Contract means the contract for the supply of Products formed by the Customer's acceptance of Highgate's Quote which, however made or communicated, shall be deemed made subject to these Terms and Conditions.

Customer means the person, firm, company or other legal entity placing an order with Highgate in the course of its trade, business, craft or profession. These Terms are intended for business customers only and do not apply to consumers acting outside their trade, business, craft or profession.

Customer Representatives means employees or representatives of the Customer who liaise with Highgate on behalf of the Customer when requesting quotes and placing orders.

Data Controller has the meaning given to “controller” in the Data Protection Laws.

Data Processing Agreement means any data processing agreement entered into between Highgate and the Customer pursuant to Article 28(3) of the GDPR.

Data Processor has the meaning given to “processor” in the Data Protection Laws.

Data Protection Laws means all applicable data protection and privacy legislation in force from time to time in Ireland, including without limitation Regulation (EU) 2016/679 (the “GDPR”), the Data Protection Act 2018 and all other applicable legislation and regulatory requirements relating to privacy and the processing of personal data.

Highgate means Highgate IT Ireland Limited, a company incorporated in Ireland under company number 810805, with its registered office at 136 Capel Street, Dublin 1, D01 T2C9.

Invoice means the invoice issued by Highgate to the Customer containing the cost of all Products ordered by the Customer and any applicable delivery charges, value added tax, customs duties and all other taxes, duties and expenses incurred when ordering the Products from Highgate.

Manufacturer means the manufacturer, developer, distributor, publisher, licensor, cloud provider or other third-party supplier of the relevant Products.

Order means an order for Products placed by the Customer and accepted by Highgate in accordance with clause 8.2.

Personal Data means personal data (as defined in the Data Protection Laws) in respect of which the Customer is the Data Controller.

Products means all hardware, software and related products detailed in the Quote and supplied to the Customer by Highgate under these Terms. For the avoidance of doubt, Products include hardware; software licences; software subscriptions; Software as a Service (SaaS); cloud services; subscription-based software; software maintenance and support renewals; digital products; consumption-based services and other recurring software or cloud services.

Quote means the document issued by Highgate to the Customer upon the Customer's request, containing the Products that the Customer has enquired about purchasing from Highgate.

Software Products means any Products supplied electronically or on a licence, subscription, cloud, SaaS, maintenance, support, consumption or other recurring basis, including any associated licence keys, access rights or entitlements.

Subscription Term means the minimum fixed or committed period stated in the Quote, Invoice, Order or applicable Vendor Terms for which the Customer is committed to purchase a Software Product.

Terms means these Terms and Conditions.

Usage Charges means charges calculated by reference to use, consumption, seats, users, devices, capacity, transactions, data, compute, storage or any other usage metric applicable to a Software Product.

Vendor Terms means any end-user licence agreement, acceptable use policy, service description, product terms, cloud terms, licensing rules or other terms imposed by the Manufacturer in relation to a Product, as amended by the Manufacturer from time to time.

2. Formation of Contract

2.1 All Products sold by Highgate are sold subject to these Terms. These Terms are intended solely for business-to-business transactions and shall be the sole terms and conditions of any sale of Products by Highgate to the Customer, unless there are specific terms and conditions on the order form, Invoice or Quote supplied by Highgate which shall take priority over these Terms. Where there is a conflict between these Terms, the Quote and the Invoice, the following order of priority shall apply: (i) the Invoice; (ii) the Quote; (iii) these Terms. In the absence of specific terms on the Quote, the placing of an order for or the acceptance or use of the Products by the Customer shall indicate unqualified acceptance of these Terms.

2.2 No representative, agent or salesperson has the authority to vary, amend or waive any of these Terms on behalf of Highgate and no amendment or addition to any of these Terms shall be deemed to have been accepted unless accepted in writing by Highgate.

3. Quotations

3.1 It is acknowledged by the parties that Highgate does not manufacture the Products and is a reseller of the Products.

3.2 Highgate shall issue Quotes to the Customer upon the Customer's request. Such Quotes shall be valid for the validity period stated in the Quote.

3.3 The prices, quantities, availability and delivery or activation times stated in any Quote shall not be binding on Highgate. They are commercial estimates only which Highgate will make reasonable efforts to achieve.

3.4 The Customer accepts that from time to time, details, descriptions or pricing provided in the Quote may be subject to clerical or other omissions or errors and Highgate may correct such information without liability.

4. Products and Specifications

4.1 Where applicable and specified by the Customer at the time of requesting a Quote, and forming part of a Contract, the Products will be configured by Highgate in accordance with the specification relating to the configuration supplied by the Customer and agreed by Highgate (the “Configuration Specification”).

4.2 The Products supplied are as described by the Manufacturer unless, at the time of issuance of the Quote (as applicable), configuration of the Products has been specified in accordance with clause 4.1, in which case the Products will be as described by the Manufacturer and as modified in accordance with the Configuration Specification.

4.3 All photographs, dimensions, weights and other technical information and particulars of the Products and any sample books, product descriptions or supporting documentation for such Products are given by Highgate in the belief that they are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract unless expressly stated otherwise in the Quote.

4.4 Highgate reserves the right to amend any specification of the Products if required by any applicable statutory or regulatory requirements or where the Manufacturer changes the relevant Product specification, provided that the change does not materially reduce the core functionality expressly specified in the Contract, unless the change is outside Highgate's reasonable control.

4.5 To the extent that the Products are to be configured in accordance with a Configuration Specification supplied by the Customer, the Customer shall indemnify Highgate 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 and other reasonable professional costs and expenses) suffered or incurred by Highgate in connection with any claim made against Highgate for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Highgate's use of the Configuration Specification. This clause 4.5 shall survive termination of these Terms or any Contract.

4.6 The Customer acknowledges and accepts that changes to the Products made in accordance with the Configuration Specification may cause warranties relating to the Products to become void. The Customer shall hold Highgate harmless in respect of any such invalidation or losses flowing from it, except to the extent caused by Highgate's failure to follow the agreed Configuration Specification.

4.7 The Customer accepts that where Products are built-to-order, specially procured, customised, licensed, provisioned or otherwise committed by Highgate with a Manufacturer specifically for the Customer, they shall be non-cancellable and non-refundable (“NCNR”) where stated in the Quote or otherwise notified to the Customer before the Order is placed.

4.8 By proceeding to order Products which are subject to clause 4.7, the Customer agrees that the relevant Products may not be cancelled, returned or refunded, unless expressly agreed otherwise in writing by Highgate or required by applicable law.

5. Delivery

5.1 This clause 5 applies principally to physical Products. Delivery of physical Products shall be at the cost of the Customer to the address specified on the Invoice by any method of transportation regarded as suitable by Highgate at its discretion. Delivery or activation of Software Products shall be governed by clause 9.

5.2 Although Highgate will use reasonable endeavours to meet delivery dates, it shall not be liable to the Customer for any loss or damage, whether direct, indirect or consequential, if it is delayed or prevented, in whole or in part, from delivering the Products, except to the extent that such liability cannot lawfully be excluded or limited.

5.3 If the Customer refuses or fails to take delivery of physical Products on the date of delivery, Highgate reserves the right to Invoice for the Products as if delivery had taken place and, at its discretion, to store the Products at the risk of the Customer. The Customer shall, in addition to the price payable under clause 7 (Price), pay all costs and expenses of such storage and any additional costs of carriage incurred for re-delivery.

5.4 Highgate reserves the right to deliver Products in instalments at its discretion.

5.5 All physical Products must be inspected by the Customer immediately on delivery. If any Products are damaged or lost or if there has been a short delivery, the Customer must endorse the consignment note accordingly and notify Highgate within 2 Business Days from the date of delivery. Failure to notify Highgate within that period may affect Highgate's ability to pursue the carrier or Manufacturer and, to the fullest extent permitted by law, Highgate shall have no liability for transit damage, loss or short delivery that should reasonably have been identified on inspection.

6. Risk and Title

6.1 This clause 6 applies to physical Products. Title to and ownership of physical Products shall only pass to the Customer once Highgate has received cleared payment in full of all sums due in respect of the Products ordered, as stipulated on the Invoice. If payments received from the Customer are not stated to refer to a particular Invoice, Highgate may appropriate such payments to any outstanding Invoice.

6.2 Until such time as title in physical Products passes to the Customer, the Customer shall keep the Products separate from other goods and property, stored, protected, insured and identified as Highgate's property and, after the due date for payment, Highgate shall be entitled to require the Customer to deliver up the Products to Highgate. If the Customer fails to do so immediately, the Customer shall, to the extent lawfully permitted, allow (or procure permission for) Highgate or its agents or representatives to enter the premises where the Products are stored and repossess the Products.

6.3 Except as otherwise provided in these Terms, the risk of loss of or damage to physical Products shall pass to the Customer upon delivery of the Products in accordance with clause 5.1 or when the Products were made available for delivery in accordance with clause 5.3 but Highgate was unable to complete delivery due to the acts or omissions of the Customer.

6.4 Software Products are licensed or supplied as access rights or services and are not sold as tangible property. No title or ownership in any intellectual property comprised in a Software Product passes to the Customer except to the extent expressly provided in the applicable Vendor Terms.

7. Price

7.1 The price payable for the Products (the “Charges”) shall be as stated in Highgate's Quote, subject to these Terms and any applicable Vendor Terms.

7.2 Highgate may adjust the Charges to reflect any increase in its cost of supplying the Products arising after the Quote is issued or, where applicable, during a Subscription Term, where the increase results from a Manufacturer, distributor or other upstream supplier changing its prices, discount structure, exchange-rate basis, licence metric, usage or consumption rate, tax, duty, levy or other charge, or from a material movement in currency exchange rates, in each case where the relevant change is outside Highgate's reasonable control. Highgate shall give the Customer reasonable notice where practicable and shall not apply this clause to increase a fixed price to the extent Highgate has itself received and remains entitled to a binding fixed upstream price for the same period.

7.3 The Charges are exclusive of the cost of delivery in accordance with clauses 5.1 and 5.3 and exclusive of Value Added Tax, customs duties and all other taxes, duties, levies and expenses in respect of the Products, all of which shall be added to the Invoice unless otherwise stipulated in writing by Highgate.

7.4 All sums payable to Highgate shall be paid free and clear of any deduction or withholding for or on account of tax. If the Customer is required by law to make any such deduction or withholding, the Customer shall, to the extent permitted by law, pay such additional amount as is necessary to ensure that Highgate receives the same net amount it would have received had no deduction or withholding been required, except in respect of taxes imposed on Highgate's net income, profits or gains.

8. Orders and Payment

8.1 Orders are accepted by Highgate subject to (i) the Products being available for delivery, provisioning or activation; and (ii) cleared funds being received for the amount of the Invoice issued by Highgate, except where approved credit terms apply.

8.2 Highgate shall only accept the Customer's offer to purchase Products after payment of the relevant Invoice has either been received in full by non-account holders or, where the order is placed by an account holder with a credit account (the “Credit Account Holder”), the Charges are approved against the Customer's credit account (the “Order”). The Order shall be subject to these Terms and shall not be amendable after it has been placed without the written consent of Highgate.

8.3 The Customer shall be liable for payment of all costs included in the Quote and the respective Invoice relating to the Order for the full term stipulated in the Quote. Where Highgate enters into or incurs a fixed, minimum, non-cancellable or multi-year commitment with a Manufacturer or other upstream supplier in reliance on the Customer's Order, including a commitment for 12, 24, 36 or other months, the Customer shall remain liable for all Charges for that committed term notwithstanding any reduction in use, cessation of use, internal change, migration, attempted cancellation or other decision by the Customer, except where Highgate expressly agrees otherwise in writing or applicable law requires otherwise.

8.4 The Customer shall be solely responsible for all bank charges, transfer fees and any international payment fees incurred in connection with payment of an Invoice. Highgate must receive payment of the Invoice in full without any deduction or reduction for such charges or fees, subject to clause 7.4.

8.5 The Credit Account Holder shall ensure that all Invoices issued by Highgate for the Products are paid in full, without deduction, withholding or set-off (subject to clause 7.4), within 30 days from the date of the Invoice (the “Due Date”), unless different payment terms are expressly agreed in writing. All bank charges, transfer fees and international payment fees associated with payment of any Invoice shall be borne exclusively by the Customer and shall not be set off against the Invoice amount received by Highgate.

8.6 Where Invoices remain unpaid beyond the Due Date, or the Credit Account Holder exceeds its agreed credit limit under any applicable credit arrangement, Highgate reserves the right, in each case at any time without notice to the Customer and to the extent permitted by law, to:

(a) withdraw or amend credit terms, credit limits or payment arrangements applicable to Credit Account Holders;
(b) place Customer accounts on hold;
(c) request payment upfront prior to accepting, provisioning or dispatching future orders; and
(d) suspend the supply, activation, renewal or continued provision of further Products under these Terms, to the extent permitted by applicable law and the relevant Vendor Terms.

8.7 For the avoidance of doubt, any acceptance or processing of any order whilst a Customer has overdue Invoices or has exceeded its credit limit shall not constitute a waiver of Highgate's rights under these Terms.

8.8 Highgate shall be entitled to statutory late payment interest on overdue amounts in accordance with the European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S.I. No. 580/2012), as amended or replaced from time to time. Unless otherwise validly agreed, the statutory rate is the European Central Bank reference rate specified in those Regulations plus 8 percentage points. Highgate shall also be entitled, automatically and without the need for a reminder, to the fixed compensation for recovery costs prescribed by those Regulations (currently EUR 40 for an invoice not exceeding EUR 1,000, EUR 70 for an invoice exceeding EUR 1,000 but not exceeding EUR 10,000, and EUR 100 for an invoice exceeding EUR 10,000) and to any reasonable additional recovery costs available under those Regulations.

9. Software, Cloud and Subscription Products

9.1 This clause 9 applies to Software Products and prevails over any inconsistent provision of clauses 5 and 6 to the extent necessary to reflect the electronic, licensed, subscription or service-based nature of those Products.

9.2 Software Products are supplied subject to the applicable Vendor Terms. By placing an Order for, accessing, activating, renewing or using a Software Product, the Customer agrees to comply with the Vendor Terms and shall ensure that its users do the same. Where requested, the Customer shall execute or accept any end-user, licence, cloud or other agreement required by the Manufacturer as a condition of supply. Where reasonably practicable, Highgate shall identify, provide a link to or otherwise make the applicable Vendor Terms available to the Customer before or at the time the relevant Software Product is ordered, activated or provisioned.

9.3 Highgate acts as a reseller or intermediary in relation to Software Products and does not control the Manufacturer's underlying platform, service or licensing programme. The Customer acknowledges that the Manufacturer may change, replace, withdraw, suspend or discontinue features, functionality, product names, support arrangements, licensing models, usage metrics, technical requirements, Vendor Terms or service availability. Highgate shall not be liable for such changes where they are outside Highgate's reasonable control, but will use reasonable endeavours to communicate material changes of which it is notified where practicable.

9.4 Delivery of a Software Product shall occur when the relevant licence key, access entitlement, tenant, account, activation, provisioning confirmation or other means of access is made available to the Customer or its nominated user, or when the Manufacturer records the Product as provisioned or active for the Customer, whichever occurs first.

9.5 Unless otherwise stated in the Quote, any Subscription Term is a minimum committed term. The Customer may not cancel or reduce a Software Product during the Subscription Term where Highgate has made a corresponding upstream commitment, and the Customer remains liable for the full committed Charges in accordance with clause 8.3.

9.6 Where a Software Product renews automatically under the applicable Vendor Terms or Quote, the Customer must give Highgate any cancellation or reduction instruction sufficiently in advance of the Manufacturer's applicable renewal, cancellation or modification deadline and, in any event, by any deadline stated in the Quote. If no effective instruction is received before the applicable deadline, the Software Product may renew automatically in accordance with the applicable Vendor Terms and/or Highgate may place or permit the renewal, and the Customer shall be liable for the resulting Charges.

9.7 The Customer shall pay all Usage Charges incurred through its accounts, subscriptions, users, credentials, tenants or environments, including charges resulting from increased use or consumption. Usage Charges may vary from estimates and shall be calculated by reference to the Manufacturer's metering, billing or usage records except in the case of manifest error.

9.8 Where permitted by applicable law and the relevant Vendor Terms, Highgate may suspend or procure the suspension of access to a Software Product where Charges relating to that Product are overdue, the Customer exceeds an agreed credit limit, or suspension is reasonably necessary to comply with applicable law, Vendor Terms or a lawful instruction of the Manufacturer. Suspension shall not relieve the Customer of its obligation to pay Charges that remain due or continue to accrue during a committed term.

9.9 The Customer is responsible for determining that the Software Products are suitable for its intended use, for maintaining appropriate connectivity, devices, security, backups and user administration (except to the extent any such function is expressly included within the relevant Software Product), and for ensuring that its use complies with the Vendor Terms and applicable law.

10. Warranty

10.1 The Customer warrants that it has (and any of the Customer's Representatives have) authority to enter into a Contract and bind the Customer and that the Customer's Representatives who deal with Highgate have the Customer's authority to do so. Unless the Customer has specifically advised Highgate in writing that an individual does not have such authority, the Customer will take responsibility for any employee, ex-employee or other person who holds themselves out to be a representative of the Customer.

10.2 Highgate warrants that it has the full capacity and authority to enter into and perform each Contract.

10.3 Where a Product carries a Manufacturer's warranty, Highgate will provide the Customer with details of that warranty upon request and will use reasonable efforts, at the Customer's cost and expense where applicable, to pass through or facilitate the benefit of warranties made available by the Manufacturer to Highgate or the Customer, subject to the limitations and exclusions imposed by that Manufacturer.

10.4 The Manufacturer's warranty is not intended to be the Customer's exclusive remedy against Highgate where applicable Irish law gives the Customer rights or remedies that cannot lawfully be excluded or where an exclusion or restriction would not be fair and reasonable. Highgate's liability in respect of Products remains subject to clause 11 and all other applicable provisions of these Terms.

10.5 Pursuant to clause 4.6, the Customer should be aware that altering the configuration of the Products may affect the Manufacturer's warranty and the rights of the Customer thereunder.

11. Liability

11.1 Nothing in these Terms or any Contract shall limit or exclude Highgate's liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms as to title and quiet possession implied by section 12 of the Sale of Goods Act 1893, as substituted by section 10 of the Sale of Goods and Supply of Services Act 1980; or
(d) any other liability which cannot be limited or excluded by applicable law.

11.2 Subject to clause 11.1, Highgate shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with any Contract for:

(a) any loss of profits, sales, business or revenue;
(b) loss or corruption of data, information or software;
(c) loss of business opportunity;
(d) loss of anticipated savings; or
(e) any indirect or consequential loss.

11.3 Highgate's total aggregate liability to the Customer in respect of all losses arising under or in connection with each Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed the amount paid or to be paid for the Products under that Contract, except to the extent a higher limit is required by applicable law.

11.4 Nothing in these Terms excludes or restricts the terms as to title and quiet possession implied by section 12 of the Sale of Goods Act 1893. Subject to clause 11.1 and to the extent permitted by law, the parties intend that any conditions or warranties implied by sections 13, 14 or 15 of the Sale of Goods Act 1893, and any other terms implied by statute or common law that may lawfully be excluded, are excluded or restricted from each Contract. Any exclusion or restriction to which section 55 of the Sale of Goods Act 1893 (as substituted by section 22 of the Sale of Goods and Supply of Services Act 1980) applies shall operate only to the extent that it is fair and reasonable having regard to the circumstances known or reasonably contemplated by the parties when the Contract was made.

11.5 The parties agree that the limitations on liability in these Terms are reasonable, having regard to the parties' respective commercial positions, the availability of alternative suppliers and solutions, the Charges payable under the Contract, the allocation of risk under the applicable Vendor Terms and each party's ability to purchase appropriate insurance in respect of the relevant risks.

11.6 This clause 11 shall survive termination of these Terms or any Contract.

12. Data Protection

12.1 Each party warrants that it shall comply with the Data Protection Laws when performing its respective obligations under the Contract.

12.2 The parties acknowledge that, irrespective of whether the Customer includes Personal Data in its use of the Products, Highgate will act as a Data Controller in its own right in respect of personal data relating to Customer Representatives (such as names, job titles and business contact details) processed for the purposes of administering Quotes, Orders, Invoices and the Contract. Details of such processing are set out in Highgate's privacy notice, available at https://highgate-it.co.uk/privacy-policy/ or on request, which does not form part of these Terms.

12.3 Where the Customer intends to, or might, include Personal Data in its use of the Products purchased from Highgate, it will inform Highgate when it requests a Quote and in any event prior to a Contract being formed. Where so informed, Highgate will identify whether Highgate or a third party is the Data Processor for the purposes of the processing and communicate that to the Customer at or prior to the point at which the Contract is formed.

12.4 Where Highgate identifies that it is the Data Processor for the purposes of the processing referred to in clause 12.3, the parties will enter into a Data Processing Agreement where required by the Data Protection Laws, and in any event before Highgate begins processing any Personal Data as Data Processor.

12.5 Where Highgate considers that it is a Data Controller, it will comply with all relevant requirements relating to controllers under the Data Protection Laws and the parties will negotiate in good faith any data sharing agreement or protocol that the parties deem necessary to put in place.

12.6 Where performance of a Contract involves a transfer of Personal Data from the European Economic Area to a country outside the European Economic Area, including transfers involving a group company, Manufacturer or service provider, each party shall be responsible for ensuring that any such transfer made by it or on its behalf is carried out in compliance with Chapter V of the GDPR, including by relying on an applicable adequacy decision or implementing another lawful transfer mechanism and any supplementary measures required by the Data Protection Laws.

13. Compliance with Laws, Anti-Bribery, Sanctions and Export Controls

13.1 Each party shall comply with all laws and regulations applicable to it in connection with the Contract. The Customer shall not use, supply, resell, export, re-export, transfer or make available any Product in breach of applicable Irish or European Union sanctions, export controls, trade restrictions, customs rules or other applicable trade compliance requirements.

13.2 The Customer shall provide such end-user, end-use, destination, ownership, control or other information as Highgate or a Manufacturer may reasonably require for compliance screening and shall promptly notify Highgate if any such information changes.

13.3 Highgate may refuse, suspend, delay or cancel any Quote, Order, delivery, activation, renewal or supply to the extent Highgate reasonably considers this necessary to comply with applicable sanctions, export controls, trade restrictions, law, regulatory requirements or Manufacturer restrictions. Highgate shall not be in breach of Contract for taking such action in good faith, and the Customer shall remain liable for any non-cancellable upstream costs already properly incurred by Highgate except to the extent prohibited by applicable law.

13.4 Neither party shall, in connection with a Contract, offer, promise, give, request or accept any bribe or other improper financial or non-financial advantage, and each party shall comply with applicable anti-bribery and anti-corruption laws. Highgate may terminate or suspend a Contract with immediate effect where it reasonably believes that continued performance would expose Highgate or a member of its group to a breach of such laws.

14. Confidentiality

14.1 Each party shall keep confidential all confidential or commercially sensitive information disclosed to it by or on behalf of the other party in connection with a Contract and shall use such information only for the purposes of performing or receiving the benefit of the Contract.

14.2 A party may disclose confidential information to its employees, officers, professional advisers, auditors, insurers, financiers, group companies, Manufacturers and subcontractors who need to know it for the purposes of the Contract, provided that the receiving party remains responsible for ensuring that such persons are subject to appropriate obligations of confidentiality.

14.3 The obligations in this clause do not apply to information which is or becomes public other than through breach of confidence, was lawfully known to the receiving party without restriction before disclosure, is lawfully obtained from a third party without restriction, is independently developed without use of the confidential information, or must be disclosed by law, regulation, court order or a competent authority.

14.4 This clause 14 shall survive termination of the relevant Contract for a period of five years, except in relation to trade secrets, for which the obligations shall continue for so long as the information remains a trade secret.

15. Termination

15.1 If the Customer defaults in any payment, is otherwise in material breach of its obligations to Highgate under these Terms or any Contract, is unable or is deemed unable to pay its debts as they fall due, enters or proposes any arrangement or composition with creditors, enters liquidation (other than a solvent reorganisation), examinership or receivership, has a liquidator, examiner, receiver or similar officer appointed over all or any material part of its assets, ceases or threatens to cease carrying on business, or suffers any analogous event in any jurisdiction, Highgate may, by notice in writing to the Customer and without prejudice to any other rights, terminate these Terms and/or any Contract with immediate effect, suspend or cancel any uncompleted part of the Contract, stop any Products in transit, or require payment in advance or satisfactory security for further deliveries under the Contract. Highgate may exercise the same rights where it has reasonable grounds to believe that any such event is likely to occur, to the extent permitted by applicable law.

15.2 On termination of these Terms or any Contract, the Customer shall immediately pay to Highgate all outstanding unpaid Invoices, accrued interest, Usage Charges and other sums due under these Terms or the particular Contract and, in respect of any Products supplied or committed but for which no Invoice has yet been submitted, Highgate shall submit an Invoice which shall be payable by the Customer immediately on receipt.
15.3 Termination or expiry shall not affect any rights, remedies, obligations or liabilities that have accrued up to the date of termination or any provision which expressly or by implication is intended to survive termination. In particular, any committed Subscription Term, NCNR commitment or upstream liability incurred by Highgate before termination shall remain payable by the Customer to the extent provided in the Contract.

16. Force Majeure

16.1 Highgate shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the Products by Highgate being prevented, restricted, hindered or delayed by circumstances outside Highgate's reasonable control, including without limitation circumstances affecting the provision of all or any part of the Products by Highgate's usual source of supply, a Manufacturer, cloud or telecommunications provider, distributor or carrier, or the normal route or means of delivery.

17. Notices

17.1 Any notice given under or in connection with a Contract shall be in writing and shall be delivered by hand, sent by prepaid registered or recorded delivery post or courier to the recipient's registered office or principal place of business, or sent by email to an address used by the recipient for contractual or account communications with the sender.

17.2 A notice shall be deemed received: if delivered by hand, when left at the relevant address; if sent by post or courier within Ireland, at 9.00 a.m. on the second Business Day after dispatch; if sent internationally, at 9.00 a.m. on the fifth Business Day after dispatch; and if sent by email, at the time of transmission provided that no delivery failure message is received, or if sent outside normal business hours at the recipient's location, at 9.00 a.m. on the next Business Day.

17.3 This clause does not apply to the service of proceedings or other documents in legal action, arbitration or other formal dispute resolution proceedings.

18. Assignment and Subcontracting

18.1 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or otherwise deal with any of its rights or obligations under a Contract without Highgate's prior written consent.

18.2 Highgate may assign or transfer a Contract to a member of its group or in connection with a reorganisation, sale or transfer of all or a substantial part of the relevant business. Highgate may subcontract any of its obligations to a Manufacturer, distributor, carrier, cloud provider, group company or other suitable third party, but shall remain responsible for its contractual obligations to the extent required by applicable law.

19. Third Party Rights

19.1 Except where these Terms expressly provide otherwise, a person who is not a party to a Contract shall have no right to enforce any term of that Contract. The rights of the parties to vary, rescind or terminate a Contract are not subject to the consent of any third party.

20. Entire Agreement and Non-Reliance

20.1 Each Contract constitutes the entire agreement between the parties in relation to its subject matter and supersedes all previous discussions, correspondence, negotiations, arrangements and understandings relating to that subject matter.

20.2 Each party acknowledges that, in entering into a Contract, it does not rely on any statement, representation, assurance or warranty that is not expressly set out in the Contract. Nothing in this clause excludes or restricts liability for fraud or fraudulent misrepresentation.

20.3 To the extent that this clause would exclude or restrict liability or a remedy for a pre-contract misrepresentation, it shall operate only to the extent that the exclusion or restriction is fair and reasonable within the meaning of section 46 of the Sale of Goods and Supply of Services Act 1980 and applicable Irish law.

21. Waiver

21.1 The failure or delay of Highgate to exercise any right or remedy, or to insist upon strict performance of any term of a Contract, shall not constitute a waiver of that or any other right, remedy or term. A waiver is effective only if given in writing and only in the circumstances for which it is given.

22. Severability

22.1 If any provision of these Terms or the Contract (or part thereof) is found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of that provision (or part thereof) shall not affect any other provision (or the remaining part of the provision concerned), and all provisions (or parts thereof) not affected shall remain in full force and effect.

23. Governing Law and Jurisdiction

23.1 These Terms and any Contract formed subject to these Terms, and any non-contractual obligations arising out of or in connection with them, shall be governed by and construed in accordance with the laws of Ireland. The parties submit to the exclusive jurisdiction of the courts of Ireland in relation to any dispute or difference arising out of or in connection with these Terms, their interpretation or subject matter, or any Contract formed subject to these Terms.