Supplier Terms of Business

Terms of Business

(v. Sept 2023)

1.

Basis of contract

1.1

The Order constitutes an offer by Overwatch to purchase Goods and/or Services from the Supplier in accordance with these Terms of Business and the Commercial Terms.

1.2

The Order shall be deemed to be accepted by the Supplier on the earlier of the Supplier issuing written acceptance of the Order, or any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (Commencement Date) and these Terms of Business and the Commercial Terms apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. If acceptance of the Order by the Supplier has not occurred within 14 days of issue the offer contained in the Order shall expire.

1.3

These Terms of Business and the Commercial Terms shall apply to the supply of Goods, Software and Services except where the application to one or another is specified.

2.

Supply of Goods

2.1

The Supplier shall ensure that the Goods:

(a)

correspond with their description and any applicable Goods Specification;

(b)

are of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Overwatch, expressly or by implication, and in this respect Overwatch relies on the Supplier's skill and judgement;

(c)

are free from Defects, second-hand, replica and/or counterfeit components; and

(d)

comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling (including UKCA/CE marking), packaging, storage, handling and delivery of the Goods. Where the Goods are, or incorporate, dangerous goods or chemicals, the Supplier shall diligently comply with its obligations hereunder and promptly provide all material safety data sheets and all the applicable declarations as required (such as UK REACh, UK RoHS, etc).

2.2

Save for any latent defects, Overwatch shall only be able to bring a claim for any defects in materials and workmanship before the expiry of the latter of: (i) twenty four (24) months from the date of delivery to Overwatch; (ii) twelve (12) months from acceptance of the Goods by Overwatch’s customer (if applicable); and (iii) any other period stated in the Order.

2.3

The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.

2.4

Overwatch may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.

2.5

If following such inspection or testing Overwatch considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 2.1, Overwatch shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

2.6

Overwatch may conduct further inspections and tests after the Supplier has carried out its remedial actions.

2.7

The Supplier must promptly notify Overwatch of any actual or potential obsolescence issues affecting the Contract that it identifies from time to time, such notice to include complete and accurate details of: (a) the obsolescence issue identified; (b) its impact on the performance of the Contract; and (c) any actions that could be taken in mitigation (including the cost of such actions). All costs, if any, resulting from obsolescence issues during the performance by the Supplier of the Contract shall be fully borne by the Supplier.

3.

Delivery of Goods

3.1

The Supplier shall ensure that:

(a)

the Goods are properly classified, labelled and packaged (in compliance with Overwatch specifications, the Packaging Waste Regulations 2007 and Packaging Requirements Regulations 2015) and secured in such manner as to enable them to reach their destination in good condition. Any packaging materials and/or their return to the Supplier shall be at the cost and risk of the Supplier;;

(b)

each delivery of the Goods is accompanied by a delivery note which shows the date of the order, the order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any), together with a Certificate of Conformance; and

(c)

it states clearly on the delivery note any requirement for Overwatch to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.

3.2

The Supplier shall deliver the Goods:

(a)

on the Delivery Date(s) set out in the Commercial Terms or, if no such date is specified, then within the number of days specified by Overwatch following the Commencement Date;

(b)

to the location(s) set out in the Commercial Terms or as instructed by Overwatch before delivery; and

(c)

during Overwatch's normal hours of business on a Business Day, or as instructed by Overwatch.

3.3

Delivery of the Goods shall be completed on completion of unloading of the Goods at the clause 3.2(b) specified delivery location(s).

3.4

If the Supplier

(a)

delivers less than the quantity of Goods ordered, Overwatch may reject the Goods; or

(b)

delivers more than the quantity of Goods ordered, Overwatch may at its sole discretion reject the excess Goods,

and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Overwatch accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.

3.5

The Supplier shall not deliver the Goods in instalments without Overwatch's prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Overwatch to the remedies set out in clause 7.1.

3.6

Title and risk in the Goods shall pass to Overwatch on completion of delivery.

4.

Supply of Software

4.1

The Supplier shall supply the Software in accordance with the terms of these Terms of Business and the Commercial Terms. The Software shall be provided to and for the benefit of Overwatch, Customers and each of their affiliates that use the Software.

4.2

The Supplier shall ensure that the Software shall:

(a)

conform with and be fit for purpose to meet all descriptions and Software Specification;

(b)

be capable of interoperating and interworking with technology platforms or solutions that Overwatch may incorporate in its existing technology without any degradation in performance of those systems;

(c)

be free from Viruses;

(d)

not incorporate or include any Open Source Software, save as may be notified in writing to, and agreed in writing by Overwatch, with full copies of the licence terms on which such Open Source Software has been obtained to be supplied to Overwatch;

(e)

in respect of New Releases and New Versions:

(i)

no New Releases or New Version issued by the Supplier will adversely and materially affect the performance or functionality of the Software; and

(ii)

the implementation of each New Release or New Version will not necessitate the upgrading or replacement of any of the Overwatch systems on which at the date of issue of the New Release or New Version the Software is installed.

5.

Supply of Services

5.1

The Supplier shall from the Services Commencement Date and for the duration of the Contract supply the Services to Overwatch in accordance with the terms of the Contract.

5.2

The Supplier shall provide the Services to meet or exceed the Service Levels and comply with any of its obligations under the Commercial Terms to monitor and report in relation to those Service Levels.

5.3

The Supplier shall meet any Milestones for the Services specified in the Commercial Terms or that Overwatch notifies to the Supplier and time is of the essence in relation to any of those Milestones.

5.4

In providing the Services, the Supplier shall:

(a)

co-operate with Overwatch and Customers in all matters relating to the Services, and comply with all instructions of Overwatch and Customers;

(b)

perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

(c)

use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;

(d)

ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that Overwatch expressly or impliedly makes known to the Supplier;

(e)

provide all equipment, tools and vehicles and such other items as are required to provide the Services;

(f)

use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Overwatch, will be free from defects in workmanship, installation and design;

(g)

obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

(h)

observe all health and safety rules and regulations and any other security requirements that apply at any of Overwatch's (or, if applicable, a Customer's) premises;

(i)

hold all materials, equipment, jigs and tools, drawings, specifications and data supplied by (or on behalf of) Overwatch to the Supplier ("Overwatch Materials") in safe custody at its own risk, maintain Overwatch Materials in good condition until returned to Overwatch, keep them clearly marked as Overwatch Materials, and not dispose of or use Overwatch Materials other than in accordance with Overwatch's written instructions or authorisation;

(j)

not do or omit to do anything which may cause Overwatch to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Overwatch may rely or act on the Services; and

(k)

comply with any additional obligations as set out in the Service Specification.

6.

Acceptance Tests

6.1

Overwatch shall carry out, or task the Supplier to carry out, Acceptance Tests on any Software and Deliverables. Overwatch shall give the Supplier at least 24 hours' notice of the start of the Acceptance Tests. If the supplier is required to carry out testing, Overwatch shall be permitted to observe all or part of the testing. Where Overwatch conducts acceptance, the Supplier shall be permitted to observe all or any part of the testing.

6.2

If any aspect of the Software or Deliverables fails to pass the Acceptance Tests, Overwatch shall as soon as reasonably practicable notify the Supplier, giving details of such failure(s). The Supplier shall remedy the Defects and deficiencies within 14 days of receipt of notice and the relevant test(s) shall be repeated within a reasonable time.

6.3

If any aspect of the Software or Deliverables fails to pass any repeated Acceptance Tests within 14 days from the date of its second submission to the Acceptance Tests, Overwatch may, by written notice to the Supplier, choose at its sole discretion:

(a)

to fix (without prejudice to Overwatch's other rights and remedies) a new date for carrying out further tests on such aspect of the Software or Deliverable on the same terms and conditions. If such aspect of the Software or Deliverables fails such further tests then Overwatch may request a repeat test under this clause 6 or to proceed under clause 6.3(b) or clause 6.3(c);

(b)

to accept the aspect of the Software or Deliverable subject to such change of acceptance criteria and/or reduction in the price or charges as, after taking into account all the relevant circumstances, is reasonable; or

(c)

if the Supplier is unable to correct Defects within a period of 28 days from the commencement of the Acceptance Tests under clause 6.1, to reject the Software or Deliverable as not conforming with this Contract, in which event Overwatch may terminate this Contract.

7.

Overwatch remedies

7.1

If the Supplier is in breach of any terms of the Contract, Overwatch shall, without limiting its other rights or remedies, have one or more of the following rights:

(a)

to terminate the Contract for breach in accordance with clause 19;

(b)

to refuse to accept any subsequent performance of the Services and/or delivery of the Goods or Software;

(c)

to recover from the Supplier any costs incurred by Overwatch in obtaining substitute goods, software and/or services from a third party;

(d)

to have refunded all sums where Overwatch has paid in advance for Goods, Software and/or Services that have not been delivered by the Supplier; and

(e)

to claim damages for any additional costs, loss or expenses incurred by Overwatch which are in any way attributable to the Supplier's breach;

(f)

to require the Supplier to repair or replace, at Overwatch’s option, any rejected Goods or Software within 30 days of notification, or to provide a full refund of the price of the rejected Goods or Software (to the extent paid); and

(g)

to reject the Goods or Software (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s risk and expense.

7.2

If any Goods, Software and/or Services are not delivered by the applicable date, Overwatch may, at its option, claim or deduct, from any sums payable, 2 (two) per cent of the total price, in aggregate, of the Goods, Software and/or Services: (i) not delivered on the correct date; and (ii) which have been delivered but that cannot be used by Overwatch for the purpose for which they were ordered, as a result of the delay, for each week's delay in delivery or performance up to a maximum of 20 (twenty) per cent. of the total price of the Contract. Overwatch shall not impose such claim or deduction provided the delay in delivery does not exceed 7 (seven) calendar days.

7.3

Overwatch may withhold any advance payments agreed under the Contract if the Supplier has breached the Contract until such time as the breach is remedied to Overwatch’s reasonable satisfaction.

7.4

These Terms of Business shall extend to any substituted or remedial services and/or repaired or replacement goods or software supplied by the Supplier, save that for repairs only the unexpired part of the periods in clause.2.2 shall apply.

7.5

Overwatch's rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.

8.

Overwatch's obligations

Overwatch shall provide the Supplier with reasonable access at reasonable times to Overwatch's premises for the purpose of providing the Services, and provide such necessary information for the provision of the Services as the Supplier may reasonably request.

9.

Charges and payment

9.1

The price for the Goods and/or Software or charges for the Services shall be as stated in the Commercial Terms, exclusive of VAT, but inclusive of all other costs and expenses incurred by the Supplier in connection with the performance of the Contract (including packaging, insurance and carriage). No extra charges shall be effective unless agreed in writing and signed by Overwatch.

9.2

In respect of the Goods and/or Software, the Supplier shall invoice Overwatch on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Overwatch on completion of the Services. Each invoice shall include such supporting information required by Overwatch to verify the accuracy of the invoice, including the relevant Order number.

9.3

In consideration of the supply of Goods, Software and/or Services by the Supplier, Overwatch shall pay the invoiced amounts within 30 days of receipt of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

9.4

All amounts payable by Overwatch under the Contract are exclusive of valued added tax (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Overwatch, Overwatch shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods, Software and/or Services at the same time as payment is due for the supply of the Goods. Software and/or Services.

9.4

9.5

If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party 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 date 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 the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.

9.6

The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Overwatch or a Customer to inspect such records at all reasonable times on request.

9.6

9.7

Overwatch may at any time, without notice to the Supplier, set off any liability of the Supplier to Overwatch against any liability of Overwatch to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, Overwatch may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Overwatch of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

10.

Intellectual property rights

10.1

In respect of the Goods, Software and any goods that are transferred to Overwatch as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Overwatch, it has full and unrestricted rights to sell and transfer all such items to Overwatch and its onward supply to (and use by) third parties.

10.2

The Supplier assigns to Overwatch, with full title guarantee and free from all third party rights, all IPRs developed in connection with the Goods, Software and/or Services under the Contract.

10.3

The Supplier shall, at Overwatch's request, promptly do (or procure to be done) all such further acts and things, provide or procure any necessary information and/or know how to Overwatch and execute all such other documents for the purpose of securing for Overwatch the full benefit of the Contract, including without limitation all right, title and interest in and to the IPRs assigned to Overwatch in accordance with clause 10.2.

10.3

10.4

The Supplier grants to Overwatch, or shall procure the direct grant to Overwatch of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual, irrevocable and fully sub-licensable licence to copy and modify the Deliverables (excluding Overwatch Materials) for the purpose of receiving and using the Services and the Deliverables.

10.5

The Supplier acknowledges that all rights in Overwatch Materials are and shall remain the exclusive property of Overwatch (or its licensors).

11.

Software licence

11.1

In consideration of Overwatch's obligation to pay the price and/or charges under clause 9, the Supplier grants to Overwatch and its affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable licence commencing on, and including, the Commencement Date, to use the Software and to grant the sub-licenses specified in this clause 12.

11.2

Overwatch shall be permitted to grant:

(a)

a Customer, and any affiliates of a Customer, a worldwide, non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable sub-licence to use the Software for the purpose of receiving and using goods and services from Overwatch; and

(b)

any supplier of Overwatch, or any Overwatch affiliate, a worldwide, non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable sub-licence to use the Software in connection with that supplier's delivery of goods or services to Overwatch (or the relevant Overwatch affiliate or a Customer).

11.3

The Supplier warrants that it has the right to grant Overwatch a licence or sub-licence to use the Software as contemplated by this Contract.

12.

Indemnity

12.1

The Supplier shall indemnify Overwatch against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Overwatch or a Customer arising out of or in connection with:

(a)

any claim made against Overwatch or a Customer for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods or Software, or receipt, use or supply of the Services (excluding Overwatch Materials);

(b)

any claim made against Overwatch or a Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, Defects in the Goods or Software, as delivered, or the Deliverables; and

(c)

any claim made against Overwatch or a Customer by a third party arising out of or in connection with the supply of the Goods or Software, as delivered, or the Services.

12.2

The Supplier shall notify Overwatch as soon as practicable after becoming aware of any claim made against Overwatch or a Customer by a third party and shall take all action reasonably requested by Overwatch to avoid, compromise or defend the claim and any proceedings in respect of the claim, subject to Overwatch being indemnified and secured to its reasonable satisfaction against all costs and expenses which may be incurred in doing so.

12.3

This clause 12 shall survive termination of the Contract.

13.

Liability

13.1

Neither party excludes any liability for death or personal injury caused by its negligence, or the negligence of its employees or agents, or for fraud or fraudulent misrepresentation or the deliberate default or wilful misconduct of that party, its employees or agents or suppliers.

13.2

Subject to clause 13.1, the total liability of Overwatch, whether in contract, tort (including negligence) or otherwise and whether in connection with this Contract or any collateral contract, shall in no circumstances exceed the price and/or charges.

14.

Insurance

14.1

During the term of the Contract and for a minimum period of six years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Overwatch's request, produce a current insurance certificate.

15.

Confidentiality

15.1

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers (including a Customer), clients or suppliers of the other party, except as permitted by clause 15.2.

15.2

Each party may disclose the other party's confidential information:

(a)

to its employees, officers, representatives, contractors, suppliers or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, suppliers or advisers to whom it discloses the other party's confidential information comply with this clause 15; and

(b)

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3

Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

16.

Compliance with relevant laws and policies

15.1

16.1 In performing its obligations under the Contract, the Supplier shall:

(a)

comply with all applicable laws, statutes, regulations and codes from time to time in force; and

(b)

comply with Overwatch’s Quality Standards.

17.

Export Licences

17.1

The Supplier shall obtain, at its own cost, all such export licences and other consents in connection with any Goods and/or Services as are required from time to time prior to the dispatch of the relevant shipment or provision of the relevant Services (as applicable) and shall promptly provide copies of the same to Overwatch on receipt thereof together with accurate and complete details of: (i) all authorised third parties (to include the end user) and their role; (ii) the Goods and/or Services, part or item export classification number; (iii) the country of origin; (iv) the country of manufacture; (v) export licence number; and (vi) export license date of issue. Overwatch may withhold all further payments under this Order until the Supplier has fully complied with its obligations under this clause 17.1.

17.2

Should the Supplier not be able to deliver the Goods and/or Services on the agreed delivery date as a result of non-availability of any export licences and/or consents the Supplier shall use its best endeavours to secure the required export licences and/or consents without further delay and shall indemnify Overwatch against all liabilities, costs, expenses, damages and losses suffered or incurred by Overwatch arising out of or in connection with such delays save where such failure and/or delay is beyond the reasonable control of the Supplier.

18.

Data protection

18.1

If and to the extent that any personal data is to be transferred from one Party to the other for the purposes of the performance of a Contract the Parties shall comply with all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party and the Parties shall enter into a standard agreement governing the transfer and processing of that personal data prior to its transfer.

19.

Termination

19.1

Without limiting its other rights or remedies, the Overwatch may terminate the Contract in whole or in part at any time with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract so terminated and shall immediately repay to Overwatch any advance payment(s) paid by Overwatch to the Supplier relating to the Contract (or part thereof) so terminated.

19.2

Subject to clause 19.3, Overwatch shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods / Software at the time of termination and/or for any Services already performed, but such compensation shall not include loss of anticipated profits or any consequential loss. The Supplier agrees to accept such sum in full and final satisfaction of all claims arising out of such termination and it shall use its best endeavours to minimise the direct loss arising from such termination. In no case will the amount payable by Overwatch for the terminated work exceed the price that would have been payable if that work had been completed. Overwatch reserves the right to recover any completed part of the Goods, Software and/or Services and any relevant documentation related thereto.

19.3

The provisions of clause 19.2 shall not apply where Overwatch has terminated the contract for any of the following reasons:

(a)

the Supplier commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fifteen (15) days of receipt of notice in writing to do so;

(b)

the Supplier is unable to pay its debts as they fall due or is deemed unable to pay its debts;

(c)

the Supplier makes a proposal for or enters into any compromise or arrangement with its creditors or it enters into liquidation or it suffers the appointment of an administrator or receiver;

(d)

the Supplier (being a company) is subject to a winding up petition or (being an individual) is the subject of a bankruptcy petition;

(e)

the Supplier suspends or ceases, or threatens to suspend, or cease all or a substantial part of its business,

and in such circumstances Overwatch shall have the right to recover any costs, charges, or expenses incurred, including those sustained to procure the Goods and/or Services elsewhere in addition to any further damages or losses that Overwatch may suffer as a consequence of such termination.

Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.

19.4

Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect, including but not limited to clause 12 (Indemnity) and clause 15 (Confidentiality).

19.5

On termination of the Contract for any reason, the Supplier shall deliver to Overwatch, immediately upon request, all Deliverables whether or not then complete, and return all Overwatch Materials. If the Supplier fails to do so, then Overwatch may enter the Supplier's premises and take possession of them Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

20.

Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 45 days, the party not affected may terminate the Contract with immediate effect to the affected party.

21.

Offset

At Overwatch’s request, the Supplier shall use its reasonable endeavours to support Overwatch in fulfilling its Offset Obligations and shall grant to Overwatch the full benefit of all applicable offset credit in relation with the Order.

22.

General

22.1

Assignment etc. The Supplier shall not subcontract, assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Overwatch. If Overwatch consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its Suppliers as if they were its own.

22.2

Notice. Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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). 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; or (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. This clause 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.

22.3

Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 22.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

22.4

Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

22.5

No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

22.6

Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on 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.

22.7

Third party rights. 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

22.8

Variation. Except as set out in these Terms of Business, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

22.9

Audit. The Supplier shall allow Overwatch, a Customer and any auditors or regulators of Overwatch or a Customer to access any of the Supplier's premises, personnel, facilities, systems or records as may be reasonably required in order to: fulfil any legally enforceable request by any regulatory body; audit and take copies of records as necessary to verify the Supplier's compliance with these Terms of Business; and verify that the Services and Goods are being provided in accordance with these Terms of Business.

22.10

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 law of England and Wales.

22.11

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.

22.12

Interpretation. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. The terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written excludes fax but not email.

23.

Definitions

Acceptance Tests: tests of the Software or Deliverables after delivery as may be defined by Overwatch from time to time.

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

Certificate of Conformance: a certificate signed on behalf of the Supplier by an appropriately qualified representative confirming that the Goods supplied conform to the Goods Specification.

Commercial Terms: the terms set out in the Order to which these Terms of Business are attached. the terms set out in the Order to which these Terms of Business are attached.

Contract: the contract between Overwatch and the Supplier formed in accordance with clause 1.2.

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

Customers: Overwatch’s customers and/or the ultimate end users of the Goods or Software or beneficiaries of the Services.

Defect: means (a) any defects in design, materials and workmanship, including weight, in respect of the Goods or any failure of the Goods to conform with the Goods Specification; (b) any failure of the Software to operate in any material respect with the Commercial Terms or in accordance with the Software Specification; and (c) any failure of the Deliverables to operate in any material respect with the Commercial Terms or in accordance with the Services Specification.

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Delivery Date: the date on or by which the Goods or Software are to be delivered as set out in the Commercial Terms.

Fix: means a change in or around the Software that fixes and resolves a reported Defect to the satisfaction of Overwatch (or a Customer).

Goods: the goods (or any part of them) set out in the Commercial Terms.

Goods Specification: any specification for the Goods, including any related plans and drawings set out or expressly referenced in the Order.

Intellectual Property Rights or IPR: 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.

Milestone(s): a date by which part or all of the Services should be performed, as set out in the Commercial Terms.

New Release: means a new release of all or any part of the Software suitable for use by Overwatch in which previously identified Defects or faults have been remedied or to which any Fix, modification, enhancement, revision or update has been made, or to which any further functions have been added but which does not constitute a New Version.

New Version: means a new version of the Software released by the Supplier after the Commencement Date which provides additional and/or improved functionality and/or performance.

Offset Obligation: a contractual obligation imposed on Overwatch that requires Overwatch to purchase, or facilitate the purchase of, goods and/or services from and/or otherwise invest in a foreign country.

Open Source Software: software that is distributed with unfettered access to its source code and/or where the recipient is placed under an obligation to ensure that any further distribution of the software (and source code of software derived from such software, if required by the applicable open source licence) takes place on similar terms with regards to access to its source code (whether by reference to the Open Source Initiative's Open Source Definition or otherwise). software that is distributed with unfettered access to its source code and/or where the recipient is placed under an obligation to ensure that any further distribution of the software (and source code of software derived from such software, if required by the applicable open source licence) takes place on similar terms with regards to access to its source code (whether by reference to the Open Source Initiative's Open Source Definition or otherwise).

Order: Overwatch's order for the supply of Goods, Software and/or Services as set out in Overwatch's purchase order form.

Overwatch: the relevant contracting entity within the Overwatch Group of which Overwerx Ltd (UK company no. 12403501) is parent.

Overwatch Materials: has the meaning set out in clause 5.4(i).

Quality Standards: Overwatch’s quality standards for Suppliers as may be in force from time to time.

Services: the services, including any Deliverables, to be provided by the Supplier to Overwatch (for the benefit of a Customer) under the Contract as set out in the Service Specification.

Service Levels: the service levels for performance of any Services set out in the Commercial Terms.

Services Commencement Date: the date set out in the Commercial Terms.

Services Specification: the description or specification for Services set out or expressly referenced in the Order.

Software: the computer programme(s) or software application(s) listed in the Commercial Terms provided by the Supplier pursuant to this Contract, and any New Releases or New Versions of the Software (or part of it), which may include software incorporated within any Good(s).

Software Specification: the description or specification for Software set out in the Commercial Terms.

Supplier: the party from whom Overwatch purchases the Goods and/or Services.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

Viruses: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

[Issue: September 2023]