OTAQ agrees to let and the Customer agrees to rent the Equipment on the terms and conditions set out below. These Terms and Conditions set out the entire agreement between the parties in respect of the supply of the Equipment and Services. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Terms. Save as provided in these Terms, no variation of these Terms shall be effective unless it is in writing and signed by or on behalf of OTAQ. OTAQ enters into this agreement on behalf of itself and any OTAQ Group Company.
1. Definitions and interpretation
1.1 Definitions
“Contract” means the agreement between OTAQ and the Customer for the Equipment Hire/Services subject to these Terms.
“Customer” means the company, firm, person, public authority or party representing themselves as the hirer.
“Delivery” has the meaning set out in Condition 3.2.
“Equipment” means the equipment set out in OTAQ’s written quotation which is the subject of this agreement and includes any Equipment, IFU, documentation and materials in support of the Equipment.
“Hire Charges” means the hire charges set out in the OTAQ Order Confirmation or where no charges are set out for a particular Equipment/Service, OTAQ’s then current charges.
“Hire Period” means the period defined in Condition 3.2.
“Operator” means an employee of OTAQ supplied under the terms of this agreement to install or operate the Equipment on behalf of the Customer.
“IFU” means user and maintenance manuals and such other information provided for safe and proper use of the Equipment;
“OTAQ” means OTAQ Group Ltd., a company incorporated in England with Company number 5471794 whose registered office is at 834 Harper’s Mill, South Road, Lancaster, LA1 4XF.
“Replacement Value” means the manufacturer’s current list price (including the costs of any modifications) from time to time together with all associated costs including the costs of transportation, tax import and export duties and licenses.
“Services” means the services agreed by the parties to be provided by OTAQ in support of the Equipment hire.
“Site” means the delivery address (or vessel) for the Equipment and where applicable the place where the Services are to be performed as stated in the Customer’s order or such other address as may be agreed between the parties in writing.
1.2 Interpretation
(a) The singular includes the plural and vice versa.
(b) 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.
(c) A reference to any statute, enactment, order, regulation or other similar instrument shall be construed as reference to the statute, enactment, order regulation or instrument as amended from time to time by any subsequent re-enactment, order, regulation or instrument or contained in any subsequent re-enactment or consolidation hereof.
(d) Headings are included in these Terms for ease of reference only and shall not affect the interpretation or construction of any of the terms and conditions herein.
2. Formation of contract
2.1 No order submitted by the Customer shall be deemed to be accepted by OTAQ unless and until confirmed in writing by OTAQ’s authorised representative.
2.2 The Customer shall be responsible to OTAQ for ensuring the accuracy of the terms of any order and suitability of the Equipment for the purpose for which it is hired.
2.3 No order which has been accepted by OTAQ may be cancelled by the Customer except with the agreement in writing of OTAQ and on terms that the Customer shall indemnify OTAQ in full against all loss (including loss of profit), liability, costs (including the cost of all labour), damages, charges and expenses incurred by OTAQ as a result of cancellation.
2.4 The price of the Equipment hire/Services shall be OTAQ’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in OTAQ’s published price list current at the date of acceptance of the order. All prices quoted are valid for thirty (30) days only or until earlier acceptance by the Customer, after which time they may be altered by OTAQ without notice to the Customer.
2.5 OTAQ reserves the right, by giving written notice to the Customer at any time before Delivery, to increase the price of the Equipment hire/Services to reflect any increase in the cost to OTAQ which is due to any factor beyond the reasonable control of OTAQ including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials, fuel and utilities, any change in delivery dates, quantities or specifications for the Equipment hire/Services which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give OTAQ adequate information or instructions.
2.6 OTAQ’s employees or agents are not authorised to make any representations concerning the Equipment hire/Services unless confirmed by an officer of OTAQ in writing. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Terms affect the liability of either party for fraudulent misrepresentation.
2.7 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OTAQ shall be subject to correction without any liability on the part of OTAQ.
2.8 Where the Equipment is to be delivered in instalments, or the Services performed on separate occasions, each delivery or performance shall constitute a separate Contract and failure by OTAQ to deliver or perform any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
3. Period of Hire
3.1 Equipment may be charged on a daily, weekly or monthly basis as set out in OTAQ’s written quotation.
3.2 The Hire Period commences upon the day the Equipment is dispatched from OTAQ’s premises or made available for collection by OTAQ from OTAQ’s premises or such other premises as specified by OTAQ and shall continue until the Equipment is returned thereto.
3.3 Equipment shall be returned undamaged in its original packaging between the hours of 8.30am and 5.00pm Mondays to Fridays on a day which is not a public or bank holiday in the place of return, and a receipt is issued by OTAQ. A receipt merely confirms the return of the Equipment and not the condition.
3.4 Any dates quoted for Delivery of the Equipment/samples/reports are approximate only and OTAQ shall not be liable for a delay in Delivery howsoever caused. Time for Delivery shall not be of the essence of the Contract.
3.5 In so far as reasonably practicable, (if applicable) the onsite Operator will service and repair the Equipment on the Customer’s Site. Where it is agreed between the parties that an engineer designated by OTAQ should visit the Customer’s Site to repair the Equipment, the Customer shall be responsible for payment of the Charges for supply of the Engineer, together with all travel costs, subsistence and related expenses.
3.6 Any servicing or repair of the Equipment requiring return of any vessel to port or return of any Equipment to OTAQ’s premises will be made known as soon as possible to the Customers designated representative. The costs of and associated with returning the Equipment will be borne by the Customer.
3.7 If OTAQ fails to deliver the Equipment (or any instalment) or to provide the Services for any reason other than any cause beyond OTAQ’s reasonable control or the Customer’s fault, and OTAQ is accordingly liable to the Customer, OTAQ’s liability shall be limited to performance of the Services and/or delivery of the Equipment and otherwise as provided in Condition 9 ( Limitation of liability).
3.8 Where the Equipment is lost during the Hire Period or is returned or collected other than in good repair, full working order and/or damaged, the Hire Period shall continue for such period as is reasonably necessary for the Equipment to be repaired, restored, recalibrated to full working order or replaced or the Replacement Value and the Customer shall be liable for the loss of hire income for the period for the Equipment is not available to OTAQ for hire.
3.9 If the Customer is an individual within the meaning of the Consumer Credit Act 1974 the maximum Hire Period shall not exceed three months.
4. Equipment
4.1 OTAQ supplies the Equipment pre calibrated, pre serviced and in full working order.
4.2 The Customer shall report any defect in the Equipment which is reasonably noticeable on inspection as soon as reasonably possible and in any event within 24 hours of Delivery, or if later, within 24 hours of arrival at the Site.
4.3 Any fault in the Equipment failing to substantially perform in accordance with the IFU should be reported to OTAQ as soon as reasonably possible and in any event within 24 hours of such failure being identified.
4.4 The Customer must not make any further use of damaged or faulty Equipment. OTAQ shall not, to the extent permitted by law, be liable to the Customer for any liability arising as a result of such use and the Customer shall fully indemnify OTAQ for any loss or liability suffered or incurred by OTAQ arising from such continued use.
4.5 OTAQ will undertake commercially reasonable efforts to repair or provide replacement Equipment.
4.6 Where faults in or damage to the Equipment is found by OTAQ to have existed before the Equipment was Delivered, OTAQ shall provide repair or replacement free of charge and the period from OTAQ being notified to competing repair or replacement shall not be subject to Hire Charges.
4.7 Where Equipment is found by OTAQ (acting reasonably) to have occurred or been caused following Delivery or through mishandling or misuse, the Customer shall be liable for the costs of repair and replacement and the Hire Charges shall continue to accrue.
4.8 The right to repair or replacement, or refund of Hire Charges shall be the sole remedy of the Customer.
5. Data
5.1 OTAQ will at all times ensure security around any and all data collected in the fulfilment of its obligations and will immediately inform the Customer in the event of any security breach.
5.2 OTAQ retains the right to hold and maintain the data collected on its servers and use the data for the fulfilment of its obligations as well as for analytical and future product development purposes.
5.3 The Customer has the right to request a copy of all data held by OTAQ
6. Services
6.1 OTAQ shall, where applicable supply the Services to the Customer in accordance with the Order confirmation in all material respects.
6.2 OTAQ shall use all reasonable endeavours to meet any performance dates specified by OTAQ or the Customer but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
6.3 OTAQ reserves the right to amend the Services specification to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
6.4 The Services will be provided using reasonable care and skill by suitably qualified Operator personnel.
6.5 The Customer shall:
(a) allow or procure access to the site to enable OTAQ to provide the Services;
(b) provide an appropriate operating environment for the Equipment in accordance with the manufacturer’s and OTAQ’s recommendations;
(c) provide all necessary power sources and other support equipment necessary to enable the Equipment to be operated satisfactorily.;
(d) provide to the Operator details of all applicable health, safety and security policies and provide a copy to OTAQ
(e) in addition to the Services Charges, be liable for the costs of visas, reasonable costs of travel, accommodation and living allowances and, where arranged by or on behalf of the Customer, provide reasonable sleeping and living accommodation and food for the operator; and
(f) remain liable for the health, safety and wellbeing of the Operator including whilst in transit to and from the Site and on the Site.
6.6 OTAQ shall have the right from time to time to substitute both Equipment and/or the Operator upon giving reasonable notice to the Customer and the Customer shall co-operate with and assist OTAQ in effecting such substitutions.
6.7 The Customer shall, in the event that the proposed work takes more than ten (10) working days (or such other period as shall have been agreed by OTAQ in writing) pay for the cost of replacing the Operator together with an administration charge of fifteen percent (15%) of the costs (“the Substitution Costs”). The Substitution Costs shall include visa, air fares and other travel costs to and from OTAQ’s premises together with subsistence and all other reasonable expenses.
6.8 The Customer shall indemnify OTAQ and keep OTAQ fully indemnified against any costs, claims, losses or liabilities suffered or incurred by OTAQ or its Operator whilst on site or in the provision of the Services, save to the extent such loss or liability arises from the negligence of OTAQ or the Operator.
6.9 OTAQ shall be responsible for the payment of the salaries and all UK social security and other payments and taxes in respect of the Operator whilst engaged in work under this agreement.
6.10 Transit time including any delays to and from port or to and from OTAQ’s premises after discovery of a malfunction will not constitute cause for reduction in payments to OTAQ.
6.11 All work undertaken shall be under the direction of the Customer but where an Operator is provided and is performing the work, the actual operation of the Equipment and the manner of performance of work in connection therewith shall be under the direction and control of OTAQ. It being hereby agreed that OTAQ is an independent contractor and is not for the purposes of this agreement acting as an agent of the Customer. The Operator shall not be under the direction or control of the Customer, nevertheless, the Operator will co-operate with the Customer’s personnel with a view to operating the Equipment in accordance with their reasonable requirements. Employees of the Customer shall not be under the direction and control of OTAQ or its operators.
6.12 OTAQ and its Operators shall not be involved in nor be required nor requested to be nor become involved in the operation of any vessel or any other equipment other than the Equipment for any reason whatsoever.
6.13 Mobilisation and demobilisation expenses including operator’s air fares and other travel costs, subsistence and hotel charges, freight charges and all other reasonable expenses associated with the mobilisation and demobilisation of OTAQ’s personnel and Equipment will be charged to the Customer at cost plus an administration charge of fifteen percent (15%).
6.14 Periods during which the Equipment is being repaired or maintained will not constitute cause for reduction in payments to OTAQ.
7. Risk and property
7.1 Risk of damage to or loss of the Equipment shall pass to the Customer:
(a) on Delivery: or
(b) if the Customer fails to take delivery of the Equipment in accordance with these terms, the time when OTAQ has tendered delivery of the Equipment.
7.2 Notwithstanding Delivery and the passing of risk in the Equipment, or any other provision of these Terms title in the Equipment shall not pass to the Customer and the Customer shall hold the Equipment as OTAQ’s fiduciary agent and bailee, and shall keep Equipment properly stored protected and insured and identified as OTAQ’s property.
7.3 OTAQ may at any time require the Customer to deliver up the Equipment on demand to OTAQ and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Equipment is stored and repossess the Equipment.
7.4 The Customer shall permit and irrevocably grants OTAQ the right and facilities to enter upon the delivery address or vessel where the Equipment is held at all reasonable times in order to inspect the Equipment and, where OTAQ deems necessary, to remove the Equipment.
8. Customer obligations
8.1 The Customer shall throughout the Hire Period at all times:
(a) keep the Equipment in a safe and secure place free from risk of loss and/or damage;
(b) not without OTAQ’s prior written consent remove the Equipment from the Customer Premises or Site specified in the Order confirmation;
(c) follow all manufacturers and OTAQ’s IFUs (including any necessary calibration);
(d) only use the Equipment for the purpose for which it is manufactured to perform;
(e) use the Equipment in accordance with all applicable laws and good business practice;
(f) not do or fail to do, any act whereby the Equipment or its use would contravene any statute, rule, regulation, or byelaw or any licence, certificate, permit or authorisations;
(g) not make any modification or otherwise repair equipment unless with the prior written consent of OTAQ;
(h) only allow suitably qualified and experienced personnel to install, operate and deinstall the Equipment;
(i) not remove any label from the Equipment identifying it as the property of OTAQ;
(j) not re-hire, sell, mortgage, charge, pledge, create any lien over or part with possession of or otherwise deal with the Equipment except as previously agreed in writing by OTAQ and will protect the Equipment against any distress, execution or seizure and shall indemnify and keep indemnified OTAQ against all costs, claims, losses, or liabilities and expenses which may be suffered or incurred by OTAQ by the failure to observe and perform this Condition; and
(k) obtain all necessary licenses, certificates, permits, authorisations required for the export/import, operation of, or otherwise in connection with, the Equipment and shall maintain the same in full force until the Equipment is collected or returned.
8.2 The Customer acknowledges that, notwithstanding Condition 6.11, the work intended to be carried out by or on behalf of the Customer is the sole responsibility of the Customer.
8.3 The Customer shall throughout the Hire Period obtain and maintain all prudent insurance cover in keeping with good industry practice, including:
(a) third liability for injury or death of the OTAQ personnel caused by the Customer or any third party in providing the Services;
(b) third party liability and cover against loss or damage to the Equipment for its full Replacement Value; and
shall produce on demand to OTAQ a copy of the policy or policies. The Customer shall hold on trust for OTAQ all policy proceeds in or towards satisfaction of the Customer’s obligations hereunder.
8.4 The Customer shall give OTAQ immediate written notice of any loss or damage to the Equipment and shall in the event of loss or damage beyond reasonable repair and without affecting any other right or remedy OTAQ may have, reimburse OTAQ at the then manufacturer’s list price in respect thereof within fourteen (14) days of the loss or confirmation that damage is beyond reasonable repair.
9. Hire Charges, Services Charges and other Charges
9.1 OTAQ reserves the right to require a deposit from the Customer and/or for the Customer or related third party to enter into a form of guarantee with OTAQ.
9.2 Hire Charges will be calculated on the basis set out in OTAQ’s quotation or order confirmation and in all other circumstances and for any Hire Period not addressed by the order confirmation, daily with part days being charged as full days.
9.3 Service Charges will be calculated on the basis set out in OTAQ’s quotation or order confirmation and in all other circumstances and for any period not addressed by the order confirmation, daily with part days being charged as full days. Service Charges shall apply from the date travelling commences up to and including the date the personnel returns to his point of departure.
9.4 All Hire Charges shall, unless otherwise agreed in writing, be charged in UK pounds Sterling and all payments are to be made in UK pounds Sterling. Where OTAQ agrees in writing to invoice in any other Currency, then payment must be received by OTAQ in that Currency. The Customer shall be liable to OTAQ for any conversion or other related costs where currency is paid or received in a currency not so agreed.
9.5 The Customer shall pay the price of the Equipment hire/Services within 30 days of the date of OTAQ’s invoice (without any deduction, counter claim or set off). OTAQ shall be entitled to recover the price notwithstanding that delivery of the Equipment may not have taken place and Services may not have been performed. The time of payment of the Charges shall be of the essence of the Contract.
9.6 Where a currency other than UK pounds Sterling is agreed and on the date that payment is received by OTAQ, the rate of the UK pound has fallen by five (5%) or more percentage points against the currency in which payment is received, (as measured by the Barclays Bank Plc published exchange rate applied (i) on the date of OTAQ’s written quotation, or the date on which OTAQ accepted the Customer’s purchase order through and order confirmation; and (ii) with the rate applied by Barclays Bank Plc against on the date and at the time of receipt of payment (and where received on more than one date on such dates and payments respectively). Where any such shortfall applies, OTAQ shall within a reasonable period notify the Customer in writing of the amount of the shortfall and raise a further invoice in respect of the shortfall balance. Any such invoice shall be payable by the Customer within ten (10) days of the issue of the further invoice.
9.7 If the Customer fails to make any payment on the due date then OTAQ may:
(a) cancel the Contract or suspend any further Equipment hire/Services to the Customer;
(b) decommission the Equipment and withdraw the Operator;
(c) appropriate any payment made by the Customer (including any deposit) to such of the Equipment Hire Charges/Services supplied under any other contract between the Customer and OTAQ as OTAQ may think fit;
(d) enforce the terms of any guarantee with the Customer or associated third party;
(e) charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of four (4) per cent per annum above Barclays Bank Plc base rate from time to time (compounded monthly), until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
9.8 OTAQ may withdraw credit facilities at any time and without notice.
9.9 Hire Charges relate solely to the hire of the Equipment and additional charges will be paid by the Customer for installation and transportation of the Equipment where this is undertaken by or on behalf of OTAQ.
9.10 Where the Equipment is returned or collected and is found:
(a) not to be in substantially the same condition (fair wear and tear being excluded) that it was at the time of Delivery
(b) missing IFUs or Equipment documentation;
(c) not in original and undamaged packaging;
(d) or otherwise returned in breach of these Terms,
then the Customer shall, without affecting any other right or remedy of OTAQ, be responsible for the costs of OTAQ returning the Equipment to its condition at the time of delivery plus an administration charge of fifteen percent (15%). Where the Equipment is incapable of being restored to its previous condition, the Customer shall be liable on demand for (i) the full cost of replacement; and (ii) the loss of hire income for the period for it is not available to OTAQ.
9.11 Where the Equipment is lost or stolen during the Hire Period the Customer shall be liable for the Charges pursuant to Condition 3.8.
9.12 The Customer shall be liable for and agrees to pay all costs (including export and import costs); taxes (including withholding tax), levies, and duties assessed by any foreign government or body against the Equipment delivery and return.
9.13 The Customer agrees to pay all taxes, levies, or duties assessed by any foreign (other than UK) government in respect of the salary and other payments made by OTAQ to any OTAQ supplied personnel as part of the Services, and the Customer shall indemnify OTAQ on demand against any such taxes, levies, or duties.
9.14 The Customer shall obtain and pay for all and any permits, licenses and other consents and permissions required to enable the Equipment and the OTAQ personnel to perform the Services (if outside of the UK).
9.15 The provisions contained in this Condition 9 shall be in addition to and shall not affect any other right or remedy of OTAQ, otherwise arising.
10. Limitation of Liability
10.1 These Terms set out the entire liability of OTAQ.
10.2 Nothing in these Terms limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, or fraud or fraudulent misrepresentation.
10.3 OTAQ shall not be liable to the Customer for any delay where such delay arises from the Customer’s failure to comply with the terms of this agreement.
10.4 Where a valid claim in respect of any provision by OTAQ of the Equipment/Services which is based on a defect in the quality or condition of the Equipment/Services, failure to provide such Equipment or Services, or their failure to meet specification is notified to OTAQ in accordance with these Terms, OTAQ may replace the defective Equipment (or the part in question) free of charge or, reperform the Services, or at OTAQ’s sole discretion, refund to the Customer the Charges paid for the Equipment/Services (or a proportionate part of the Charges), in which case OTAQ shall have no further liability to the Customer.
10.5 OTAQ shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the agreement, for any direct loss suffered or incurred by the Customer which arise out of or in connection with the supply of the Equipment/Services (including any delay in supplying or any failure to supply the Equipment/perform the Services in accordance with the agreement or at all).
10.6 Whether arising in contract, tort breach of statutory duty or otherwise, OTAQ shall not be liable to the Customer for any indirect or consequential loss however suffered or incurred including:
(a) loss of profit;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use;
(f) corruption or loss of software, data or information; and
(g) loss of or damage to goodwill
(h) special loss or damage.
10.7 OTAQ shall not be liable to the Customer by reason of any delay in performing, or any failure to perform any of OTAQ’s obligations in relation to the Equipment/Services, if
(a) the delay or failure was due to any cause beyond OTAQ’s reasonable control; or
(b) the Customer has failed to make any payment due hereunder, when such payment was due.
10.8 Subject to Condition 10.2 (Liabilities which cannot legally be limited), OTAQ’s total liability to the Customer, whether in contract, tort or breach of statutory duty shall be limited to 120% of the Charges payable under the Contract which gave rise to the claim.
10.9 Unless the Customer notifies OTAQ that it intends to make a claim in respect of an event within twelve months of the event, or if later, the date when the event would reasonably have come to light, OTAQ shall have no liability for that event.
11. Indemnity
The Customer shall indemnify OTAQ, its officers, employees, contractors and agents, and shall keep them fully indemnified, on demand, from and against all claims made or actions brought against OTAQ in respect of any liability, claim, loss (including loss of business or other consequential loss), damage or injury to persons or property occurring in connection with the Customer’s use of the Equipment, save where arising from OTAQ’s negligence.
12. Termination
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within ten days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(e) the other party is unable to meet its debts as they fall due; or
(f) the other party suffers any event in any other state, analogous to the events specified in Conditions 12.1(b) to 12.1(e).
12.2 Without affecting any other right or remedy available to it, OTAQ may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under a Contract on the due date for payment.
12.3 Upon the termination of this agreement all rights in and to the Equipment shall automatically revert to OTAQ. The Customer shall on demand return all Equipment. OTAQ shall have the right to enter any premises to take immediate possession of the Equipment without further notice or demand. The Customer hereby grants OTAQ an irrevocable right to enter such premises to remove the Equipment.
13. Force Majeure
13.1 OTAQ shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
13.2 For the purpose of this agreement, “Force Majeure” shall include any act, omission, cause or circumstance beyond the reasonable control of a OTAQ, and shall include war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fires, explosion, earthquake, act of God, flood, drought, or other act or order of any government department, council or other constituted body.
14. General
14.1 Entire Agreement
(a) This agreement constitutes the entire agreement between the parties as to the subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter hereof and supersedes all previous agreements with respect thereto.
(b) Each party hereby acknowledges that it has not entered into this agreement in reliance upon any representation made by the other party but not embodied herein.
(c) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in a Contract.
14.2 Assignment and other dealings
(a) OTAQ may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any Equipment or all of its rights or obligations under the agreement.
14.3 Confidentiality.
(a) 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 Condition 14.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Condition 14.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under a Contract 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.
14.6 Severance. If any provision or part-provision of these Terms 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 the agreement. If any provision of these Terms is deemed deleted under this Condition 14.6 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.
14.7 Notices.
(a) Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(i) 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
(ii) sent by international courier or air mail, to its registered office (if a company) or its principal place of business (in any other case) five days after sending or if earlier, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(iii) sent by fax to its main fax number or sent by email, in each instance, to the address specified in the Contract documentation.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, by air mail or international courier on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) 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 or at the time recorded by the delivery service; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Condition 13.7(b)(iii), business hours means 9.00am to 4.30pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This condition 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.
14.8 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) Any member of the OTAQ Group shall be entitled to enforce the terms of this agreement.
(c) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.]
14.9 Governing law. The agreement and each Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or their subject matter or formation, shall be governed by and construed in accordance with the laws of England.
14.10 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 this Contract or its subject matter or formation. The provisions of this Condition 13.10 shall not affect either party’s right to seek interim relief (including injunction and specific performance) from any court of competent jurisdiction.
