Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Contract: the equipment sale and purchase contract formed between PKL and the Buyer on these terms and conditions, incorporating the Order Form.
Delivery Date: the date for delivery as set out in the Order Form.
Delivery Location: the address for delivery as set out in the Order Form
Equipment: the equipment, details of which are set out 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.
Payment Date: the date for payment of the Price set out in the Order Form, or if no date is specified, the Acceptance Date.
PKL: PKL Group (UK) Ltd (registered number 02308713) and its successors in title.
Price: the price for the Equipment as set out in the Order Form.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
2. FORMATION OF CONTRACT
2.1 The Buyer 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 Buyer and PKL have each signed or otherwise confirmed acceptance of the terms of 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 Buyer has paid the Price.
3. SALE AND PURCHASE
PKL shall sell and the Buyer shall buy the Equipment free from any encumbrances.
4. EQUIPMENT SOLD AS SEEN
4.1 The details of the Equipment in the Order Form are given only for the purposes of identifying the Equipment and do not make the Contract a sale by description.
4.2 The Equipment is sold “as seen”. PKL makes no representations and gives no warranties as to the quality, condition, state or description of the Equipment, or its fitness or suitability for any purpose. All implied statutory or common law terms, conditions and warranties as to the Equipment are excluded to the fullest extent permitted by law.
5. RIGHT TO INSPECT EQUIPMENT
The Buyer acknowledges that, before the date of the Contract:
(a) PKL has given the Buyer a reasonable opportunity to inspect the Equipment; and
(b) PKL will have tested the Equipment for functionality and safe operation within the 6 months prior to the Delivery Date
6. PRICE AND PAYMENT
6.1 The Buyer shall pay the Price on the Payment Date. Payment shall be made in cleared funds to the bank account nominated in writing by PKL.
6.2 The Price excludes amounts in respect of VAT, which the Buyer shall additionally be liable to pay PKL at the prevailing rate, subject to the receipt of a valid VAT invoice.
6.3 PKL shall issue the Buyer with an invoice for the Price plus VAT at the prevailing rate (if applicable) on the Acceptance Date. PKL shall ensure that the invoice includes the date of the sale, the invoice number, the Buyer’s order number, PKL’s VAT registration number, and any supporting documentation that the Buyer may reasonably require.
6.4 If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the base lending rate of Barclays Bank plc (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.
6.5 The time for payment is of the essence. Payment will only be effected when PKL receives the Price in cleared funds.
7.1 PKL shall deliver the Equipment to the Buyer at the Delivery Location on the Delivery Date during PKL’s usual business hours.
7.2 If the Buyer fails to take delivery of the Equipment, PKL may charge reasonable costs of storage from the Delivery Date until delivery is completed.
7.3 The Delivery Date is approximate only, and the time of delivery is not of the essence. PKL shall not be liable for any delay in delivery of the Equipment that is caused by:
(a) events, circumstances or causes beyond its reasonable control; or
(b) the Buyer’s failure to provide PKL with adequate delivery instructions or any other instructions that are relevant to the sale of the Equipment.
7.4 Delivery is completed on the completion of unloading of the Equipment at the Delivery Location. Unless previously agreed by PKL in writing delivery shall be “kerbside” only.
7.5 Upon delivery of the Equipment to the Buyer, the Buyer shall sign an acknowledgement of receipt in the agreed form.
8. TITLE AND RISK
8.1 The risk of damage to or loss of the Equipment shall pass to the Buyer on completion of delivery.
8.2 The title to the Equipment shall pass to the Buyer only on payment in full (in cash or cleared funds) of the Price.
8.3 Until title to the Equipment has passed to the Buyer, the Buyer shall:
(a) store the Equipment separately from all other goods held by the Buyer so that they remain readily identifiable as the Buyer’s property;
(b) not remove, deface or obscure any identifying mark on or relating to the Equipment;
(c) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price from the date of delivery.
8.4 PKL may recover Equipment in which title has not passed to the Buyer. The Buyer irrevocably licenses PKL, its officers, employees and agents, to enter any premises of the Buyer (including with vehicles), in order to satisfy itself that the Buyer is complying with the obligations in clause 8.3 and to recover any Equipment in which property has not passed to the Buyer.
9.1 In the event that the Equipment malfunctions during the period of 30 days from the Delivery Date (“Warranty Period”) PKL shall, provided that the Buyer shall contact PKL as soon as reasonably practicable, attend the Equipment and shall repair it at its own cost (the “Warranty”). The Buyer must quote the reference details of the relevant piece of Equipment along with the nature of the malfunction.
9.2 In the event that PKL is, after reasonable endeavours, unable to repair the Equipment, PKL may elect to rescind the Contract and upon repayment of the Price to the Buyer, it shall have no further liability to the Buyer whatsoever. In such event, the Buyer shall, if requested by PKL, forthwith return the Equipment to PKL (at PKL’s cost).
9.3 The Warranty shall not cover and PKL shall in no way be liable for:
(a) the repair or replacement of parts of the Equipment (such as consumable items on the Equipment such as bulbs, filters, blades, mixer and blender attachments, detergents, water softening salts, rinse aid or other chemicals) which ordinarily require replacement from time to time;
(b) any malfunction of the Equipment which, in the opinion of PKL, is caused by misuse, neglect or malicious vandalism, scaled water or impact damage or which is not otherwise inherent to the Equipment;
(c) any malfunction of the Equipment which, in the opinion of PKL, is caused by incorrect usage, insufficient gas or electrical supply or any other problem not inherent to the Equipment;
(d) any defects or malfunctions which arise, are identified or are notified to PKL after the expiry of the Warranty Period.
9.4 To the extent that the benefit of any warranties made by the manufacturer or previous seller of the Equipment to PKL can be assigned to the Buyer, PKL shall, if requested by the Buyer and at cost of the Buyer, assign them to the Buyer.
10. LIMITATION OF LIABILITY
10.1 Nothing in the Contract shall limit or exclude PKL’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) any matter in respect of which it would be unlawful for PKL to exclude or restrict liability.
10.2 Subject to clause 10.1, 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):
(a) loss of revenue;
(b) loss of actual or anticipated profits (including for loss of profits on contracts);
(c) loss of the use of money;
(d) loss of anticipated savings;
(e) loss of sales or business;
(f) loss of operating time or loss of use;
(g) loss of opportunity;
(h) loss or damage to goodwill or reputation;
(i) loss of, damage to or corruption of data; or
(j) 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 (a) to (i) above).
10.3 Subject to clause 10.1, the aggregate liability of PKL to the Buyer, 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 Buyer and for all damages, costs and expenses) shall be limited to the Price.
(a) 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.
(b) The provisions of this clause 11.1 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.
11.2 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.
11.3 Force Majeure
(a) 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.
(b) 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.
11.5 Waivers and Remedies
(a) Except as otherwise stated in the Contract, the rights and remedies of each party under the Contract:
(i) are in addition to and not exclusive of any other rights or remedies under the Contract or the general law; and
(ii) may be waived only in writing and specifically.
(b) Delay in exercising or non-exercise of any right under the Contract is not a waiver of that or any other right.
(c) 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.
(d) 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.
(a) If any provision of the Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
(i) the legality, validity or enforceability in that jurisdiction of any other provision of the Contract; or
(ii) the legality, validity or enforceability in any other jurisdiction of that or any other provision of the Contract.
(b) 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).
11.7 Entire Agreement
(a) The Contract:
(i) constitutes the entire agreement between the parties with respect to the subject matter of the Contract; and
(ii) 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.
(b) 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.
(c) 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.
11.8 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.
11.9 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).
11.10 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.
(a) 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).
(b) Any notice referred to in clause may be given:
(i) by delivering it by hand; or
(ii) by first class pre-paid post or recorded delivery; or
(iii) in the case of notice given by PKL, by email or such other electronic communications service as PKL has notified the Hirer (and the Hirer is capable of receiving) in accordance with this clause from time to time.
(c) 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
(d) Notices shall be deemed to have been received:
(i) if delivered by hand, on the day of delivery; or
(ii) 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
(iii) in the case of an electronic notice given by PKL, upon its successful transmission to the Hirer or to the Hirer’s server or successful uploading to a relevant webpage.
(e) Any notice or communication given under the Contract shall not be validly given if sent by fax.
11.12 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.