These terms and conditions apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer. These terms and conditions apply to all goods or services purchased or hired by the Customer from the Company (“Terms and Conditions”).
0.1 Clauses 0, 1, 2 and 11 et seq. apply in all cases.
0.2 Clauses 3, 4, 5, 6 and 7 also apply when the Customer Hires Hired Goods from the Company.
0.3 Clauses 8, 9 and 10 also apply when the Customer Buys Sales Goods from the Company.
In this Agreement:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
"this Agreement" these Terms and Conditions together with the relevant Order Form (and where applicable) any Maintenance Agreement that the Customer has entered into with the Company in relation to the Hired Goods or Sale Goods;
"Business Day" any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not open for business in the City of London;
"Commencement Date" the date stipulated in the Order Form as the start date of the Hire Period;
"Company" Lang-ag Limited, a company registered in England and Wales under number 9130760 and having its registered office at 2 Maxted Court, Maxted Road, Hemel Hempstead, HP2 7BL;
"Confidential Information" any information in any form or medium obtained by one Party from or on behalf of the other pursuant to this Agreement which is expressly marked as confidential or which is manifestly confidential whether disclosed or obtained before, on or after the date of this Agreement together with any reproductions of such information or any part of this information;
"Customer" the customer whose details are set out in the Order Form;
"Delivery Charges" the delivery charges stated in the Order Form;
"Hired Goods" the items listed in the Hire Catalogue that the Customers can hire from the Company from time to time;
"Hire Catalogue" a document listing the Hired Goods available for hire, the Hire Fees and the value of such Hired Goods issued by the Company from time to time;
“Hire Fees” the fees payable by the Customer to the Company for the hire of the Hired Goods as set out in the Hire Catalogue or as agreed by the Parties from time to time;
"Hire Period" the period of hire of the Hired Goods described in the Order Form and starting on the Commencement Date;
“Instructions“ any user instructions, guidance and user manuals for the Hired Goods and the Sale Goods issued by the manufacturer or the Company from time to time;
“Maintenance Agreement“ any written agreement on the Company’s standard form made between the Company and the Customer for the provision of maintenance and support services in relation to the Sale Goods;
“Order Form” the Company’s form document containing the specific information relating to the Sale Goods or Hired Goods to be supplied or hired (respectively) by the Company to the Customer;
“Party” either the Company or the Customer;
"Price" the price of the Sale Goods current at the time the Customer places an order with the Company, as amended from time to time;
"Sale Goods" the items that the Customers can purchase from the Company from time to time;
"Serviced Hire" any installation and operation services that the Customer has asked the Company to provide via its employees, subcontractors, technicians or agents to install and/or operate the Hired Goods at the Customer’s request, as specified in the Order Form;
“Serviced Hire Fees” the fees payable for the Serviced Hire where the Customer asks the Company to provide the Serviced Hire in the Order Form;
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 the headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm, partnership or limited liability partnership;
1.5 references to "includes" or "including" or like words or expressions shall mean without limitation; and
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2.1 Save as expressly provided herein, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties hereto preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledge that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.2 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.3 Except as expressly provided otherwise in this Agreement, no change to this Agreement shall be binding unless it is agreed in writing signed by each of the Company and the Customer and expressed to be for the purpose of such amendment and in the format approved by the Company.
2.4 In the event of any conflict between the provisions of these Terms and Conditions and the Order Form, then the order of precedence shall be that the Order Form prevails over these Terms and Conditions.
2.5 This Agreement shall be legally formed and the Parties shall be legally bound when both Parties have signed the Order Form.
2.6 Each Order Form constitutes a separate agreement. There may be more than one agreement between the Parties in force at the same time as this Agreement.
2.7 The Company may withdraw any Hired Goods or Sale Goods as being available for sale or for hire at any time before the Company signs an Order Form for such goods.
3. customer obligations for hired goods
3.1 The Customer shall: 3.1.1 check availability of the Hired Goods with the Company and ensure that the Hired Goods will meet its requirements before submitting an Order Form to hire such goods;
3.1.2 specify the Hired Goods it requires on the Order Form, specify whether the Hired Goods are to be collected by the Customer or delivered and whether the Company is to provide Serviced Hire; and
3.1.3 promptly pay any advance payments of the Hire Fees as a deposit where the Company requires the same;
3.1.4 promptly comply with the reasonable requests of the Company from time to time in connection with this Agreement;
3.1.5 pay the Hire Fees for the Hire Period stipulated in the Order Form or, if later, for such time as it does not return the Hired Goods to the Company;
3.1.6 where applicable sign any delivery note where the Company delivers the Hired Goods to the Customer;
3.1.7 during the Hire Period, take all reasonable care of the Hired Goods, use the Hired Goods in a skilful and proper manner and follow all Instructions, guidance and recommendations issued by the Company in relation to the same;
3.1.8 at all times keep the Hired Goods in good and substantial repair and condition (save for fair wear and tear) and take all precautions necessary to ensure their safety and security and ensure that the Hired Goods are kept protected in all respects;
3.1.9 use the Hired Goods in accordance with all applicable laws, rules, regulations, bye-laws and codes of practice;
3.1.10 promptly return the Hired Goods to the Company at its own risk and at its own cost on the expiry of the Hire Period or on the termination of this Agreement (whichever is earlier); and
3.1.11 not open the outer case (if any) of the Hired Goods or of any item or part thereof nor interfere in any way with the Hired Goods or the mechanism thereof or any nameplates or signs or serial numbers thereon and not expose the Hired Goods to the elements (in particular to salt water and spray). 1. 3.2 Any instructions that the Customer wishes to give to the Company or any employee, agent or subcontractor of the Company in relation to the Hired Goods must be given through an authorised representative of the Customer and confirmed in writing by the Customer and, if they are to be binding, by the Company.
4. delivery and return of hired goods
4.1 The Hired Goods will be delivered or collected at such a time and such place as is specified in the Order Form or as is mutually agreed between the Parties from time to time. Times and dates of delivery are estimates only and the Company shall use commercially reasonable endeavours to meet such estimates. Any failure to meet time estimates shall not be deemed to be a breach entitling the Customer to claim damages. To the extent permitted by law, the Company shall not be liable to the Customer for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.
4.2 Upon delivery or collection of the Hired Goods, the Customer shall examine and check the Hired Goods to ensure that they are of satisfactory quality before the Customer accepts them or begins to use or install the same. The Company appoints the Customer as its agent and the Customer agrees to act as the Company’s agent in respect of any installation, examination, testing and commissioning of the Hired Goods and the delivery and acceptance of the same.
4.3 Where the Customer requires delivery of the Hired Goods, the signature of any person purporting to be an authorised representative of the Customer on the Company’s delivery note shall be sufficient evidence that the Company has delivered the Hired Goods in accordance with this Agreement.
4.4 Where the Company agrees to collect the Hired Goods at the expiry of the Hire Period or on termination of this Agreement, the Customer shall remain responsible for the transit of the Hired Goods until they are within the Company’s premises.
4.5 Damage to the Hired Goods upon their return shall be assessed and charged for by the Company. The Company shall use reasonable commercial endeavours to inform the Customer immediately about any damage to the Hired Goods on their return and shall provide full details of the same thereafter.
5. warranty for HIRED goods
5.1 Subject to the Customer complying with Clause 3.1, the Company warrants that:
5.1.1 it shall use reasonable commercial endeavours to ensure that the Hired Goods are in good working order and condition at the time of delivery to, or collection by, the Customer;
5.1.2 where the Customer has requested the Serviced Hire, it shall provide the Serviced Hire and any other services the Customer asks it to provide under this Agreement with reasonable skill and care in a professional, competent and workmanlike manner; and
5.1.3 it has all necessary rights, permissions and consents to enter into this Agreement.
5.2 The Company does not warrant that the Hired Goods are fully suitable in all respects (including type and condition) for the purpose for which they are being hired or that they will meet the individual requirements of the Customer. The Company is not responsible for any Hired Goods or equipment not expressly stipulated in this Agreement that the Company will provide.
5.3 If upon delivery or collection of the Hired Goods, the Hired Goods are found to be defective or deficient, the Customer shall inform the Company immediately and give full details of the defect or deficiency to the Company. Where the Customer has not informed the Company of any defect or deficiency in the Hired Goods within twenty-four hours of the delivery time or the collection time of the Hired Goods, it shall be deemed that the Hired Goods have been examined and accepted for hire by the Customer for the duration of the Hire Period.
5.4 Where the Customer has informed the Company of any defect or deficiency in the Hired Goods and given full details thereof, the Company shall use reasonable commercial endeavours to replace or remedy the defects or deficiencies without additional charge but in no circumstance shall the Company be liable for any loss or damage of whatever kind however caused arising out of or in connection with the Customer’s use of or the Customer’s inability to use, the Hired Goods. The Company shall not be obliged to repair or replace the Hired Goods where:
5.4.1 the condition of the Hired Goods has resulted from improper use, accident, neglect or any other causes external to the Hired Goods;
5.4.2 the Customer makes or causes to be made any modifications to the Hired Goods without the Company's consent;
5.4.3 the Customer installs or operates the Hired Goods or causes them to be so installed or operated contrary to the Instructions or contrary to the guidance, advice and guidelines given to the Customer by the Company from time to time;
5.4.4 the Hired Goods are used in combination with any equipment or materials not approved by the Company;
5.4.5 the Customer has not taken appropriate protective measures to safeguard the Hired Goods in accordance with this Agreement;
5.4.6 the Hired Goods are used in a manner for which it was not intended; or
5.4.7 the Hired Goods are used other than as permitted under this Agreement.
5.5 Except where expressly provided for within this Agreement, the Company excludes all conditions, warranties, terms and representations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Hired Goods.
6. restrictions on hired goods
6.1 The Customer shall not:
6.1.1 use the Hired Goods on any abnormal or hazardous assignment or in combination with any equipment or materials not approved by the Company; or
6.1.2 take the Hired Goods out of the United Kingdom or take them from the ground other than on a regular scheduled flight by any airline recognised by I.A.T.A. without the Company’s prior written consent;
6.1.3 misuse or improperly use the Hired Goods or use them in a manner for which they were not intended;
6.1.4 make any modifications to the Hired Goods without the Company's consent;
6.1.5 install or operate the Hired Goods contrary to the Instructions or contrary to the guidance, advice and guidelines given to the Customer by the Company from time to time; or
6.1.6 install or operate the Hired Goods on its own without the Company’s employee, agent, subcontractor or technician supervising such installation or operation where the Customer has opted to have Serviced Hire.
6.2 The Customer shall be solely responsible for obtaining all customs clearances licences and permits as shall be necessary to take the Hired Goods out of the United Kingdom. If any of the Hired Goods are taken out of the United Kingdom, are lost or are damaged or break down and the Company agrees to replace the same, the Company shall only deliver a replacement at an address in the United Kingdom. The Hire Period for Hired Goods taken out of the United Kingdom shall run from the Commencement Date to the time they are returned regardless of shipping or customs delays or hold-ups.
6.3 The Customer acknowledges and accepts that:
6.3.1 it uses the Hired Goods at its own risk and that it shall be responsible for such use of the Hired Goods; and
6.3.2 its non-compliance with Clause 3.1 or Clause 6.1 may cause loss and damage including serious harm and/or injury to third parties which shall be the Customer’s responsibility.
6.4 Further, the Customer acknowledges and accepts that the Company may not be the manufacturer of the Hired Goods and that it has hired the Hired Goods solely for the purpose of hiring them to customers pursuant to this Agreement
6.5 Subject to Clause 13.2, the Company shall not be responsible or liable in any way for any loss, damage or injury arising from the Customer’s non-compliance with this agreement Particularly Clause 3.1 and Clause 6.1.
6.6 At all reasonable times and upon reasonable advance notice, the Customer shall permit the Company's representative to inspect and have access to any premises at which the Hired Goods are being used or kept to ensure that the Customer is complying with its obligations under this Agreement.
6.7 Where the Company discovers that:
6.7.1 the Customer is not complying with the terms of this Agreement, or
6.7.2 the Hired Goods have been damaged or rendered inoperable for whatever reason, or
6.7.3 the Customer’s use of the Hired Goods may be dangerous, hazardous or contrary to health and safety regulations, the Company shall have a right to enter any premises at which the Hired Goods are being used or kept and remove the Hired Goods immediately and charge the Customer a reasonable sum for their removal. If the Hired Goods are damaged or destroyed, the Company shall have a right to charge the Customer for the repair or replacement of the same.
7. risk, ownership and insurance
7.1 Risk in each item of the Hired Goods shall pass to the Customer on its delivery or collection by the Customer and the Customer shall have responsibility for the Hired Goods from that time.
7.2 The Company retains ownership in the Hired Goods and so the Customer may not sell, assign, charge, mortgage, create a lien over, lease, hire or otherwise dispose of the Hired Goods. The rights granted to the Customer under this Agreement are personal to the Customer and are non-transferable and the Customer shall only use the Hired Goods for its own use.
7.3 The Customer must ensure that the Hired Goods are insured from the time of their delivery or collection to the expiry of the Hire Period, with a reputable and established insurer to the full replacement value of the Hired Goods for the places where the Hired Goods shall be and the uses for which the Hired Goods are used; and whilst the Hired Goods are being transported. The Customer shall ensure that the Company’s interest is noted on its insurance policy. The Customer shall at the Company’s request, provide a copy of such insurance policy to the Company from time to time.
7.4 In the event of any loss, theft or damage to the Hired Goods, the Customer shall inform the Company as soon as possible and no later than within twenty-four hours of such event. In the case of theft, the Customer shall inform the police as soon as is reasonably practicable. In the case of any loss, theft or damage to the Hired Goods, the Customer shall hold the proceeds of insurance for such loss, theft or damage for and to the Company’s order.
8. delivery and acceptance of sale goods
8.1 Before buying any used or second-hand Sale Goods, the Customer is responsible for examining and checking such Sale Goods to ensure that they are of satisfactory quality and suitable for its requirements.
8.2 The Sale Goods will be delivered to the place specified in the Order Form and where such place has not been specified, to the Customer’s premises. Times and dates of delivery are estimates only and the Company shall use commercially reasonable endeavours to meet such estimates. Any failure to meet time estimates shall not be deemed to be a breach entitling the Customer to claim damages. To the extent permitted by law, the Company shall not be liable to the Customer for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.
8.3 The Company may deliver in instalments. Delay, default or non-delivery of any instalment shall not entitle the Customer to cancel, and shall not affect, the remainder any other contract with the Company other than this Agreement for which there is the delay, default or non-delivery.
8.4 The Company shall not be obliged to deliver any Sale Goods to the Customer whilst the Customer has any outstanding unpaid monies actually due to the Company under any contract with the Company exceeding any such credit limit which the Parties have agreed from time to time. The Company shall perform this Agreement within a reasonable time following receipt of those monies that take outstanding unpaid monies actually due to the Company below that credit limit.
8.5 On delivery of the Sale Goods, the Customer must sign the Company’s delivery note. The signature of any person purporting to be an authorised representative of the Customer on the Company’s delivery note shall be sufficient evidence that the Company has delivered the Sale Goods in accordance with this Agreement.
8.6 Upon delivery of the Sale Goods, the Customer shall examine and check the Sale Goods to ensure that they are of satisfactory quality before the Customer accepts them or begins to use or install the same. The Customer shall within 3 Business Days of the date of delivery give notice in writing to the Company if the Sale Goods do not comply with this Agreement in any way. If the Customer does not give such notice within that time the Sale Goods shall be deemed to have been accepted by the Customer and the Company shall be deemed conclusively to have delivered the Sale Goods undamaged and in the correct quantities.
8.7 All risk in the Sale Goods shall pass to the Customer upon delivery, except that where delivery is delayed due to the Customer’s breach of the Customer’s obligations risk shall pass at the date when delivery would have occurred but for the Customer’s breach. From the time when risk passes to the Customer, the Company will not be liable for loss or destruction of the Sale Goods.
8.8 If the Customer is not available to take delivery or collection at the designated time, the Company may leave a card giving instructions on either redelivery or collection from the carrier.
8.9 If delivery or collection is delayed through the Customer’s unreasonable refusal to accept delivery, then the Company may (without affecting any other right or remedy available to the Company) do either or both of the following:
8.9.1 charge the Customer for the Company’s reasonable storage fee and other costs reasonably incurred by the Customer; and
8.9.2 notify the Customer that the Company is immediately cancelling this Agreement, in which case the Company will refund to the Customer any money already paid to the Company under this Agreement, less any reasonable charges for delivering and returning the Sale Goods.
9. sale goods ownership and retention of title
9.1 The Customer shall own the Sale Goods on the later of when the Company delivers them to the Customer and when the Company receives payment in full for the Sale Goods (including VAT and Delivery Charges) in accordance with Clause 9.2.
9.2 Notwithstanding delivery, ownership of the Sale Goods shall remain with the Company and the Customer shall hold the Sale Goods as bailee for the Company until payment in full of all sums owing from the Customer to the Company on any account whatsoever whether under this Agreement or any other contract between the Customer and the Company ("Payment").
9.3 The Customer shall keep the Sale Goods in good condition and separate from other goods and clearly identified as the Company’s property and not destroy, deface or obscure any identifying mark or packaging on or relating to the Sale Goods until Payment.
9.4 The Customer shall not pledge or allow any lien or charge to arise over the Sale Goods until Payment. The Customer shall not deal with the Sale Goods other than in the ordinary course of business.
9.5 The Customer may resell the Sale Goods before ownership has passed to it solely on the following conditions:
9.5.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
9.5.2 any such sale shall be a sale of the Company’s property on the Company’s behalf and the Customer shall deal as the Company’s agent when making such a sale with all the obligations of an agent to its principal.
9.6 In the event of sale or any disposition of the Sale Goods by the Customer, the Customer shall still be responsible for paying to the Company the full value of the Payment. If the Company requires, the Customer shall authorise and direct the third party buyer to pay to the Company a like part of the sum due to the Customer in respect of the Sale Goods sold and assign to the Company such part of the debt owed to the Customer by the third party.
9.7 The Company may at any time until Payment without notice recover possession of the Sale Goods which are the Company’s property. The Customer hereby grants to the Company an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of the Customer. The Customer shall indemnify the Company against all claims, losses, damages, liabilities, costs and expenses so arising.
9.8 The Company shall be entitled to maintain an action for the price of the Sale Goods, notwithstanding that the property in the Sale Goods has not passed to the Customer.
9.9 The Customer shall keep the Sale Goods fully insured on the Company’s behalf with a reputable insurance company for their full price against all risks of loss or damage from the time when the risk passes to the Customer until ownership passes in accordance with this Clause 9. On request, the Customer shall produce to the Company the policy of insurance. If the Sale Goods are lost, damaged or destroyed, the Customer shall hold the proceeds of insurance for and to the Company’s order pending Payment (as defined in Clause 9.1).
10. warranty for sale goods from the company and the customer
10.1 The Customer acknowledges that:
10.1.1 the Company only acts as a reseller of the Sale Goods; and
10.1.2 the Company does not design, produce or manufacture any of the Sale Goods and so, subject to Clause 10.2 and to the fullest extent permitted by law, the Company disclaims all and any conditions, warranties, terms and representations, whether express or implied by statute, common law or otherwise in relation to the Sale Goods.
10.2 Where the Sale Goods are new and not used or second-hand, the Company shall use reasonable commercial endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of such Sale Goods to the Customer and in addition, the Customer shall be entitled to exercise the rights granted to it under Clause 10.3.
10.3 Where the Customer finds any non-conformity within the Sale Goods and the Sale Goods are new and not used or second-hand, it shall, at all times, contact the manufacturer of the Sale Goods directly and make an appropriate claim under the manufacturer’s warranty or guarantee, except where it finds the same within 3 Business Days of the delivery date, during which period the Customer shall have the right to, and shall notify the Company of such non-conformity. Upon receiving such notification, the Company shall use all reasonable commercial endeavours to replace the Sale Goods or procure its repair within a reasonable time provided that:
10.3.1 the Customer promptly (and in any event within 3 Business Days of the Customer's discovery) gives written notification to the Company of the defect or damage;
10.3.2 the Customer shows to the Company's reasonable satisfaction that the defect or damage is solely attributable to defective materials or workmanship in the Sale Goods and not wear and tear from normal use or the combination or incompatibility of the Sale Goods with any other materials or post-delivery moving of the Sale Goods;
10.3.3 following delivery, the Sale Goods have not been misused or subjected to neglect, improper or inadequate care, carelessness, abnormal usage conditions, or involved in any accident, repair, replacement, servicing or modification contrary to the Instructions or any other instructions of the Company;
10.3.4 the Customer allows the Company the opportunity to inspect the Sale Goods;
10.3.5 the Customer has paid for the Sale Goods in full; and
10.3.6 the Customer has complied with the Instructions and all other reasonable instructions of the Company.
10.4 The Customer shall only return the Sale Goods to the Company if an authorised representative of the Company expressly agrees in writing. Return to the Company's premises or any other place stipulated by the Company shall be carriage and insurance paid at the Customer's risk and carefully packed to avoid damage in transit (and section 36 of the Sale of Goods Act 1979 shall not apply).
10.5 Unless agreed by an authorised representative of the Company in writing, no unauthorised returns can be accepted. For the avoidance of doubt, the Sale Goods are not supplied on a sale or return basis. If the Customer makes an invalid claim or if the Customer treats the Sale Goods other than in accordance with this Clause 10, the Company may charge the Customer for its charges and costs (including labour and parts) in examining the Sale Goods and dealing with the claim plus its costs of storage.
10.6 Where the Customer purchases used or second-hand Sale Goods from the Company and the Customer finds any non-conformity within them, the Customer shall have the right to, and shall notify the Company of such non-conformity within 3 Business Days of the date of delivery. In such circumstances, the Customer’s sole remedy (subject to applicable law) shall be to enter into a Maintenance Agreement for such Sale Goods with the Company and the Company shall use reasonable commercial endeavours to repair the non-conformity in the Sale Goods under such Maintenance Agreement.
10.7 The Company makes no warranty that the Sale Goods are fully suitable in all respects (including type and condition) for the purpose for which the Customer is buying the Sale Goods and that they will meet the individual requirements of the Customer.
10.8 Except where expressly provided for within this Agreement, the Company excludes all conditions, warranties, terms and representations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Hired Goods and the Sale Goods.
10.9 The Customer warrants that:
10.9.1 the Sale Goods are fit for the purpose for which it is buying them;
10.9.2 it has all necessary licences and permissions to use the Sale Goods;
10.9.3 it will use follow the Instructions in installing, testing and operating the Sales Goods and shall not alter or modify the Sale Goods in any way without the prior written consent of the Company.
10.1 The Company does not warrant that the Sale Goods are fully suitable in all respects (including type and condition) for the purpose for which they are being hired or that they will meet the individual requirements of the Customer. The Company is not responsible for any Sale Goods or equipment not expressly stipulated in this Agreement that the Company will provide.
11. SERVICE WARRANTY
11.1 The Company warrants that any services it performs shall be carried out with reasonable care and skill.
12. HIRE Fees and the price payable for the sale goods
Subject to any credit terms the Company has specifically agreed in writing to give the Customer, the Customer shall pay to the Company (as applicable), the Hire Fees as rent for the Hired Goods, the Delivery Charges where the Customer has asked for delivery, the Serviced Hire Fees where the Customer has asked for the Serviced Hire and the Price for the Sale Goods and any Delivery Charges (if any).
12.1 The Price shall be payable before the Sale Goods are delivered. The Hire Fees (and where applicable the Delivery Charges and the Serviced Hire Fees) shall be payable at a time or times specified in the Order Form. Time of payment shall be of the essence.
12.2 Each twenty four hour period constitutes one day’s hire. The Hire Fees shall be as set out in the Hire Catalogue and shall be payable for the Hire Period or until such time as the Customer returns the Hired Goods to the Company or where the Customer informs the Company that the Hired Goods are lost or stolen or damaged irreparably. In such cases, the Customer shall further pay the Company the cost of replacing such Hired Goods as soon as reasonably practicable.
12.3 Where an initial fee is payable as a deposit, the initial fee shall be an initial up-front payment. The amount of the initial fee shall be returned to the Customer without interest when the Hired Goods have been returned to the Company and all charges and other monies due to the Company under the terms of this Agreement have been paid.
12.4 The Company may issue invoices to the Customer for the Hire Fees, the Delivery Charges, the Serviced Hire Fees and/or the Price.
12.5 All sums due to the Company are exclusive of VAT and other duties or taxes (if applicable) which the Customer shall pay to the Company in addition with any other payment.
12.6 The Customer shall pay the Company by any payment method reasonably stipulated by the Company.
12.7 Payment shall be in the currency in force in England from time to time.
12.8 Payment of all sums due to the Company under this Agreement shall be made by the Customer in full without any set-off, deduction or withholding whatsoever.
12.9 If the Customer is late in paying any part of any monies due to the Company, the Company may (without prejudice to any other right or remedy available to it whether under this Agreement or by any statute, regulation or bye-law) do either or both of the following:
12.9.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
12.9.2 suspend any further deliveries to the Customer, the performance of this Agreement and any other agreement between the Company and the Customer until payment in full has been made; and
12.9.3 suspend any credit terms extended to the Customer in which case all sums payable by the Customer to the Company shall immediately become due and payable.
13. Limitation of Liability
13.1 This Clause 13 prevails over all other Clauses and sets forth the entire liability of the Company to the Customer, and the Customer's sole and exclusive remedies in respect of:
13.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or of any goods or services in connection with this Agreement; or
13.1.2 otherwise in relation to this Agreement or entering into this Agreement.
13.2 The Company does not exclude or limit its Liability for:
13.2.1 its fraud; or
13.2.2 death or personal injury caused by its Breach of Duty; or
13.2.3 any breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
13.2.4 any other Liability which cannot be excluded or limited by applicable law.
13.3 Subject to Clause 13.2 the Company does not accept and hereby excludes any Liability for Breach of Duty other than any liability arising pursuant to the terms of this Agreement.
13.4 Subject to Clause 13.2, the Company shall not have Liability in respect of any:
13.4.1 indirect or consequential losses, damages, costs or expenses;
13.4.2 loss of actual or anticipated profits;
13.4.3 loss of contracts;
13.4.4 loss of use of money;
13.4.5 loss of anticipated savings;
13.4.6 loss of revenue;
13.4.7 loss of goodwill;
13.4.8 loss of reputation;
13.4.9 loss of business;
13.4.10 loss of operation time;
13.4.11 loss of opportunity; or
13.4.12 loss of, damage to or corruption of, any data; in respect of this Agreement whether or not such losses were reasonably foreseeable or the Company or its agents had been advised of the possibility of the Customer incurring such losses. For the avoidance of doubt, Clauses 13.4.2 to 13.4.12 apply whether such losses are direct, indirect, consequential or otherwise.
13.5 Subject to the rest of this Clause 13.2 and the exclusions and limits set out in the rest of this Agreement, the total aggregate Liability of the Company arising out of or in connection with a claim or claims made by the Customer in respect of loss or damage suffered by the Customer shall be limited to the greater of: (a) £20,000; or (b) the total sums paid and total other sums payable by the Customer to the Company under this Agreement within the twelve months preceding the date on which the claim first arose.
13.6 The limitation of Liability under Clause 13.5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
13.7 The Customer acknowledges and accepts that the Company only provides the Hired Goods and/or the Sale Goods and/or the Serviced Hire to the Customer on the express condition that the Company will not be responsible for nor shall it have any Liability to the Customer or any third party directly or indirectly for:
13.7.1 any use, improper or negligent use or misuse of the Hired Goods and Sale Goods by the Customer or any other third party; or
13.7.2 any breach of Clause 3.1 or Clause 6.1 by the Customer, its employees, agents, contractors, customers or any third party;
13.7.3 any act or omission of the Customer, its employees, agents, contractors, customers or any third party in relation to the Hired Goods or the Sale Goods or the Hired Services.
13.8 In this Clause 13:
13.8.1 "Breach of Duty" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
13.8.2 "Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including, without limitation, liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to "this Agreement" shall be deemed to include any collateral contract).
14. Data Protection
14.1 In performing this Agreement, each Party shall:
14.1.1 comply with all applicable data protection legislation; and
14.1.2 procure that its employees, agents, consultants and contractors comply with all applicable data protection legislation.
14.2 The Parties agree and acknowledge that the Company may check on the creditworthiness of the Customer and use credit reference agencies to do the same.
15. Term and Termination
15.1 This Agreement shall commence on the Commencement Date and, subject to earlier termination pursuant to this Agreement, shall continue in force until (as applicable) completion of a sale under this Agreement or when the Hired Goods are returned by the Customer to the Company or the Company receives replacements of the Hired Goods where these have been lost, stolen or irreparably damaged.
15.2 Either Party may terminate this Agreement immediately by notice in writing to the other Party if:
15.2.1 the other Party is in material breach of any of its obligations under this Agreement which is incapable of remedy; or
15.2.2 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Agreement after having been required in writing to remedy such breach within a period of no less than 30 days; or
15.2.3 the other gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
15.3 Termination of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
15.4 Termination of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
15.5 Upon termination of this Agreement for any reason:
15.5.1 the Company shall cease to perform this Agreement;
15.5.2 all outstanding Hire Fees and the Price or any part thereof provided shall become immediately payable, whether invoiced or not;
15.5.3 the Customer shall promptly return all Hired Goods in its possession or control to the Company at its own cost and at its own risk; and
15.5.4 the owner of Confidential Information may at its option require the other Party to delete promptly all Confidential Information from any computer disks, tapes or other material in its possession or under its control or promptly deliver up or destroy materials and tangible items in its possession or under its control which contain any Confidential Information belonging to the Party requiring the action. The owner of Confidential Information may require the other Party to provide a written declaration, signed by an officer or other authorised individual stating that there has been full compliance with this Clause 15.5.4.
16. Force Majeure
16.1 Save for obligations in respect of payment of the Hire Fees or the Price, the Company shall not be liable for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by circumstances beyond its reasonable control including without limitation Act of God, actions of third parties (including hackers, carriers, logistics companies, suppliers, governments or supra-national authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including without limitation electrical, telecoms or general Internet failure), shortage of or inability to obtain materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
16.2 Each of the Parties agrees to notify the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
16.3 The performance of the Company’s obligations shall be suspended during the period that the circumstances persist and the Company shall be granted an extension of time for performance equal to the period of the delay.
16.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
16.5 If performance of any obligations are delayed under this Clause 16, each Party shall nevertheless accept performance as and when the Company shall be able to perform.
16.6 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall be liable to the other Party by reason of such termination.
16.7 If the Company has contracted to provide identical or similar goods to more than one customer and is prevented from fully meeting its obligations to the Customer by reason of an Event of Force Majeure, the Company may decide at its absolute discretion which contracts it will perform and to what extent.
17.1 Any notice or other communication required or authorised to be given under this Agreement shall be in writing and may be served by personal delivery or by pre-paid or recorded delivery letter or by overnight courier or by facsimile addressed to the relevant Party at its address stated in this Agreement or at such other address or facsimile number as is notified by the relevant Party to the other for this purpose from time to time or at the address or facsimile number of the relevant Party last known to the other.
17.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been posted by recorded delivery or overnight courier and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, posted as a prepaid or recorded delivery letter or despatched or an answerback signal received.
18.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Agreement, the Company may assign or subcontract its rights, liabilities or obligations under this Agreement either in whole or in part to any other person, firm or company. The Company shall promptly give notice to the Customer of any such assignment.
18.2 The Customer shall not assign, transfer or charge or purport to assign, transfer or charge this Agreement or any of its rights, liabilities or obligations under this Agreement without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).
19.1 No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that Party's rights under this Agreement.
19.2 If any Clause or other provision in this Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
19.3 Nothing in this Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
19.4 A person who is not a Party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
19.5 This Agreement shall be governed by and construed in accordance with English law and the Customer hereby submits to the jurisdiction of the English courts. The Parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter brought by the Customer in relation to this Agreement. Nothing in this Clause 19.5 shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.
Version: 005. 10.03. 07