STANDARD TERMS AND CONDITIONS
Foodservice Equipment Rental – One Year Try It Buy It
1.1 The following definitions and rules of interpretation apply in the Contract.
Acceptance Date: has the meaning given in clause 2.2.
Business Day: any day which is not a Saturday, Sunday, Bank Holiday or other public holiday in England.
Client: the person, firm, company, corporation or authority specified in the Order Form as the Client and includes his, its or their successors or personal representatives.
Commencement Date: the date that the Client takes Delivery of the Equipment.
Contract: the equipment hire and services contract formed between PKL and the Client on these terms and conditions, incorporating the Order Form.
Delivery: the transfer of physical possession of the Equipment to the Client at the Site.
Deposit: the deposit amount set out in the Order Form.
Equipment: the equipment detailed in the Order Form.
Order Form: the document or web-page giving details of the Client, the Equipment and the Services as signed, or completed and submitted electronically by the Client.
PKL: PKL Group (UK) Ltd (registered number 2308908) and its successors in title.
Purchase Option: the Client’s option to purchase the Equipment as more fully described in clause 12.
Purchase Option Price: the price of the Purchase Option as set out in the Order Form.
Site: the Client’s premises specified in the Order Form.
Minimum Term: 12 months from the Commencement Date.
Weekly Payments: the payments made by or on behalf of the Client for hire of the Equipment.
Risk Period: has the meaning given in clause 7.2.
Rental Period: the period of hire as set out in clause 4.
Third Party Payment Provider: means a specialist third party payment platform instructed by PKL to provide payment services on behalf of PKL.
Total Loss: the Equipment is, in the PKL’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
2 Formation of Contract
2.1 The Client is responsible for the accuracy of the information which it inputs (or directs is inputted) on the Order Form and PKL is under no obligation to check the same.
2.2 The Contract is formed after the Client has submitted the Order Form to PKL and PKL has either (1) signed and dated a hard copy of the Order Form or (2) sent the Client an electronic communication confirming that it has accepted the Order Form (such date being the “Acceptance Date”) save that PKL shall be under no obligation to perform any of its obligations hereunder until the Client has paid the Deposit and (where applicable) delivery charges to PKL.
3 Equipment Hire
3.1 PKL shall hire the Equipment to the Client for use at the Site subject to these terms and conditions.
3.2 PKL shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Client’s quiet possession of the Equipment.
4 Rental Period
The Rental Period starts on the Commencement Date and shall continue for a period of twelve months unless the Contract is terminated earlier in accordance with its terms.
5 Weekly Payments and Deposit
5.1 The Client shall pay the Weekly Payments to PKL in accordance with the Order Form. The Weekly Payments shall be paid in sterling and shall be made via our Third Party Payment Provider in accordance with the terms of this Contract. Our Third Party Payment Provider shall collect payments from the credit/debit card used to pay the Deposit. In the event our Third Party Payment Provider is unable to successfully collect any Weekly Payment, our Third Party Payment Provider will automatically retry every day for the next three business days after the failed payment.
5.3 PKL are not responsible for any error by the Third Party Payment Provider. By choosing to use PKL’s paid services, the Client agrees to pay PKL, through the Third Party Payment Provider, all charges at the prices then in effect for any use of such paid services, and the Client authorises PKL, through the Third Party Payment Provider, to charge the Client’s chosen payment method. PKL reserve the right to correct any errors or mistakes that the Third Party Payment Provider makes even if it has already requested or received payment. PKL reserves the right to amend the amount of the Weekly Payments (in accordance with the Contract) as well as the date of payment provided that such change is in accordance with the Third Party Payment provider terms from time to time.
5.4 The Weekly Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Client (If applicable) at the rate and in the manner from time to time prescribed by law.
5.5 All amounts due by the Client under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.6 If the Client fails to make any payment due to PKL under the Contract by the due date for payment, then, without limiting the PKL’s remedies under clause 14.5, the Client shall pay interest on the overdue amount at the rate of 4% (compounded monthly) above the base lending rate of The Bank of England from time to time. Such interest shall accrue on a daily basis and compound monthly from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.
5.7 The Deposit is a deposit against default by the Client of payment of any Weekly Payments or any loss of or damage caused to the Equipment or against costs or losses incurred or suffered by PKL in collecting the Equipment. The Client shall, on or before the Acceptance Date, pay the Deposit to PKL.
5.8 If the Client fails to make any Weekly Payments in accordance with the Order Form, or causes any loss or damage to the Equipment (in whole or in part), PKL may apply the Deposit against such default, loss or damage. The Client shall pay to PKL any sums deducted from the Deposit within ten (10) Business Days of a demand for the same.
5.9 We withhold the right to cancel any order due to pricing errors both online and quoted to you. In such cases we will offer an immediate refund or an alternative product
6 Delivery and Installation
6.1 Delivery of the Equipment shall be made by PKL. Unless agreed previously in writing by PKL, the Delivery will be “kerbside” only. Title and risk in the Equipment shall transfer in accordance with clause 7 of these terms and conditions.
6.2 The Client is responsible for providing and maintaining appropriate services to connection points and for safely installing and commissioning the Equipment.
6.3 PKL will use its reasonable endeavours to effect Delivery. Time shall not be of the essence in respect of this delivery obligation and PKL accepts no liability for any failure on its part to deliver the Equipment on or before a particular date, howsoever arising.
6.4 The Client will provide a suitable access route to the Site for the purpose of delivery and collection. If delivery or collection is not possible owing to a lack of suitable access to the Site then any costs incurred by PKL arising from failed delivery or collection shall be borne by the Client.
6.5 The Client shall ensure that a duly authorised representative of the Client is present at the Delivery. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Client has examined the Equipment and has found it to be in good condition, complete and fit for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the PKL, the Client’s duly authorised representative shall sign a receipt confirming such acceptance.
6.6 To facilitate Delivery, the Client shall provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
7 Title, Risk and Insurance
7.1 The Equipment shall at all times remain the property of PKL, and the Client shall have no right, title or interest in or to the Equipment (save for the right to possession and use of the Equipment subject to these terms and conditions of the Contract) except where the Client purchases the Equipment pursuant to the Purchase Option in clause 12.
7.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Client on Delivery. The Equipment shall remain at the sole risk of the Client during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Client until such time as the Equipment is safely redelivered to PKL (the Rental Period and such further period being together the “Risk Period”). During the Risk Period, the Client shall, at its own expense, obtain and maintain the following insurances:
7.2.1 insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as PKL may from time to time nominate in writing;
7.2.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as PKL may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
7.2.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as PKL may from time to time consider reasonably necessary and advise to the Client.
7.3 The Client shall use its best endeavours to procure that all insurance policies procured by the Client are endorsed to provide PKL with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon PKL’s request name PKL on the policies as a loss payee in relation to any claim relating to the Equipment. The Client shall be responsible for paying any deductibles due on any claims under such insurance policies.
7.4 The Client shall give immediate written notice to PKL in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Client’s possession or use of the Equipment.
7.5 The Client shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to PKL and proof of premium payment to PKL to confirm the insurance arrangements.
8 Client’s Responsibilities
8.1 The Client shall during the Risk Period:
8.1.1 ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
8.1.2 take such steps (including compliance with all safety and usage instructions provided by PKL) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
8.1.3 maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
8.1.4 make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of PKL unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in PKL immediately upon installation;
8.1.5 keep PKL fully informed of all material matters relating to the Equipment;
8.1.6 keep the Equipment at all times at the Site and shall move or attempt to move any part of the Equipment to any other location without PKL’s prior written consent;
8.1.7 permit PKL or its duly authorised representative to inspect the Equipment at any time during normal business hours and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
8.1.8 maintain operating and maintenance records of the Equipment and make copies of such records readily available to PKL, together with such additional information as PKL may reasonably require;
8.1.9 not, without the prior written consent of PKL, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
8.1.10 not without the prior written consent of PKL, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Client shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify PKL against all losses, costs or expenses incurred as a result of such affixation or removal;
8.1.11 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of PKL in the Equipment and, where the Equipment has become affixed to any land or building, the Client must take all necessary steps to ensure that PKL may enter such land or building and recover the Equipment both during the term of the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of PKL of any rights such person may have or acquire in the Equipment and a right for PKL to enter onto such land or building to remove the Equipment;
8.1.12 not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Client shall notify PKL and the Client shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify PKL on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
8.1.13 not use the Equipment for any unlawful purpose;
8.1.14 ensure that at all times the Equipment remains identifiable as being PKL’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
8.1.15 deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as PKL requires, or if necessary allow the PKL or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
8.1.16 not do or permit to be done anything which could invalidate the insurances referred to in clause 7.
8.2 The Client acknowledges that PKL shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Client or its officers, employees, agents and contractors, and the Client shall indemnify PKL on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Client to comply with the terms of the Contract.
9 Health and Environmental Matters
9.1 It is the responsibility of the Client to ensure that the kitchen layout and design conforms with operational, legal and health and safety requirements.
9.2 It is the responsibility of the Client to comply with all laws or regulations concerning the Equipment, the kitchen in which it is installed and all products to be used or which have been used in the kitchen and the Client will indemnify PKL and keep PKL indemnified against any losses, costs, claims, demands or expenses which PKL may suffer, incur or sustain arising out of any claim made against PKL or notice served on it alleging failure to comply with or under any such law or regulation in connection with the Equipment during the Contract Period.
10 Owner’s Marks
10.1 Save where the Equipment is purchased by the Client in accordance with clause 10.2, the Equipment will always remain in the ownership of PKL. The Client will not remove, obscure, alter or deface in any way any of PKL’s nameplates, bar codes, signs, engravings or other indications of ownership on any of the Equipment.
10.2 The Client will procure that none of the Equipment becomes affixed to any land and will indemnify PKL against any loss, cost, claim, demand, liability or expense which PKL may suffer, incur or sustain as a result of any person, firm or company claiming that any Equipment has become affixed to any property.
11 Sub-Let, Changes of Site and Equipment
11.1 The Client shall not sell, mortgage, charge, pledge, part with possession of, or otherwise deal with the Equipment or purport to do any such things and shall protect the Equipment against distress, execution or seizure and shall indemnify PKL against all damages, losses, costs, charges and expenses which PKL may suffer, incur or sustain in consequence of failure by the Client to observe and perform this condition.
11.2 PKL may assign the benefit of the Contract and PKL may delegate to any person all or any of the rights, remedies, powers or privileges conferred on it hereunder or provided by the law. Subject to obtaining the prior written consent of PKL (that PKL shall not unreasonably withhold but may be provided subject to conditions) the Client may assign the benefit of the Contract (but not part only thereof) upon payment of an administration fee to PKL (to be determined by PKL from time to time).
11.3 Following any assignment by the Client, the Client will remain liable for all damage to the Equipment or any part of it caused by any person, firm or company that the Client allows to operate the Equipment and for any charges raised by PKL in accordance with these terms and conditions.
11.4 PKL may from time to time substitute or update an item of Equipment for an alternative item of equivalent or improved specification. Such substitutions will be made without charge to the Client who shall provide such assistance and co-operation to PKL as might reasonably be required in order to carry out the substitution.
12 Purchase Option
12.1 The Client shall, subject to clause 12.2, have the option, exercisable by not less than twenty Business Days’ written notice to PKL, to purchase the Equipment on the last Business Day of the Rental Period at the Purchase Option Price.
12.2 The Purchase Option may be exercised only if all amounts due to PKL under the Contract up to the date of exercise of the Purchase Option have been paid in full by the Client and completion of the sale and purchase shall only take place upon payment in full by the Client to PKL of the Purchase Option Price.
12.3 Upon completion of the purchase of the Equipment under this clause 12, such title to the Equipment as the PKL had on the Commencement Date shall transfer to the Client. The Equipment shall transfer to the Client in the condition and at the location in which it is found on the date of transfer.
12.4 PKL gives no warranties upon the sale and purchase of the Equipment pursuant to the Purchase Option save that it has full legal and beneficial title to the Equipment.
12.5 PKL will, upon request, assign (if such are capable of assignment) to the Client any manufacturer’s warranty in respect of Equipment purchased pursuant to the Purchase Option.
13.1 PKL warrants that the Equipment shall substantially conform to its specification set out in the Order Form and is of satisfactory quality.
13.2 No warranty or representation is given or made that the Equipment is suitable for the purpose required by the Client whether or not that purpose has been made known to PKL.
13.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by PKL, the Client shall be entitled only to such warranty or other benefit as PKL has received from the manufacturer.
13.4 During the Rental Period, PKL will use its reasonable endeavours to enforce its rights under any relevant manufacturer’s warranty in the event of any material defect in the Equipment with the intention of securing the remedying of the defect provided that:
13.4.1 the Client notifies PKL of any defect in writing within ten Business Days of becoming aware of the defect;
13.4.2 PKL is permitted to make a full on Site examination of the alleged defect;
13.4.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than PKL’s authorised personnel;
13.4.4 the defect did not arise out of any information, design or any other assistance supplied or furnished by the Client or on its behalf; and
13.4.5 the defect is directly attributable to defective material, workmanship or design.
13.5 If PKL fails to secure the remedy of any material defect in the Equipment in accordance with this clause 13, PKL may (if such is available) replace the defective Equipment with substantially similar replacement Equipment.
14.1 Without prejudice to clause 14.2, PKL’s maximum aggregate liability for breach of the Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the lesser of £10,000, or 50% of the payments made by the Client under the Contract.
14.2 Nothing in the Contract shall exclude or in any way limit:
14.2.1 either party’s liability for death or personal injury caused by its own negligence;
14.2.2 either party’s liability for fraud or fraudulent misrepresentation; or
14.2.3 any other liability which cannot lawfully be excluded.
14.3 The Contract sets forth the full extent of PKL’s obligations and liabilities in respect of the Equipment and its hiring and sale to the Client. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on PKL except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
14.4 Without prejudice to clause 14.2, neither party shall be liable under the Contract for any:
14.4.1 loss of revenue;
14.4.2 loss of actual or anticipated profits (including for loss of profits on contracts);
14.4.3 loss of the use of money;
14.4.4 loss of anticipated savings;
14.4.5 loss of sales or business;
14.4.6 loss of operating time or loss of use;
14.4.7 loss of opportunity;
14.4.8 loss or damage to goodwill or reputation;
14.4.9 loss of, damage to or corruption of data; or
14.4.10 any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in conditions 14.4.1 – 14.4.9),
in each case, however caused, even if foreseeable.
14.5 PKL is not responsible for any of the following:
14.5.1 vending machines and counter drinks equipment unless otherwise stated in the Order Form;
14.5.2 work carried out by the Client or third parties in relation to the installation of the Equipment;
14.5.3 electrical and mechanical installations (including but not limited to ventilation interlock systems);
14.5.4 decorations, suspended ceilings, light fittings, floor coverings and interior fixtures and fittings;
14.5.5 telephone, networking and data points;
14.5.6 space heating;
14.5.7 fire alarms, fire and smoke detection and fire-fighting equipment;
14.5.8 emergency lighting and signage etc.;
14.5.9 Local Authority approvals and consents (including but not limited to Planning Consents, Building Regulations or EHO);
14.5.10 earth bonding;
14.5.11 water treatment;
14.5.12 testing of existing water services and chlorination of pipe work;
14.5.13 break tanks, header tanks, and pressure reducing valves;
14.5.14 modifications to existing drainage points, tundishes, adaptors and gratings etc;
14.5.15 removal of rubbish and waste from Site;
14.5.16 ventilation modifications and air input systems;
14.5.17 light equipment, gastronorm containers, and restaurant trays unless otherwise stated;
14.5.18 consumable items on the Equipment such as bulbs, filters, blades, mixer and blender attachments, detergents, water softening salts, rinse aid or other chemicals;
14.5.19 pressure vessel testing or certification.
15 Term and Termination
15.1 The Contract shall continue in force for the Minimum Term unless and until it is terminated in accordance with this clause. Neither party is entitled to terminate the Contract without cause during the Minimum Term.
15.2 The Client may terminate the Contract at the end of the Minimum Term by giving written notice to PKL not less than 10 Business Days before the end of the Minimum Term of its intention to do so. The Client may not give such notice if it has already given notice of intention to exercise the Purchase Option (and vice versa).
15.3 If the Client does not give notice to terminate the Contract in accordance with clause 15.2, the Rental Period shall continue and either the Client or PKL may terminate the Contract without cause by giving no less than four weeks’ notice in writing.
15.4 Without affecting any other right or remedy available to it, PKL may terminate the Contract with immediate effect at any time by giving notice to the Client if:
15.4.1 the Client (being an individual) dies; or
15.4.2 the Client (being an individual) has a bankruptcy order made against him; or
15.4.3 the Client fails to pay any of the payments agreed to be paid by the Client to PKL under the Contract punctually on the due date and such failure shall continue for a period of seven days; or
15.4.4 the Client is in breach of an obligation under the Contract and in the case of any such breach capable of remedy has failed to remedy the breach within a period of 14 days of the breach occurring; or
15.4.5 the Client does or allows to be done any act or thing which may prejudice or endanger PKL’s property or rights in the Equipment; or
15.4.6 the Client (being a corporation) shall be liquidated or wound up or have a petition for winding up presented against it or pass a resolution for voluntary winding-up (otherwise than for reconstruction or amalgamation to which PKL has given its written consent); or
15.4.7 a petition for the appointment of an administrator is presented against the Client (being a corporation) or if the Client (being a corporation) has an administrative receiver or receiver or manager appointed over the whole or any part of its assets; or
15.4.8 the Client (being a corporation) convenes any meeting of its creditors or makes a deed of assignment or arrangement or otherwise compounds with its creditors; or
15.4.9 any steps is taken to levy a distress or execution or if a distress or execution is levied or threatened to be levied upon any chattels in the possession of the Client; or
15.4.10 the Client abandons the Equipment.
15.5 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
15.6 The Contract shall automatically terminate upon the completion of the sale and purchase of the Equipment pursuant to the exercise of the Purchase Option.
16 Consequences of Termination
16.1 Upon termination of the Contract, however caused:
16.1.1 PKL’s consent to the Client’s possession of the Equipment shall terminate and PKL may, by its authorised representatives, without notice and at the Client’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
16.1.2 without prejudice to any other rights or remedies of the Client, the Client shall pay to PKL on demand:
(a) all Weekly Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5.6;
(b) all future Weekly Payments due to PKL from the date of termination until the expiry of the Minimum Term or current notice period;
(c) any costs and expenses incurred by the PKL in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
16.2 The Client must ensure that the Equipment is safely redelivered (by a reputable, appropriately insured delivery firm) to PKL forthwith at the end of the term, such delivery to be at the cost and risk of the Client.
16.3 Sums due under clause 16.1 may be partly or wholly recovered from any Deposit.
16.4 Termination or expiry of the Contract shall not affect any 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 agreement which existed at or before the date of termination or expiry.
17.1.1 Each party shall use the confidential information of the other party whether disclosed before or after the date of the Contract only for the proper performance of its duties under the Contract and shall not without the disclosing party’s written consent disclose or permit the disclosure of the confidential information except in confidence for the proper performance of its duties under the Contract to those of its employees, officers and professional advisers who need to have access to it.
17.1.2 The provisions of this clause 17.1 shall not apply to confidential information which: (i) the receiving party can prove was known to the receiving party before receipt; (ii) is in or enters the public domain through no wrongful default by or on behalf of the receiving party with effect from the date when that information enters the public domain; (iii) was received from a third party without obligations of confidence owed directly or indirectly to the disclosing party; or (iv) is required to be disclosed in order to comply with applicable law, to the extent of the required disclosure.
17.2 Failure to Enforce
Any delay or failure to exercise any right or remedy under the terms hereof shall not constitute a waiver of it or them and any of PKL’s rights or remedies may be enforced separately or concurrently with any other right or remedy now or in the future accruing to PKL to the effect that such rights are cumulative and not exclusive of each other.
17.3 Continuance of Payments
The continuance of the payments under the Contract and of the Client’s liability for payment of all sums due under it shall not be affected in any way by the loss or theft of or any damage to or defect in the Equipment, whether latent or patent.
17.4 Force Majeure
17.4.1 Neither party shall be liable to the other party for any delay or non-performance of its obligations under the Contract to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control, including acts of God, pandemics, epidemics, terrorist attacks, civil war, civil commotion or riots, general contamination, action by government or public authority, fire or explosion, non-performance of PKL’s sub contractors or failure of a utility service or transport network.
17.4.2 Such delay or failure shall not constitute a breach of the Contract and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for thirty days or more, the party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate the Contract with immediate effect by giving written notice of such termination to the other party.
No amendment of the Contract shall be effective unless it is in writing and signed by or on behalf of each of the parties.
17.6 Waivers and Remedies
17.6.1 Except as otherwise stated in the Contract, the rights and remedies of each party under the Contract:
(a) are in addition to and not exclusive of any other rights or remedies under the Contract or the general law; and
(b) may be waived only in writing and specifically.
17.6.2 Delay in exercising or non-exercise of any right under the Contract is not a waiver of that or any other right.
17.6.3 Partial exercise of any right under the Contract shall not preclude any further or other exercise of that right or any other right under the Contract.
17.6.4 Waiver of a breach of any term of the Contract shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
17.7.1 If any provision of the Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of the Contract; or
(b) the legality, validity or enforceability in any other jurisdiction of that or any other provision of the Contract.
17.7.2 Whilst the parties consider the provisions contained in the Contract reasonable, having taken independent legal advice, if any one or more of the provision(s) are adjudged alone or together to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to modify any such provision(s) so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provision(s).
17.8 Entire Agreement
17.8.1 The Contract:
(a) constitutes the entire agreement between the parties with respect to the subject matter of the Contract; and
(b) supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
17.8.2 Each party acknowledges to the other that it has not been induced to enter into the Contract by, nor has it relied upon, any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in the Contract. Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of the Contract shall be for breach of Contract under the terms of the Contract and it shall have no right of action against any other party in respect of any such representation, promise, assurance, warranty or undertaking.
17.8.3 This clause shall not exclude any liability which either party would otherwise have to the other or any right which either of them may have to rescind the Contract in respect of any statements made fraudulently by the other prior to the execution of the Contract or any rights which either of them may have in respect of fraudulent concealment by the other.
17.8.4 In the event of a conflict between any of the terms of the Contract, the conflict shall be resolved according to the following descending order of priority, (i) the clauses of the Contract, then (ii) the Schedules.
17.9 Survival Of Obligations
Notwithstanding any provision of the Contract to the contrary, any clauses which expressly or impliedly survive termination of the Contract for any reason whatsoever shall continue in full force and effect after termination.
17.10 No Partnership/Agency
Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
17.11 Rights of Third Parties
A person who is not a party has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of, any provision of the Contract but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17.12.1 All notices between the parties with respect to the Contract shall be in writing and signed by or on behalf of the party giving it (save for electronic notices where permitted).
17.12.2 Any notice referred to in clause may be given:
(a) by delivering it by hand; or
(b) by first class pre-paid post or recorded delivery; or
(c) in the case of notice given by PKL, by email or such other electronic communications service as PKL has notified the Client (and the Client is capable of receiving) in accordance with this clause from time to time.
17.12.3 Notices shall be sent in the case of notices delivered by hand, post or Recorded Delivery, to the address of the addressee given at the start of the Contract or such other address as the addressee may from time to time have notified for the purpose of this clause, and
17.12.4 Notices shall be deemed to have been received:
(a) if delivered by hand, on the day of delivery; or
(b) if sent by first class pre-paid post or special or recorded delivery two Business Days after posting, exclusive of the day of posting; or
(c) in the case of an electronic notice given by PKL, upon its successful transmission to the Client or to the Client’s server or successful uploading to a relevant webpage.
17.12.5 Any notice or communication given under the Contract shall not be validly given if sent by fax.
17.13 Governing Law
The Contract and any dispute or claim arising out of or in connection with it (including any non-Contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and Wales.
In relation to any legal action or proceedings (a) arising out of or in connection with the Contract or its implementation or effect or (b) relating to any non-Contractual obligations arising out of or in connection with the Contract, each of the parties irrevocably submits to the exclusive jurisdiction of the English courts and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.