The following definitions and rules of interpretation apply to 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 Equipment is delivered to the Site.
Contract: the equipment hire and services contract formed between PKL and the Client on these terms and conditions, incorporating the Order Form (including the Schedules).
Contract Period: the period from the Acceptance Date until the day the Equipment is returned to PKL or PKL becomes obliged to collect the Equipment.
Deposit: an amount equal to thirteen Weekly Payments or such other number of Weekly Payments as set out in the Order Form to be held by PKL for the Contract Period.
Equipment: the Equipment provided by PKL to the Client for the Client’s use, the main items of which are referred to in the Order Form and includes any other Equipment or goods of any nature whatsoever provided by PKL to the Client.
Minimum Contract Period: has the meaning given in clause 8.1.
Weekly Payments: means the Weekly payments specified in the Order Form as may be revised from time to time in accordance with the Contract.
Normal Working Hours: 9am-5pm on any Business Day.
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 02308713) and its successors in title.
Services: specified in the Order Form and to be provided in accordance with clause 4 of the Contract.
Site: the location specified on the Order Form where the Equipment is to be installed.
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 together with a completed Direct Debit 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 DELIVERY, INSTALLATION AND COLLECTION
3.1 The Client is responsible for providing and maintaining appropriate services to permit installation of the Equipment.
3.2 PKL will use its reasonable endeavours to deliver the Equipment to the Site. 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.
3.3 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. Unless previously agreed by PKL in writing Delivery shall be “kerbside” only.
3.4 Upon delivery, the Client will be responsible for installing and commissioning the Equipment. The Client will provide facilities for the disposal of packaging.
3.5 Should PKL be obstructed or prevented by the Client or its employees or contractors in delivering the Equipment, or within 5 Business Days of an agreed installation date the installation date is changed by the Client or its employees or contractors, the Client shall be responsible for all reasonable costs incurred by PKL as a result. Where the Client plans a phased, or interrupted installation to be completed over separate, non-consecutive dates the Client shall be responsible for all reasonable costs incurred by PKL as a result.
3.6 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 the terms and conditions of the Contract).
4 SERVICE AND MAINTENANCE
4.1 PKL shall carry out preventative maintenance visits at dates to be agreed with the Client. Although exact timings cannot be specified, the maintenance will be carried out within the morning or afternoon of those dates.
4.2 The Client shall permit access to PKL to supply the Services within Normal Working Hours. Where the Client will not permit the Services to be provided during Normal Working Hours, or the provision of Services is otherwise frustrated by the Client, the Services will be charged at an hourly rate.
4.3 It is the responsibility of the Client to ensure that properly skilled personnel operate, clean and care for the Equipment in accordance with the instructions provided. PKL will upon request provide up to four days’ awareness sessions each year to the Client’s staff at a location to be specified by PKL. If in the opinion of PKL any malfunction of the Equipment is caused by misuse, neglect or malicious vandalism, scaled water, impact damage or broken knobs or frets the cost of repair will be charged to the Client. If in the opinion of PKL the malfunction of the Equipment is caused by incorrect usage, insufficient gas or electrical supply or any other problem not inherent to the Equipment, PKL will charge the Client a full call-out charge at PKL standard rates at the time, including all transport charges.
4.4 In the event of malfunction of the Equipment such that the Equipment is not capable of use the Client shall contact PKL as soon as reasonably practicable. The Client must quote the reference details including the barcode number of the relevant piece of Equipment along with the nature of the malfunction. PKL will arrange for an appropriately-qualified engineer to attend the Site to investigate the malfunction within 48 hours.
4.5 The Client shall fully clean down the Equipment daily and take reasonable care and skill in its treatment of the Equipment. If PKL in its absolute discretion considers that the Equipment requires cleaning at any time while it is on hire to the Client in order to ensure its efficient operation or its continued efficient operation, PKL shall be entitled to clean the Equipment and charge the cost of doing so to the Client.
5.1 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 Contract 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 collected by or redelivered to PKL (“Risk Period”).
5.2 The Client shall insure and keep insured the Equipment under a comprehensive insurance policy (without restriction or excess) to its full replacement value with effect from the date of delivery of any part of the Equipment to the Site against all usual risks including loss or damage by fire, flood, accident or any other cause (including without limitation all payments becoming due at the rate applicable under the Contract in respect of any part of the Equipment damaged or destroyed by or due to any of the risks against which the Client is obliged to insure from the date upon which such damage or destruction occurs until receipt by PKL of the insurance moneys in respect thereof) until the end of the Risk Period. Further, the Client shall ensure that the interest of PKL is noted on the insurance policy so that in the event of loss or damage to the Equipment, PKL will have the benefit of an indemnity from an insurance company to the full value of the loss, damage or claim.
5.3 The Client will fully and completely indemnify PKL against any loss, cost, claim or demand which PKL may suffer incur or sustain as a result of or in connection with any actual or alleged injury to any person or loss of or damage to property and financial or economic loss caused by or consequent upon any use or misuse of the Equipment or any part of it save for any such injury, loss or damage which results from PKL’s negligence.
5.4 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 undertakes to 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.
5.5 If the Client fails to effect or maintain any of the insurances required under the Contract, PKL shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Client.
5.6 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.
5.7 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.
6 CLIENT’S RESPONSIBILITIES
6.1 The Client shall during the Contract Period:
6.1.1 ensure that the Equipment is stored and used in a suitable environment, used only for the purposes for which it is designed, and, where relevant, operated in a proper manner by trained competent staff in accordance with any operating instructions provided by PKL;
6.1.2 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;
6.1.3 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;
6.1.4 pay for such items as detergents, softening salts, water filter cartridges, blades, mixer and blender attachments and similar items as may be required in using the Equipment;
6.1.5 make no alteration to the Equipment;
6.1.6 keep PKL informed of all material matters relating to the Equipment;
6.1.7 keep the Equipment at all times at the Site and not move or attempt to move any part of the Equipment to any other location without PKL’s prior written consent;
6.1.8 permit PKL or its duly authorised representative to inspect the Equipment during Working Hours and for such purpose to enter upon the Site or any other premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
6.1.9 not 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 nor represent to any person that the Client owns the Equipment;
6.1.10 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 damage 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;
6.1.11 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;
6.1.12 not use the Equipment for any unlawful purpose; and
6.1.13 deliver up the Equipment at the end of the Contract Period or on earlier termination of the Contract at such address as PKL requires, or if necessary allow PKL or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment.
7 PAYMENT TERMS
7.1 Within five Business Days of the Acceptance Date, the Client shall pay the Deposit to PKL.
7.2 The Client will pay the Weekly Payment to PKL each week on the due date for payment. The Client shall enter into a Direct Debit arrangement with PKL and all Weekly Payments shall be made by Direct Debit collection unless PKL directs otherwise.
7.3 Where payment is made by the Client by Direct Debit, PKL reserves the right to amend the instalment amounts (in accordance with the Contract) as well as the date of payment provided that such change has been notified by PKL to the Client in accordance with the Direct Debit Rules from time to time.
7.4 If the Client fails to make a Weekly Payment, PKL may apply the Deposit in payment of such amounts. Upon any such application being notified to the Client, the Client shall pay to PKL such amount as is required to fully reinstate the Deposit.
7.5 The Client will pay to PKL all applicable VAT on taxable supplies made by PKL to the Client from time to time under the Contract.
7.6 The payments due under the Contract are payable by the Client on the dates specified on the Order Form (or as otherwise notified by PKL). PKL will provide a VAT invoice to the Client in respect of each payment falling due under the Contract but the Client’s liability to make payment is not dependent on PKL delivering or the Client receiving any such invoice.
7.7 Where the Client is required under the Contract to reimburse or indemnify PKL in respect of amounts incurred or other losses suffered or sustained by PKL, the time for payment shall be immediately on PKL’s demand.
7.8 No allowance or deduction shall be permitted from the payments due in respect of any period during which for whatever reason the Equipment shall not be used by the Client or the Equipment is unusable or the Services to be provided under the Contract are suspended for any reason whatsoever. If the Equipment has been destroyed or severely damaged by any of the events against which the Equipment has been or should have been insured pursuant to clause 5 above the payments due in respect of the Equipment shall continue to fall due until PKL receives the insurance value of the Equipment specified on the Order Form. If any part of the Equipment is destroyed or severely damaged by any such insured event the payments in respect of that part of the Equipment shall continue to be paid until PKL receives the full insurance proceeds relating thereto and thereupon the payments payable in respect of the Equipment shall be reduced by an amount equal to that payable in respect of the destroyed or damaged part of the Equipment.
7.9 In the event of late payment PKL reserves the right to charge interest at the rate of 4% per annum above the base lending rate of The Bank of England (compounded monthly) on any amount outstanding from time to time before as well as after any judgement from the due date for payment until the date of payment in full thereof.
7.10 All amounts due 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).
8 TERM AND TERMINATION
8.1 The Contract shall continue in force until it is terminated in accordance with this clause 8. Notice to terminate the Contract may be served at any time but the notice shall not be effective before the expiry of a period of 12 months from the Acceptance Date or such other minimum period as PKL and the Client may agree in writing (the “Minimum Contract Period”).
8.2 After the Minimum Contract Period, the Contract may be terminated by either party as follows:
8.2.1 by PKL giving the Client not less than four weeks’ prior written notice (such notice not to expire before the end of the Minimum Contract Period); or
8.2.2 by the Client giving PKL not less than four weeks’ prior written notice (such notice not to be served before the end of the Minimum Contract Period).
8.3 Without prejudice to PKL’s right to be paid all sums which have become due under the Contract, PKL may terminate the Contract (and thereby end the Contract Period) by notice to the Client with immediate effect on the occurrence of any of the following events:
8.3.1 if the Client (being an individual) dies; or
8.3.2 if the Client (being an individual) has a bankruptcy order made against him; or
8.3.3 if 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
8.3.4 if 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
8.3.5 if 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
8.3.6 if 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
8.3.7 if 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
8.3.8 if 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
8.3.9 if 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
8.3.10 if the Client abandons the Equipment.
8.4 Upon termination of the Contract, PKL shall cease to provide Services and may at any time thereafter retake possession of the Equipment.
9 CONSEQUENCES OF TERMINATION
Immediately upon the Contract being terminated pursuant to clause 8.2 above the Client shall pay to PKL:
9.1.1 any and all outstanding sums payable;
9.1.2 all future payments due to PKL from the date of termination until the first date the Contract Period could have lawfully been terminated by notice given by the Client in accordance with the Contract; and
9.1.3 all expenses and costs incurred by PKL (including legal costs in full) in retaking possession of the Equipment and/or enforcing its rights under the Contract.
10 HEALTH AND ENVIRONMENTAL MATTERS
10.1 It is the responsibility of the Client to ensure that the kitchen layout and design conforms with operational, legal and health and safety requirements.
10.2 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.
11 OWNER’S MARKS
11.1 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.
11.2 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.
12 SUB-LET, CHANGES OF SITE AND EQUIPMENT
12.1 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.
12.2 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).
12.3 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.
12.4 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.
13 EXCLUSIONS AND LIABILITY
13.1 The Equipment shall be deemed to be complete, in good order and condition and satisfactory to the Client unless PKL receives notification in writing within five Business Days of the Commencement Date.
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 In the event of malfunction, failure or poor or partial performance of the Equipment or any part of it and subject to the provisions of clauses 13.4, 13.5, 13.6 and 13.7 below, the liability of PKL shall be limited to repairing or replacing the Equipment or the relevant part.
13.4 PKL does not exclude or limit its liability for death or personal injury caused by the negligence of PKL or for any fraudulent misrepresentation made by PKL
13.5 In no event shall PKL be liable for any tortious loss (including negligence and negligent misstatement) , misrepresentation, breach of statutory duty or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not PKL is advised of the possibility of loss, liability, damage or expense):
13.5.1 loss of revenue;
13.5.2 loss of actual or anticipated profits (including for loss of profits on contracts);
13.5.3 loss of the use of money;
13.5.4 loss of anticipated savings;
13.5.5 loss of sales or business;
13.5.6 loss of operating time or loss of use;
13.5.7 loss of opportunity;
13.5.8 loss or damage to goodwill or reputation;
13.5.9 loss of, damage to or corruption of data; or
13.5.10 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 13.5.1 – 13.5.9).
Direct financial and other losses not excluded by this condition are accepted by PKL up to the limits set out in clause 13.6.
13.6 Except as stated in clause 13.4, the aggregate liability of PKL to the Client, whether in contract or tort (including negligence and negligent misstatement) or for misrepresentation, breach of statutory duty or otherwise arising under or in connection with the Contract (including liability for recovery of sums paid by the Client and for all damages, costs and expenses) shall be limited to the lesser of £10,000, or 100% of the payments made by the Client under the Contract.
13.7 PKL is not responsible for any of the following:
13.7.1 vending machines and counter drinks equipment unless otherwise stated in the Order Form;
13.7.2 work carried out by the Client or third parties in relation to the installation of the Equipment;
13.7.3 electrical and mechanical installations (including but not limited to ventilation interlock systems);
13.7.4 decorations, suspended ceilings, light fittings, floor coverings and interior fixtures and fittings;
13.7.5 telephone, networking and data points;
13.7.6 space heating;
13.7.7 fire alarms, fire and smoke detection and fire-fighting equipment;
13.7.8 emergency lighting and signage etc.;
13.7.9 Local Authority approvals and consents (including but not limited to Planning Consents, Building Regulations or EHO);
13.7.10 earth bonding;
13.7.11 water treatment;
13.7.12 testing of existing water services and chlorination of pipe work;
13.7.13 break tanks, header tanks, and pressure reducing valves;
13.7.14 modifications to existing drainage points, tundishes, adaptors and gratings etc;
13.7.15 removal of rubbish and waste from Site;
13.7.16 ventilation modifications and air input systems;
13.7.17 light equipment, gastronorm containers, and restaurant trays unless otherwise stated;
13.7.18 consumable items on the Equipment such as bulbs, filters, blades, mixer and blender attachments, detergents, water softening salts, rinse aid or other chemicals.
14.1.1 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.
14.1.2 The provisions of this clause 14.1 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.
14.2 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.
14.3 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.
14.4 Force Majeure
14.4.1 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, 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.
14.4.2 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.
14.6 Waivers and Remedies
14.6.1 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.
14.6.2 Delay in exercising or non-exercise of any right under the Contract is not a waiver of that or any other right.
14.6.3 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.
14.6.4 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.
14.7.1 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.
14.7.2 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).
14.8 Entire Agreement
14.8.1 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.
14.8.2 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.
14.8.3 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.
14.8.4 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 these terms and conditions, then (ii) the Schedules.
14.9 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.
14.10 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).
14.11 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.
14.12.1 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).
14.12.2 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.
14.12.3 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
14.12.4 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.
14.12.5 Any notice or communication given under the Contract shall not be validly given if sent by fax.
14.13 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.