TERMS AND CONDITIONS
The following terms and conditions apply to the supply of products, goods and services by Jenkins Group Limited, Jenkins Plant Limited or their other wholly owned companies, here on known as the "company". The receiver of the products, goods or services is here on known as the "hirer".
1.1 The following definitions and rules of interpretation apply in this agreement:
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 Hirer takes Delivery of the Equipment.
Delivery: the transfer of physical possession of the Equipment to the Hirer at the Premises.
Equipment: means the items of equipment listed in Schedule 2 along with each and every relevant component part, record, log book, manual and handbook and all replacements, renewals or additions to and substitutions for the Equipment from time to time all of which shall remain the property of the company and subject to this agreement.
Initial Payment: the initial payment amount set out in the Payment Schedule.
Maintenance: means ongoing maintenance carried out on the Equipment as and when deemed required by the company in accordance with these terms.
Payment Schedule: Schedule 1 which sets out the sums payable under the hirer's agreement as set out in the Payment Schedule (and / or confirmed orally, in writing, or by other electronic means).
Premises: the Hirer’s premises as detailed in Schedule 2 (and / or confirmed orally, in writing, or by other electronic means)..
Purpose: notwithstanding all other restrictions contained in this agreement which shall remain in force, this means the purpose for which the Equipment shall be used as detailed in Schedule 2.
Rental Payments: the payments made by or on behalf of the Hirer for hire of the Equipment, as set out in Schedule 1 (and / or confirmed orally, in writing, or by other electronic means) .
Rental Period: the period of hire as set out in Schedule 1 (and / or confirmed orally, in writing, or by other electronic means).
Total Loss: the Equipment is, in the companies reasonable opinion or the opinion of its Insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The schedules form part of this agreement and shall have effect as if it sets out in full in the body of this agreement and any reference to this agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to is as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and e-mail.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.13 References to clauses and schedules are to the clauses and schedules of this agreement and references to paragraphs are to paragraphs of the relevant schedule.
1.14 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. EQUIPMENT HIRE AND ONGOING MAINTENANCE AND SERVICES
2.1 Subject to the terms and conditions of this agreement, during the Rental Period, the company shall:
(a) Hire the Equipment to the Hirer for use at the Premises for the Purpose; and
(b) Carry out Maintenance on the Equipment; and
(c) Repair the Equipment in accordance with clause 17.
2.2 The company shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Hirer’s quiet possession of the Equipment.
3. RENTAL PERIOD
The Rental Period starts on the Commencement Date and shall continue for the remainder of the Rental Period unless this agreement is terminated earlier in accordance with its terms.
4. RENTAL PAYMENTS
4.1 The Hirer shall pay the Rental Payment to the company in accordance with the Payment Schedule. The Rental Payments shall be paid in sterling within the specified timescale on the invoice or stipulated by the company, from time to time.
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 Hirer at the rate and in the manner from time to time prescribed by law.
4.3 All amounts due under this agreement 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 Hirer fails to make any payment due to the company under this agreement by the due date for payment, then, without limiting the companies remedies under clause 20, the Hirer shall pay interest on the overdue amount at the rate of 8% per annum above the base rate of Bank of England (currently 0.5%).
Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. Interest shall be compounded weekly. The Hirer shall pay the interest together with the overdue amount. The hirer shall also be liable to the company for the costs of recovery:
Balance due up to £999.00, hirer liable to recovery charge of £40.00
Balance due £1,000.00 up to £9,999.00, hirer liable to recovery charge of £70.00
Balance due above £10,000.00, hirer liable to recovery charge of £100.00
For further information on late payment of commercial debts, please see www.gov.uk/late-commercial-payments-interest-debt-recovery/charging-interest-commercial-debt.
5. DELIVERY, LOADING AND UNLOADING
5.1 Delivery of the Equipment shall be made by the company, or their appointed agent. The company shall use all reasonable endeavors to effect Delivery by the date and time agreed between the parties. Time shall however not be of the essence with regards to Delivery times and the company shall not be liable for any costs or losses of any kind due to late/early delivery. Title and risk shall transfer in accordance with clause 9 of this agreement.
5.2 The company shall not be liable for any damage or losses suffered by the Hirer or any third party in respect of any plant, machinery, surface, ground, property or the Equipment during the loading or unloading of the Equipment upon delivery (or indeed collection) whether this has been carried out by the company, it's employees, officers or agents; the Hirer; or any other third party.
6. CONDITION ON DELIVERY AND ACCEPTANCE
6.1 The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the delivery of the Equipment. Acceptance by such representative of the Equipment 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 company, the Hirer’s duly authorised representative shall sign a receipt confirming such acceptance.
6.2 Although every possible precaution has been taken to ensure that the Equipment is in good serviceable condition, no liability whatsoever can be accepted by the company for the consequences of any failure or inaccuracies of the Equipment. The Hirer is expected to satisfy themselves that the Equipment is functional before attempting to use it on their Premises.
7. UNSUITABLE GROUND AND OPERATING CONDITIONS
7.1 Notwithstanding that the Hirer must only use the Equipment for the Purpose on the Premises, the Hirer shall be wholly responsible for the ground condition upon which the Equipment is to work and must provide excavator mats or equivalent wherever unsuitable ground conditions could threaten the security of the Equipment. The Hirer will be solely responsible for any costs of recovery of Equipment from unsuitable ground.
7.2 Where the Hirer seeks to use the Equipment in hazardous conditions and environments which include but are not limited to sea water, chemicals, fertilizer, abrasive products, contaminated waste and radioactive materials, sand , snow, coal and gases, the Hirer must:
(a) Advise the company at the time of placing the hire or in advance in writing and obtain the companies express written consent;
(b) Notwithstanding the terms of this agreement, indemnify the company against any loss or damage in connection with the conditions or occasioned by the materials that the Equipment is in contact with, either noticed at the time of hire or subsequently if affecting the Equipment in any way including but by no means limited to the electrics, hydraulics and/or unexposed components; and
(c) Clean the Equipment thoroughly before being returned to the company.
8. USE OF EQUIPMENT ON THE HIGHWAY
8.1 The Hirer must notify the company if they wish to use the Equipment on the public highway and the Hirer shall be solely responsible in ensuring that the Equipment is licenced for use on the road.
8.2 The Hirer shall be solely responsible for and indemnify the company against any fines (parking or otherwise), levies, tolls, charges or offences committed during the Rental Period. The Hirer irrevocably agrees that the company may provide their name, address and telephone number to any third party in connection with such instances if requested.
9. TITLE, RISK AND INSURANCE
9.1 The Equipment shall at all times remain the property of the company, 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 this agreement).
9.2 For the avoidance of doubt, title and property in all substitutions, replacement, renewals made in or to the Equipment at any time during the Rental Period, whether made by the company, the Hirer or any third party, shall vest in the company immediately upon installation.
9.3 The risk of 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 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 and accepted by the company. During the Rental Period and the Risk Period, the Hirer 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 (in the case of Equipment less than 3 years old this shall be the same as if new and over 3 years old to the Equipment’s replacement value) comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the company 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 company 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 company may from time to time consider reasonably necessary and advise to the Hirer.
9.4 All insurance policies procured by the Hirer shall be endorsed to provide the company with at least twenty (20) days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the companies request name the company 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.
9.5 The Hirer shall give immediate written notice to Jenkins Plant 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.
9.6 If the Hirer fails to effect or maintain any of the insurances required under this agreement, the company 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.
9.7 The Hirer hereby irrevocably agrees that the company shall be entitled to liaise direct with the Hirer’s insurer and will instruct their insurer to settle any claim by way of payment direct to the company (with acceptance of these terms to be deemed as such permission being given). In the event that any such settlement monies are not paid direct to the company, the Hirer will remain personally liable for such sums due until the company are in receipt of the settlement monies in full.
9.8 As a condition of this agreement and the provision of the Equipment by the company, the Hirer shall prior to delivery and thereafter on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the company and proof of premium payment to the company to confirm the insurance arrangements.
10. HIRER’S OBLIGATIONS
10.1 During the term of this agreement the Hirer must at all times ensure that:
The Equipment is kept and operated in a safe, secure, suitable environment on the Premises;
(a) The Equipment is used only for the agreed Purpose;
(b) They notify the company immediately via telephone in the event that the Equipment is involved in an accident resulting in loss or damage to property or injury to any person and must provide full details in writing (email or fax) within 24 hours;
(c) The Equipment is operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the company;
(d) The Equipment is operated strictly in accordance with all necessary permits and certificates required (for the avoidance of doubt, if such certificates or permits are provided by the company, the Hirer shall still be responsible for ensuring that these are valid, suitable and satisfactory for the use of the Equipment); and
(e) At all times, so far as it is reasonably practicable, the Equipment is safe and without risk to health when it is being set, cleaned or maintained in accordance with terms of this agreement;
(f) The Equipment is kept clean in accordance with manufacturers and the companies instructions;
(g) At all times the correct fuel and or oil and or grease is used in relation to the Equipment;
(h) The Equipment remains on the Premises and shall not be moved to a different location without the companies prior written consent;
(i) The Equipment is not used for any unlawful purpose;
(j) The Equipment remains identifiable as being the companies property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(k) Any signs, stickers, signwriting or named plates bearing the name of the company(s) and found on the Equipment remain clean and undamaged;
(l) Nothing is done or permitted to be done to invalid the insurance referred to in clause 9;
10.2 The company or its duly authorised representative shall be permitted at all times to inspect the Equipment and for such purpose to enter upon the Premises or any premises at which the Equipment may be located and the Hirer shall grant reasonable access and facilities for such inspection.
10.3 The Hirer shall be responsible for carrying out all required daily checks in respect of consumables including but by no means limited to oil, grease and fuel, and for the avoidance of doubt the Hirer shall be responsible for the provision and cost of all such consumables.
11. HIRER’S RESTRICTIONS OF USE
11.1 During the term of this agreement the Hirer shall not without the express written consent of the company:
(a) repair or cause to be repaired any item of the Equipment;
(b) make any alteration or modification to the Equipment;
(c) remove any existing component(s) from the Equipment;
(d) cover up, remove or deface in any way any signs, stickers (including security tags), signwriting or nameplates of the company nor shall they fix to the Equipment or any part of the Equipment any sign, sticker nor paint in any way;
(e) part with control of (including for the purposes of repair and 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;
(f) not to move Equipment to any other site or location without prior notification to the company;
(g) not to move Equipment outside of the United Kingdom without the prior written consent of the company;
(h) do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the company 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 company may enter such land or building and recover the Equipment both during the term of this agreement 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 company of any rights such person may have or acquire in the Equipment and a right for the company to enter onto such land or building to remove the Equipment; and
(i) 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 company and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the company on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation.
11.2 The fuel injection systems of the Equipment are NOT compatible with Bio Diesel. Bio Diesel must not therefore be used in any instance as this will cause extensive damage to the fuel systems and result in substantial and expensive repairs to the Equipment. In the event of such damage caused during the Rental Period by the Hirer or any third party other than the company, the Hirer hereby agrees that they shall be fully liable for all and any costs and losses incurred by the company in order to repair the vehicle to the same condition as on the Commencement Date.
12. PLANT HIRED WITH SPECIALIST ATTACHMENTS
12.1 Any Equipment supplied or hired with specialist attachments and buckets shall be charged at a specialist attachment rate, irrespective of their use or otherwise, until the specialist attachment is returned to the company.
12.2 The company shall be responsible for all fair wear and tear of specialist attachments and implements and excessive wear and damage (in the sole opinion of the company) will be chargeable to the Hirer.
12.2 On every hire the Hirer is responsible for supplying suitable lifting gear for all lifting operations. The Hirer is also responsible for carrying out all required daily and weekly statutory inspections of Equipment.
13. IMMOBILIZER AND TRACKING DEVICES
Some of the Equipment provided by the company may have tracker and or GPS systems installed which may be used by the company to monitor the use of the Equipment by the Hirer. The Hirer irrevocably agrees and consents that the company may in their absolute discretion access such systems remotely and monitor use during the Rental Period which may result in the Equipment being ring fenced and or shut down at any time and such information gathered by remote monitoring may be utilised by the company, in their absolute discretion, during and after the Rental Period to assess the Hirer’s use of the Equipment and compliance with this agreement including but not limited to their obligations and restrictions under clauses 10 and 11.
14. THE FITTING OF COMPANY ATTACHMENTS TO COMPANY EQUIPMENT OR VICE VERSA
14.1 If the Hirer wishes to fit their own attachments (or attachments hired from a third party) to the companies Equipment or vice versa they must firstly obtain prior written consent from the company.
14.2 If the company provides consent in accordance with clauses 14.1, the Hirer will also be responsible for, in addition to their obligations and restrictions under clauses 10 and 11:
(a)Any damage howsoever caused to the company Equipment (or attachment) due to the fitting, removal of the attachment (or item of Equipment);
(b)Any damage howsoever caused to the item of Equipment or attachment.
(c)The cost of fitting, removal and making good any additions to the Equipment (or attachment) necessary for the operation of the attachment (or Equipment) if carried out by the company.
(d)Payment of the full hire rate for the Equipment and attachment during any modification, fitting or removal of the attachment or any necessary repair to either item.
(e)In the case a Hirer’s attachment being fitted to an item of the companies Equipment or vice versa, should there be any damage caused to the item belonging to the company caused by contaminated hydraulic oil passing from the Hirer’s item of machinery or attachment then the company shall hold the Hirer liable for all costs, liability and expenses, including but not limited to, all repair costs necessary due to such damage caused by contaminated hydraulic oil, as well as idle time hire charges for the item while the repairs are being carried out, together with any costs which are necessary including (but not limited to) transport, replacement of hydraulic oil and third party inspection and analysis cost.
15. CAB REMOVAL
At the companies absolute discretion any cab and or any other safety or protective structural device may be removed at the request of the Hirer, where it is necessary for the environment in which the Hirer is working. By making such a request the Hirer irrevocably accepts full responsibility for such removals and agrees that the company shall not be liable for any accident, incident, injury or damage that occurs due to such removal and the Hirer understands that the Equipment may now no longer comply with certain statutory legislation and accepts exclusive and full responsibility in this area.
16. WEIGHTS AND MEASURES
16.1 Whilst the company has taken due care in preparing its literature, electronic media, and price lists, the weights, measures, dimensions and digging depths etc, are approximate and are provided only for the guidance of the Hirer and are subject to change without notice. No guarantee is offered regarding their accuracy.
16.2 Hirers must ensure that they comply with their duties pursuant to the Hydrocarbon Oil Duties Act 1979 with regard to the use of rebated (red) diesel. The company shall hold the Hirer full liable for any penalties incurred.
17. REPAIRS, BREAKDOWNS, LOSS AND MAINTENANCE
17.1 Any breakdown or loss of performance of the whole or any part of the Equipment must be notified to the company immediately.
17.2 Save for punctures, in the event of any breakdown or loss of performance of the whole or any part of the Equipment, the Hirer must notify the company immediately.
17.3 The company shall use all reasonable endeavours to remedy, free of charge, a defect of the whole or any part of the Equipment where, in the companies sole opinion is determined necessary, provided that:
(a) upon the Equipment defect occurring or the Hirer becoming aware of the defect, the Hirer immediately notifies the company;
(b) The company is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the companies authorised personnel;
(d) the defect is directly attributable to the Equipment and not any accessories used or connected to the Equipment which have not been supplied by the company; and
(e) the defect did not materialise as a result of any breach of these terms including but by no means limited to the Hirer’s responsibilities pursuant to clauses 10 and 11.
17.2 Should any defect in the Equipment manifest itself within the Rental Term and the Hirer fails to carry out its obligations pursuant to clause 17.1(a)-(b) or the material defect was a result of such instances detailed in clause 17.1(c)-(e), the Hirer hereby agrees that the company shall be entitled to attend the Premises and charge the Hirer for any such parts and labour required in order to remedy the material defect at such rate in the companies absolute discretion.
17.3 If the company fails to remedy any material defect in the Equipment in accordance with this clause 17, the company 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 agreement.
17.4 The Hirer acknowledges that the company 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 Hirer or its officers, employees, agents and contractors, and the Hirer undertakes to indemnify the company 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 Hirer to comply with the terms of this agreement.
17.5 In the event that any repair to plant or equipment owned by the Hirer is carried out by the company, the company reserve the right to exercise a lien over the item until the bill is paid in full, including any storage and transport costs/charges.
17.6 Notwithstanding the above, the Hirer shall be responsible for all puncture repairs in respect of all Equipment hired during the Rental Term.
17.7 The Hirer shall be solely responsible for the cost of replacing any lost parts in respect of the Equipment including but by no means to limited to replacement key(s).
18.1 Nothing in this agreement shall exclude or in any way limit:
(a) either party’s liability for death or personal injury caused by its own negligence;
(b) either party’s liability for fraud or fraudulent misrepresentation; or
(c) liability for any breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973 or any other liability which cannot be excluded by law.
18.2 Without prejudice to clause 18.1, the company shall not be liable under this agreement for any:
(a) loss of profit;
(b) loss of revenue;
(c) loss of business; or
(d) indirect or consequential loss or damage,
In each case, however caused, even if foreseeable.
18.3 Without prejudice to clauses 18.1 and 18.2, the companies maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the Rental Payments.
18.4 This agreement sets forth the full extent of the companies obligations and liabilities in respect of the Equipment and its hiring to the Hirer. 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 company except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
18.5 The company accepts no liability or responsibility in any way for any damage to roadways, pathways, manholes or covers, cables, property or any other services (whether above on or below ground) which may be occasioned due to the travelling, positioning, or working of any item of the Equipment.
19.1 The Hirer hereby agrees to indemnify the company against all losses, actions, claims, demands, proceedings (whether criminal or civil), costs, legal expenses (on a full indemnity basis), insurance premiums, liabilities, judgements, damages or other sanctions whether arising directly or indirectly from:
(a) the Hirer’s failure or alleged failure to carry out its duties under this agreement;
(b) any breakdown and or damage arising from the misuse or misdirection of the Equipment or any acts or omissions of the Hirers, their agents, servants or any other party;
(c) any loss, injury or damage suffered by any person arising directly or indirectly from the presence of the Equipment on any premises, including but by no means limited to any loss, injury or damage suffered as a consequence of the non-performance of the Equipment.
20. TERMINATION OF HIRE
20.1 When a fixed Rental Period is agreed at the time of hire, no notice of termination is necessary and the Equipment will be collected automatically (or the return of it expected) upon the expiry of the Rental Period.
20.2 Where a fixed Rental Period is not determined from the onset or a fixed Rental Period becomes indeterminate, the hire shall only come to an end 2 days after the day on which the company acknowledges receipt of written notice of termination from the Hirer, such notice to be sent by either fax or e-mail.
20.3 Notwithstanding any other terms of this agreement, the company may terminate in their absolute discretion this agreement at any time with immediate effect without reason.
20.4 Without affecting any other right or remedy available to it, the company may terminate this agreement with immediate effect by giving written notice to the Hirer if:
(a) the Hirer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified to make such payment;
(b) the Hirer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach immediately after being notified to do so;
(c) the Hirer repeatedly breaches any of the terms of this agreement 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 agreement;
(d) 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 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) the Hirer commences negotiation 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;
(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 Hirer (being a company);
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Hirer (being a company);
(h) 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;
(i) a person becomes entitled to appoint a receiver over the assets of the Hirer or a receiver is appointed over the assets of the Hirer;
(j) 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;
(k) any event occurs, or proceeding is taken, with respect to the Hirer in any jurisdiction to which it us subject that has an effect equivalent or similar to any of the events mentioned in clause 19.5(d) to clause 19.5(j) (inclusive);
(l) there is a change of control of the Hirer (within the meaning of section 1124 of the Corporation Tax Act 2010);
(m) the Hirer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business at the Premises.
20.5 For the purposes of clause 20.4(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 company would otherwise derive from:
(a) a substantial portion of this agreement; or
(b) any of the obligations or restrictions set out in clauses 10 and 11,
over the term of this agreement. In deciding whether it occurs by some accident, mishap, mistake or misunderstanding.
20.6 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
21. CONSEQUENCES OF TERMINATION
21.1 Upon termination of this agreement, however otherwise caused:
(a) The companies consent to the Hirer’s possession of the Equipment shall terminate and the Equipment shall be returned to the company in accordance with clause 21 below; and
(b) without prejudice to any other rights or remedies of the company, the Hirer shall pay to the company 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 company in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs); and
(iii)Any costs and expenses incurred by the company in order to put the vehicle back into the same condition as it was on the Commencement Date (fair wear and tear only excepted).
21.2 Upon termination of this agreement pursuant to clause 20.4, any other repudiation of this agreement by the Hirer which is accepted by the company or pursuant to clause 20.6, without prejudice to any other rights or remedies of the company, the Hirer shall pay to the company on demand a sum equal to the whole of the Rental Payment that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
21.3 The sums payable pursuant to clause 21.2 shall be agreed compensation for the companies loss and shall be payable in addition to the sums payable pursuant to clause 21.1(b).
21.4 Termination or expiry of this 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.
22. RETURN OF THE EQUIPMENT
Upon Termination, unless otherwise agreed in writing by the company, the company shall, by its authorised representatives, without notice and strictly at the Hirer’s expense (such cost to be decided by the company at the time of collection in their absolute discretion), retake possession the Equipment and for this purpose may enter the Premises or any premises at which the Equipment is located.
23. FORCE MAJEURE
The company shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, including but by no means limited to any:
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) War or threat of war, sabotage, insurrection, civil disturbance, or requisition or act of terrorism;
(c) Acts, restrictions, bye-laws, regulations, prohibitions, or measures of any kind on the part of any governmental parliamentary or local authority;
(d) Strikes, lock-outs or other trade disputes;
(e) Difficulties in obtaining new plant, labour, fuel, spare parts of machinery; or
(f) Power failure or breakdown in machinery.
In such circumstances the company shall be entitled to a reasonable extension of the time for performing such obligations.
24. CONFIDENTIAL INFORMATION
24.1 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 24.2.
24.2 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 this agreement. 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 24; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
24.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
25. DATA PROTECTION
By entering into this agreement the Hirer hereby agrees that the company may access, store and use such information about the Hirer to allow the company to decide whether or not to permit the Hirer to initially hire and or continue to use the Equipment, this shall include the storage and use of information gathered remotely during the Rental Period.
26. ASSIGNMENT AND OTHER DEALINGS
The Hirer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement without the express prior written consent of the company.
27. ENTIRE AGREEMENT
27.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representatives and understandings between them, whether written or oral, relating to its subject matter.
27.2 The Hirer acknowledges that in entering into this 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 this agreement.
27.3 The Hirer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
27.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
29. NO PARTNERSHIP OR AGENCY
29.1 Nothing in this agreement 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.
29.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
30. FURTHER ASSISTANCE
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
31. THIRD PARTY RIGHTS
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
32.1 Unless expressly stated otherwise in this agreement, any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by fax to its main fax number.
32.2 Unless otherwise stated in this Agreement, 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;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service.
(c) If sent by fax, at 9.00am on the next Business Day after transmission.
32.3 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.
No failure or delay by a party to exercise any right or remedy provided under this agreement 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 than or any other right or remedy.
34. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
35.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
35.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
36. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) 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 exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it, or when you have received the product, goods or services contracted for.
Schedule 1 Payment Schedule
If applicable, will contain details surrounding payment.
Schedule 2 Equipment, Location and Purpose
If applicable, will contain details surrounding the equipment, location and purpose, togrther with any addittional limitations.
Where the hirer has obtained products, goods or services through verbal negotiation, the contents of this agreement and it's schedules will be confirmed and accepted by the hirer on the confirmation in writing by the company to the hirer their request has been succesful.