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Terms and Conditions for repair and re-fit works (July 2017 Edition)

The Customer’s attention is drawn in particular to the terms of clause 10 (Warranty) and clause 11 (Liability).

Interpretation

1.1 In these conditions, the following definitions apply :

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

Commencement Date: means the commencement date of the Contract (as defined below) as determined in accordance with clause 2.3.

Conditions: means these terms and conditions.

Contract: means the contract between Parkol (as defined below) and the Customer (as defined below) for the performance of the Works in accordance with these Conditions and the Estimate as may be amended from time to time.

Customer: means the person or firm for whom Parkol performs the Works.

Estimate: means the document entitled “Estimate of Works” setting out a written description of the Works and estimate of the Price submitted by Parkol to the Customer before commencement of the Works and forming part of the Contract, as amended from time to time in accordance with these Conditions.

Goods: means the goods, materials and any machinery and components supplied by Parkol in the performance of the Works as described in the Estimate and, for the avoidance of doubt, excluding any Owner’s Supply Items.

Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Modification Proposal: means written notification to the Customer in accordance with clause 5 of any additional Works required to the Vessel and the required consequential amendments to the Contract.

Order: means the Customer's instructions to proceed with the Works following receipt of the Estimate.

Owner’s Supply Item: means any Goods supplied by the Customer or purchased by Parkol at the direction of the Customer for the performance of the Works.

Parkol: means Parkol Engineering Ltd, a company registered in England in Wales with company no. 04005938 whose registered office is at 12 Alma Square, Scarborough, North Yorkshire, YO11 1JU.

Parkol’s Materials: means the materials, equipment, documents and other property of Parkol used in the performance of the Works, excluding the Goods.

Parkol’s Personnel: means the employees, agents, contractors and consultants of Parkol.

Price: means the aggregate amount payable by the Customer for the Works in accordance with the Contract and comprising (a) the charges for the services supplied by Parkol (b) the price of the Goods and (c) any ancillary costs set out in the Estimate or otherwise notified to the Customer in writing.

VAT: means value added tax chargeable in the UK.

Vessel: means the Customer’s vessel named in the Estimate in respect of which Parkol shall carry out the Works.

Works: means the repair and/or re-fit works to be carried out on the Vessel by Parkol including the supply and installation of any Goods as described in the Estimate, as may be amended from time to time in accordance with these Conditions.

Yard: means Parkol’s premises including the dry dock at Eskside Wharf, Church Street, Whitby, North Yorkshire YO22 4AE

1.2 In these Conditions:

1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2 a reference to the parties is a reference to both Parkol and the Customer and a reference to a party is a reference to a party to the Contract and includes its successors or permitted assigns;

1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

1.2.4 unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

Basis of Contract

2.1 The Estimate shall not constitute an offer, and is valid for a period of 60 calendar days from the date of issue.

2.2 The Order constitutes an offer by the Customer to purchase the Works in accordance with the Estimate and these Conditions.

2.3 The Order shall only be deemed accepted when Parkol issues written acceptance of the Order or in the absence of written acceptance, on Parkol commencing performance of the Works, at which point the Contract shall come into existence.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, including any contained in any purchase order or standard conditions of purchase of the Customer, or which are implied by trade, custom, practice or course of dealing and the Customer waives any right it has to rely on such other terms.

Performance of the Works

3.1 Parkol shall:

3.1.1 perform the Works in all material respects in accordance with the Estimate;

3.1.2 use reasonable endeavours to meet any date quoted for completion of the Works and any other dates specified in the Estimate, but any such dates shall be estimates only and time shall not be of the essence for performance of the Works; and

3.1.3 have the right to make any changes to the Works which: a) are necessary to comply with any applicable law or safety requirement and to adjust the Price accordingly if necessary; or

  • a) are necessary to comply with any applicable law or safety requirement and to adjust the Price accordingly if necessary: or
  • b) which are necessary or desirable in Parkol’s professional judgment but do not materially affect the nature or quality of the Works and do not affect the Price.

Customer's Obligations

4.1 The Customer warrants to Parkol:

4.1.1 that it owns the Vessel and has the right to grant Parkol access to the Vessel and to authorise Parkol to perform the Works on the Vessel; and

4.1.2 that prior to Parkol carrying out any survey of the Vessel it has provided to Parkol all information in its possession relating to the state, condition or performance of the Vessel which may be useful to Parkol in carrying out the survey of the Vessel and preparing the Estimate and that such information is accurate in all material respects.

4.2 The Customer shall:

4.2.1 ensure that the Vessel is in a reasonably safe and tidy condition ready for Parkol to commence performance of the Works and which does not pose an unacceptable risk in Parkol’s reasonable judgment to the health and safety of Parkol’s Personnel;

4.2.2 deliver the Vessel to the Yard on the date specified by Parkol or if Parkol has agreed to perform the Works at a location other than the Yard, grant or procure access to Parkol and Parkol’s Personnel to such place including office accommodation and other facilities as reasonably required by Parkol in order to perform the Works;

4.2.3 ensure that the terms of the Estimate meet the Customer’s requirements;

4.2.4 co-operate with Parkol in all matters relating to the Works;

4.2.5 provide Parkol with such information and materials as Parkol may reasonably require in order to perform the Works and ensure that such information is accurate in all material respects;

4.2.6 obtain and maintain any necessary licences, permissions and consents which may be required before the date that Parkol commences the Works; and

4.3 Without prejudice to any other rights or remedies it may have whether under the Contract or otherwise, Parkol shall be entitled to suspend performance of the Works without liability to the Customer if the Customer is in breach of any of the warranties given in clause 4.1 or any of its obligations in clause 4.2 until such breach is remedied to the satisfaction of Parkol, acting reasonably.

4.4 If Parkol is performing the Works at the Customer’s premises, the Customer shall keep any of Parkol’s Materials which are in the Customer's possession in safe custody at its own risk, keep them in good condition until returned to Parkol and not dispose of or use them other than in accordance with Parkol's written instructions or authorisation.

Variations to the Works

5.1 The Customer acknowledges and agrees that the Estimate is Parkol’s reasonable estimate of the goods and services required to be supplied by Parkol to carry out the Works, the price payable and the timescale for performance of the Works and is based on the information provided by the Customer and, if one is carried out prior to commencement of performance of the Works, Parkol’s limited visual inspection of the Vessel . Subject to clause 6.3, if following commencement of the Works:

5.1.1 it becomes apparent in Parkol’s reasonable judgment that additional Works over and above those set out in the Estimate are required to complete the repairs to a satisfactory standard; or

5.1.2 the Customer notifies Parkol that it wishes to vary the scope of the Works,

Then the following provision of this clause 5 shall apply

5.2 Parkol shall as soon as reasonably practicable issue a Modification Proposal to the Customer setting out the necessary changes to the Contract including to the Price and any change to the estimated date for completion of the Works and the Customer shall promptly and no later than 5 Business Days from the date of receipt of the Modification Proposal either:

5.2.1 confirm acceptance by signing and returning the Modification Proposal in which case the Contract shall be deemed to have been duly amended; or

5.2.2 notify Parkol that it does not accept the Modification Proposal, in which case the provisions of clause 5.3 shall apply.

5.3 If the Customer does not accept the Modification Proposal the parties shall negotiate in good faith to agree the points of dispute but if they are unable to reach agreement within 10 Business Days of the date the Modification Proposal is received by the Customer, either party may terminate the Contract immediately by notice in writing in which case clause 14 (Consequences of Termination) shall apply, provided always that the parties may by agreement refer the matter to an expert for resolution whose appointment shall be agreed by the parties or in the absence of agreement, shall be appointed by the President for the time being of the Royal Institute of Naval Architects and whose decision shall be final and binding. The costs incurred by the parties in resolving the dispute shall be borne between the parties as directed by the expert.

5.4 Parkol shall be entitled to suspend performance of the Works without liability to the Customer between and including the date it issues the Modification Proposal and the date the parties agree the Modification Proposal or the date of termination of the Contract, as the case may be.

Price for the Works

6.1 The Price shall be calculated on a time and materials basis and shall include all sums payable in respect of VAT unless the Customer or the Vessel is zero rated for VAT or is otherwise exempt from payment of VAT.

6.2 The Price set out in the Estimate is based on the prices quoted for Goods by the suppliers of the Goods at the date of the Estimate. Parkol shall be entitled to increase the Price to reflect any increase in the price actually charged by any supplier for any of the Goods.

6.3 In addition to its rights in clause 6.2, Parkol shall be entitled to charge for up to an additional 5% of the estimated Price to reflect additional work required without the provisions of clause 5 applying to such increase, provided always that Parkol shall use all reasonable endeavours to keep the Customer informed of any such increases.

6.4 In circumstances where Parkol is required to perform the Works at a place other than the Yard, Parkol shall be entitled (subject to the provision of reasonable evidence of such costs) to charge the Customer for any travel, accommodation and subsistence costs and expenses reasonably incurred by Parkol’s Personnel in connection with the Works. Unless otherwise set out in the Estimate, Parkol shall be entitled to invoice the Customer for such expenses monthly in arrears and the Customer shall pay any such invoice in accordance with clause 7.2.

Payment

7.1 Subject to clause 7.6 and clause 14.1.3, Parkol shall invoice the Customer in accordance with the terms set out in the Estimate which may be a single invoice or a stage payment basis.

7.2 Unless otherwise set out in the Estimate and subject to clause 7.6 and clause 14.1.2, the Customer shall pay each invoice submitted by Parkol within 30 days of the date of the invoice. Time for payment shall be of the essence of the Contract.

7.3 Without limiting any other right or remedy of Parkol, if the Customer fails to make any payment due under the Contract by the due date for payment Parkol shall be entitled to:

7.3.1 rely on the Customer’s breach and suspend performance of the Works without liability to the Customer;

7.3.2 without prejudice to Parkol’s rights under clause 7.3.5, move the Vessel from the Yard to another place at Parkol’s discretion and convenience, and the Vessel shall be at the risk, cost and expense of the Customer from the moment it is removed from the Yard;

7.3.3 place any Goods purchased by Parkol for the purpose of the Contract and any other assets of the Customer which are in Parkol’s possession into storage at the Yard or elsewhere and in either case, charge the Customer the costs of such storage;

7.3.4 charge interest on all overdue amounts at the rate of two per cent per annum above the prevailing base lending rate of Barclays Bank Plc, accruing on a daily basis from the due date until the date of actual payment, whether before or after judgment and compounding quarterly; and

7.3.5 either exercise a lien over the Vessel until payment of all sums due under the Contract is received in full or at Parkol’s sole discretion sell the Vessel and any other items belonging to the Customer which are in Parkol’s possession and any items purchased by Parkol for the performance of the Works at the best price reasonably obtainable and apply the proceeds of sale in discharge of all sums owed to Parkol under the Contract plus all costs and expenses of the sale incurred by Parkol, including interest due thereon. Parkol shall pay to the Customer without interest the amount by which, if any, the proceeds of such sale exceed the amount due to Parkol but the Customer shall remain liable to Parkol for any shortfall including interest thereon.

7.4 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law. The Customer shall not be entitled to assert any credit, set-off or counterclaim against Parkol in order to justify withholding payment of any such amount in whole or in part. Parkol may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Parkol to the Customer.

7.5 Where the Price is increased in accordance with these Conditions, Parkol may at its discretion either spread the additional amount payable across the remaining stage payments (where applicable) or invoice the Customer for such additional amount in one lump sum and either immediately or on completion of the Works.

7.6 Without prejudice to its rights under clause 13, if in the reasonable opinion of Parkol the Customer becomes an unacceptable credit risk Parkol may:

7.6.1 immediately cancel any credit extended to the Customer;

7.6.2 notwithstanding the terms of clause 7.2, require the Customer to immediately settle any unpaid invoices issued to the Customer and suspend performance of the Works without liability to the Customer until payment is received in full and in cleared funds for all such invoices; and

7.6.3 thereafter, as a condition of further performance of the Contract, require payment in advance for the Works.

Intellectual Property Rights

8.1 All Intellectual Property Rights in or arising out of or in connection with the Works (excluding those relating to any Goods) shall, unless supplied or created by the Customer, at all times be vested in and remain the property of Parkol.

8.2 Subject to payment of the Price, Parkol grants to the Customer a non-exclusive, royalty free, worldwide licence to use such Intellectual Property Rights for the purpose of operating the Vessel.

Confidentiality

Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and are disclosed by the other party, its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business or its products or services which the recipient may obtain, and the recipient shall use such information only for the performance of its obligations under the Contract. The recipient shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging that party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations no less onerous than those set out in this clause.

Warranty

10.1 Except as expressly provided in the Contract no warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, specification or performance of the Goods or the services supplied by Parkol is given or assumed by Parkol and all such warranties, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law.

10.2 Parkol warrants to the Customer that it will carry out the Works with reasonable skill and care and in accordance with any applicable regulatory standards specified in the Estimate.

10.3 Parkol shall not be liable for a breach of the warranty in clause 10.2 unless the Customer gives written notice to Parkol of the nature of the alleged defect setting it out in reasonable detail within 6 months from and including the date of delivery of the Vessel back to the Customer following completion of the Works.

10.4 If Parkol is in breach of the warranty set out in clause 10.2 and subject to clause 10.3 and clause 10.8, Parkol shall remedy the defect at the Yard at its own cost and expense and a fresh warranty shall apply to such remedial works on the same terms of this clause 10.

10.5 Notwithstanding the terms of clause 10.4 Parkol may at its sole discretion:

10.5.1 agree to carry out the remedial work at such other place where the Vessel is located provided always that the Customer shall be liable for any additional costs and expenses incurred by Parkol as a result carrying out the works at such place; or

10.5.2 agree that the remedial works are carried out by a third party at Parkol’s cost and expense provided always that:

the Customer provides Parkol with a written quote in advance of such works being commenced;

Parkol’s liability for costs and expenses shall not exceed the amount of Parkol’s liability had Parkol carried out the remedial works at the Yard; and

iii. Parkol shall have no liability whatsoever whether in contract, tort or otherwise in respect of any works carried out by such third party.

10.6 Subject to clause 10.7 and clause 10.8, any defect in any Goods shall be subject to the terms of the manufacturer’s warranty for the Goods in question.

10.7 If the Customer alleges any defect in any Goods it shall promptly notify Parkol of the details of the alleged defect in writing setting out reasonable detail. Provided that notification is received within the manufacturer’s warranty period for the Goods in question, Parkol shall inspect the Goods as soon as reasonably practicable (such inspection to be at the Customer’s cost) and if following such inspection Parkol considers (acting reasonably) there is a valid warranty claim against the manufacturer of the Goods, Parkol shall use all reasonable endeavours to pursue such a claim on the Customer’s behalf.

10.8 Parkol shall not be liable for a breach of the warranty in clause 10.2 nor shall it have any obligations under clause 10.6 and/or clause 10.7 if:

10.8.1 the Customer makes any further use of the Vessel and/or Goods after giving notice of any defect; or

10.8.2 the defect arises due to the Customer’s failure to follow the instructions of Parkol or the manufacturer of the Goods as to use of the Goods or due to the Customer’s failure to take reasonable care of the Goods and/or Vessel; or

10.8.3 the Customer or any third party on the Customer’s behalf alters or repairs the Goods and/or part of the Vessel which was subject to the Works without the written consent of Parkol; or

10.8.4 any sums due to Parkol under the Contract remain outstanding.

10.9 Parkol gives no warranty and accepts no liability for the quality or fitness for purpose of any Owner’s Supply Items or for any damage caused to the Vessel by such items and the Customer hereby irrevocably agrees that it is the Customer’s sole responsibility to resolve any claim or complaint with regard to any Owner’s Supply Item direct with the manufacturer and Parkol shall have no liability or obligation in respect thereof.

Liability

11.1 Parkol shall not have any responsibility or liability to the Customer to the extent that Parkol’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or by the failure of the Customer to perform any relevant obligation.

11.2 Nothing in these Conditions shall limit or exclude Parkol's liability for:

11.2.1 death or personal injury caused by its negligence, or the negligence of its employees;

11.2.2 fraud or fraudulent misrepresentation; or

11.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

11.3 Parkol shall not be liable for any loss of profits, anticipated savings, revenue, business, goodwill or contracts or for any type of special, indirect or consequential loss or damage whatsoever sustained by the Customer or any other person arising out of or in connection with the Contract.

11.4 Notwithstanding anything else in the Contract, Parkol’s liability to the Customer in contract, tort (including negligence), misrepresentation (other than fraudulent misrepresentation) or otherwise arising out of or in connection with the Contract shall not exceed the greater of £500,000 (five hundred thousand pounds) or the amount paid by the Customer in respect of the Works.

11.5 The Customer warrants that any design or specification relating to the Works provided by the Customer will not infringe the Intellectual Property Rights of any third party or misuse any confidential information of any third party.

11.6 The Customer shall indemnify and keep indemnified Parkol against any breach by the Customer of the warranty in clause 11.5.

11.7 Parkol shall have no liability for any loss of or damage to property (whether belonging to the Customer or not) or for any injury or death suffered by any person which is caused by any negligent act or omission or the wilful misconduct of the Customer’s employees or agents whilst on Parkol’s premises.

Title and risk

12.1 Risk in the Vessel shall lie with Parkol while it is in the Yard and at any time it is being transferred to or removed from the Yard by Parkol or its agents. At all other times risk shall lie with the Customer.

12.2 Subject to clause 7.3.3, risk in any Owner’s Supply Items shall lie with Parkol while in Parkol’s possession in the Yard or while in storage at any third party premises at the direction of Parkol. At all other times risk shall lie with the Customer.

12.3 Title to the Goods shall not pass to the Customer until Parkol receives payment in full (in cash or cleared funds) for the Works.

12.4 Until title to the Goods has passed to the Customer, at all times while the Goods are in the possession of the Customer the Customer shall:

12.4.1 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and

12.4.2 notify Parkol immediately if the Customer becomes subject to any of the events listed in clause 13.1.2 to 13.1.5 inclusive.

12.5 If the Customer fails to pay any sum due under the Contract by the date payment is due, or if before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1.2 to 13.1.5 inclusive, then, without limiting any other right or remedy Parkol may have available to it, Parkol or its agents may enter the Vessel wherever it is located and recover the Goods and the Customer shall permit or shall procure access to the Vessel to enable Parkol to exercise its rights under this clause 12.5.

Termination of the Contract

13.1 Without limiting any other right or remedy available to it, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.1.1 the other party commits a material breach of the Contract and (if capable of remedy) fails to remedy that breach within 30 days of being notified in writing of the breach;

13.1.2 the other party (being an individual or partnership) has a bankruptcy order made against it or any partner, or the other party or any partner makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;

13.1.3 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), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), or having a receiver appointed to any of its assets or ceasing to carry on business;

13.1.4 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.2 or clause 13.1.3; or

13.1.5 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

13.2 Without limiting any other right or remedy available to it, Parkol may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

13.3 Without limiting any other right or remedy available to it, Parkol shall have the right to suspend performance of the Works under the Contract or any other contract between the parties if:

13.3.1 the Customer becomes subject to any of the events listed in clause 13.1.2 to 13.1.5 inclusive, or if Parkol reasonably believes that the Customer is about to become subject to any of them; or

13.3.2 if the Customer fails to pay any amount due under this Contract on the due date for payment.

Consequences of Termination

14.1 On termination of the Contract for any reason:

14.1.1 Parkol shall immediately cease to perform the Works;

14.1.2 the Customer shall immediately settle all of Parkol's outstanding unpaid invoices plus any interest due;

14.1.3 Parkol shall issue an invoice in respect of Works supplied but not yet invoiced, which shall be payable by the Customer immediately on receipt;

14.1.4 the Customer shall promptly return to Parkol any of Parkol’s Materials which are in the Customer’s possession and if the Customer fails to do so, Parkol or its agents may enter the Customer's premises and take possession of them or if they are at a third party’s premises where Parkol is required to carry out the Works at the direction of the Customer, the Customer shall procure access to such place to enable Parkol to recover such items and in either case, until such time the Customer shall be solely responsible for their safe keeping and will ensure they are not used for any purpose not connected with the Contract; and

14.1.5 following payment in cleared funds of all sums due from the Customer under the Contract, Parkol shall promptly grant the Customer or its nominated agent access to the Yard for the purpose of removing the Vessel, any Owner’s Supply Items and any Goods paid for by the Customer but not yet affixed to the Vessel.

14.2 Termination of the Contract shall not affect the accrued rights, remedies, obligations and liabilities of the parties up to and including the of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination and except as expressly provided in the Contract, neither party shall have any further obligation to the other under the Contract.

14.3 The terms of clauses 8, 9, 10, 11, 12, 14, 16 and 17 shall survive termination of the Contract and shall continue to have full force and effect.

Force Majeure

Parkol shall not be liable for delay or failure in performing its obligations if such delay or failure is caused by circumstances beyond its reasonable control. Subject to Parkol promptly notifying the Customer in writing of the reasons for the delay or failure and the likely duration, the performance of Parkol’s obligations shall be suspended during the period the circumstances persist and Parkol shall have no liability to the Customer for such delay or failure to perform. If the circumstances continue for more than 12 weeks, either party shall, without limiting its other rights or remedies, be entitled to terminate the Contract on written notice to the other.

Disputes

16.1 Subject to clause 5.3, the parties shall attempt to resolve any dispute between arising out of or in connection with the Contract by informal negotiation but if the matter cannot be resolved within 30 days of the date of commencement of negotiations, it shall be resolved in accordance with clause 16.2 or clause 16.3, as appropriate.

16.2 Any dispute regarding the compliance of the Works with any regulatory standards which Parkol is contractually obliged to comply with in the performance of the Works shall be referred to the relevant regulatory authority for resolution who shall act as an expert and not an arbitrator and whose decision shall be final and binding on the parties. The costs incurred by the parties in resolving the dispute shall be borne between the parties as directed by the expert.

16.3 Any other dispute shall be resolved in accordance with clause 17.10 but the parties may at any time by agreement refer the matter to mediation.

General

17.1 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Parkol which is not set out in the Contract. Any samples, drawings, descriptive matter or advertising issued by Parkol, and any descriptions or illustrations contained in Parkol's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Works including any Goods described in them and shall not form part of the Contract.

17.2 Except as set out in the Estimate, neither party shall be entitled to assign or otherwise transfer the Contract in whole or in part without the prior written consent of the other.

17.3 Any delay by Parkol in enforcing the provisions of the Contract shall not prejudice or restrict its rights and any waiver of rights by Parkol shall not operate as a waiver of any subsequent breach and any right, power or remedy conferred upon or reserved for Parkol in the Contract shall be exclusive of any other right, power or remedy available to Parkol and each such right, power or remedy shall be cumulative.

17.4 The Contract supersedes all prior agreements, arrangements and undertakings between the parties relating to the subject matter of the Contract. No addition to or modification of any provision of the Contract shall be binding upon the parties unless made in writing and signed by a duly authorised representative of each of the parties.

17.5 The headings to the clauses of these Conditions are for ease of reference only and shall not affect the interpretation or construction of the Contract.

17.6 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

17.7 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute either party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

17.8 Nothing in these Conditions confers on any party other than the Customer any benefit or any right to enforce any of the terms of the Contract.

17.9 All notices which are required to be given under the Contract shall be in writing and sent to the address for the recipient contained in the Contract or such other address as the recipient party may designate by notice given in accordance with this clause. Any such notice may be delivered personally, or by first-class post or by reputable pre-paid courier service and shall be deemed to have been served if by hand when delivered, if by first-class post on the second Business Day after posting and if by courier, at the time of receipt confirmed by signature of the recipient as indicated by the courier company.

17.10 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.