2 Basis of Contract
- 2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- 2.2 Each Quotation constitutes an offer by the Supplier to hire the Equipment or supply the Goods and/or Services in accordance with these Conditions. The Contract is formed when the Customer issues its acceptance (Purchase Order) of the Quotation.
- 2.3 The Quotation, any confirmation issued by the Supplier of a Purchase Order and these Conditions, together with any documents referred to in them, constitute the whole agreement between the Supplier and the Customer for the hire of Equipment or the supply of Goods and/or Services. The Customer acknowledges that it has not relied upon any statement, promise, representation made or given by or on behalf of the Supplier which is not set out in these documents, and which together form the Contract.
- 2.4 The Customer shall be responsible for ensuring that any Quotation is complete and accurate at all times and shall notify the Supplier of any omissions or inaccuracies, or changes in circumstances which may affect the terms of such Quotation.
- 2.5 Any samples, drawings, descriptive matter, advertising or similar produced by the Supplier are produced for the sole purpose of giving an approximate idea of the Equipment and Goods. They shall not form part of the Contract nor have any contractual force.
- 2.6 All of these Conditions shall apply to the hire of Equipment, sale of Goods and the supply of Services, except where application to one or the other(s) is specified.
- 2.7 Any Quotation issued by the Supplier for the hire of Equipment or supply of Goods and/or Services may be withdrawn or amended at any time by the Supplier before acceptance by the Customer. Unless otherwise stated in the Quotation, a Quotation shall only be valid for a period of 30 days after the date of the Quotation, unless otherwise agreed in writing between the parties.
Clauses 3 to 8 shall only apply to the sale of Goods
4 Description of the Goods
- 4.1 The description of the Goods shall be set out in Quotation.
- 4.2 The Supplier reserves the right to make any changes to the specification for the Goods where such change is required to conform with any applicable statutory or regulatory standards.
6 Installation and Commission of the Goods
- 6.1 Unless stated otherwise in the Quotation, if the Supplier is to deliver the Goods (whether in instalments or in whole), the Supplier shall install and commission the Goods at the Goods Delivery Location on completion of Goods Delivery.
- 6.2 The Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to install and commission the Goods pursuant to clause 6.1.
- 6.3 The Customer shall prepare the Goods Delivery Location in accordance with the Supplier’s instructions and shall ensure that the condition of the Goods Delivery Location does not create any delay or difficulty in the Supplier in installing and commissioning the Goods.
Clauses 9 and 10 shall only apply to the supply of Services
9 Supply of Services
- 9.1 The Supplier shall supply the Services to the Customer in accordance with the Quotation, for the period specified in the Quotation (the Initial Term), at the end of which the Contract will be renewed automatically for successive periods of 12 months, unless terminated earlier in accordance with clause 9.5.
- 9.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- 9.3 Prior to the parties entering into a Contract for the supply of Services, the Supplier shall be entitled to carry out a site survey, where necessary, at the Customer’s premises.
- 9.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
- 9.5 Without affecting any other right or remedy available to it, the Customer may terminate the Contract for the supply of Services by giving the Supplier not less than 3 months’ written notice, such notice to expire on the last day of the Contract.
10 Customer’s Obligations
- 10.1 The Customer shall:
- 10.1.1 co-operate with the Supplier in all matters relating to the Services;
- 10.1.2 provide the Supplier, its employees, agents, consultants and subcontractors, with free access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services, and provide them with adequate and safe working space;
- 10.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- 10.1.4 prepare the Customer’s premises for the supply of the Services;
- 10.1.5 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;
- 10.1.6 comply with all applicable laws, including health and safety laws;
- 10.1.7 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
- 10.1.8 comply with any additional obligations as set out in the Quotation.
Clauses 11 to 21 shall only apply to the hire of the Equipment
11 Hire of Equipment
- 11.1 The Supplier shall hire the Equipment to the Customer for the Hire Period for use in accordance with the Quotation and these Conditions.
- 11.2 The Supplier shall not interfere with the Customer’s quiet possession of the Equipment, other than where it is agreed that the Supplier will assist with the set-up of the Equipment or save in the exercise of the Supplier’s rights under these Conditions or applicable law.
- 11.3 The Equipment shall at all times remain the property of the Supplier, and the Customer shall have no right, title or interest in or to the Equipment (save for the right of possession and use of the Equipment subject to these Conditions).
- 11.4 During the Hire Period, the Customer shall keep the Equipment at the Equipment Location, and not part with possession of the Equipment without the prior written consent of the Supplier.
- 11.5 Whether or not the Equipment has been affixed to any land, the Supplier will continue to be the owner of the Equipment, and the Equipment will remain the personal chattel of the Supplier.
12 Delivery of the Equipment
- 12.1 The Supplier shall deliver the Equipment to the Equipment Location or make the Equipment available for collection at the address set out in the Quotation or such other location as the parties may agree in writing (Delivery Location).
- 12.2 If the Supplier is to deliver the Equipment (whether in instalments or in whole), the Supplier shall use reasonable endeavours to deliver the Equipment to the Delivery Location by the date agreed between the Supplier and the Customer, and the Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to deliver the Equipment in accordance with clause 1 and this clause 12.2.
- 12.3 If the Customer is to collect the Equipment, the Customer shall collect the Equipment from the Delivery Location on the date and time agreed in writing between the Supplier and the Customer.
- 12.4 Except to the extent expressly agreed by the Supplier, delivery of the Equipment shall be completed on the Equipment’s arrival at the Delivery Location.
- 12.5 If the Customer fails to accept delivery of the whole or any instalment of the Equipment, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall store either the whole Equipment, or that instalment of the Equipment (as applicable) until the Customer is ready to accept delivery, and charge the Customer for all related costs and expenses (including insurance).
- 12.6 The Supplier shall not be liable for any delay in the Equipment being available for collection at the Delivery Location or delivered to the Delivery Location, or for any delay in completing installation and/or commissioning of the Equipment, which is caused by:
- 12.6.1 a Force Majeure Event;
- 12.6.2 the Customer’s failure to provide the Supplier with adequate instructions;
- 12.6.3 the Customer requesting a material change to the Contract after the Quotation is issued to the Customer; or
- 12.6.4 the Customer’s failure to comply with its obligations in clause 2.
13 Installation and Commission of the Equipment
- 13.1 If the Supplier is to deliver the Equipment (whether in instalments or in whole), the Supplier shall install and commission the Equipment at the Equipment Location on completion of delivery, unless stated otherwise in the Quotation.
- 13.2 The Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to install and commission the Equipment pursuant to clause 12.1.
- 13.3 The Customer shall ensure that the condition of the Equipment Location does not create any delay or difficulty for the Supplier in installing and commissioning the Equipment.
15 Customer’s obligations
- 15.1 The Customer shall:
- 15.1.1 procure all necessary licences and permissions required for the purpose for which the Equipment is to be used, and indemnify the Supplier 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 and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim for failure to obtain such licences and permissions (including infringement of a third party’s intellectual property rights) arising out of or in connection with the use of the Equipment hired by the Supplier to the Customer. This clause 1.1 shall survive termination of the Contract;
- 15.1.2 look after the Equipment as a reasonable owner of such Equipment would;
- 15.1.3 supply to the Supplier such information and assistance as may be necessary to enable the Supplier to install and commission the Equipment without any delay or difficulty;
- 15.1.4 use the Equipment only for the purpose notified to the Supplier and in accordance with the Supplier’s reasonable instructions and any Documentation supplied;
- 15.1.5 use the Equipment in a skilful and proper manner and in accordance with any relevant legislation;
- 15.1.6 ensure that the Equipment is operated and used by properly skilled and trained persons only;
- 15.1.7 ensure that the Delivery Location (if the site of the Customer) is safe and complies with all health and safety legislation, best practices and other legal requirements from time to time in force;
- 15.1.8 not alter or repair the Equipment or remove any notices, labels or serial numbers;
- 15.1.9 not use the Equipment after a fault is detected, without the Supplier’s consent;
- 15.1.10 not dispose of, offer to dispose of, attempt to dispose of or purport to dispose of the Equipment;
- 15.1.11 keep the Equipment in good repair, condition, and working order;
- 15.1.12 not modify the Equipment except as part of any repairing, maintaining and servicing obligations required under the Contract;
- 15.1.13 comply with all requirements and procedures of which the Supplier has notified the Customer under the Contract; and
- 15.1.14 not use goods supplied by any other supplier with the Equipment.
- 15.2 The Customer shall not do anything that leads any person to attempt to seize, distrain, take possession of, or to attempt to execute any civil recovery or judgement on the Equipment.
- 15.3 The Customer shall ensure that any landlord or mortgagee of any land which constitutes the Equipment Location acknowledges in writing to the Supplier that the Equipment is not installed so as to become a fixture of any kind and grants the Supplier the right to access the Equipment Location at any time to access and/or remove the Equipment.
The Customer may terminate the Contract by giving 1 weeks’ notice to the Supplier.
18 Loss of or damage to Equipment
- 18.1 The Customer shall be liable for any loss, theft, damage or destruction to the Equipment which occurs between delivery in accordance with clause 12 and return to the Supplier in accordance with clause 17, unless:
- 18.1.1 such loss, theft, damage or destruction is caused by an act or omission of an employee, agent, consultant or subcontractor of the Supplier; or
- 18.1.2 such loss, theft, damage or destruction is caused by a Force Majeure Event, and the Customer has complied with the Supplier’s reasonable instructions and has behaved reasonably as an owner of the Equipment would.
- 18.2 The Customer’s liability pursuant to clause 1 shall include the obligation to pay to the Supplier an amount equal to the cost to the Supplier of repair or replacement (as the Supplier may in its reasonable discretion decide) of the Equipment, together with such costs and losses as the Supplier may incur as a direct consequence of such loss, theft, damage or destruction, including (for example) in relation to any subsequent scheduled hires of the Equipment.
- 18.3 The Customer shall give immediate written notice to the Supplier in the event of any loss, theft, damage or destruction to the Equipment occurring during or arising out of or in connection with the Customer’s possession or use of the Equipment.
The remaining provisions of these Conditions shall apply to the hire of Equipment, the sale of Goods and the supply of Services
22 Charges and Payment
- 22.1 The fee for the hire of the Equipment and the price for the Goods and/or Services (if the Services are provided on a fixed fee basis) shall be Hire Fee and the price set out in the Quotation.
- 22.2 If the Services are calculated on a time and materials basis:
- 22.2.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates for each individual person, or as otherwise agreed between the parties in writing or orally;
- 22.2.2 the Supplier’s daily fee rates for each individual person shall be calculated on the basis of Standard Business Hours worked on Business Days and Saturdays, or as otherwise agreed between the parties;
- 22.2.3 any Services performed outside the Supplier’s Standard Business Hours, shall be calculated at a minimum rate of 1.5 times the Supplier’s standard fee rates from time to time for all Services undertaken outside such hours on a Business Day, and subject to a minimum rate of 2 times the Supplier’s standard fee rates from time to time for all Services carried out on a day which is not a Business Day; and
- 22.2.4 the Supplier will ensure that every individual person whom it engages in relation to the Services completes time sheets recording the time spent on the Services.
- 22.3 In respect of the Services, the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. Any expenses of more than £100 must be pre-approved by the Customer in writing.
- 22.4 Unless specified in the Quotation or otherwise agreed in writing between the parties, in respect of the Services, if the Customer misses an appointment that has been arranged between the parties, if the Supplier has waited excessively for the Customer on site, or if there is any other delay caused by the Customer, the Supplier reserves the right to charge £75 plus VAT per hour per individual person for any time which its engineer has spent at such a site visit.
- 22.5 Unless specified in the Quotation or otherwise agreed in writing between the parties, the Supplier reserves the right to charge an inspection fee of up to £50 plus VAT, where the Customer instructs the Supplier to inspect any faulty goods and/or equipment and provide the Customer with an estimate to repair the same. If the Supplier is thereafter instructed to carry out any repair work, the £50 inspection fee will be deducted off the total cost of the repair work.
- 22.6 Unless otherwise agreed in writing, all amounts specified in these Conditions and the Contract are exclusive of VAT, and any other applicable sales tax, which shall be paid by the Customer.
- 22.7 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
- 22.8 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of Goods Delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services, where the Services are provided on a fixed fee basis, and invoice the Customer monthly in arrears, where the Services are provided on a time and materials basis.
- 22.9 The Customer shall pay each invoice submitted by the Supplier:
- 22.9.1 in full without deduction or set off, in cleared funds within 30 days of the date of the invoice; and
- 22.9.2 to a bank account nominated by the Supplier.
- 22.10 Time for payment shall be of the essence of the Contract. Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the Bank of England’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgement.
23 Intellectual Property Rights
- 23.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
- 23.2 For the purpose of allowing the Customer to use the Goods and/or Services under these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, royalty free licence to use the Intellectual Property Rights in the Goods.
- 23.3 The Client shall not make copies of any of the materials in the Goods provided by the Supplier, without the prior written consent of the Supplier,
25 Limitation of Liability
- 25.1 Subject to clause 3, the Supplier shall not be liable for any of the following:
- 25.1.1 any direct loss of profit;
- 25.1.2 any loss of anticipated profit including loss of profit on contracts;
- 25.1.3 any loss of anticipated savings;
- 25.1.4 any loss of business, contracts or opportunity in each case whether direct or indirect;
- 25.1.5 any loss of goodwill or reputation in each case whether direct or indirect; or
- 25.1.6 any indirect, special or consequential loss or damage however caused including:
- 18.104.22.168 any indirect loss of profit; or
- 22.214.171.124 any indirect loss of anticipated profit; or
- 126.96.36.199 any indirect loss of anticipated savings; or
- 188.8.131.52 loss of use of money or revenue; or
- 184.108.40.206 loss of data; or
- 220.127.116.11 any other special, indirect or consequential loss, and the parties agree that the categories of loss as referred to at this clause 24.1 shall be distinct and severable.
- 25.2 Subject to clauses 24.1 and 3, the Supplier’s total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to (i) the total price for the Goods and/or Services, or (ii) the Hire Fee, paid by the Customer to the Supplier in the 12 month period preceding the date on which the breach or other event giving rise to the liability occurred (or if less than 12 months, the pro-rata annual equivalent price or Hire Fee paid by the Customer.
- 25.3 Notwithstanding any other provision of the Contract, the liability of the parties shall not be excluded or limited in any way in respect of the following:
- 25.3.1 death or personal injury caused by negligence;
- 25.3.2 fraud or fraudulent misrepresentation;
- 25.3.3 s2 of the Supply of Goods and Services Act 1982; or any other losses which cannot be excluded or limited by applicable law
29.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under these Conditions.
29.2 No amendment or variation of these Conditions will be valid unless agreed in writing by an authorised signatory of each party.
29.3 The Customer may not assign, subcontract or encumber any right or obligation under these Conditions, in whole or in part, without the Supplier’s prior written consent, which it may withhold or delay at its absolute discretion.
29.4 Any notice given by a party under these Conditions shall be in writing, be signed by, or on behalf of the party giving it, and be sent in the case of the Supplier to Unit 3 Bamburgh Court, First Avenue, Team Valley Trading Estate, Gateshead, NE11 0TX, and to the Customer, to the address referred to in the Quotation. Notices shall be sent by email and be sent in the case of the Supplier to email@example.com, and to the Customer, to the email address referred to in the Quotation, or by Royal Mail special delivery, requiring a signature on delivery. Notices are deemed received if sent by email, at the time of transmission; or on the date and at the time that the Royal Mail delivery receipt is signed. All references to time are to the local time at the place of deemed receipt. The provisions of this clause 4 does not apply to notices given in legal proceedings or arbitration.
29.5 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
29.6 If any provision of these Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Conditions shall not be affected.
29.7 A waiver of any right or remedy under these Conditions or at law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
29.8 A person who is not a party to these Conditions shall not have any rights to enforce its terms.
29.9 These Conditions and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, these Conditions, its subject matter or formation (including non-contractual disputes or claims).