Circular 1 Health Limited

Terms & Conditions for the supply of testing Services and associated Goods. (Revised 29.01.21)

1. Interpretation

1.1 Definitions:

Agreed Purposes: the Customer Purposes and the Service Provider Purposes (as applicable).

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services by the Service Provider as agreed in the Order.

Conditions: these terms and conditions for the supply of the Services and any associated Goods.

Contract: the contract between the Customer and the Service Provider for the supply of the Services and any associated Goods in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: has the meaning set out in the Data Protection Legislation in force at the time.

Customer: the business, organisation or firm who purchases the Services and any associated Goods from the Service Provider.

Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Service Provider.

Customer Purposes: (i) to receive the benefit of the Services; (ii) to process Shared Personal Data for the purposes of meeting its obligations under this Contract and to enable the Service Provider to carry out its obligations under the Contract; (iii) to communicate with the Service Provider and any individual that has been, or is due to be Tested, and with any person who will administer the swabs, including to report or discuss the results of any Test to such test subject (and where such test subject is a minor, his/her parent(s) or guardian(s)) or any other person to whom it has been agreed that the Service Provider may report the results to (for example, an employer); and (iv) where applicable, to comply with any reporting obligations to Public Health England or any other applicable regulatory or UK Government or National Health Service or other body responsible for public health, the treatment of Covid-19 and/or the prevention of the spread of SARS-CoV-2, the virus that causes Covid-19.

Data Discloser: a party that discloses Shared Personal Data to the other party.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and the guidance and codes of practice issued by the UK Information Commissioner and which are applicable to a party.

Goods: the goods (or any part of them) set out in the Order, such as swab kits.

Good Industry Practice means the exercise of the degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and professional contractor engaged in the United Kingdom to provide the same or similar services to the Services, not to be less than reasonable skill and care.

Goods Specification: any information sheet or specification for the Goods that is provided in writing by the Service Provider to the Customer.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for the supply of Services and any associated Goods, as set out in the Customer’s purchase order form, or the Service Provider’s order form, or the Customer’s written acceptance of the Service Provider’s quotation, or placed by the Customer using the ordering process on the Service Provider’s website, as the case may be.

Permitted Recipients: (i) the parties to this Contract; (ii) the employees of each party and any third parties engaged to perform obligations in connection with this Contract; (iii) any third party that may have arranged for the Test, such as a third party employer where the Customer is not the employer); (iv) any test subject that is due to be, or have been, Tested pursuant to this Contract (and where such test subject is a minor, his/her parent(s) or guardian(s)); (v) Public Health England and any other applicable regulator or UK Government or National Health Service or other body responsible for public health, the treatment of Covid-19 and/or the prevention of the spread of SARS-CoV-2, the virus that causes Covid-19.

Reports: all Testing reports created by or on behalf of the Service Provider in or pursuant to the performance of the Services.

Services: the services, including without limitation the provision of any Reports or associated Goods, to be provided by the Service Provider pursuant to the Contract.

Service Provider: Circular 1 Health Limited (Company No. 12700350), a company incorporated in England & Wales and having its registered office at Warwick Mill Business Park, Warwick Bridge, Carlisle, England, CA4 8RR.

Service Provider Purposes: (i) to perform the Services; (ii) to communicate with the Customer and any individual that has been, or is due to be, Tested, and to any person who will administer the swabs, including (where applicable) to report the results of any Test to such test subject (and where such test subject is a minor, his/her parent(s) or guardian(s)) or any other person to whom it has been agreed that the Service Provider may report the results to (for example, an employer); (iii) to comply with any reporting obligations to Public Health England or any other applicable regulatory or UK Government or National Health Service or other body responsible for public health, the treatment of Covid-19 and/or the prevention of the spread of SARS-CoV-2, the virus that causes Covid-19.

Service Provider IPRs: all Intellectual Property Rights subsisting in the Reports excluding any Customer Materials incorporated in them.

Shared Personal Data: the personal data relating to test subjects who have been, or are due to be, Tested pursuant to the Contract, including contact details and Test results; the contact details of the representatives of the Service Provider, the Customer or any third party that may have arranged for the Test, such as a third party employer (where the Customer is not the employer); and any other personal data that is necessary to be shared between the parties under this Contract or in accordance with the Service Provider’s privacy policy.

Service Specification: any specification describing the Services that is provided in writing by the Service Provider to the Customer.

Test means a medical procedure performed to detect for Covid-19 and “Testing” and “Tested” shall be construed accordingly.

UK GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act of 2018.

1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

(b) Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c) A reference to writing or written includes email.

2. Basis of contract

2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.

2.2 The Order shall only be deemed to be accepted when the Service Provider issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

2.3 Any samples, drawings, descriptive matter or advertising issued by the Service Provider and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Service Provider’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. For the avoidance of doubt, the Customer’s terms and conditions of purchase (whether set out in any purchase order form or otherwise) shall not apply.

2.5 Any quotation given by the Service Provider shall not constitute an offer and is only valid for a period of ten (10) Business Days from its date of issue.

2.6 All of these Conditions shall apply to the supply of both Services and Goods except where application to one or the other is specified.

3. Supply of Services and Goods

3.1 The Service Provider shall supply the Services and any associated Goods to the Customer in accordance with the Contract.

3.2 In supplying the Services, the Service Provider shall:

• (a) perform the Services with Good Industry Practice;
• (b) use reasonable endeavours to perform the Services in accordance with any Services Specification;
• (c) ensure that the Reports and all Goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose and that any Goods shall be supplied materially in accordance with any Goods Specification;
• (d) comply with all applicable laws, statutes, regulations from time to time in force, provided that the Service Provider shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
• (e) be responsible for the safe and secure management of any waste from the swabbing process in accordance with Good Industry Practice and all applicable laws from its own laboratory premises all in accordance also with appropriate waste management arrangements;
• (f) provide detailed instructions (preferably via a leaflet and electronic formal) which gives instructions on how the swabbing kit should be used);
• (g) provide any test subject who requests to be Tested with relevant consent forms, Testing terms and conditions and privacy notice which must be completed by the relevant individual to be Tested prior to a Test being undertaken by the Service Provider;
• (h) inform the Customer of positive Test results, but only if the test subject has consented to the Customer being informed or if there is another necessary and lawful reason for doing so;
• (i) use all reasonable endeavours to ensure that individual test subjects who have been Tested shall be notified of the result of their Test by SMS text or email by the Service Provider within 24Hrs (from receipt by the Service Provider of the swab);
• (j) (if the Service Provider collects swab samples or carries out Testing at the Customer’s premises) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Service Provider, provided that the Service Provider shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
• (k) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Service Provider may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.

3.3 The Service Provider shall notify Public Health England of confirmed positive Tests (and shall provide Public Health England or any other applicable regulatory or UK Government or National Health Service or other body responsible for public health, the treatment of Covid-19 and/or the prevention of the spread of SARS-CoV-2 (the virus that causes Covid-19) with details of the identity of the test subject in question where it is obliged to do so by law.

3.4 The Service Provider reserves the right to amend the Services Specification and/or the Goods Specification from time to time, or if required by any applicable statutory or regulatory requirement, and the Service Provider shall notify the Customer in any such event.

4. Customer’s obligations

4.1 The Customer shall:

• (a) co-operate with the Service Provider in all matters relating to the Services;
• (b) provide, in a timely manner, such information as the Service Provider may reasonably require, and ensure that it is accurate and complete in all material respects;
• (c) provide generic advice to individuals as to what happens with a positive/negative/inconclusive/await confirmation result. This shall be in-line with Gov.UK/NHS advice from time to time;
• (d) not remove the Service Provider’s branding from its Testing kits and associated paperwork or apply its own branding;
• (e) where the Customer has agreed to administer and return the swabs the Customer shall:
  • (i) procure Testing kits from the Service Provider and shall use the same to take swab samples from test subjects at its premises in accordance with any instructions supplied by the Service Provider; and
  • (ii) return swab samples to the Service Provider within 24 hours by courier, pre-addressed postal kit or direct delivery and shall ensure that it gets collected on the day of putting the completed postal kit Test in the post. The Customer accepts that the return and testing of the swab samples may be affected by bank holidays, public holidays and Sunday when Royal Mail delivery is used;
• (f) where it is intended that the test subject or a third party will administer and return the swabs the Customer shall:
  • (i) provide or make available the Service Provider’s detailed instructions (preferably via a leaflet and electronic formal) which gives instructions on how the swabbing kit should be used so that the test subject or a third party can use the Testing kits to take swab samples from test subjects in accordance with such instructions; and
  • (ii) advise that the test subject or any third party who administers that the swab sample must be returned to the Service Provider within 24 hours by courier, pre-addressed postal kit or direct delivery and advise that the return and testing of the swab samples may be affected by bank holidays, public holidays and Sunday when Royal Mail delivery is used.

4.2 The Customer accepts that the Charges for the Testing of swab samples received outside the 24-hour window referred to in clauses 4.1(e)(ii) and (f)(ii) by the Service Provider’s laboratory will still apply and will be invoiced to the Customer, and shall ensure that any test subject or a third party that administers and return the swabs is made aware of this.

4.3 The Customer accepts that the Charges for the Testing of swab samples will still apply where Test results are inconclusive, regardless of whether the same were returned within our outside the 24-hour window referred to in clauses 4.1(e)(ii) and (f)(ii), and shall ensure that any test subject or a third party that administers and return the swabs is made aware of this.

4.4 If the Service Provider’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, or by the test subject or any third party administering the swabs, the Service Provider shall:

• (a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay; and
• (b) be entitled to payment of the Charges despite any such prevention or delay.

 

5. Data Protection

5.1 Shared Personal Data. Both the Service Provider and the Customer will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. Each party acknowledges that one party (referred to in this clause as the Data Discloser) may disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes. The Parties agree that they are each separate and independent controllers in respect of the Personal Data that they each process (including the Shared Personal Data), and that the Parties are not joint controllers or controllers in common.

5.2 Effect of non-compliance with Data Protection Legislation. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Contract with immediate effect.

5.3 Particular obligations relating to data sharing. Each party shall:

• (a) ensure that it has all necessary notices and consents in place to enable lawful transfer of any Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
• (b) give full information to any data subject whose personal data may be processed under this Contract of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
• (c) process the Shared Personal Data only for the Agreed Purposes;
• (d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
• (e) only appoint a third party processor to process the Shared Personal Data if it shall comply with Article 28 and Article 30 of the UK GDPR and shall remain liable to the Data Discloser for the acts and/or omissions of the processor;
• (f) ensure that all Permitted Recipients (other than individual Test subjects, or where such individuals are minors their parent(s) or guardian(s)) are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Contract;
• (g) ensure that it has in place appropriate technical and organisational measures, which may be reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
• (h) not transfer any personal data received from the Data Discloser outside the UK unless the transferor:
  • (i) complies with the provisions of Articles 26 of the UK GDPR (in the event the third party is a joint controller); and
  • (ii) ensures that (i) the transfer is to a country approved under UK law as providing adequate protection pursuant to Article 45 of the UK GDPR; or (ii) there are appropriate safeguards in place pursuant to Article 46 of the UK GDPR; or (iii) Binding corporate rules are in place; or (iv) one of the derogations for specific situations in Article 49 of the UK GDPR applies to the transfer.

5.4 Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall in relation to the Shared Personal Data:

• (a) if called upon to do so by the other party, consult with the other party about any notices given to data subjects;
• (b) promptly inform the other party about the receipt of any data subject access request;
• (c) provide the other party with reasonable assistance in complying with any data subject access request or the exercise of any other rights under the UK Data Protection Legislation;
• (d) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
• (e) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
• (f) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Contract unless required by law to store the personal data;
• (g) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
• (h) maintain complete and accurate records and information to demonstrate its compliance with this clause 5; and
• (i) if called upon to do so, provide the other party with contact details of at least one employee as the point of contact and responsible manager for all issues arising out of the Data Protection Legislation, and each party shall ensure that its relevant staff is suitably trained in the protection of personal data and the procedures to be followed in the event of a data security breach, and each party shall keep its compliance with the Data Protection Legislation under regular review.

6. Intellectual property

6.1 The Service Provider and its licensors shall retain ownership of all Service Provider IPRs. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.

6.2 The Service Provider grants the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, licence to use copyright it may have in the Reports for the purpose of receiving and using the Services and the Reports.

6.3 The Customer grants the Service Provider a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to the Customer in accordance with the Contract.

6.4 The Customer shall indemnify the Service Provider in full against any sums awarded by a court against the Service Provider arising of or in connection with any claim brought against the Service Provider for infringement of a third party’s rights (including any Intellectual Property Rights) arising out of, or in connection with, the receipt or use of the Customer Materials by the Service Provider.

7. Charges and payment

7.1 In consideration for the provision of the Services, the Customer shall pay the Service Provider the Charges in accordance with this clause 7. For the avoidance of doubt, the Charges will still apply where Test results are inconclusive or where swab kits have been returned late.

7.2 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 the Service Provider at the prevailing rate (if applicable), subject to receipt of a valid VAT invoice.

7.3 The Service Provider shall submit invoices for the Charges plus VAT if applicable to the Customer. Each invoice shall include all supporting information reasonably required by the Customer.

7.4 Except where the Parties agree in writing that another payment period applies, the Customer shall pay each invoice due and submitted to it by the Service Provider, within fourteen (14) days of receipt, to a bank account nominated in writing by the Service Provider.

7.5 If the Customer fails to make any payment due to the Service Provider under the Contract by the due date for payment, then, without limiting the Service Provider’s remedies under clause 9 (Termination):

(a) the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;

(b) the Service Provider may suspend all Services until payment has been made in full.

7.6 All amounts due under the Contract from the Customer to the Service Provider shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Limitation of liability

8.1 The Service Provider has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £2,000,000 per claim and £5,000,000 in aggregate. The limits and exclusions in this clause reflect the insurance cover the Service Provider has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

8.4 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.

8.5 Nothing in this Contract shall limit the Customer’s liability under clause 5 of these Conditions.

8.6 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

• (a) death or personal injury caused by negligence;
• (b) fraud or fraudulent misrepresentation; and
• (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.7 Subject to clause 8.3 (No limitation in respect of deliberate default), clause 8.4 (No limitation on customer’s payment obligations), clause 8.5 (Liability under-identified clauses) and clause 8.6 (Liabilities which cannot legally be limited):

• (a) the Service Provider’s total liability to the Customer under or in connection with any of its activities under this Contract shall not exceed £2,000,000 in aggregate; and
• (b) the Customer’s total liability to the Service Provider shall not exceed £2,000,000 in aggregate.

8.8 Subject to clause 8.3 (No limitation in respect of deliberate default), clause 8.4 (No limitation on customer’s payment obligations), clause 8.5 (Liability under-identified clauses) and clause 8.6 (Liabilities which cannot legally be limited), this clause 8.8 sets out the types of loss that are wholly excluded:

• (a) loss of profits;
• (b) loss of sales or business;
• (c) loss of agreements or contracts;
• (d) loss of anticipated savings;
• (e) loss of use or corruption of software, data or information;
• (f) loss of or damage to goodwill; and
• (g) indirect or consequential loss.

8.9 The Service Provider has given commitments as to the compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.10 Unless the Customer notifies the Service Provider that it intends to make a claim in respect of an event within the notice period, the Service Provider shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8.11 The Customer acknowledges that no Test is 100% accurate (in either sensitivity or specificity) and that the Service provider shall not be liable to the Customer for any loss occasioned to the Customer for false positive or false negative results or for any inconclusive results, provided that the Service Provider has materially complied with clause 3.2.

9. Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than thirty (30) days’ written notice.

9.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

• (a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
• (b) 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;
• (c) 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
• (d) 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 the Contract has been placed in jeopardy.

9.3 Without affecting any other right or remedy available to it, the Service Provider may terminate the Contract with immediate effect by giving written notice to the Customer if:

• (a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
• (b) there is a change of control of the Customer.

9.4 On termination of the Contract for whatever reason:

• (a) the Customer shall immediately pay to the Service Provider all of the Service Provider’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Service Provider may submit an invoice, which shall be payable immediately on receipt;
• (b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
• (c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10. General

10.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

10.2 Assignment and other dealings.

• (a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Service Provider’s prior written consent.
• (b) The Service Provider may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

10.3 Confidentiality.

• (a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or service providers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 10.3. For the purposes of this clause 10.3, 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.
• (b) Each party may disclose the other party’s confidential information:
  • (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10.3; and
  • (ii) as may be required by law, a court of competent jurisdiction or any UK governmental or regulatory authority (including Public Health England).
• (c) Each party shall be entitled to disclose Test results and other Reports to the Permitted Recipients, where this is pursuant to the Contract.
• (d) Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

10.4 Entire agreement.

• (a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
• (b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

10.5 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

10.6 Waiver.

• (a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
• (b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

10.7  Severance. If any provision or part-provision of the Contract 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 10.7 shall not affect the validity and enforceability of the rest of the Contract.

10.8 Notices.

• (a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
  • (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  • (ii) sent by email to the address specified in the Order, or such other address as either party may have given the other party for the purposes of the service of notice.
• (b) Any notice shall be deemed to have been received:
  • (i) if delivered by hand, at the time the notice is left at the proper address;
  • (ii) 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; or
  • (iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 10.8(b) (iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
• (c) This clause 10.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

10.9 Third party rights.

• (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
• (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

10.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the laws of England and Wales.

10.11 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 the Contract or its subject matter or formation.