4.1 Supplier represents and warrants to Dyson, on an ongoing basis, that: (a) there is no restriction which prevents or might prevent it from fully performing its obligations pursuant to this Agreement; (b) the Goods/Services will not include or give access to any Unacceptable Content; and (c) the provision by Supplier, and the receipt and use by Dyson (in accordance with the terms of the Agreement), of the Goods/Services will not infringe the Intellectual Property Rights, or violate any other rights, of any person.
4.2 Supplier will indemnify Dyson, its group companies and any of their respective shareholders, employees, directors and officers from and against any and all claims, actions, liabilities, losses, damages, penalties, fines, costs and expenses sustained or incurred by any of them arising out of or in connection with: (a) any use by Supplier of any Confidential Information or Dyson Materials other than in accordance with the terms of this Agreement; or (b) any Infringement Claim.
4.3 In respect of any Infringement Claim: (a) upon becoming aware of such claim, Dyson will promptly notify Supplier; (b) each party will (at Supplier’s sole cost and expense) provide reasonable co-operation to the other party in the defence and settlement of such claim; and (c) Supplier will, upon its written request, be given sole authority to defend or settle such claim, provided that (i) Supplier keeps Dyson informed of the progress of its defence or settlement; and (ii) Supplier does not compromise or settle such claim without unconditionally releasing Dyson of all liability in respect of such claim.
4.4 Nothing will limit either party’s liability for: (a) the indemnity provided at clause 4.2; (b) wilful misconduct, deliberate default or gross negligence; (c) breaches of clause 7; (d) death or personal injury caused by that party’s negligence; (e) fraud (including fraudulent misrepresentation); (f) caused by its breach of any obligations under Social Security, Employment and Tax laws and regulations in place from time to time; or (g) any other liability that cannot be excluded or limited by law.
4.5 Subject to clause 4.4, neither party will be liable, whether in contract, tort (including negligence and breach of statutory duty) or otherwise, for any indirect or consequential loss.
4.7 Either party may terminate this Agreement: (a) on provision of written notice to the other party if the other party is in material breach of this Agreement and: (i) such breach is capable of remedy but that party has failed to remedy such breach within 14 days of the date of written notice from the terminating party requiring it to do so; or (ii) such breach is incapable of remedy; or (b) if the other party becomes unable to pay its debts or becomes insolvent, or the other party enters into or proposes any composition or arrangement with its creditors generally, or anything analogous to any of these events occurs to the other party.
4.8 Dyson may terminate this Agreement at any time by giving at least 7 days’ prior written notice to Supplier. Dyson will reimburse Supplier for all reasonable, non-recoverable, direct costs incurred by Supplier in providing the Goods/Services prior to the date of termination, provided that Supplier uses reasonable endeavours to minimise all such costs.
4.9 On termination or expiry of this Agreement, Supplier will promptly: (a) return or destroy (as chosen by Dyson and at no cost to Dyson) all copies of Confidential Information in its control and provide written confirmation that such return/destruction has taken place; and (b) refund such portion of the Fees as relates to the period after expiry or termination, if any, on a pro rata basis. Termination or expiry of this Agreement will not affect any rights, remedies, obligations or liabilities that have accrued up to the date of termination or expiry. Any provision of this Agreement that is intended to continue in force on or after termination or expiry will remain in full force and effect.