.2 Notwithstanding clause 10.2.1, either party may assign, transfer, novate, grant any trust over, or otherwise deal with its rights and obligations under this Agreement, in part or in full, without the prior written consent of the other party to an acquirer of assets or a successor by merger.
10.2.3 onHand shall be entitled to subcontract its obligations under this Agreement (subject to any applicable obligations under the Data Protection Laws) to any third party or engage third party agents or subcontractors without obtaining the Customer’s prior consent.
10.3 Confidentiality.
10.3.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients of the other party or of any member of the group to which the other party belongs, except as permitted by clause 10.3.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
10.3.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under this Agreement. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
10.3.4 Subject to clauses 10.3.5 and 10.3.6, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.4 Entire agreement.
10.4.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
10.4.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
10.5 Variation. onHand may vary these conditions from time to time to comply with laws or for changing business needs. onHand shall provide Customer with at least 20 Business Days notice prior to such changes.
10.6 Waiver.
10.6.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
10.7 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
10.8 Severance. If any provision or part-provision of this Agreement 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 this Agreement.
10.9 Notices.
10.9.1 Without prejudice to clause 9.5, any notice or other communication given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
10.9.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.9.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by or email, one Business Day after transmission.
10.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.10 Third party rights. No End User or other person, other than a party to this Agreement shall have any right to enforce any of its terms.
10.11 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
10.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.