Illuminate Lighting Ltd 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.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 18.
Contract: the contract between Illuminate and the Customer for the hire of the Equipment or Services or for the hire of the Equipment and Services in accordance with these Conditions.
Customer: the person or firm who purchases the hire of the Equipment or Services or the hire of the Equipment and Services from Illuminate.
Delivery: the transfer of physical possession of the Equipment to the Customer at a premises agreed at the direction of the Customer or from Illuminates Premises, as set out in the Order.
Delivery Date: the agreed date set out in the Order when the Equipment is to be delivered to the Customer.
Equipment: shall mean goods, components and other items hired or sold by Illuminate or any part thereof and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Expiry Date: the agreed date set out in the Order when the Equipment must be returned to Illuminate.
Extension: as defined at clause 4.1
Illuminates Premises: Illuminate, Unit 1 Sterling Industrial Park, Carr Wood Road, Castleford, WF10 4PS
Order: the Customer’s order for the Equipment or Services or Equipment and Services as set out in the Customer’s purchase order form or the Customer’s written acceptance of Illuminate’s quotation, as the case may be.
Rental Payment: as defined at clause 6.1
Rental Period: the period of hire as set out in clause 4.
Risk Period: the period during which the Equipment is at the sole of the risk of the Customer as set out in clause 8.2.
Services: the services supplied by Illuminate to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by Illuminate to the Customer.
Territory: United Kingdom.
Total Loss: due to the Customer’s default the Equipment is, in Illuminate’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable in the UK.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to hire the Equipment or to purchase the Services or to hire the Equipment and to purchase the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 All descriptions and specifications, drawings and particulars of weights and dimensions issued by Illuminate are approximate only. Illuminate reserves the right to change any specification without notice.
2.4 The Order shall only be deemed to be accepted when:
(a) unless agreed in writing by Illuminate, the Customer makes the Rental Payment; and
(b) Illuminate issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 All of these Conditions shall apply to both the supply of the Equipment and Services except where application to one or the other is specified.
3. EQUIPMENT HIRE
3.1 Illuminate shall hire the Equipment to the Customer subject to these terms and conditions.
3.2 Illuminate shall not, other than in the exercise of its rights under these terms and conditions or applicable law, interfere with the Customer’s quiet possession of the Equipment.
4. RENTAL PERIOD
The Rental Period starts on the Delivery Date and shall continue until the Expiry Date when the Equipment is delivered up in accordance with clause 9.1(t) unless and until the Contract is terminated earlier or cancelled in accordance with the terms set out herein.
4.1 Illuminate reserves the right to extend the Rental Period as agreed in writing with the Customer (Extension).
4.2 An Extension will be subject to additional charges as indicated by Illuminate and agreed in writing by Illuminate on or around the Extension.
5. SUPPLY OF SERVICES
5.1 Illuminate shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
5.2 Illuminate shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
5.3 Illuminate reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Illuminate shall notify the Customer in any such event.
5.4 Illuminate warrants to the Customer that the Services will be provided using reasonable care and skill.
6. PRICE, PAYMENT AND CHARGES
6.1 The price of the Equipment and any VAT shall be as set out in the Order (Rental Payment).
6.2 The Customer will make the Rental Payment at the time of placing the Order at the time of agreeing the Extension or in accordance with any credit terms agreed by Illuminate and confirmed in writing to the Customer
6.3 Illuminate may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Equipment to reflect any increase in the cost of the Equipment that is due to:
(a) any factor beyond Illuminate’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Illuminate adequate or accurate information or instructions.
6.4 The Rental Payment may exclude additional charges, including but not limited to, the costs and charges of packaging, insurance, transport of the Equipment, off site case storage, crew travel charges, parking charges, accommodation charges, PD’s and venue charges for power/rigging (Additional Fees)
6.5 Illuminate shall invoice the Customer for any Additional Fees that are not included in the Rental Payment on or at any time after Delivery.
6.6 Without affecting any other right available to it, if the Customer fails to return the Equipment to Illuminate by the Expiry Date, Illuminate may invoice the Customer for each additional week the Equipment is in the Customer’s possession at the list price of each item of Equipment determined by Illuminate.
6.7 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with Illuminate’s daily fee rates, as set out in the Order;
(b) Illuminate’s daily fee rates for each individual person are calculated on the basis of a ten-hour day worked on any day, regardless of whether it is a Business Day or not;
(c) Illuminate shall be entitled to charge an overtime rate of 150% of the hourly fee rate on a pro rate basis for any time worked by individuals whom it engages on the Services outside of the hours referred to in clause 6.7(b);
(d) Illuminate shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Illuminate engages in connection with the Services including travelling expenses, hotel costs, subsistence and associated expenses, and for the cost of services provided by third parties and required by Illuminate for the performance of the Services, and for the cost of any materials.
6.8 In respect of the Services, Illuminate shall invoice the Customer on completion of the Services.
6.9 The Customer shall pay any invoice raised in accordance with clause 6.5:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Illuminate.
6.10 Time for payment shall be of the essence of the Contract.
6.11 If the Customer fails to make a payment due to Illuminate under the Contract by the due date, then, without limiting the Illuminate’s remedies under clause 12, the Customer shall pay:
(a) 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 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%; and
(b) an administrative fee of 10% of the failed payment.
6.12 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).
7. DELIVERY OF EQUIPMENT
7.1 Illuminate shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 7.4 of the Contract.
7.2 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer 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. If required by Illuminate, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
7.3 To facilitate Delivery, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
7.4 If the Customer fails to collect or accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by Illuminate’s failure to comply with its obligations under the Contract:
(a) the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
(b) Illuminate shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
8. TITLE, RISK AND INSURANCE
8.1 The Equipment shall at all times remain the property of Illuminate, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the Conditions).
8.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to Illuminate. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
(a) 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 Illuminate may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Illuminate 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
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Illuminate may from time to time consider reasonably necessary and advise to the Customer in writing.
8.3 All insurance policies procured by the Customer shall be endorsed to provide Illuminate with at least 14 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on Illuminate’s request name Illuminate on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
8.4 The Customer shall give immediate written notice to Illuminate in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
8.5 If the Customer fails to effect or maintain any of the insurances required under the Contract, Illuminate 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 Customer.
8.6 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Illuminate and proof of premium payment to Illuminate to confirm the insurance arrangements.
9. CUSTOMER‘S RESPONSIBILITIES
9.1 The Customer shall during the term of the Contract:
(a) 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 provided by Illuminate;
(b) ensure the Equipment is suitable for their purposes;
(c) take such steps (including compliance with all safety and usage instructions provided by Illuminate) 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;
(d) ensure at its own expense that any electrical Equipment is used with plugs and/or sockets as fitted;
(e) be responsible at its own expense at all times for the proper supply of electricity for the use of the Equipment;
(f) ensure at its own expense that the Equipment shall at all times be properly earthed;
(g) ensure at its own expense that the Equipment is compatible and may safely be used with any other Equipment used by the Customer
(h) 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 Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(i) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of Illuminate unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Illuminate immediately on installation;
(j) keep Illuminate fully informed of all material matters relating to the Equipment;
(k) at all times keep the Equipment in the possession or control of the Customer and keep Illuminate informed of its location;
(l) permit Illuminate or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(m) maintain operating and maintenance records of the Equipment and make copies of such records readily available to Illuminate, together with such additional information as Illuminate may reasonably require;
(n) not, without the prior written consent of Illuminate, 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;
(o) not without Illuminate’s prior written consent, 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 Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify Illuminate against all losses, costs or expenses incurred as a result of such affixation or removal;
(p) not do or permit to be done any act or thing which will or may jeopardise Illuminate’s right, title or interest in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that Illuminate 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 Illuminate of any rights such person may have or acquire in the Equipment and a right for Illuminate to enter onto such land or building to remove the Equipment;
(q) 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 Customer shall notify Illuminate and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Illuminate on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(r) not use the Equipment for any unlawful purpose;
(s) ensure that at all times the Equipment remains identifiable as being Illuminate’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(t) deliver up at the end of the Rental Period on the Expiry Date the Equipment at such address as the Illuminate requires, or if necessary allow Illuminate or its representatives access to any premises where the Equipment is located for the purpose of removing the Equipment
(u) ensure the Equipment are returned to Illuminate in a similar condition as they were as at the start of the Rental Period in a clean and serviceable condition;
(v) not do or permit to be done anything which could invalidate the insurances referred to in Clause 8.2;
(w) ensure any information it provides in the Service Specification are complete and accurate;
(x) co-operate with Illuminate in all matters relating to the Services;
(y) provide Illuminate, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Illuminate to provide the Services;
(z) provide Illuminate with such information and materials as Illuminate may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(aa) prepare the Customer’s premises for the supply of the Services;
(bb) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(cc) comply with all applicable laws, including health and safety laws.
9.2 The Customer acknowledges that Illuminate 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 Customer or its officers, employees, agents and contractors, and the Customer shall indemnify Illuminate in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Illuminate arising out of, or in connection with any failure by the Customer to comply with the Contract.
9.3 If Illuminate’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Illuminate shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligation in each case to the extent the Customer Default prevents or delays Illuminate’s performance of any of its obligations;
(b) Illuminate shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Illuminate’s failure or delay to perform any of its obligations as set out at this Clause 9.3; and
(c) the Customer shall reimburse Illuminate on written demand for any costs or losses sustained or incurred by Illuminate arising directly or indirectly from the Customer Default.
10.1 Illuminate warrants that the Equipment shall substantially conform to its specification (as made available by Illuminate), be of satisfactory quality and fit for any purpose held out by Illuminate. The Customer may reject the Equipment if:
(a) notice of rejection is given to Illuminate;
(b) in the case of a defect that is apparent on normal or visual inspection, within 24 hours of Delivery;
(c) in the case of a latent defect, within five Business Days of the latent defect having become apparent; and
(d) none of the events listed in clause 10.3 apply
10.2 If the Customer fails to give notice of rejection in accordance with Clause 10.1, it shall be deemed to have accepted the Equipment.
10.3 Illuminate shall not be liable for the Equipment’s failure to comply with the warranty set out in Clause 10.1 in any of the following events:
(a) the Customer makes any further use of the Equipment after giving notice in accordance with Clause 10.1;
(b) the defect materialises outside of the Territory;
(c) the defect arises because the Customer failed to follow Illuminate’s oral or written instructions for the storage, commissioning, installation, use and maintenance of the Equipment or (if there are none) good trade practice regarding the same;
(d) the Customer alters or repairs the Equipment without the written consent of Illuminate;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Equipment differs from its description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.4 If the Customer rejects the Equipment under Clause 10.1, then Illuminate shall, at Illuminate’s sole discretion, repair or replace the rejected Equipment, or accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payment payable during the remaining term of the Contract.
10.5 Once Illuminate has provided a remedy under clause 10.4, it shall have no further liability to the Customer for the rejected Equipment’s failure to comply with Clause 10.1
10.6 If the parties dispute whether any Equipment complies with Clause 10.1, either party may refer the matter to an expert for determination
10.7 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Illuminate, the Customer shall be entitled only to such warranty or other benefit as Illuminate has received from the manufacturer.
11. LIMITATION OF LIABILITY
11.1 The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in the Contract limits any liability which cannot legally be limited including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973;
(d) breach of terms implied by section 2 of the Supply of Good and Services Act 1982 (title and quiet possession); and
(e) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
11.3 Subject to clause 11.2, Illuminate’s total liability to the Customer shall not exceed the Rental Payment amount received by Illuminate.
11.4 Subject to clause 11.2, Illuminate shall not be liable under the Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
11.5 Subject to clause 11.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or Services provided under the Contract are, to the fullest extent permitted by law, excluded from the Contract.
12.1 Without affecting any other right available to it, Illuminate may terminate the Contract by giving 30 days written notice. Illuminate may terminate the Contract prior to the Delivery.
12.2 If Illuminate terminates the Contract under clause 12.1, any Rental Payment received by Illuminate will be refunded to the Customer within 30 Days. For the avoidance of doubt, Illuminate shall not be liable for any loss incurred by the Customer if the Contract is terminated by Illuminate.
12.3 Without affecting any other right or remedy available to it, Illuminate may terminate the Contract with immediate effect by giving notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer fails to return the Equipment to Illuminate by the Expiry Date;
(c) the Customer commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
(d) the Customer repeatedly breaches any of the terms of the Contract 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 the terms of the Contract;
(e) the Customer 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 (IA 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;
(f) the Customer 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;
(g) the Customer applies to court for, or obtains, a moratorium under Part A1 of the IA 1986;
(h) 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 Customer (being a company, limited liability partnership or partnership) ;
(i) 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 Customer (being a company);
(j) the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(k) a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
(l) a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
(m) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3(e) to clause 12.3(l) (inclusive);
(n) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
(o) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(p) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010.
12.4 For the purposes of clause 12.3(b), a material breach means:
(a) a breach of any of the obligations set out in clauses 2,3,4,5,6,7,8,9 and 10; or
(b) a breach that has a serious effect on the benefit Illuminate would otherwise derive from the Contract.
12.5 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
12.6 Subject to clause 13.1, the Customer can terminate the Contract prior to Delivery of the Equipment.
12.7 Subject to clause 13.2, the Customer can terminate at any time after Delivery by giving 30 days written notice.
13. CONSEQUENCES OF TERMINATION OR EXPIRY
13.1 On termination of the Contract by the Customer prior to the Delivery Date, the Customer hereby agrees to whichever of the following shall apply:
(a) in the event of termination 30 days or more prior to the Delivery Date, the Rental Payment shall not be payable;
(b) in the event of termination between 14 days and 29 days prior to the Delivery Date, a sum of 50% of the Rental Payment shall be payable; and
(c) in the event of termination between 1 day and 13 days prior to the Delivery Date, the Rental Payment shall be paid in full.
13.2 If the Customer terminates after Delivery, the Customer agrees to pay any outstanding Rental Payment. For the avoidance of doubt, the Customer will not be entitled to a refund of any Rental Payment paid to Illuminate. On expiry or termination of the Contract, however caused other than the provision set out at clause 12.6:
(a) Illuminate’s consent to the Customer’s possession of the Equipment shall terminate;
(b) Illuminate may, by its authorised representatives, without notice and at the Customer’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
(c) without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Illuminate on demand:
(i) the Rental Payment and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 6.11; and
(ii) any costs and expenses incurred by Illuminate in recovering the Equipment or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
13.3 On termination of the Contract pursuant to clause 12, the Customer hereby authorises Illuminate (notwithstanding any subsequent notice to the contrary after the commencement of the Rental Period) to deduct any sums due to Illuminate on a breach of the Contract from any credit card, debit card of charge account belonging to the Customer, details of which are in Illuminate’s possession.
13.4 The sums payable pursuant to clause 13.2(c)(ii) shall be agreed compensation for the Illuminate’s loss and shall be payable in addition to the sums payable pursuant to clause 13.2(c).
13.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13.6 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results 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 2 months, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
15. CONFIDENTIAL INFORMATION
15.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.
15.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 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 the Contract.
16. ASSIGNMENT AND OTHER DEALINGS
The Contract are 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 the Contract.
17. ENTIRE AGREEMENT
17.1 The Contract constitutes the entire agreement between the parties.
17.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. NO PARTNERSHIP OR AGENCY
19.1 Nothing in the Contract is 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.
19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. THIRD PARTY RIGHTS
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.
21.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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).
21.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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.
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.
No failure or delay by a party to exercise any right or remedy provided under the 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.
23. RIGHTS AND REMEDIES
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
24.1 If any provision or part-provision of the Contract 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 Contract.
24.2 If any provision or part-provision of the Contract 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
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
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 the Contract or its subject matter or formation.