BENDON MEDIA LIMITED T/A PICTURE CANNING NORTH EQUIPMENT HIRE AGREEMENT

HIRE TERMS AND CONDITIONS –

LESSOR; Bendon Media North Limited trading as Picture Canning & Picture Canning North of Unit 7, Hawick Crescent Industrial Estate, Newcastle upon Tyne, NE6 1AS (Picture Canning)

AGREED TERMS

1. INTERPRETATION

1.1 The following definitions and rules of interpretation apply in these terms and conditions.

Business Day a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Commencement Date of Hire the date that the Lessee takes Delivery of the Equipment as set out in the Hire Schedule.

Delivery the transfer of physical possession of the Equipment to the Lessee.

Deposit the deposit amount paid by the Lessee to Picture Canning at the beginning of the Hire Period as set out in the Hire Schedule.

Equipment the items of equipment listed in the Hire Schedule, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.

Payment Schedule the schedule for payment of the Hire Payments payable under these terms and conditions as set out in the Hire Schedule.

Hire Payments the payments made by or on behalf of Lessee for hire of the Equipment.

Hire Period the period of hire as set out in the Hire Schedule.

Total Loss when the Equipment is, in Picture Canning’s reasonable opinion damaged beyond repair, lost, stolen, seized or confiscated.

VAT value added tax chargeable in the UK.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these terms and conditions.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Hire Schedule forms part of these terms and conditions and shall have effect as if set out in full in the body of these terms and conditions and any reference to these terms and conditions includes this Hire Schedule.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.10 A reference to writing or written includes fax and e-mail.

1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.12 References to clauses and Schedules are to the clauses and Schedules of these terms and conditions and references to paragraphs are to paragraphs of the relevant Schedule.

1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

 

2. EQUIPMENT HIRE AND HIRE PERIOD

2.1 The Lessee’s signature of the Hire Schedule constitutes an offer by the Lessee to lease the Equipment in accordance with these terms and conditions.

2.2 This lease agreement shall take effect from the Commencement Date of Hire and shall continue for the Hire Period, unless terminated earlier in accordance with these terms and conditions.

2.3 These terms and conditions apply from the Commencement Date of Hire between Picture Canning and the Lessee to the exclusion of any other terms that the Lessee seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4 Picture Canning shall not, other than in the exercise of its rights under these terms and conditions or applicable law, interfere with the Lessee’s quiet possession of the Equipment.

 

3. REFERENCE AND DEPOSIT

3.1 The Lessee shall, if required to do so by Picture Canning, supply satisfactory references of any nature, on or before the Commencement Date of Hire.

3.2 The Lessee shall, if required to do so by Picture Canning, pay a Deposit on or before the Commencement Date of Hire. The Deposit is a deposit against default by the Lessee of payment of any Hire Payments or any loss of or damage caused to the Equipment. If the Lessee fails to make any Hire Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), Picture Canning shall be entitled to apply the Deposit against such default, loss or damage. The Lessee shall pay to Picture Canning any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Hire Period.

 

4. HIRE PAYMENTS

4.1 The Lessee shall pay the Hire Payments to Picture Canning in accordance with the Payment Schedule. The Hire Payments shall be paid in GBP and shall be made by bank transfer to the bank account specified by Picture Canning.

4.2 The Hire Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.

4.3 All amounts due under these terms and conditions 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).

4.4 If the Lessee fails to make a payment due to Picture Canning by the due date for such payment, then, without limiting Picture Canning’s remedies under clause 11, the Lessee shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

 

5. DELIVERY

5.1 Picture Canning shall use reasonable endeavours to effect Delivery of the Equipment on the date and at the place set out in the Hire Schedule. Title and risk shall transfer in accordance with clause 6.

5.2 The Lessee shall procure that an authorised representative of the Lessee takes Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. The Lessee’s authorised representative shall sign a receipt confirming acceptance.

 

6. TITLE, RISK AND INSURANCE

6.1 The Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms and conditions).

6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Hire Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to Picture Canning.

6.3 Subject to clause 6.6, during the Hire Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:

6.3.1 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 Picture Canning may deem prudent;

6.3.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Picture Canning 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

6.3.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Picture Canning may from time to time consider reasonably necessary and advise to the Lessee.

6.4 If the Lessee fails to effect or maintain any of the insurances required under these terms and conditions, Picture Canning 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 Lessee.

6.5 The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Picture Canning and proof of premium payment to Picture Canning to confirm the insurance arrangements. Where required by Picture Canning, its interest shall be noted as loss payee on the relevant insurance policy.

6.6 In circumstances where Picture Canning supplies crew with the Equipment, it shall arrange appropriate policies of insurance for the Equipment and the crew. The cost of such insurance cover will be included in the Hire Payments.

6.7 Where Picture Canning leases fleet vehicles to the Lessee, the Lessee must ensure that it abides by the requirements of Picture Canning’s insurance policy, including (but not limited

to) ensuring that all drivers of such vehicles maintain a valid UK driving license and that no driver using a vehicle is under 25 years of age. The Lessee shall be responsible for the actions of its drivers of fleet vehicles for the duration of the Hire Period.

 

7. LESSEE’S RESPONSIBILITIES

7.1 The Lessee shall during the Hire Period:

7.1.1 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;

7.1.2 take such steps (including compliance with all safety and usage instructions provided by Picture Canning) 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 transported, used, cleaned or maintained;

7.1.3 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 of Hire (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;

7.1.4 make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of Picture Canning 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 an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Picture Canning immediately upon installation;

7.1.5 keep Picture Canning fully informed of all material matters relating to the Equipment;

7.1.6 at all times keep the Equipment in the possession or control of the Lessee and keep Picture Canning informed of its location;

7.1.7 not take the Equipment out of the United Kingdom or take it from the ground other than on a regular scheduled flight with a carrier registered with the IATA, unless otherwise agreed with Picture Canning prior to the Commencement Date of Hire. Where the Lessee takes the Equipment out of the United Kingdom, it shall be solely responsible for obtaining any necessary licences or permits to do so. If any Equipment taken out of the United Kingdom is damaged or a defect arises and Picture Canning agrees to supply substitute Equipment, Picture Canning will arrange to deliver the substitute Equipment to an address within the United Kingdom. Unless otherwise previously agreed by the parties in writing, there will be no international delivery;

7.1.8 permit Picture Canning or its authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon any site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;

7.1.9 not, without the prior written consent of Picture Canning, 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;

7.1.10 not without the prior written consent of Picture Canning, 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 Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify Picture Canning, keep it indemnified and held harmless against all losses, costs or expenses incurred as a result of such affixation or removal;

7.1.11 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Picture Canning in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that Picture Canning may enter such land or building and recover the Equipment both during the Hire Period 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 Picture Canning of any rights such person may have or acquire in the Equipment and a right for Picture Canning to enter onto such land or building to remove the Equipment;

7.1.12 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 Lessee shall notify Picture Canning immediately and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Picture Canning, keep it indemnified and held harmless against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;

7.1.13 not use the Equipment for any unlawful purpose;

7.1.14 ensure that at all times the Equipment remains identifiable as being Picture Canning’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;

7.1.15 deliver up the Equipment at the end of the Hire Period or on early termination of the Hire Period at such address as Picture Canning requires, or if necessary allow Picture Canning or its representatives access to any or premises where the Equipment is located for the purpose of removing the Equipment; and

7.1.16 not do or permit to be done anything which could invalidate the insurances referred to in clause 6.

7.2 The Lessee acknowledges that Picture Canning 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 Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify Picture Canning keep it indemnified and hold it harmless 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 Lessee to comply with these terms and conditions.

 

8. EQUIPMENT DEFECTS

8.1 Picture Canning agrees that the Equipment shall substantially conform to the specification (supplied by Picture Canning), be of satisfactory quality and fit for any purpose held out by Picture Canning. Picture Canning shall use reasonable endeavours to remedy (by repair or replacement), free of charge, any material defect in the Equipment, provided that:

8.1.1 Picture Canning is permitted to make a full examination of the alleged defect;

8.1.2 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Picture Canning’s authorised personnel; and

8.1.3 the defect is directly attributable to defective material, workmanship or design for which Picture Canning is responsible.

8.2 Subject to clause 8.1, if Picture Canning is unable to remedy any material defect in the Equipment for which it is responsible, Picture Canning shall, at the Lessee’s request, accept the return of part or all of the Equipment and/or make an appropriate reduction to the Hire Payments payable during the remaining Hire Period and, if relevant, return any [Deposit] deposit (or any part of it).

 

9. EQUIPMENT DAMAGE AND FAILURE TO RETURN

9.1 The Lessee shall give immediate written notice to Picture Canning in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee’s possession or use of the Equipment.

9.2 Where Picture Canning determines that damage or defect in the Equipment is as a result of misuse, neglect, alteration, mishandling of the Equipment by the Lessee, its officers, employees, agents or contractors, or any treatment otherwise in accordance with Picture Canning’s instructions, the Lessee shall be required to pay to Picture Canning immediately on demand:

9.2.1 all costs associated with the repair of the Equipment; and

9.2.2 any other costs, losses, expenses, damages or liabilities incurred by Picture Canning as a result of the damage to the Equipment (including but not limited to the cost of procuring substitute equipment, and in relation to Picture Canning’s obligations under contracts with other lessees).

9.3 The Lessee shall continue to pay the Hire Payments even during periods of repair pursuant to clause 9.2 until the end of the Hire Period. For the avoidance of doubt, the Lessee will be required to pay additional Hire Payments in respect of substitute equipment supplied to replace damaged Equipment during the Period of Hire.

9.4 Where the Lessee returns the Equipment after the expiry of the agreed Hire Period, the Lessee shall be required to pay to Picture Canning immediately on demand:

9.4.1 pro rata Hire Payments in respect of the extension of the Hire Period; and

9.4.2 any other costs, losses, expenses, damages or liabilities incurred by Picture Canning as a result of the late return (including but not limited to those incurred directly or indirectly in relation to Picture Canning’s obligations under contracts with other lessees).

9.5 The remedies set out in this clause 9 are without prejudice to any other rights and remedies available to Picture Canning.

9.6 Such sums due under this clause 9 may be partly or wholly taken from any Deposit and late payment of any sums due under this clause shall be subject to interest in accordance with clause 4.4.

9.7 The Hire Period shall automatically terminate in accordance with clause 11 if a Total Loss of the Equipment occurs and the provisions of clause 12 shall apply. In the event of Total Loss the Lessee will be required to pay to Picture Canning the full market value of the Equipment together with any other costs, losses, expenses, damages or liabilities incurred by Picture Canning as a result of the Total Loss.

 

10. LIABILITY

10.1 Without prejudice to clause 10.2, Picture Canning’s maximum aggregate liability for breach of these terms and conditions (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 total sum of the Hire Payments paid by the Lessee during the Hire Period in respect of any one incident or a series of incidents attributable to the same cause .

10.2 Nothing in these terms and conditions shall exclude or in any way limit:

10.2.1 either party’s liability for death or personal injury caused by its own negligence;

10.2.2 either party’s liability for fraud or fraudulent misrepresentation; or

10.2.3 any other liability which cannot be excluded by law.

10.3 These terms and conditions set forth the full extent of Picture Canning’s obligations and liabilities in respect of the Equipment and its hiring to the Lessee. 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 Picture Canning except as specifically stated in these terms and conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within these terms and conditions whether by statute, common law or otherwise, is expressly excluded.

10.4 Without prejudice to clause 10.2, Picture Canning shall not be liable under these terms an conditions for any:

10.4.1 loss of profit;

10.4.2 loss of revenue;

10.4.3 loss of business;

10.4.4 loss of data

10.4.5 loss of reputation or goodwill;

10.4.6 loss of opportunity; or

10.4.7 indirect or consequential loss or damage, in each case, however caused, even if foreseeable.

10.5 For the avoidance of doubt, Picture Canning shall in no circumstances have any liability whatsoever for the recovery of data from a memory card on which Lessee has stored data in the course of its use of the Equipment.

 

11. TERMINATION

11.1 Without affecting any other right or remedy available to it, Picture Canning may terminate the lease of the Equipment with immediate effect by giving notice to the Lessee if:

11.1.1 the Lessee fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 3 days after being notified in writing to make such payment;

11.1.2 the Lessee commits a material breach of any other of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 3 days after being notified to do so;

11.1.3 the Lessee repeatedly breaches any of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these terms and conditions;

11.1.4 the Lessee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;

11.1.5 the Lessee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee;

11.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Lessee (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee;

11.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Lessee (being a company);

11.1.8 the holder of a qualifying floating charge over the assets of the Lessee (being a company) has become entitled to appoint or has appointed an administrative receiver;

11.1.9 a person becomes entitled to appoint a receiver over all or any of the assets of the Lessee or a receiver is appointed over all or any of the assets of the Lessee;

11.1.10 the Lessee (being an individual) is the subject of a bankruptcy petition, application or order;

11.1.11 a creditor or encumbrancer of the Lessee attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Lessee’s assets and such attachment or process is not discharged within [14] days;

11.1.12 any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.4 to clause 11.1.11 (inclusive);

11.1.13 the Lessee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

11.1.14 the Lessee (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their affairs or becomes a patient under any mental health legislation.

11.2 For the purposes of clause 11.1.2, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which Picture Canning would otherwise derive from:

11.2.1 a substantial portion of these terms and conditions; or

11.2.2 any of the obligations set out in clause 7, over the term of the Hire Period. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.

 

12. CONSEQUENCES OF TERMINATION

12.1 Upon the expiry of the Hire Period, the Lessee shall deliver up the Equipment in accordance with clause 7.1.15.

12.2 Upon early termination of the lease of the Equipment pursuant to clause 11, or any other repudiation of these terms and conditions by the Lessee which is accepted by Picture Canning:

12.2.1 Picture Canning’s consent to the Lessee’s possession of the Equipment shall terminate and Picture Canning may, by its authorised representatives, without notice and at the Lessee’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

12.2.2 without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to Picture Canning on demand:

12.2.2.1 all Hire Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4;

12.2.2.2 any costs and expenses incurred by Picture Canning in recovering the Equipment and/or in collecting any sums due under these terms and conditions (including any storage, insurance, repair, transport, legal and remarketing costs); and

12.2.3 without prejudice to any other rights or remedies of Picture Canning, the Lessee shall pay to Picture Canning on demand a sum equal to the Hire Payments that would (but for the termination) have been payable if the Hire Period had continued from the date of such demand to the end of the Hire Period.

12.3 The sums payable pursuant to clause 12.2.3 shall be payable in addition to the sums payable pursuant to clause 12.2.2. Such sums may be partly or wholly recovered from any Deposit.

12.4 Termination or expiry of the Hire Period shall not affect any rights, remedies, obligations or liabilities of Picture Canning 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.

 

13. FORCE MAJEURE

Neither party shall be in breach of these terms and conditions nor liable for delay in performing, or failure to perform, any of its obligations under these terms and conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the lease of the Equipment by giving 5 days’ written notice to the affected party.

 

14. CONFIDENTIAL INFORMATION

14.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.2.

14.2 Each party may disclose the other party’s confidential information:

14.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under these terms and conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and

14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these terms and conditions.

 

15. ASSIGNMENT AND OTHER DEALINGS

15.1 The lease of the Equipment is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions.

15.2 For the avoidance of doubt, the Lessee may not sub-lease or give the Equipment to third parties for use without the prior written consent of Picture Canning.

 

16. ENTIRE AGREEMENT

16.1 These terms and conditions including the Hire Schedule constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

16.2 Each party acknowledges that in entering into these terms and conditions it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.

 

17. VARIATION

No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

 

18. NO PARTNERSHIP OR AGENCY

18.1 Nothing in these terms and conditions are intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

 

19. FURTHER ASSURANCE

Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these terms and conditions.

 

20. THIRD PARTY RIGHTS

20.1 Unless expressly stated otherwise, these terms and conditions do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms and conditions.

20.2 The rights of the parties to rescind or vary these terms and conditions are not subject to the consent of any other person.

 

21. NOTICES

21.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:

21.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

21.1.2 sent by fax to its main fax number or sent by email to the address specified in the Hire Schedule.

21.2 Any notice shall be deemed to have been received:

21.2.1 if delivered by hand, on signature of a delivery receipt; and

21.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and

21.2.3 if sent by fax or email, at the time of transmission, of this time falls outside Business Hours at 9.00 am on the next Business Day after transmission.

21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

22. WAIVER

No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

 

23. RIGHTS AND REMEDIES

Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

 

24. SEVERANCE

24.1 If any provision or part-provision of these terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms and conditions.

24.2 If any provision or part-provision of these terms and conditions is deemed deleted under clause 24.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

25. GOVERNING LAW

These terms and conditions and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

 

26. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions, their subject matter or formation.