Terms & Conditions
Who We Are
K2 Corporate Mobility Limited is a company incorporated in England and Wales and is the legal entity entering into this Agreement. K2 Corporate Mobility Limited operates under a number of trading brands, including K2 Bespoke and K2 Group (together referred to as “K2”). References in this Agreement to “K2”, “we”, “us” or “our” are references to K2 Corporate Mobility Limited, regardless of the brand name under which the Services are marketed, presented or delivered.
K2 Bespoke and K2 Group are brand names only and do not constitute separate legal entities. All contracts, liabilities, rights and obligations relating to the Services are entered into by K2 Corporate Mobility Limited. Where Services are described as being provided by a specific K2 brand, this is for descriptive and marketing purposes only and does not affect the identity of the contracting party.
Definitions and Interpretation
1.1 In this Agreement, the following terms shall have the following meanings:
"Agreement" means the Commercial Terms, these Terms and Conditions and the Schedules;
"Business Day" means any day other than a Saturday, Sunday or public holiday in England;
"Business Hours" means any time between the hours of 9.30am and 5.30pm on a Business Day;
"Change Order" has the meaning given in Clause 4.1;
"Client" has the meaning given in the Commercial Terms;
"Client Materials" means all Intellectual Property Rights and other materials owned by or licensed to the Client, which are supplied, or in respect of which access is granted, to K2 by the Client in connection with K2's provision of the Services
“Commencement Date” means the date set out in the Commercial Terms;
"Commercial Terms" means the Commercial Terms to which these Terms and Conditions are appended or to which it is agreed that they shall apply;
"Contract Manager" means, in respect of each Party, the contract manager identified in the Commercial Terms (or such other person as a Party may appoint and notify the other Party from time to time);
"Contract Year" means each successive twelve (12)month period during the Term and the shorter period commencing on the day after the last day of a Contract Year and ending on the date of termination or expiry of this Agreement;
"Fees" means the costs, fees and expenses payable by the Client to K2 in respect of the Services as set out in the Commercial Terms, including any amounts payable pursuant to Clause 6.4;
"Force Majeure Event" means any event or circumstance which is beyond the reasonable control of a Party affecting its ability to perform any of its obligations (other than payment) under this Agreement, including (without limitation): (a)fire, flood, drought, lightning, earthquake, subsidence or other natural disaster; (b) any pandemic, epidemic, outbreak of disease or other national or international public health emergency (and the effects of any associated lockdown, social distancing measures or inability to travel); (c) terrorist act, war, armed conflict, revolution, riot, civil commotion or any threat thereof; (d) nuclear, chemical or biological contamination, sonic boom or failure or shortage of or disruption to utility supplies; (e) imposition of sanctions, embargo, discontinuation of diplomatic relations or any law, regulation, direction or action implemented or taken by a government or public authority, including imposition of export or import restrictions, quotas or prohibitions, compliance with governmental; (f) fire, explosion, accident or collapse of buildings or infrastructure; (g) any labour or trade dispute, strike, lockouts or other industrial action of any kind; or(h) the delay, failure or inability of any third party to provide any goods and/or services upon which K2 is dependent in providing or procuring the provision of the Services;
"K2" has the meaning given in the Commercial Terms;
"K2 Materials" means all Intellectual Property Rights and other materials owned by or licensed to K2 prior to and/or independently of this Agreement, which are used by K2 in connection with K2's provision of the Services;
"Intellectual Property Rights" means all patents, copyrights, design rights, registered designs, database rights, trade marks, service marks, trade secrets, domain names, rights in know-how and ConfidentialInformation, moral rights and any other intellectual property rights (whether registered or unregistered), all applications, extensions and renewals for the grant of the same and all rights having equivalent or similar effect which subsist or will subsist now or in the future anywhere in the world;
"Losses" means any damages, losses, costs, claims, expenses, interest, payments or liabilities of any kind (including, without limitation, direct, indirect, special or consequential losses), whether arising in contract, tort (including negligence), misrepresentation, breach of statutory duty or otherwise;
"Parties" means K2 and the Client (and "Party" shall be construed accordingly);
"Payment Period" has the meaning given in the Commercial Terms;
"Personnel" means the employee(s), agent(s) or nominee(s) of the Client in respect of whom the Services are provided (and any relevant accompanying persons);
"Schedules" means the Schedules referred to in the Commercial Terms as being appended to and forming part of this Agreement;
"Service Change" has the meaning given in Clause 4.1;
"Services" means the services to be provided by K2 to the Client for the benefit of the Client and/or any Personnel, as may be amended or supplemented by the Parties in accordance with Clause 4;
"Sufficient Security" means either: (a) a performance bond, letter of credit or other form of security from a reputable financial institution in respect of an amount and in a form approved by K2 (such approval not to be unreasonable withheld or delayed); and/or (b) a parent company guarantee in a form approved by K2 (such approval not to be unreasonably withheld or delayed);
"Term" the duration of this Agreement as set out in Clause 2 and the Commercial Terms;
"Terms and Conditions" means the terms and conditions set out herein; and
"VAT" means United Kingdom value added tax and/or any other tax of a similar nature (including any other value added tax, consumption tax, good and services tax or sales tax) applicable in the United Kingdom or any other country.
1.2 In this Agreement, the words "include","includes", "including", "in particular" or any such similar words or phrases shall be construed without limiting the words preceding or following.
1.3 In this Agreement, any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to such statute or statutory provision (including all instruments, orders, directions or regulations issued thereunder or deriving validity therefrom) as in force at the Commencement Date and as subsequently amended, substituted, re-enacted or consolidated from time to time.
2. Duration
2.1 This Agreement shall be deemed to have come into effect on the Commencement Date and shall, unless terminated earlier in accordance with any other provision of this Agreement, continue in full force and effect in accordance with this Clause 2.
2.2 Subject to Clause 2.3, this Agreement shall continue for the Initial Term and, following expiry of the Initial Term, shall automatically renew for successive Renewal Terms, unless either Party notifies the other Party of its intention not to renew by giving no less than the requisite Notice Period prior to the expiry of the Initial Term or Renewal Term (as applicable).
2.3 If no Initial Term or Renewal Term are specified in the Commercial Terms, this Agreement shall continue until terminated by either Party giving to the other Party notice of termination of no less than the requisite Notice Period.
3. Services
3.1 K2 shall provide the Services to the Client as requested by the Client during the Term subject to, and in accordance with, the terms of this Agreement. K2 shall be authorised to accept requests for the provision of Services (and related instructions) from the Client and from any person whom K2reasonably believes is authorised to request Services (and to provide related instructions) on the Client's behalf.
3.2 K2 shall provide the Services:
3.2.1 with reasonable skill and care;
3.2.2 in a professional manner; and
3.2.3 if applicable, in accordance with any specific service levels applying to the Services as set out in any Schedule to this Agreement.
3.3 The timing of delivery of any of the Services shall not be of the essence.
4. Service Changes
4.1 Either Party may from time to time during the Term request that a change is made to all or any part of the Services or propose additional services to those set out in the Commercial Terms in accordance with this Clause 4 (a "Service Change"). Any Service Changes shall be documented in a "Change Order", which shall include details of the proposed changes and the effect that they will have on:
4.1.1 the Services;
4.1.2 the Fees;
4.1.3 the timetable of the Services; and
4.1.4 any of the terms of this Agreement.
4.2 If K2 wishes to make a Service Change, it shall provide a draft Change Order to the Client for consideration.
4.3 If the Client wishes to make a ServiceChange, it shall notify K2 and provide as much detail of the proposed ServiceChange as K2 reasonably requires (including the nature and timing of theproposed Service Change), following receipt of which K2 shall provide a draftChange Order to the Client for consideration as soon as reasonably practicable(which shall be prepared by K2 at the cost of the Client).
4.4 Each Change Order shall be given due consideration by the Parties (acting reasonably) and neither Party shall unreasonably withhold or delay its agreement to a Change Order, save that neither Party shall otherwise be under an obligation to agree to a Service Change. If the Parties are unable to agree a proposed Service Change, the matter shall be resolved in accordance with Clause 17. A Change Order shall only be effective once it has been agreed and signed by the Parties, which shall amend this Agreement in accordance with Clause 16.6.
4.5 Nothing in this Agreement shall prevent K2 implementing any change to the Services which:
4.5.1 is reasonably necessary to take into account and/or address the impact of any change to applicable law or regulation; or
4.5.2 relates to internal system changes or service delivery changes, provided that any such changes do not materially adversely affect the provision of the Services.
5. Client Obligations
5.1 The Client shall, at all times during the Term, procure that its Personnel shall comply with all obligations of the Client under this Agreement which are relevant to the receipt of the Services in accordance with this Agreement.
5.2 Without prejudice to the generality of Clause 5.1, the Client shall (and shall procure that its Personnel shall) at all times during the Term:
5.2.1 co-operate and liaise with K2 as is reasonably necessary or desirable for the provision of the Services; and
5.2.2 promptly respond to any request for information, guidance or instructions reasonably required by K2 to enable it to perform the Services.
5.3 If, at any time during the Term, K2 has reasonable grounds to suspect that the Client's financial position has (or is reasonably likely to) deteriorate to such an extent that the Client's ability to adequately fulfil its obligations under this Agreement has been placed in jeopardy, K2 shall be entitled to request that the Supplier provides Sufficient Security in favour of K2, which shall be promptly provided by the Client as a condition of K2's continued provision of the Services.
5.4 The Client acknowledges and agrees that, if K2's provision of the Services is in any way hindered or delayed by an act or omission by the Client or by any failure of the Client to comply with Clauses 5.1, 5.2 or 5.3, K2 shall be entitled to suspend its provision of the Services and performance of any other relevant obligations under this Agreement and shall not be liable for any breach of such obligations in doing so.
6. Fees and Payment
6.1 In consideration of K2's provision of the Services, the Client shall pay the Fees to K2 as set out in the Commercial Terms(Fees).
6.2 K2 may (at its discretion) request advance payments relating to disbursements, expenses or any amounts payable by the Client and/or any Personnel in relation to the Services, which shall be payable by the Client as a condition of K2's provision of the relevant Services.
6.3 K2 reserves the right, by giving notice to the Client at any time prior to the provision of the relevant part of the Services, to increase the Fees to reflect any increase in the costs, fees and expenses payable by K2 in connection with its provision of the Services caused by events or circumstances beyond its reasonable control, including (without limitation):
6.3.1 any material increase in the costs of labour, goods and/or services used in the provision of the Services (including any costs, fees or expenses payable by K2 to any third party supplier or subcontractor used in the provision of the Services);
6.3.2 any currency or foreign exchange rate fluctuations, changes in applicable law or regulation or imposition of taxes, duties or tariffs;
6.3.3 any change in delivery dates, quantities or specifications for the Services requested by the Client; and/or
6.3.4 any delay caused by any instructions provided by the Client or any failure by the Client or its Personnel to provide any necessary information, guidance or instructions in accordance with Clause 5.2.2.
6.4 In the event that the Client cancels a request for Services, K2 shall be entitled to charge the Client for any non-recoverable costs, fees and expenses reasonably incurred by K2 in reliance on the request for Services prior to receipt of the Client's notice of cancellation and an administration fee of £500 for any briefing call that has taken place in respect of the Services which were subsequently cancelled.
6.5 The Fees shall be paid by the Client within the agreed Payment Period by payment into the bank account nominated by K2 in writing from time to time(or by such other payment method as the Parties may agree from time to time).
6.6 In the event that the Client fails pay any amount due under this Agreement within the Payment Period, K2 may (without prejudice to its other rights and remedies):
6.6.1 suspend all or part of the Services with or without notice to the Client;
6.6.2 terminate this Agreement with immediate effect by giving written notice to the Client;
6.6.3 set-off such amount against any funds held by K2 on behalf of the Client or amounts payable by K2to the Client; and/or
6.6.4 charge interest on such amount calculated on a daily basis from the expiry of the Payment Period until(and including) the date of actual payment at the rate of four (4) percent per annum above the base rate set from time to time by the Bank of England's monetary policy committee (or its successor).
6.7 All amounts referred to in this Agreement are exclusive of VAT, which shall (if required) be payable by the Client at the appropriate rate at the same time as payment is made of the sum to which VAT relates.
6.8 All sums payable by the Client to K2 under this Agreement 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. Intellectual Property Rights
7.1 As between the Parties, all K2 Materials shall vest in and remain the exclusive property of K2 or its licensors (as applicable), including all Intellectual Property Rights subsisting in any and all adaptations of, modifications and enhancements to (and goodwill arising in relation to) the K2Materials that exist or arise as a result of performance of this Agreement. To the extent that any Intellectual Property Rights in the K2 Materials vest in the Client at any time, all such Intellectual Property Rights are hereby assigned by the Client to K2 (to the extent permitted by law), together with all goodwill and rights of action accrued in relation thereto (and the Client waives any moral rights therein).
7.2 K2 hereby grants to the Client a non-exclusive and non-transferable licence to use the K2 Materials solely to the extent required by the Client to receive the benefit of the Services during the Term.
7.3 As between the Parties, all Client Materials shall vest in and remain the exclusive property of the Client or its licensors (as applicable), including all Intellectual Property Rights subsisting in any and all adaptations of, modifications and enhancements to (and goodwill arising in relation to) the Client Materials that exist or arise as a result of performance of this Agreement. To the extent that any Intellectual Property Rights in the Client Materials vest in K2 at any time, all such Intellectual Property Rights are hereby assigned by K2 to the Client (to the extent permitted by law), together with all goodwill and rights of action accrued in relation there to (and K2 waives any moral rights therein).
7.4 The Client hereby grants to K2 a sub-licensable, non-exclusive and non-transferable licence to use the Client Materials solely to the extent required by K2 to provide or procure the provision of the Services.
7.5 Each Party warrants to the other that it has the requisite power and authority to grant the licences granted by it under this Clause 7.
7.6 Each Party shall (at its own cost) execute all documents and to do all other things as are reasonably necessary to give effect to this Clause 7.
8. Termination
8.1 Without prejudice to its other rights and remedies, either Party may terminate this Agreement (the "Terminating Party") with immediate effect, by giving written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:
8.1.1 is in material breach of this Agreement and either that breach is incapable of remedy or the Defaulting Party has failed to remedy the breach within thirty (30) days of receiving written notice from the Terminating Party specifying the breach and requiring it to be remedied;
8.1.2 ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemedinsolvent, has a receiver, liquidator, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part ofits assets or business (or is the subject of a filing with any court for the appointment of any such officer), makes any composition or arrangement with its creditors, takes or suffers anysimilar action in consequence of debt or an order or resolution is made for its dissolution or liquidation (other than for the purposes of solvent amalgamationor reconstruction), or any equivalent or similar action or proceeding is takenor suffered by or in respect of the Defaulting Party in any jurisdiction; or
8.1.3 the Defaulting Party has been unable to perform its obligations under this Agreement for a period of sixty (60) consecutive days as a result of a Force Majeure Event.
8.2 The expiry or termination of this Agreement (howsoever caused) shall be without prejudice to:
8.2.1 any rights, remedies, obligations or liabilities of the Parties that have accrued prior to the expiry or termination of this Agreement;
8.2.2 any obligation of the Client to pay sums which are properly invoiced by K2 in accordance with this Agreement (including any invoices issued by K2 following expiry or termination of this Agreement in respect of Services provided prior to the expiry or termination of this Agreement); and
8.2.3 any rights or obligations of either Party which are expressly stated to survive, or by their nature survive, expiry or termination of this Agreement (including, without limitation, this Clause 8.2 and Clauses 12, 14, 15 and 17).
9. Insurance
K2 shall, at its own cost, effect and maintain in force during Term such adequate insurance with reputable insurers as is appropriate in accordance with good industry practice and as a provider of services in the nature of the Services, including (without limitation)professional indemnity insurance, public liability insurance and employer's liability insurance in amounts no less than that which is required by law in the application locations.
10. Liability
10.1 Subject to Clauses 10.2 and 10.3, the aggregate liability of K2 to the Client for Losses arising out of, or in connection with, this Agreement (whether such liability arises in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise):
10.1.1 in respect of any property belonging to the Client or Personnel which is lost or damaged in transit when in the possession of K2 in the performance of the Services, shall not exceed the maximum amount recoverable in respect of such property pursuant to any relevant insurance cover maintained by K2 pursuant to Clause 9;
10.1.2 in respect of any other claims arising in the first Contract year, shall not exceed the sum of£500,000; and
10.1.3 In respect of any other claims arising in the second and each subsequent Contract Year, the lower of:(i) £1,000,000; and (ii) an amount equivalent to the total Fees paid by the Client and received by K2 in the previous Contract Year.
10.2 Subject to Clause 10.3, K2 shall not be liable to the Client in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise for:
10.2.1 any loss of profit, business, revenue, contract, opportunity, use, production, savings, discounts, rebates or data (whether actual, anticipated, direct or indirect);
10.2.2 any loss of or damage to goodwill or reputation (whether actual, anticipated, direct or indirect); or
10.2.3 any indirect, special, punitive or consequential loss or damage,
in each case arising out of or in connection with this Agreement.
10.3 Nothing in this Agreement shall exclude or limit the liability of either Party in respect of: (a) death or personal injury caused by negligence;(b) fraud, fraudulent misrepresentation or wilful misconduct; or (c) any other liability which cannot be excluded or limited under applicable law. Nothing in this Agreement shall exclude or limit the liability of the Client to pay the Fees or any other amounts payable to K2 in accordance with this Agreement.
10.4 In respect of any tax, financial or immigration advisory services provided by K2 to the Client, any related advice or information provided by K2(in whatever form) shall be solely for the benefit of the Client and shall not constitute advice to, nor be relied upon by, any third party without K2's prior written consent. In the event that any claim is brought against K2 by any third party to whom the Client has communicated any such advice or information, the Client shall indemnify and keep indemnified K2 in full on demand from and against any Losses suffered or incurred by K2 in connection with any such claim.
10.5 The Client acknowledges and agrees that any act or omission of any its Personnel which, had it been the act or omission of the Client, would have constituted a breach of this Agreement shall (for the purposes of this Agreement) be deemed to be an act of omission of the Client.
10.6 To the extent that any Personnel of the Client suffers any loss pursuant to the default, negligence or breach of statutory duty of K2 in relation to this Agreement, such loss shall be treated as a loss incurred by the Client and shall be recoverable by the Client from K2 (subject to the terms and conditions of this Agreement).
10.7 The Client shall procure that none of its Personnel seek to enforce any rights or make any claim against K2 in connection with this Agreement and the Client acknowledges that the mechanism set out in Clause 10.6 provides appropriate and fair rights of redress in this regard.
11. Force Majeure
11.1 If either Party is affected by a Force Majeure Event, it shall notify the other Party of the Force Majeure Event within five (5) Business Days of becoming aware of the same, giving full written details of the nature of theForce Majeure Event, including its best estimate of the likely extent and duration of its inability to perform its obligations under this Agreement as a result of such Force Majeure Event and, thereafter, shall promptly provide any further information which the other Party may reasonably require.
11.2 Neither Party to this Agreement shall be liable to the other for any failure or delay in performing its obligations under this Agreement to the extent that such failure or delay is caused by a Force Majeure Event and the affected Party shall be entitled to a reasonable extension of time for performing its relevant obligations.
12. Confidentiality
12.1 Neither Party shall, at any time during the Term or thereafter, disclose or allow to be disclosed to any person any confidential information of a technical, business, financial, price-sensitive or other nature concerning the business or affairs of the other Party (or any member of its Group) or entrusted to the other Party by any third party, or the terms and conditions of this Agreement (including, in particular, the Fees), other than where: (a) the disclosing Party has obtained the other Party's consent; (b) the disclosure is required by applicable law or any regulatory or tax authority; (c) the relevant confidential information is already in the public domain; or (d) the relevant confidential information is disclosed to the disclosing Party's professional advisers in the proper performance of their duties and under a duty of confidentiality.
12.2 Notwithstanding Clause 12.1, the Client hereby authorises K2 to publicise its relationship with the Client and to do so using the Client's name and logo on K2's website and other marketing materials, provided that in doing so K2 shall not do any act or make any statement which K2 knows (or reasonably ought to know) would adversely affect or damage the reputation or brand of the Client or bring the Client into disrepute.
13. Data Protection
13.1 K2 and the Client act as independent Data Controllers in the relation to the provision of the Services. Both Parties agree to comply with their respective responsibilities under the Data Protection Act 2018 or other legislation applicable to the legal jurisdiction of the customer. For details on how we use data, please refer to the Privacy Policy.
13.2 In relation to any Personal Data (as defined by the UK Data Protection Act 2018) provided by You to Us, You undertake to Us that you have obtained all necessary consents from the data subjects that their personal information will be used by Us to provide the Services.
13.3 We shall not be considered either a Data Controller or a Data Processor for any data that is contained within a Shipment
14. Non-solicitation
14.1 In order to protect the legitimate business interests of the Parties, each Party agrees that it shall not (and shall procure that no member of itsGroup shall), during the Term and for a period of twelve (12) months thereafter, solicit, attempt to solicit, induce or employ any officer, employee, agent, consultant or contractor of the other Party (or any member of its Group or its subcontractors) who has been involved in any material respect in the provision or receipt of the Services without the prior written consent of the other Party.
14.2 The Parties acknowledge and agree that damages may not be an adequate remedy for any breach by the other Party of the provisions of this Clause 14 and that the non-defaulting Party shall be entitled to seek the remedies of injunction, specific performance or any other equitable relief for any threatened or actual breach of the provisions of thisClause 14 by the defaulting Party and that no proof of special damage shall be necessary for the enforcement of this Clause 14.
14.3 A Party shall not be in breach of Clause 14.1 as a result of running an advertising campaign that is not specifically targeted at and/or specifically drawn to the attention of the relevant officers, employees, agents, consultants or contractors of the other Party (or any member of its Group).
15. Notices
15.1 Any notice to be given by a Party under this Agreement must be inEnglish, in writing and delivered or sent to the address set out in theCommercial Terms (in the case of the Client) or its registered office address(in the case of K2), or to such other address as may be notified by a Party to the other Party from time to time giving not less than 30 days' prior notice in accordance with this Clause 15. Any such notice must be effected by one of the following methods:
15.1.1 by hand, which shall be deemed served upon delivery if delivered during Business Hours or at the start of Business Hours on the next Business Day if delivered at any other time;
15.1.2 by prepaid first class post or airmail post (if the recipient is not in the same country as the sender), which shall be deemed served at the start of Business Hours on the second Business Day following the day on which it was posted; or
15.1.3 by email, which shall be deemed served at the start of Business Hours on the next Business Day after transmission, provided that a copy of the notice is also despatched to the recipient using a method described in Clauses 15.1.1 or 15.1.2 no later than close of Business Hours on the next Business Day after transmission.
15.2 If the Client is located outside of the United Kingdom, the Client hereby agrees to appoint and thereafter maintain (for so long as any claim maybe brought under or in connection with this Agreement) the appointment of a process agent within England for service of proceedings in relation to any matter arising under or in connection with this Agreement (the "ProcessAgent") and shall notify K2 of the same, and service on the ProcessAgent in accordance with this Clause 15 shall be deemed to be effective service on the Client.
15.3 If the Client fails to appoint a Process Agent, or any such appointment is terminated or expires for any reason and the Client has not appointed a replacement Process Agent and notified K2 of the identity and address of the replacement Process Agent, K2 is hereby authorised by the Client to appoint a Process Agent with an address in England on behalf of (and at the cost of) the Client, and service on such Process Agent in accordance with thisClause 15 shall be deemed to be effective service on the Client. K2 shall notify the Client of the name and address of such replacement Process Agent promptly following appointment.
15.4 Failure by any Process Agent appointed under this Clause 15 to notify the Client of any service of process will not invalidate the proceedings concerned.
15.5 Nothing in this Agreement shall affect the right of service of process in any other manner permitted by law.
16. General
16.1 Status. These Terms and Conditions are incorporated into this Agreement and apply to the arrangement between the Parties as set out in the Commercial Terms to the exclusion of any other terms that the Client may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Except as expressly set out in this Agreement, all warranties, terms and conditions (whether implied by statute, common law or otherwise) are excluded to the fullest extent permitted by law.
16.2 Entire Agreement. This Agreement contains the entire agreement and understanding of the Parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement. Each Party acknowledges that it is entering into this Agreement without reliance on any undertaking, warranty or representation given by or on behalf of the other Party other than as expressly contained in this Agreement, provided that nothing in this Clause shall limit or exclude the liability of either Party for fraud or fraudulent misrepresentation.
16.3 Further Assurance. The Parties shall (and shall use its reasonable endeavours to procure that any relevant third party shall) execute and deliver such documents and perform such acts as may be reasonably required for the purpose of giving full effect to the rights given and the transactions contemplated by this Agreement.
16.4 Assignment. The Client shall not assign, novate, transfer, delegate, sub contractor otherwise dispose of any of its rights and/or obligations under this Agreement, nor purport to do so, without the prior written consent of K2. K2shall be permitted to assign, novate, transfer or delegate its rights and/or obligations under this Agreement provided that it notifies the Client of the same.
16.5 Subcontracting. K2 shall be permitted to subcontract any of its obligations under this Agreement to one or more sub contractors provided that K2 shall remain responsible for the acts and omissions of its subcontractors in connection with the same (subject to the terms and conditions of this Agreement). K2 shall not be responsible or liable to the Client in relation to any goods and/or services used in connection with the Services which have been provided by any third party which has not been engaged or instructed directly by K2 (irrespective of whether such goods or services are necessary or incidental to the provision of the Services by K2).
16.6 Variation. No variation of this Agreement shall be effective unless made in writing, signed by or on behalf of each of the Parties and expressed to be such a variation.
16.7 Waiver. Any failure or delay by either Party in exercising any right or power here under shall not constitute a waiver of such right or power unless agreed in writing.
16.8 No Partnership or Agency. This Agreement shall not create, nor shall it be construed as creating, any partnership or agency relationship between the Parties.
16.9 Severability. If any provision contained in this Agreement is, or shall be declared or become, unenforceable, invalid or illegal for any reason, the other provisions of this Agreement shall remain in full force and effect as if the same had been executed without the offending provision appearing therein. The Parties shall negotiate in good faith to agree a replacement provision in place of any such offending provision, such replacement provision to have an equivalent economic and commercial effect to the offending provision.
16.10 Counterparts. This Agreement may be executed as two counterparts and execution of any such counterpart by each Party (which may be by electronic execution including in PDF, JPEG or other agreed format) shall constitute due execution of this Agreement.
16.11 Third Party Rights. This Agreement is not intended to, and does not, give to any person who is not a Party to this Agreement any rights to enforce any provisions contained in this Agreement.
16.12 Translation. This Agreement is drafted in English. If this Agreement is translated into any other language, the English language version will prevail.
17. Governing Law and Dispute Resolution
17.1 This Agreement 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 Courts.
17.2 The Parties respective Contract Managers shall have overall responsibility for co-ordinating and overseeing the performance of each Party's obligations under this Agreement (including day-to-day liaison between the Parties and relationship management) and shall meet on a regular basis to discuss any issues arising in connection with the Services. The Contract Managers shall use all reasonable endeavours to resolve any disputes between the Parties in good faith.
17.3 In the event that any dispute between the Parties has not been resolved by the Contract Managers within thirty (30) Business Days of the matter arising, either party shall have the right to refer the matter to the Courts.
