TERMS AND CONDITIONS OF HIRE
1.1 The following definitions and rules of interpretation apply in these terms and conditions.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date that the Lessee takes Delivery of the Equipment.
Delivery: the transfer of physical possession of the Equipment to the Lessee .
Equipment: the equipment specified in the Quotation together with all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Lessee: the party shown as the addressee in the Quotation
Lessor : Consam International Limited incorporated and registered in England and Wales with company number 01536031 whose registered office is at 33 Highmeres Road, Leicester, Leicestershire, LE4 9LZ
Quotation: the quotation in respect of the hire of the Equipment issued by the Lessor to the Lessee
Rental Payments: the payments made by or on behalf of Lessee for hire of the Equipment as specified in the Quotation
Rental Period: the period of hire as set out in the Quotation or if none is set out in the Quotation 36 months
Total Loss: the Equipment is, in the Lessor’s opinion , damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause and paragraph headings shall not affect the interpretation of these terms and conditions .
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time
1.9 A reference to writing or written includes fax and e-mail.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 The Lessor hires the Equipment to the Lessee subject to these terms and conditions
2.2 The Lessor shall not, other than in the exercise of its rights under these terms and conditions or applicable law, interfere with the Lessee’s quiet possession of the Equipment.
The Rental Period starts on the Commencement Date and shall continue until its expiry unless terminated earlier in accordance with these terms and conditions.
4.RENTAL PAYMENTS AND DEPOSIT
4.1 The Lessee shall pay the Rental Payments to the Lessor as stipulated in the Quotation.
4.2 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.
4.3 All amounts due under these terms and conditions 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).
4.4 If the Lessee fails to make a payment due to the Lessor by the due date, then, without limiting the Lessor’s remedies under these terms and conditions the Lessee shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
4.5 Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, or 6% whichever is higher.
5.DELIVERY AND INSTALLATION
5.1 Delivery of the Equipment shall be made by the Lessor. The Lessor shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 of these terms and conditions
5.2 Unless within 2 Business Days of Delivery the Lessee shall notify the Lessor in writing to the contrary the Lessee shall be deemed to have examined the Equipment and found it to be in good condition, complete and fit in every way for the purpose for which it is intended.
5.3 If agreed by the Lessor and stated in the Quotation the Lessor shall at the Lessee’s expense install the Equipment at a site agreed with the Lessee. To facilitate Delivery and installation the Lessee shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Lessee 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. If required by the Lessor, the Lessee’s duly authorised representative shall sign a receipt confirming such acceptance.
6.TITLE, RISK AND INSURANCE
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms and conditions).
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment 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 Lessor may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor 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
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.
6.3 All insurance policies procured by the Lessee shall at the request of the Lessor be endorsed to provide the Lessor with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Lessor’s request name the Lessor on the policies as a loss payee in relation to any claim relating to the Equipment. The Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.4 The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee’s possession or use of the Equipment.
6.5 If the Lessee fails to effect or maintain any of the insurances required under these terms and conditions, the Lessor 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 Lessee.
6.6 The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.
7.1 The Lessee shall during the Rental Period and thereafter until the Lessee has fully complied with its obligations hereunder:
ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff;
take such steps (including compliance with all safety and usage instructions provided by the Lessor) 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;
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 Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Lessor unless carried out to comply with any mandatory modifications required by law or any regulatory authority. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Lessor immediately upon installation
keep the Lessor fully informed of all material matters relating to the Equipment
at all times keep the Equipment in the possession or control of the Lessee and keep the Lessor informed of its location
permit the Lessor or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection
maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Lessor, together with such additional information as the Lessor may reasonably require
not, without the prior written consent of the Lessor, 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
not without the prior written consent of the Lessor, 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 Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Lessor against all losses, costs or expenses incurred as a result of such affixation or removal
not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor may enter such land or building and recover the Equipment both during the Rental Period and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment
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 Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation
not use the Equipment for any unlawful purpose
ensure that at all times the Equipment remains identifiable as being the Lessor’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
deliver up the Equipment at the end of the Rental Period or on earlier termination in accordance with these terms and conditions at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to any premises where the Equipment is located for the purpose of removing the Equipment; and
not do or permit to be done anything which could invalidate the insurances referred to in Clause 6
7.2 The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with the terms of these terms and conditions.
8.1 The restrictions on liability in this Clause 8 apply to every liability arising under or in connection with these terms and conditions including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Subject to Clause 8.3 the Lessor’s total liability to the Lessee (including any liability for the acts or omissions of its employees, agents and subcontractors) shall not exceed the total sum received from the Lessee by way of Rental Payments.
8.3 Nothing in these terms and conditions limits any liability which cannot legally be limited including but not limited to liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation. OR ; and
(c) breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973
8.4 These terms and conditions set forth the full extent of the Lessor’s obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in these terms and conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within these terms and conditions, whether by statute, common law or otherwise, is expressly excluded.
9.1 Without affecting any other right or remedy available to it, the Lessor may terminate these terms and conditions with immediate effect by giving written notice to the Lessee if:
(a) the Lessee fails to pay any amount due under these terms and conditions on the due date for payment and remains in default not less than 5 Business Days after being notified to make such payment;
(b) the Lessee commits a material breach of any other term of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified to do so;
(c) the Lessee repeatedly breaches any of these terms and conditions 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 these terms and conditions
(d) the Lessee 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 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 Insolvency Act 1986 or or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Lessee 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 Lessee with one or more other companies or the solvent reconstruction of the Lessee;
(f) 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 Lessee (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee;
(g) 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 Lessee (being a company);
(h) the holder of a qualifying floating charge over the assets of the Lessee (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the Lessee or a receiver is appointed over all or any of the assets of the Lessee;
(j) the Lessee (being an individual) is the subject of a bankruptcy petition, application or order;
(k) a creditor or encumbrancer of the Lessee 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 Lessee’s assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in subclauses (d) to (k) of this clause (inclusive);
(m) the Lessee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(n) the Lessee (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their affairs or becomes a patient under any mental health legislation
9.2 For the purposes of Clause 9.1 (b) material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Lessor would otherwise derive from:
(a) a substantial portion of these terms and conditions; or
(b) any of the obligations set out in Clause 7,
over the Rental Period. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
9.3 The Rental Period and the hire agreement hereby effected (Hire Agreement) shall automatically terminate if a Total Loss occurs in relation to the Equipment.
9.4 The Lessee is not entitled to terminate the Rental Period or the Hire Agreement
10.CONSEQUENCES OF TERMINATION
10.1 Upon termination of the Rental Period and the Hire Agreement, however caused:
(a) the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee’s expense, retake possession of the Equipment and for this purpose may enter the any premises at which the Equipment is located; and
(b) without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Clause 4.4
(ii)any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under these terms and conditions or the Hire Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
10.2 Upon termination of the Rental Period and the Hire Agreement pursuant to Clause 9.1, any other repudiation of these terms and conditions or the Hire Agreement by the Lessee which is accepted by the Lessor or pursuant to Clause 9.3 without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Rental Period and the Hire Agreement had continued from the date of such demand to the end of the original Rental Period, less(but only where all of the Equipment is returned to the Lessor) the Lessor’s reasonable assessment of the market value of the Equipment so returned.
10.3 The sums payable pursuant to Clause 10.2 shall be agreed compensation for the Lessor’s loss and shall be payable in addition to the sums payable pursuant to Clause 10.1
10.4 Termination of the Rental Period or of the Hire Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by Clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the agreement created pursuant to these terms and conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the agreement created pursuant to these terms and conditions
12. ASSIGNMENT AND OTHER DEALINGS
The agreement created pursuant to these terms and conditions is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under that agreement.
13. ENTIRE AGREEMENT
13.1 These terms and conditions and the Hire Agreement hereby created constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.2 Each party acknowledges that in entering into the Hire Agreement 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 these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.
No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15 .NO PARTNERSHIP OR AGENCY
15.1 Nothing in these terms and conditions 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.
15.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.1 Any notice or other communication given to a party under or in connection with these terms and conditions shall be in writing and shall be 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);
16.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) 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 at the time recorded by the delivery service.
16.3 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.
16.4 A notice given under these terms and conditions is not valid if sent by email.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. RIGHTS AND REMEDIES
Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision or part-provision of these terms and conditions 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 these terms and conditions
19.2 If any provision or part-provision of these terms and conditions is deemed deleted under Clause 20.1 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.
20. GOVERNING LAW
These terms and conditions any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or their subject matter or the formation of any agreement pursuant thereto.