PORTABLE REFRIGERATED STORAGE - TERMS OF HIRE OF EQUIPMENT
The Hirer’s particular attention is drawn to the following clauses: 7.7, 14.1.10, 14.1.12, 14.2, 17, 18 and 19.1.
1. DEFINITIONS OF TERMS AND INTERPRETATION
1.1. “Additional Costs” has the meaning set out in clause 6.9.
1.2. “Alerts” means the alerts sent via email or text if the measurements taken by the Telematics Monitor fall outside of the Parameters for more than 60 minutes.
1.3. “Business Day” a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.4. “Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 25.1.
1.5. “Contract” the contract between the Owner and the Hirer for the hire of the Equipment in accordance with these Conditions, comprising the Order and these Conditions.
1.6. “Delivery” the transfer of physical possession of the Equipment to the Hirer at the Site.
1.7. “Delivery Date” means the date for Delivery as set out on the Order, or otherwise agreed between the parties in writing.
1.8. “Deposit” the deposit amount set out in the Order (as applicable)
1.9. “Emergency Support Services” has the meaning set out on the Order.
1.10. “Equipment” the equipment as set out in the Order which shall include the Telematics Monitor (where applicable and unless otherwise stated).
1.11. “End Date” the date on which the Rental Period ends, as set out in the Order.
1.12. “Force Majeure Event” has the meaning set out in clause 17.1.
1.13. “GPRS” means General Packet Radio Service.
1.14. “Hirer” is the company, firm or persons, corporation or authority specified in the Order and includes its or their successors or personal representatives.
1.15. “Minimum Rental Period” the minimum period of Equipment rental, as set out in the Order.
1.16. “Order” the Hirer’s order for the Equipment, as set out in the Hirer’s purchase order form, the Hirer’s written acceptance of the Owner’s quotation, or overleaf, as the case may be, and including any special terms agreed in writing between the Owner and the Hirer.
1.17. “Owner” is Seven Asset Limited, a company registered in England and Wales with company number 3407135 and whose registered office is located at Cardinal Court, 35-37 St Peters Street, Ipswich, Suffolk, IP1 1XF.
1.18. “Parameters” means the parameters set by the Owner in relation to the acceptable environmental conditions of the Equipment as specified on the Order, or as confirmed in writing by the Owner from time to time.
1.19. “Specification” any specification of the Equipment, as set out in the Order.
1.20. “Rental Payments” the payments made by or on behalf of the Hirer for the hire of the Equipment, as set out in the Order.
1.21. “Rental Period” has the meaning set out in clause 4.1.
1.22. “Risk Period” the period during which the Equipment is at the sole risk of the Hirer as set out in clause 11.3.
1.23. “Site” the location where the Equipment is to be delivered, as set out in the Order or as otherwise agreed in writing by the parties.
1.24. “Start Date” the day on which the Rental Period commences, as set out in the Order.
1.25. “Telematics Monitor” means the telematics monitoring device installed in the Equipment that sends Alerts.
1.26. “Total Loss” due to the Hirer’s default, the Equipment is, in the Owner’s reasonable opinion or the opinion of its insurer, damaged beyond repair, lost, stolen, seized or confiscated.
1.27. “VAT” value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.28. “Warranty Period” has the meaning set out in clause 13.1.
1.29. A week shall be seven consecutive days.
1.30. Clause headings shall not affect the interpretation of the Contract.
1.31. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.32. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.33. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.34. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.35. A reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.36. A reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
1.37. A reference to writing or written includes fax and email.
1.38. Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. BASIS OF CONTRACT
2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Hirer seeks to impose, or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Hirer to hire the Equipment in accordance with these Conditions. The Hirer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Owner issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4. The Hirer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Hirer that is inconsistent with these Conditions.
2.5. Any samples, drawings, descriptive matter or advertising produced by the Owner and any descriptions or illustrations contained in the Owner’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6. A quotation for the hire of the Equipment given by the Owner shall not constitute an offer. A quotation shall only be valid for a period of 28 days from its date of issue.
2.7. If there is any conflict or inconsistency between these Conditions and the Order, the Order shall prevail.
3. EQUIPMENT HIRE AND AVAILABILITY OF EQUIPMENT
3.1. The Owner shall hire the Equipment to the Hirer for use at the Site in accordance with the terms of the Contract.
3.2. The Owner shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Hirer’s quiet possession of the Equipment during the Rental Period.
3.3. All Equipment is offered subject to availability at the date of receipt of Order.
3.4. The Equipment is described in the Order.
3.5. The Owner reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Owner shall notify the Hirer in any such event.
3.6. No warranty is given that the Equipment is suitable for the purpose required by the Hirer.
3.7. The Equipment may only be used in the United Kingdom, unless written permission is given by the Owner for the Hirer to use the Equipment outside of the United Kingdom.
4. RENTAL PERIOD
4.1. The Rental Period starts on the Start Date and ends of the End Date, unless and until the Contract is terminated earlier in accordance with the terms of the Contract.
5. CONSENTS, LICENSES OR PERMISSIONS
5.1. The Hirer shall be responsible for and shall obtain all permissions, consents and licenses required for the Equipment to be supplied to the Site, under any statute, regulation or bylaw and the Hirer will comply with any conditions imposed in respect thereof.
6. RENTAL PAYMENTS AND DEPOSIT
6.1. The Hirer shall pay the Deposit (as applicable) and the Rental Payments to the Owner in accordance with the payment terms set out in the Contract.
6.2. All payments due under the Contract shall be paid in pound (£) sterling.
6.3. The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the manner from time to time prescribed by law.
6.4. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.5. Unless otherwise stated in the Order, Rental Payments are invoiced at 4 weekly cycles in advance during the Rental Period.
6.6. Odd day(s) at the end of the Rental Period shall be charged at the full weekly rate, unless otherwise stated or agreed.
6.7. The Owner reserves the right to amend the Rental Payments at any time by giving 7 days’ notice in writing to the Hirer (“Amendment Notice”). If the Owner exercises its rights under this clause, within 14 days of receipt of the Amendment Notice, the Hirer may terminate the Contract by giving the Owner at least 90 days’ written notice (which, for the avoidance of doubt, may expire before, on or after the expiry of the Minimum Rental Period).
6.8. Payment is due in accordance with the terms set out in the Order or if no terms are included, within 30 days of the date of the Owner’s invoice, in full and cleared funds to the bank account nominated in writing by the Owner.
6.9. In addition to the Rental Payment, the Hirer shall pay (i) a commissioning and handling cost, as set out in the Order and (ii) the cost of the transport of the Equipment from the Owners depot to the Site and its return to the Owners depot (“Additional Costs”). These Additional Costs are payable upfront and will be charged on the first invoice.
6.10. If the Hirer fails to make a payment due to the Owner under this Contract by the due date, then, without limiting the Owner’s remedies under clause 15, the Hirer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
6.11. The Hirer shall (as applicable), on the date of the Order, pay a deposit of the amount set out in the Order to the Owner.
6.12. Where a Deposit has been paid, the parties agree that the Hirer may apply the Deposit:
184.108.40.206. any default by the Hirer of payment of any Rental Payments;
220.127.116.11. any default by the Hirer of any payment due under clause 12.4;
18.104.22.168. any default by the Hirer of any payment due under clause 13.4; and/or
22.214.171.124. any loss of or damage caused to the Equipment during the Risk Period (including, but not limited to, a Total Loss); and/or
126.96.36.199. any cleaning is required to the Equipment after expiry of the Risk Period;
188.8.131.52. clause 15.6 applies; and/or
184.108.40.206. clause 16.3 applies.
6.13. The Hirer shall pay to the Owner any sums deducted from the Deposit within ten Business Days of a demand for the same.
6.14. The Deposit (or balance of the Deposit) shall be refundable within ten Business Days of the end of the Rental Period.
7. DELIVERY AND INSTALLATION
7.1. Delivery shall be made by a third party on behalf of the Owner. The Owner shall use all reasonable commercial endeavours to effect Delivery by the Delivery Date.
7.2. The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Hirer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Owner, the Hirer’s duly authorised representative shall sign a receipt confirming such acceptance.
7.3. Where the Owner will be commissioning the Equipment, the Owner shall at the Hirer’s expense install the Equipment at the Site and will set the temperature of any refrigerated piece of Equipment to the temperature required by the Hirer. The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Hirer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Owner, the Hirer’s duly authorised representative shall sign a receipt confirming such acceptance.
7.4. To facilitate Delivery and the commissioning (as applicable) of the Equipment, the Hirer shall at its sole expense provide:
7.4.1. access to the Site and to the location at the Site where the Equipment is being installed, to the Owner and its representatives;
7.4.2. all requisite materials, power supplies, facilities and suitable working conditions required by the Owner and its representatives; and
7.4.3. any other items set out in the Order,
to enable Delivery and commissioning (as applicable) to be carried out safely and expeditiously.
7.5. If the Hirer fails to accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by the Hirer’s failure to comply with its obligations under the Contract:
7.5.1. the Hirer shall be responsible for the Additional Costs;
7.5.2. the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
7.5.3. the Owner shall store the Equipment until delivery takes place, and charge the Hirer for all related costs and expenses (including, but not limited to, insurance).
7.6. Delivery is completed on the commencement of unloading of the Equipment at the Site.
7.7. Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence. The Owner shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Hirer’s failure to provide the Owner with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
8. ACCESS ROUTE FOR DELIVERY
8.1. A suitable access route for Delivery and collection shall be provided by the Hirer with unrestricted entry and approach.
8.2. Where the ground is soft or otherwise unsuitable, the Hirer shall supply and lay timbers or appropriate temporary foundations in a suitable position for loading and unloading and for the Equipment to rest on.
9. LOADING AND UNLOADING
9.1. The Hirer shall be responsible for the unloading and reloading of the Equipment at Site and any driver supplied by the Owner shall be deemed to be under the Hirer’s control and the Hirer shall be responsible for any damage caused.
9.2. The Hirer shall bear the cost of any lifting or special apparatus required for the siting of the Equipment which shall be payable in accordance with clause 6.8.
10. CONNECTION OF MAIN SERVICES
10.1. Connection and disconnection of main services on Site is the responsibility of the Hirer.
10.2. Where the Equipment being hired is a refrigerated container, the Equipment will be required to plug into a three phase power supply. It is the Hirer’s responsibility to ensure that such a power supply is within reach of, and can be plugged into, the Equipment at the location where the Equipment is to be located on the Site.
10.3. The Hirer is responsible for the costs of all electricity supplied to the Equipment at the Site and for ensuring an electricity supply is continually supplied to the Equipment at the Site.
11. TITLE, RISK AND INSURANCE
11.1. The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of the Contract).
11.2. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Owner immediately on installation.
11.3. The risk of, without limitation, loss, theft, damage or destruction of the Equipment shall pass to the Hirer on Delivery. The Equipment shall remain at the sole risk of the Hirer from Delivery during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Hirer (“Risk Period”) until such time as the Equipment is redelivered to the Owner. During the Rental Period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:
11.3.1. insurance of the Equipment and its contents to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing;
11.3.2. insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
11.3.3. insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Hirer in writing.
11.4. All insurance policies procured by the Hirer shall be endorsed to provide the Owner with at least twenty Business Days’ prior written notice of cancellation or material change (including (without limitation) any reduction in coverage or policy amount) and shall on the Owner’s request name the Owner on the policies as a loss payee in relation to any claim relating to the Equipment. The Hirer shall be responsible for paying any deductibles due on any claims under such insurance policies.
11.5. The Hirer shall give immediate written notice to the Owner in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Hirer’s possession or use of the Equipment.
11.6. If the Hirer fails to effect or maintain any of the insurances required under the Contract, the Owner shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Hirer.
11.7. The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Owner and proof of premium payment to the Owner to confirm the insurance arrangements.
12.1. The Order shall state:
12.1.1. if the Equipment includes a Telematics Monitor; and
12.1.2. the email address(es) and/or mobile phone number(s) for the Hirer that all Alerts shall be sent to.
12.2. If a Telematics Monitor is included in the Equipment:
12.2.1. the Customer acknowledges and accepts that no warranty is provided in relation to the Telematics Monitor;
12.2.2. it is the responsibility of the Hirer to:
220.127.116.11. check if the Telematics Monitor is working. If the Telematics Monitor is not working, the Hirer shall promptly check if clause 12.3 applies. If clause 12.3 does not apply, the Hirer shall promptly inform the Owner;
18.104.22.168. monitor any Alerts sent by the Telematics Monitor from time to time; and
22.214.171.124. react to such Alerts promptly, including (without limitation and where required) by physically attending the Equipment in order to, subject to clauses 14.1.4 and 14.1.5, resolve the issue with the Equipment that is causing the Alert (“Issue”);
12.2.3. if the Issue cannot be resolved by the Hirer without the Hirer having to make any alterations to the Equipment (except as permitted by clauses 14.1.4 and 14.1.5), the Hirer shall promptly inform the Owner; and
12.2.4. if the Issue with the Equipment (excluding the Telematics Monitor) requires repair that is not covered by clause 13.1 or clause 13.2, clause 13.4 shall apply, and for the avoidance of doubt, references to “defect” in clause 13, shall include “Issue”; and/or
12.2.5. if the Issue is with the Telematics Monitor, clause 12.4 shall apply.
12.3. The Hirer acknowledges and accepts that the Telematics Monitor relies on GPRS to send the Alerts. If the Equipment is placed in a location that does not have a GPRS signal, or which has an interrupted or weak GPRS signal, this will affect the Telematics Monitor’s ability to send Alerts. It is the Customer’s responsibility to ensure that the Telematics Monitor has the required GPRS signal.
12.4. Except where clause 12.3 applies, if the Telematics Monitor is not working but it can be repaired (as determined by the Owner), the Owner shall confirm the costs to repair the Telematics Monitor to the Hirer, which shall be payable by the Hirer:
12.4.1. in full, in cleared funds to a bank account nominated in writing by the Owner; and
12.4.2. within 30 days of the date of the invoice.
12.5. If the Hirer wants to change the Parameters during the Rental Period, it shall inform the Owner in writing. The Owner shall inform the Hirer in writing if the requested changes to the Parameters are possible and when they will come into effect.
13.1. Subject to clause 12.2.1, the Owner warrants that the Equipment (excluding the Telematics Monitor) shall substantially conform to its Specification (as made available by the Owner), be of satisfactory quality and fit for any purpose held out by the Owner on delivery and for the Warranty Period. The Owner shall use all reasonable commercial endeavours to remedy, free of charge, any material defect in the Equipment (excluding the Telematics Monitor) which manifests itself within twelve months from Delivery (“Warranty Period”), provided that:
13.1.1. the Hirer notifies the Owner of any defect in writing within three Business Days of the defect occurring or of becoming aware of the defect;
13.1.2. the Owner is permitted to make a full examination of the alleged defect;
13.1.3. the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Owner’s authorised personnel;
13.1.4. the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hirer or on its behalf; and
13.1.5. the defect is directly attributable to defective material, workmanship or design.
13.2. Insofar as the Equipment (excluding the Telematics Monitor) comprises or contains equipment or components which were not manufactured or produced by the Owner, the Hirer shall be entitled only to such warranty or other benefit as the Owner has received from the manufacturer.
13.3. If the Owner fails to remedy any material defect in the Equipment (excluding the Telematics Equipment) in accordance with clause 13.1, the Owner shall, at the Hirer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the Contract and, if relevant, return any remaining Deposit (or any part of it).
13.4. If a defect arises outside of the Warranty Period, or the Owner is not obliged to repair the defect under clause 13.1, or the defect will not benefit from any third party warranty or other benefit under clause 13.2, the Owner shall confirm the costs to repair the Equipment (excluding the Telematics Monitor) to the Hirer, which shall be payable by the Hirer:
13.4.1. in full, in cleared funds to a bank account nominated in writing by the Owner; and
13.4.2. within 30 days of the date of the invoice.
14. HIRER’S RESPONSIBILITES
14.1. The Hirer shall during the term of this Contract:
14.1.1. ensure that the Equipment is kept and operated in a suitable environment, which shall as a minimum meet the requirements set out in the Contract (or as otherwise specified by the Owner in writing from time to time), used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Owner from time to time;
14.1.2. take such steps (including (without limitation) compliance with all safety and usage instructions provided by the Owner) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
14.1.3. maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including, subject to clause 14.1.4, replacement of worn, damaged and lost parts, and shall make good any damage or loss to the Equipment;
14.1.4. make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of the Owner, unless to comply with any mandatory modifications required by law or any regulatory authority.
14.1.5. if clause 14.1.5 applies, ensure that the component (or components) is (or are) replaced immediately by the same component or by one of a similar make and model or an improved or advanced version of it;
14.1.6. keep the Owner fully informed of all material matters relating to the Equipment;
14.1.7. permit the Owner or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
14.1.8. maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require;
14.1.9. not, without the prior written consent of the Owner, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
14.1.10. not without the prior written consent of the Owner, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Hirer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Owner against all losses, costs or expenses incurred as a result of such affixation or removal;
14.1.11. not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Owner in the Equipment and, where the Equipment has become affixed to any land or building, the Hirer must take all necessary steps to ensure that the Owner may enter such land or building and recover the Equipment both during the term of this Contract and for a reasonable period thereafter, including (without limitation) by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Owner of any rights such person may have or acquire in the Equipment and a right for the Owner to enter onto such land or building to remove the Equipment;
14.1.12. not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
14.1.13. not use the Equipment for any unlawful purpose;
14.1.14. ensure that at all times the Equipment remains identifiable as being the Owner’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
14.1.15. deliver up the Equipment at the end of the Rental Period at such address as the Owner requires, or if necessary allow the Owner or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
14.1.16. not do or permit to be done anything which could invalidate the insurances referred to in clause 11.
14.2. The Hirer:
14.2.1. acknowledges that the Owner shall not be responsible for any loss of or damage to the Equipment or any goods stored in the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by any act or omission of the Hirer or its officers, employees, agents and contractors; and
14.2.2. shall indemnify the Owner in full against all liabilities, costs, expenses, damages and losses (including (without limitation) any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Owner arising out of, or in connection with any failure by the Hirer to comply with the terms of this Contract.
15.1. The Contract may be terminated at any time by the Owner giving to the Hirer not less than one months’ prior written notice to terminate.
15.2. The Hirer may terminate the Contract in accordance with clause 6.7.
15.3. The Contract may be terminated at any time by the Hirer giving to the Owner at least one months’ prior written notice to terminate, expiring on or after the end of any Minimum Rental Period.
15.4. Where the period of hire is indeterminable or having been defined becomes indeterminate the Contract shall be determinable by seven days’ notice in writing given by either party to the other. In the event of the Hirer desiring to terminate the Contract and failing to give such notice, hire for the period of the seven days’ notice shall be chargeable.
15.5. Without affecting any other right or remedy available to it, the Owner may terminate this Contract with immediate effect by giving written notice to the Hirer if:
15.5.1. the Hirer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
15.5.2. the Hirer commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
15.5.3. the Hirer repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
15.5.4. the Hirer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
15.5.5. the Hirer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Hirer with one or more other companies or the solvent reconstruction of the Hirer;
15.5.6. the Hirer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
15.5.7. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Hirer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Hirer with one or more other companies or the solvent reconstruction of the Hirer;
15.5.8. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Hirer (being a company);
15.5.9. the holder of a qualifying floating charge over the assets of the Hirer (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.5.10. a person becomes entitled to appoint a receiver over all or any of the assets of the Hirer or a receiver is appointed over all or any of the assets of the Hirer;
15.5.11. a creditor or encumbrancer of the Hirer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Hirer’s assets and such attachment or process is not discharged within 14 days;
15.5.12. any event occurs, or proceeding is taken, with respect to the Hirer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.5.4 to clause 15.5.11 (inclusive);
15.5.13. the Hirer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Contract is in jeopardy;
15.5.14. the Hirer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
15.5.15. there is a change of control of the Hirer (within the meaning of section 1124 of the Corporation Tax Act 2010).
15.6. This Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
16. CONSEQUENCES OF TERMINATION AND EXPIRY
16.1. On expiry or termination of this Contract, however caused:
16.1.1. the Owner’s consent to the Hirer’s possession of the Equipment shall automatically terminate;
16.1.2. it is the responsibility of the Hirer to make the Equipment available for collection by the Owner at the time(s) and date(s) specified by the Owner;
16.1.3. the Owner may, by its authorised representatives, without notice and at the Hirer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
16.1.4. without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to the Owner on demand:
126.96.36.199. all Rental Payments and other sums due but unpaid at the date of such demand, together with any interest accrued pursuant to clause 6.10; and
188.8.131.52. any costs and expenses incurred by the Owner in recovering the Equipment or in collecting any sums due under this Contract (including (without limitation) any storage, cleaning, insurance, repair, transport, legal and remarketing costs).
16.2. On termination of this Contract pursuant to clause Error! Reference source not found. or clause 15.5, any other repudiation of this Contract by the Hirer which is accepted by the Owner or pursuant to clause 15.6, without prejudice to any other rights or remedies of the Owner, the Hirer shall pay to the Owner on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the End Date.
16.3. The sums payable pursuant to clause 16.2 shall be agreed compensation for the Owner’s loss. Such sums may be partly or wholly recovered from any Deposit (as applicable).
16.4. Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
16.5. Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including (without limitation) the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
17. FORCE MAJEURE
17.1. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”).
17.2. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
17.3. If the period of delay or non-performance continues for 12 weeks’, the party not affected may terminate this Contract by giving 7 days’ written notice to the affected party.
18. LIMITATION OF LIABILITY
18.1. The restrictions on liability in this clause 18 apply to every liability arising under or in connection with this Contract including (without limitation) liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
18.2. Nothing in this Contract limits any liability which cannot legally be limited including liability for:
18.2.1. death or personal injury caused by negligence;
18.2.2. fraud or fraudulent misrepresentation;
18.2.3. breach of the terms implied by section 7 of the Supply of Goods and Services Act 1973; and
18.2.4. any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
18.3. Subject to clause 18.2, the Owner’s total liability to the Hirer shall not exceed the total Rental Payments paid by the Hirer to the Owner in the contract year in which the liability occurred. For the purposes of this clause “contract year” means a 12 month period commencing with the date of this Contract or any anniversary of it.
18.4. Subject to clause 18.2, the Owner shall not be liable under this Contract for any:
18.4.1. loss of profits;
18.4.2. loss of sales or business;
18.4.3. loss of agreements or contracts;
18.4.4. loss of anticipated savings;
18.4.5. loss of use or corruption of software, data or information;
18.4.6. loss of or damage to goodwill;
18.4.7. loss of products or goods stored in the Equipment; and
18.4.8. indirect, special or consequential loss.
18.5. Subject to clause 18.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this Contract are, to the fullest extent permitted by law, excluded from this Contract.
19. SUB-LET CHANGE OF SITE
19.1. Except as provided for in clause 25.11 the Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of, or otherwise deal with the Equipment or its contents and shall protect the same against distress execution or seizure and shall indemnify the Owner against all losses, damage, costs, charges and expenses that the Owner does or will suffer or incur in connection with any failure by the Hirer to observe and perform its obligations under this clause, except in the event of government requisition.
19.2. The Hirer shall not assign its rights hereunder nor sub-let or lend the Equipment or any part thereof to a third party without the prior written consent of the Owner.
19.3. Except for Equipment mounted on a wheeled chassis, the Hirer shall not move the Equipment from the Site to which it is delivered or consigned, unless prior written consent is obtained from the Owner.
19.4. Subject to clause 3.7, the Hirer of Equipment which is mounted on a wheel chassis shall notify the Owner not less than seven days from the termination of the hire of the Site from which the Equipment is to be collected.
20. IDENTIFICATION MARKS
20.1. The Owner retains the right to affix a mark or place on the Equipment identifying it as the Owner’s property and the Hirer shall not remove, deface or cover up the same.
21. EMERGENCY SUPPORT SERVICE
21.1. If the Owner is providing the Emergency Support Services:
21.1.1. the Hirer shall immediately inform the Owner using the telephone number provided by the Owner in writing of any failure of the Equipment;
21.1.2. the Owner shall use all reasonable commercial endeavours to rectify any such failure within a reasonable period of time in accordance with the terms of the Contract; and
21.1.3. the Owner retains the right to charge the Hirer for any travelling costs and expenses incurred by the Owner, together with the costs and expenses incurred by the Owner for the time spent attending the Site where:
184.108.40.206. no fault with the Equipment is found;
220.127.116.11. the Equipment failure is due to the misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Owner’s authorised personnel;
18.104.22.168. the Equipment failure arises out of any information, design or other assistance supplied or furnished by the Hirer or on its behalf; and/or
22.214.171.124. clause 12.3 applies in relation to the Telematics Monitor.
21.1.4. For the avoidance of doubt, the Hirer acknowledges and accepts that any sums due from it under 21.1.3 shall be in addition to any other sums due to the Owner under these Conditions.
22. CONFIDENTIAL INFORMATION
22.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 22.2. For the purposes of this clause, “group” means in relation to a company, (i) that company, (ii) any subsidiary or holding company from time to time of that company, and (iii) any subsidiary from time to time of a holding company of that company.
22.2. Each party may disclose the other party’s confidential information:
22.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause (unless such persons are already under a duty of confidentiality due to professional conduct rules to which they are subject); and
22.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
22.3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
23. DATA PROTECTION
23.1. The following definitions apply in this clause:
23.1.1. Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
23.1.2. Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
23.1.3. Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
23.1.4. Third Party Processors: means the sub-processors stated on the Order, or otherwise appointed in accordance with clauses 23.6 – 23.8 (inclusive).
23.1.5. UK GDPR: has the meaning given to it in section 3(10) (as supplemented by 205(4)) of the Data Protection Act 2018.
23.2. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
23.3. The parties acknowledge that for the purposes of the Data Protection Legislation, where the Owner is processing any Personal Data on behalf of the Hirer, the Hirer is the Controller and the Owner is the Processor. Clause 23.9 sets out the scope, nature and purpose of processing by the Owner, the duration of the processing and the types of Personal Data and categories of Data Subject.
23.4. Without prejudice to the generality of clause 23.2, the Hirer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Owner and/or lawful collection of the Personal Data by the Owner on behalf of the Hirer for the duration and purposes of the Contract.
23.5. Without prejudice to the generality of clause 23.2, the Owner shall, in relation to any Personal Data processed in connection with the performance by the Owner of its obligations under the Contract:
23.5.1. process that Personal Data only on the documented written instructions of the Hirer unless the Owner is required by Domestic Law to otherwise process that Personal Data. Where the Owner is relying on Domestic Law as the basis for processing Personal Data, the Owner shall promptly notify the Hirer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Owner from so notifying the Hirer;
23.5.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Hirer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
23.5.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
23.5.4. not transfer any Personal Data outside of the UK unless the prior written consent of the Hirer has been obtained and the following conditions are fulfilled:
126.96.36.199. the Hirer or the Owner has provided appropriate safeguards in relation to the transfer;
188.8.131.52. the Data Subject has enforceable rights and effective legal remedies;
184.108.40.206. the Owner complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
220.127.116.11. the Owner complies with reasonable instructions notified to it in advance by the Hirer with respect to the processing of the Personal Data;
23.5.5. assist the Hirer, at the Hirer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
23.5.6. notify the Hirer without undue delay on becoming aware of a Personal Data Breach;
23.5.7. at the written direction of the Hirer, delete or return Personal Data and copies thereof to the Hirer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
23.5.8. maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Hirer or the Hirer’s designated auditor and immediately inform the Hirer if, in the opinion of the Owner, an instruction under this clause 23.5.8 infringes the Data Protection Legislation.
23.6. The Hirer provides its general authorisation to the appointment of the Third Party Processors as third-party processors of Personal Data under this Contract. The Owner confirms that it has entered, or (as the case may be), will enter with each Third Party Processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause 23, and in either case, which the Owner confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Hirer and the Owner, the Owner shall remain fully liable for all acts or omissions of any Third Party Processor.
23.7. The Owner shall confirm to the Hirer in writing:
23.7.1. if it wishes to appoint any new third party processor, as a new third party processor or as a replacement to an existing Third Party Processor; and
23.7.2. the name of the new third party processor, the data processing services or activities that it will be providing to the Owner and if it is a replacement to an existing Third Party Processor.
23.8. If the Hirer objects to the appointment of any new third party processor under clause 23.7, it shall promptly let the Owner know in writing, and in any event within 7 days of the date that the Owner complied with clause 23.7, including the reasons for its objection. Unless otherwise agreed between the parties in writing, the Owner shall not appoint the new third party processor as a sub-processor under this Contract. If the Hirer does not object, the new third party processor shall be deemed to be a Third Party Processor, and where relevant, replace the existing Third Party Processor stated by the Owner under clause 23.7.2.
23.9. Processing by the Owner:
23.9.1. Scope: The provision of the rental of the Equipment and any associated services to the Hirer by the Owner;
23.9.2. Nature: The provision of the rental of the Equipment and any associated services to the Hirer by the Owner;
23.9.3. Purpose of the processing: The fulfilment of the provision of the rental of the Equipment and any associated services to the Hirer by the Owner;
23.9.4. Duration of the processing: The duration of the Contract;
23.9.5. Types of Personal Data: Title, name, email address, job title, business address and contact telephone number(s); and
23.9.6. Categories of Data Subject: Hirer or person identified in the quotation or Order, or other persons agreed in writing between the parties from time to time.
23.10. Either party may, at any time on not less than 30 days’ notice, revise this clause 23 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
24. ENTIRE AGREEMENT
24.1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.2. Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
25.1. Unless otherwise stated in these Conditions, no variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
25.2. Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
25.3. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
25.4. Each party shall, and shall use all reasonable commercial endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Contract.
25.5. Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
25.6. Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
25.7. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract.
25.8. If any provision or part-provision of this Contract is deemed deleted under clause 25.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
25.9. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
25.10. The Owner may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
25.11. The Hirer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract, without the prior written consent of the Owner.
26.1. Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
26.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
26.1.2. sent by email to:
18.104.22.168. the Owner via firstname.lastname@example.org;or
22.214.171.124. the Hirer via the email address stated on the Order.
26.2. Any notice shall be deemed to have been received:
26.2.1. if delivered by hand, at the time the notice is left at the proper address;
26.2.2. if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
26.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause, “business hours” means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
26.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27. GOVERNING LAW
27.1. This Contract and any dispute or claim (including (without limitation) non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
28.1. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including (without limitation) non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.