Terms and Conditions
Terms of Sale
In these conditions of sale:
1.1 the following expressions shall have the meanings set opposite them unless the context otherwise requires: ”the Buyer” the person, firm or company with whom the Contract is made; “the Contract” the contract between the Seller and the Buyer for the sale of the Goods into which these conditions of sale are incorporated; “the Goods” the goods which the Seller is to supply in accordance with these conditions of sale; “the Seller” Xcalibre Equipment Limited; “writing” and “written” shall include e-mail and facsimile transmission; 1.2 any reference in these conditions of sale to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time; 1.3 any reference to the singular includes the plural and reference to a gender includes every gender; 1.4 the headings are inserted for convenience only and shall not affect the interpretation of these conditions of sale.
2. Basis of Sale
2.1 These conditions of sale apply to all contracts for the sale of goods entered into by the Seller. They apply in preference to and supersede any previous terms and conditions of the Seller and any terms referred to, offered or relied on by either party whether in negotiation or at any stage in the dealings between the Seller and Buyer with reference to the Goods. Nor will the Seller be bound by any standard or printed terms furnished by the Buyer in any of its documents. 2.2 No variation to these conditions of sale shall be effective unless agreed in writing between the authorised representatives of the Buyer and the Seller. 2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed and that it shall not have any right of action against the Seller arising out of or in connection with any such representation except in the case of fraud. 2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application, installation or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. 2.5 In entering into this Contract the Buyer assumes responsibility for the Goods being sufficient for its purpose. As the Seller is not responsible for system design and as the Buyer has greater knowledge of his own requirements the Seller shall not accept any responsibility for the performance or suitability of the Goods in their final operating environment whether or not details of the final operating environment have been made available to the Seller. 2.6 Any typographical, clerical or other error or omission in any sales literature, written quotation or confirmation or acknowledgement of the Seller, price list, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. 2.7 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) placed by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms. 2.8 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification. 2.9 The Seller reserves the right at any time to change the design, construction and/or specification of the Goods if such change is required to conform with any applicable statutory or EC requirements. In addition, the Seller operates a policy of continuous product improvement and the Seller reserves the right to change the design, construction and/or specification of the Goods at any time if such change will in the opinion of the Seller at the time that such change is made improve or enhance the design, quality or performance of such Goods. 2.10 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of the cancellation.
3. Guarantee and Seller’s Liability in respect of the Goods
3.1 The Seller guarantees the Goods in accordance with the terms of its applicable guarantee for such Goods as in force from time to time. The Seller’s liability under its guarantees is limited as stated in each relevant guarantee. 3.2 Same as provided in condition 3.1 and subject to condition 3.3 the Seller will be under no liability under the Contract, in tort or otherwise for any personal injury, death, loss or damage of any kind whatsoever whether direct or indirect and whether consequential or otherwise (including but not limited to loss of profits, loss of business or contracts, loss of operating time or loss of use whether foreseeable or not) resulting from any defect in the Goods or from any work done in connection with any such defect or as a result thereof and the Seller hereby excludes all conditions, warranties and stipulations, express or implied, statutory, customary or otherwise to the fullest extent permitted by law which but for such exclusion would or might subsist in favour of the Buyer. 3.3 The Seller does not exclude liability for: 3.3.1 any breach of the implied condition that the Seller has or will have the right to sell the Goods when property therein is to pass; 3.3.2 when the Buyer deals as a consumer (as defined in section 12 of the Unfair Contract Terms Act 1977), any breach of the implied terms relating to the conformity of the Goods with their description or sample, as to their quality or fitness for a particular purpose; 3.3.3 death or personal injury resulting from its negligence or that of its employees.
4.1 The price of the Goods shall be the price listed in the Seller’s published price list in force at the time that the Buyer places an order with the Seller, which shall prevail over any previously quoted, estimated or agreed price. 4.2 The price is exclusive of any applicable value added tax which the Buyer shall pay to the Seller. 4.3 Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall pay the Seller’s charges for transport, packaging and insurance.
5.1 Where no account has been opened in advance by the Seller in respect of the Buyer, the Seller will not be obliged to deliver the Goods until the Buyer has paid the amount shown on the pro-forma invoice relating to the Goods. 5.2 Where an account has been opened for the Buyer, the Seller may in its absolute discretion set and on written notice to the Buyer alter the Buyer’s credit limit or terminate the Buyer’s account facilities and the Seller reserves the right not to deliver the Goods if the price thereof increases the amount owed by the Buyer to the Seller beyond the Buyer’s credit limit from time to time. 5.3 Where an account has been opened for the Buyer and the price of the Goods together with all other indebtedness of the Buyer to the Seller does not exceed the Buyer’s credit limit from time to time, the price of the Goods will be paid by the Buyer by the end of the month following the month in which the Seller’s invoice is issued. The time of payment shall be of the essence of the Contract. 5.4 If the Buyer fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller may without liability: 5.4.1 suspend any further deliveries to the Buyer or cancel the Contract or any other contract between the Seller and the Buyer; 5.4.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above the base rate from time to time of Bank of England Bank/Base Rate until payment in full is made; and 5.4.3 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may in its absolute discretion think fit (notwithstanding any purported appropriation by the Buyer). 5.5 The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer notwithstanding that the remainder of the Goods shall not have been delivered. 5.6 The Buyer shall not be entitled to withhold payment of any amount payable under the Contract because of any disputed claim of the Buyer in respect of faulty goods or any other alleged breach of contract whether in respect of the Contract or any other contract between the Buyer and the Seller nor shall the Buyer be entitled to set off against any amount payable under the Contract to the Seller any monies owed by the Seller to the Buyer on any account whatsoever, whether such a right is conferred on the Buyer by statute or otherwise.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises agreed between the Seller and the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place. 6.2 Where the Seller agrees to deliver a large item of equipment other than at the Seller’s premises the Buyer shall be responsible for off-loading such goods from the Seller’s delivery vehicle at the agreed place of delivery. The Seller shall on request at any time provide a copy of its guidelines from time to time for the movement of such goods. 6.3 Any dates quoted for the delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. 6.4 The Seller may make delivery by instalments. Where Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. 6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, then without prejudice to any other right or remedy available to the Seller, 6.5.1 the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or 6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
7. Loss or Damage in Transit and Non-Delivery
No claim for damage to any Goods or for any shortages in the Goods delivered will be considered by the Seller unless it is advised of such claim in writing within 7 days of the date of delivery of the Goods or such part thereof as are actually delivered. In the absence of such advice, the Buyer will be deemed to have accepted the Goods. No claim for non-delivery will be considered by the Seller unless it is advised in writing within 14 days of the date of the Seller’s invoice. Any claim for damage, shortages or non-delivery shall also be notified by the Buyer to the carrier (if any) in the manner and within the appropriate time limit prescribed by the carrier’s terms and conditions, as advised by the Seller to the Buyer. In the event of a failure by the Buyer to give the appropriate notices then any claim which the Buyer may otherwise have pursuant to this condition will be deemed to have been waived and will be absolutely barred.
8. Risk and Property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer: 8.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or 8.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery to the premises or place agreed between the Buyer and the Seller or if the Buyer wrongfully fails to take delivery of the Goods at such premises or place at the time when the Seller has tendered delivery of the Goods. 8.2 Notwithstanding delivery and/or the passing of risk in the Goods the property in the Goods shall not pass to the Buyer until the price of the Goods has been paid in full and payment has been made to the Seller of all sums due or owing from the Buyer to the Seller on any account whatsoever. 8.3 Until such time as property in the Goods passes to the Buyer in accordance with condition 8.2: 8.3.1 the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, shall not obliterate any identifying mark on the Goods or their packaging and shall keep the Goods separate from any other goods of the Buyer or third parties, properly stored, protected and insured and identified as the Seller’s property and the Seller shall be entitled to enter the Buyer’s premises during the Buyer’s normal business hours upon reasonable notice to verify the Buyer’s compliance with this condition; and 8.3.2 subject to condition 8.4, the Buyer shall be entitled to use or sell the Goods in the ordinary course of its business. 8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. 8.5 Where the Seller is unable to determine whether any goods are the Goods the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer. 8.6 The Seller may at any time after payment of any amount payable under the Contract has become due take possession of the Goods (which for the avoidance of doubt shall include the right to stop the Goods in transit) and remove them and the Buyer shall be deemed to have granted irrevocable authority to the Seller to enter upon the Buyer’s premises or other premises where the Goods may be and, by the Seller’s employees or agents, take possession of the Goods and (if necessary) dismantle the Goods from anything to which they are attached. 8.7 The Seller shall have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed. 8.8 Nothing in the Contract shall constitute the Buyer the agent of the Seller in respect of any re-sale of the Goods by the Buyer so as to confer upon a third party any rights against the Seller.
9. Trade Marks
The Buyer shall not remove, alter, deface or tamper with any of the marks, names numbers or other means of identification used on the Goods or allow anyone else to do so.
10. Force Majeure
The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure is due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control: act of God, explosion, lightning, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, by-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Seller or any third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
11. Cancellation and Suspension of the Contract
11.1 This condition applies if: 11.1.1 the Buyer is in breach of any of its obligations under the Contract or any other contract between the Buyer and the Seller; or 11.1.2 unforeseen events including (without prejudice to the generality of the foregoing) those referred to in condition 10 materially affect the commercial effect of the Contract; or 11.1.3 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or 11.1.4 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or 11.1.5 the Buyer ceases or threatens to cease to carry on business; or 11.1.6 the Seller reasonably apprehends that any of the events mentioned in conditions 11.1.3, 11.1.4 or 11.1.5 is about to occur in relation to the Buyer and notifies the Buyer accordingly; or 11.1.7 the Seller receives notice of any claim alleging that the Goods or any part thereof or any process applied to the Goods infringe any patent, copyright, design right, trademark or other industrial or intellectual property rights of any other person. 11.2 If this condition 11 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract by notice to the Buyer without any liability to the Buyer and if the Goods have been delivered but not paid for then the price of the Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Export Terms
12.1 In these conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these conditions, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail. 12.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these conditions. 12.3 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex-works the Seller’s premises agreed between the Seller and the Buyer. 12.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods before they leave the Seller’s premises and the Seller shall have no liability in respect of any defect in the Goods which would have been apparent from such inspection. 12.5 Unless otherwise agreed in writing by the Seller payment of all amounts due to the Seller shall be made in sterling by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a leading London bank acceptable to the Seller within 10 days of the Seller’s acceptance of the Buyer’s order and upon presentation of the required documents to a London bank.
13.1 The Seller shall be entitled to sub-contract the fulfilment of the Contract or any part thereof in which event the Seller contracts on behalf of itself and its sub-contractors. 13.2 The termination of the Contract howsoever arising shall be without prejudice to any rights and duties of either party which may have accrued prior to termination. 13.3 The Seller’s rights contained in condition 8 (but not the Buyer’s rights) shall continue beyond the discharge of the parties’ primary obligations under the Contract following its termination by the Seller or breach by the Buyer. 13.4 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. 13.5 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. 13.6 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.
14. Proper Law and Jurisdiction
The Contract shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.
Terms of Hire
1.1 In these conditions the following words have the following meanings: “Contract” means a contract which incorporates these conditions and made between the Customer and the Supplier for the hire of Hire Goods and/or the sale of Products; “Customer” means the firm, company or other organisation hiring Hire Goods; “Deposit” means any advance payment required by the Supplier in relation to the Hire Goods which is to be held as security by the Supplier; “Force Majeure” means any event outside a party’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, sub-contractors, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental actions and any other similar events; “Hire Goods” means any machine, article, tool, and/or device together with any accessories specified in a Contract which are hired to the Customer; “Hire Period” means the period commencing when the Customer holds the Hire Goods on hire (including Saturdays Sundays and Bank Holidays) and ending upon the happening of any of the following events: 1.1.1 the physical return of the Hire Goods by the Customer into the Supplier’s possession; or 1.1.2 the physical repossession or collection of Hire Goods by the Supplier; “Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities; “Products” means the products sold to the Customer by the Supplier; “Rental” means the Supplier’s charging rate for the hire of the Hire Goods which is current from time to time during the Hire Period; “Supplier” means Xcalibre Equipment Limited and will include its employees, servants, agents and/or duly authorised representatives; “Services” means the services and/or work (if any) to be performed by the Supplier for the Customer in conjunction with the hire of Hire Goods including any delivery and/or collection service for the Hire Goods.
2. Basis of contract
2.1 Hire Goods are hired subject to them being available for hire to the Customer at the time required by the Customer. The Supplier will not be liable for any loss suffered by the Customer as a result of the Hire Goods being unavailable for hire where the Hire Goods are unavailable due to circumstances beyond the Supplier’s control. 2.2 Where hire of the Hire Goods is to a Customer who is an individual and the hire would be covered by the Consumer Credit Act 1974 the duration of the Hire Period shall not exceed 3 months, after which time the Contract shall be deemed to have automatically terminated. Accordingly the hire of any Hire Goods is not covered by the Consumer Credit Act 1974. 2.3 Nothing in this Contract shall exclude or limit any statutory rights of the Customer which may not be excluded or limited due to the Customer acting as a consumer. [Where the Customer is acting as a consumer any provision which is marked with an asterisk may, subject to determination by the Courts, have no force or effect.] For further information about your statutory rights contact your local authority Trading Standards Department or Citizens Advice Bureau.
3.1 The amount of any Deposit, Rental and/or charges for any Services shall be as quoted to the Customer or otherwise as shown in the Supplier’s current price list from time to time. Where a Deposit is required for the Hire Goods it must be paid in advance of the Customer hiring the Hire Goods. The Supplier may also require an initial payment on account of the Rental in advance of the Customer hiring the Hire Goods. 3.2 The Customer shall pay the Rental, charges for any Services, monies for any Products and/or any other sums payable under the contract to the Supplier at the time and in the manner agreed. The Supplier’s prices are, unless otherwise stated, exclusive of any applicable VAT for which the Customer shall additionally be liable. 3.3 Payment by the Customer on time under the Contract is an essential condition of the Contract. Payment shall not be deemed to be made until the Supplier has received either cash or cleared funds in respect of the full amount outstanding. 3.4 If the Customer fails to make any payment in full on the due date the Supplier may charge the Customer interest (both before and after judgment/decree) on the amount unpaid at the rate implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4% above the Bank of England Bank/Base Rate from time to time whichever is higher. 3.5 Any monies received by the Supplier from the Customer may be applied by the Supplier at its option against any additional administrative costs and interest charged prior to application against any principal sums due from the Customer against which it may be applied in any order. 3.6 The Customer shall pay all sums due to the Supplier under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies. 3.7 The Supplier may set a reasonable credit limit for the Customer. The Supplier reserves the right to terminate or suspend the Contract for hire of the Hire Goods and/or the provision of Services if allowing it to continue would result in the Customer exceeding its credit limit or the credit limit is already exceeded.
4. Risk ownership and insurance
4.1 Risk in the Hire Goods and any Products will pass immediately to the Customer when they leave the physical possession or control of the Supplier. 4.2 Risk in the Hire Goods will not pass back to the Supplier from the Customer until the Hire Goods are back in the physical possession of the Supplier. This shall apply even if the Supplier has agreed to cease charging the Rental. 4.3 Ownership of the Hire Goods remains at all times with the Supplier. 4.4 The Customer has no right, title or interest in the Hire Goods except that they are hired to the Customer. Ownership of any Products remains with the Supplier until all monies payable to the Supplier by the Customer for the Products have been paid in full. 4.4 The Customer must not deal with the ownership or any interest in the Hire Goods. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending. However the Customer may re-hire the Hire Goods to a third party with the prior written consent of the Supplier. 4.5 The Supplier may provide reasonably priced insurance in respect of the Hire Goods at an additional cost to the Rental. Alternatively the Supplier may require the Customer to insure the Hire Goods on such reasonable terms and for such reasonable risks as the Supplier may specify. The proceeds of any such insurance shall be held by the Customer in trust for the Supplier and be paid to the Supplier on demand. The Customer must not compromise any claim in respect of the Hire Goods and/or any associated insurance without the Supplier’s written consent.
5. Delivery, Collection and services
5.1 It is the responsibility of the Customer to collect the Hire Goods from the Supplier and return them to the Supplier at the end of the Hire Period. If the Supplier agrees to deliver or collect the Hire Goods to and/or from the Customer it will do so at its standard delivery cost and such delivery and/or collection will form part of the Services. 5.2 Where the Supplier provides Services the persons performing the Services are servants of the Customer and once the Customer instructs such person they are under the direction and control of the Customer.The Customer shall be solely responsible for any instruction, guidance and/or advice given by the Customer to any such person and for any damage which occurs as a result of such persons following the Customer’s instructions, guidance and/or advice except to the extent that the persons performing the Services are negligent.5.3 The Customer will allow and/or procure sufficient access to and from the relevant site and procure sufficient unloading space, facilities, equipment and access to utilities for the Supplier’s employees, subcontractors and/or agents to allow them to carry out the Services. The Customer will ensure that the site where the Services are to be performed is, where necessary, cleared and prepared before the Services are due to commence.5.4 If any Services are delayed, postponed and/or are cancelled due to the customer failing to comply with its obligations the Customer will be liable to pay the Supplier’s additional standard charges from time to time for such delay, postponement and/or cancellation.
6. Care of hire goods
6.1 The Customer shall:- 6.1.1 not remove any labels from and/or interfere with the Hire Goods, their working mechanisms or any other parts of them and shall take reasonable care of the Hire Goods and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer; 6.1.2 notify the Supplier immediately after any breakdown, loss and/or damage to the Hire Goods; 6.1.3 take adequate and proper measures to protect the Hire Goods from theft, damage and/or other risks; 6.1.4 notify the Supplier of any change of its address and upon the Supplier’s request provide details of the location of the Hire Goods; 6.1.5 permit the Supplier at all reasonable times to inspect the Hire Goods including procuring access to any property where the Hire Goods are situated; 6.1.6 keep the Hire Goods at all times in its possession and control and not to remove the Hire Goods from the country where the Customer is located and/or the country where the Supplier is located without the prior written consent of the Supplier; 6.1.7 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Hire Goods required by any legislation, best practice and/or operating instructions except to the extent that the Supplier has agreed to provide them as part of any Services; 6.1.8 not do or omit to do anything which will or may be deemed to invalidate any policy of insurance related to the Hire Goods which is notified to the Customer; 6.1.9 not continue to use Hire Goods where they have been damaged and will notify the Supplier immediately if the Hire Goods are involved in an accident resulting in damage to the Hire Goods, other property and/or injury to any person; and 6.1.10 where the Hire Goods require fuel, oil and/or electricity ensure that the proper type and/or voltage is used and that, where appropriate, the Hire Goods are properly installed by a qualified and competent person. 6.2 The Hire Goods must be returned by the Customer in good working order and condition (fair wear and tear excepted) and in a clean condition together with all insurance policies, licences, registration and other documents relating to the Hire Goods.
7.1 Allowance will be made in relation to the Rental to the Customer for any non-use of the Hire Goods due to breakdown caused by the development of an inherent fault and/or fair wear and tear on condition that the Customer informs the Supplier as soon as practicable of the breakdown. 7.2 The Customer shall be responsible for all expenses, loss (including loss of Rental) and/or damage suffered by the Supplier arising from any breakdown of the Hire Goods due to the Customer’s negligence, misdirection and/or misuse of the Hire Goods. 7.3 The Supplier will at its own cost carry out all routine maintenance and repairs to the Hire Goods during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Hire Goods. The Customer will be responsible for the cost of all repairs necessary to Hire Goods during the Hire Period which arise otherwise than as a result of fair wear and tear, an inherent fault and/or the negligence of the Supplier while carrying out routine maintenance and/or repairs. 7.4 The Customer must not repair or attempt to repair the Hire Goods unless authorised to do so in writing by the Supplier.
8. Loss or damage to the hire goods
8.1 If the Hire Goods are returned in damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hire Goods the Customer shall be liable to pay the Supplier for the cost of any repair and/or cleaning required to return the Hire Goods to a condition fit for re-hire and to pay the Rental, in accordance with the provisions of clause 8.3, until such repairs and/or cleaning have been completed. 8.2 The Customer will pay to the Supplier the replacement cost on a new for old basis of any Hire Goods which are lost, stolen and/or damaged beyond economic repair during the Hire Period less the amount paid to the Supplier under any policy of insurance taken out in accordance with these conditions. 8.3 The Customer shall pay the Rental for the Hire Goods up to and including the date it notifies the Supplier that the Hire Goods have been lost, stolen and/or damaged beyond economic repair. From that date until the Supplier has replaced such Hire Goods the Customer shall pay, as a genuine pre-estimate of lost rental profit, a sum as liquidated damages being equal to two thirds of the Rental that would have applied for such Hire Goods for that period. The Supplier shall use its reasonable commercial endeavours to purchase replacements for such Hire Goods as quickly as possible using the monies paid under clause 8.2 above.
9. Termination by notice
9.1 If the Hire Period has a fixed duration, subject to the provisions of Section 10 neither the Customer nor the Supplier shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed with the other party. 9.2 If the Hire Period does not have a fixed duration either of the Customer or the Supplier is entitled to terminate the Contract upon giving to the other party any agreed period of notice. 9.3 If no period of notice has been agreed or specified the Customer may terminate the Hire Period by the physical return of the Hire Goods to the Supplier. 9.4 The Supplier shall be entitled to terminate the hire of the Hire Goods by giving not less than 14 days’ notice to the Customer.
10.1 If the Customer:- 10.1.1 fails to make any payment to the Supplier when due without just cause; 10.1.2 breaches the terms of the Contract and, where the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; 10.1.3 persistently breaches the terms of the Contract; 10.1.4 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract; 10.1.5 pledges, charges or creates any form of security over any Hire Goods, ceases or threatens to cease to carry on business, or proposes to compound with its creditors, creates a trust deed for its creditors, applies for an interim moratorium in respect of claims and/or proceedings, any distress/diligence, execution or other legal process is levied on any property of the Customer, has a Bankruptcy Petition/Petition for Sequestration presented against it or the Customer takes or suffers any similar action in any jurisdiction; 10.1.6 being a company, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver or in the Republic of Ireland an examiner appointed over all or any of its assets, any attachment order/arrestment is made against the Customer, any distress/diligence, execution or other legal process is levied on any property of the Customer or the Customer takes or suffers any similar action in any jurisdiction; 10.1.7 appears reasonably to the Supplier due to the Customer’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or 10.1.8 appears reasonably to the Supplier to be about to suffer any of the above events; then the Supplier shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below. 10.2 If any of the events set out in clause 10.1 above occurs in relation to the Customer then:- 10.2.1 the Supplier may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where Hire Goods and/or Products owned by the Supplier may be and repossess any Hire Goods and/or Products; 10.2.2 the Supplier may withhold the performance of any Services and cease any Services in progress under this and/or any other Contract with the Customer; 10.2.3 the Supplier may immediately cancel, terminate and/or suspend without Liability to the Customer the Contract and/or any other contract with the Customer; and/or 10.2.4 all monies owed by the Customer to the Supplier shall immediately become due and payable. 10.3 Any repossession of the Hire Goods and/or Products shall not affect the Supplier’s right to recover from the Customer any monies due under the Contract and/or any damages in respect of any breach which occurred prior to repossession of the Hire Goods and/or Products. 10.4 Upon termination of the Contract the Customer shall immediately: 10.4.1 return the Hire Goods to the Supplier or make the Hire Goods available for collection by the Supplier as requested by the Supplier; and 10.4.2 pay to the Supplier all arrears for Rentals, Charges for any Services, monies for any Products and/or any other sums payable under the Contract
11. Limitations of liability
11.1 All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and/or adequacy are excluded to thefullest extent permitted by law. 11.2 If the Supplier is found to be liable in respect of any loss or damage to the Customer’s property the extent of the Supplier’s Liability will be limited to the retail cost of replacement of the damaged property. 11.3 Any defective Hire Goods must be returned to the Supplier for inspection if requested by the Supplier before the Supplier will have any Liability for defective Hire Goods. 11.4 The Supplier shall have no Liability to the Customer if, without just cause, any monies due in respect of the Hire Goods and/or the Services have not been paid in full by the due date for payment. 11.5 The Supplier shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Hire Goods and/or Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer. 11.6 The Customer shall give the Supplier a reasonable opportunity to remedy any matter for which the Supplier is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so the Supplier shall have no Liability to the Customer. 11.7 The Supplier shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance arranged as a result of the Contract and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against the Supplier. 11.8 The Supplier shall have no Liability to the Customer for any:- 11.8.1 consequential losses (including loss of profits and/or damage to goodwill); 11.8.2 economic and/or other similar losses; 11.8.3 special damages and indirect losses; and/or 11.8.4 business interruption, loss of business, contracts and/or opportunity. 11.9 The Supplier’s total Liability to the Customer under and/or arising in relation to any Contract shall not exceed 5 times the amount of the Rental and charges for Services (if any) under that Contract or the sum of £1,000/e1250 whichever is the higher. To the extent that any Liability of the Supplier to the Customer would be met by any insurance of the Supplier then the Liability of the Supplier shall be extended to the extent that such Liability is met by such insurance. 11.10 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of 11.10.1 Liability for breach of contract; 11.10.2 Liability in tort/delict (including negligence); and 11.10.3 Liability for breach of statutory and/or common law duty; except clause 11.9 above which shall apply once only in respect of all the said types of Liability. 11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier for death or personal injury due to the Supplier’s negligence nor exclude or limit any other type of Liability which it is not permitted to exclude or limit as a matter of law.
12.1 Upon termination of the Contract the provisions of clauses 3.2, 3.4, 3.5, 8.1, 8.2, 8.3 and Section 6 shall continue in full force and effect. 12.2 Each hire of an item of Hire Goods shall form a distinct Contract which shall be separate to any other Contract relating to other Hire Goods. 12.3 The Customer shall be liable for the acts and/or omissions of its employees, agents, servants and/or subcontractors as though they were its own acts and/or omissions under this Contract. 12.4 The Customer agrees to indemnify and keep indemnified the Supplier against any and all losses, lost profits, damages, claims, costs (including legal costs on a full indemnity basis), actions and any other losses and/or liabilities suffered by the Supplier and arising from or due to any breach of contract, any tortious/delictual act and/or omission and/or any breach of statutory duty by the Customer. 12.5 No waiver by the Supplier of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision. If any provision is held by any competent authority to be unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect. 12.6 The Supplier shall have no Liability to the Customer for any delay and/or non performance of a Contract to the extent that such delay is due to any Force Majeure events. If the Supplier is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance. 12.7 All third party rights are excluded and no third parties shall have any rights to enforce the Contract. This shall not apply to any finance company with whom the Supplier has an outstanding finance agreement relating to the Hire Goods. Such finance company shall, subject to the Supplier’s consent, have the right to enforce this Contract as if they were the Supplier. This Contract is governed by and interpreted in accordance with the law of the country where the Supplier is located and that country will have exclusive jurisdiction in relation to this Contract.s