A: Terms and Conditions for Sales and Purchases
The Supplier shall provide the Goods to the Customer on these Conditions (in particular the Customer’s attention is drawn to the limitation of liability at clause 12).
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 14.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 13.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form.
Supplier: Bariatric Training Mannequins Ltd, registered in England and Wales with company number 08263812 and “Bariquins” is a trading name thereof.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained on the Supplier’s website or in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Goods are described on the Supplier’s website.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and the Customer shall account to the Supplier for all costs incurred by the Supplier in connection with the Goods, not limited to costs of storage, insurance and costs associated with the attempted delivery of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. 14-DAY RETURNS POLICY
5.1 If the Customer gives notice in writing that the Customer wishes to cancel the Order before the Goods are delivered, or returns the Goods to the Supplier within 14 days of receiving the Goods, the Supplier will arrange for a full refund, subject to the terms of this clause 5. This guarantee is only offered to Customers in the United Kingdom.
5.2 The Customer should give the Supplier prior written notice of the return using the contact email address provided in the Order and give details of the order number, Customer’s name, address, contact telephone number and e-mail address, the reason for the return and whether a refund or replacement is required.
5.3 The Customer must ensure that the Supplier receives the unwanted Goods from the Customer within 14 days of the date on which the Goods were delivered to the Customer. Goods are to be returned to the Supplier's place of business at the Customers’ own risk and expense. Returned Goods are not deemed to have been accepted by the Supplier until the Supplier is given a reasonable opportunity of examining such Goods. The risk in the Goods shall only pass to the Supplier once it has accepted the return of the Goods.
5.4 Any unwanted Goods must be returned with the name of the Customer, order number, invoice number and date of purchase clearly identified on the packaging. Goods must be returned clean and in their original (unaltered, undamaged) condition and packaging.
5.5 If a return made in accordance with this clause 5 is authorised by the Supplier, the Supplier will endeavour to process all refunds within 7 days of the Supplier authorising the return. The Supplier reserves the right to refuse to accept any return not made in accordance with this clause 5 (this does not affect the Customer’s rights to return Goods that do not comply the warranty set out in clause 6.1).
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost (Goods must be returned with the name of the Customer, order number, invoice number and date of purchase clearly identified on the packaging),
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, accidental damage, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 11.2, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.6 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
8.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9. EXPORT TERMS
9.1 In these Conditions and “Incoterms 2010” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at 1st January 2010. Unless the context otherwise requires, any term of expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms 2010 and these Conditions, these Conditions shall prevail.
9.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Clause 8 shall (subject to any special terms agreed in writing between the Customer and the Supplier) apply notwithstanding any other provision of these Conditions.
9.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation, use or sale of the Goods into the country of destination, the payment of any duties or taxes on them and the transportation and storage of the Goods.
9.4 Unless otherwise agreed in writing between the Customer and the Supplier, the Goods shall be delivered EXW Ex Works from the Suppliers premises and the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
9.5 The Customer shall be responsible for arranging for testing and inspection of the Goods at the Supplier’s premises before shipment. The Supplier shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
9.6 Payment of all amounts due to the Supplier shall be made by telegraphic transfer or cleared funds to such bank account in England as shall be notified to the Customer and the Goods shall only be dispatched for shipment once cleared funds of all amounts due to the Supplier have been received by the Supplier in accordance with this clause 8.6.
9.7 The Customer undertakes not to offer the Goods for resale in any country anywhere in the world, or to sell the Goods to any person if the Customer knows or has reason to believe that that person intends to resell the Goods in any country.
10. CUSTOMER COVENANTS
10.1 The Customer irrevocably covenants to the Supplier that:
(a) the Customer’s use of the Goods shall be restricted to the normal business use of the Goods; being the use of the Goods in connection with the training of the Customer’s employees and workers, the training of the Customer’s clients, or the training of the employees and workers of the Customer’s clients;
(b) the Customer shall not use the Goods other than as specified in clause 10.1(a) without the prior written consent of the Supplier; and
(c) without prejudice to the generality of clause 10.1(b), the Customer shall not rent, lease or loan the Goods to any other person, and the Customer shall not offer the Goods for resale in any country anywhere in the world.
10.2 The Customer shall indemnify Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Supplier arising out of or in connection with any breach by the Customer of the covenants contained in clause 10.1.
11. TERMINATION AND SUSPENSION
11.1 If the Customer becomes subject to any of the events listed in clause 11.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
11.2 For the purposes of clause 11.1, the relevant events are:
(a) the Customer 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 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;
(b) (being a company) 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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer, or 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 Customer or the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(c) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer 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 its assets and such attachment or process is not discharged within 14 days;
(f) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(a) to clause 11.2(c) (inclusive);
(g) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
11.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.2(a) to clause 11.2(g) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
11.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
11.5 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
11.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
12.2 Subject to clause 12.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
13. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract 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 the Contract.
(b) If any provision or part-provision of this Contract 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.
14.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
14.7 Governing law. The Contract, 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.
14.8 Jurisdiction. 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 Contract or its subject matter or formation (including non-contractual disputes or claims).
B: TERMS AND CONDITIONS OF HIRE
1.1 In these conditions the following words have the following meanings:
Contract means a contract, which incorporates these conditions and made between the Customer and the Supplier for the hire of Hire Equipment.
Customer means the firm, company or other organisation hiring the Hire Equipment. Deposit means any advance payment required by the Supplier in relation to the Hire Equipment which is to be held as security by the Supplier.
Force Majeure means any event outside the party’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, sub-contractors, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental action and any other similar event.
Hire Equipment means the mannequin, equipment, article, tool, and/or device together with any accessory specified in a Contract, which are hired by the Customer.
Hire Period means the period commencing when the Customer holds the Hire Equipment on hire and ending upon any of the following events (i) the physical return of the Hire Equipment by the Customer into the Suppliers possession; or (ii) the physical repossession or collection of The Hire Equipment by the Supplier.
Liability means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses or liabilities.
Products means the products sold to the Customer by the Supplier.
Hire Charges means the Suppliers charging rate for the hire of the Hire Equipment, which is current from time to time during the Hire Period.
Supplier means Bariatric Training Mannequins Ltd T/A ‘Bariquins’ and will include its employees, servants, agents and/or duly authorised representatives.
Services means the services and/or work (if any) to be performed by the Supplier in conjunction with the hire of Hire Equipment including any delivery and/or collection service for the Hire Equipment.
2. BASIS OF CONTRACT
2.1 The Hire Equipment is hired subject to it being available for hire to the Customer at the time required by the Customer. The Supplier will not be liable for any loss suffered by the Customer as a result of the Hire Equipment being unavailable for hire where the Hire Equipment are unavailable due to circumstances beyond the Suppliers control.
2.2 Where the hire of Hire Equipment is to a Customer who is an individual and the hire would be covered by the Consumer Credit Act 1974 the duration of the Hire Period shall not exceed 3 months, after which time the Contract shall be deemed to have automatically terminated. Accordingly the hire of any Hire Equipment is not covered by the Consumer Credit Act 1974.
2.3 Nothing in this Contract shall exclude or limit any statutory rights of the Customer, which may not be excluded or limited due to the Customer acting as a consumer.
3.1 The amount of any Deposit, Hire Charges and/or charges for any Services shall be quoted to the Customer. Where a Deposit is required for the Hired Goods it must be paid in advance of the Customer hiring the Hire Equipment.
3.2 The Customer shall pay the Hire Charges for any Services, monies for any Products and/or any other sums payable under the Contract to the Supplier at the time and manner agreed. The Suppliers prices are, unless otherwise stated, exclusive of VAT for which the Customer shall additionally be liable.
3.3 Payment by the Customer on time under the Contract is an essential condition of the Contract. Payment shall not be deemed to be made until the Supplier has received either cash or cleared funds in respect of the full amount outstanding.
3.4 If the Customer fails to make payment in full on the due date the Supplier may charge the Customer interest on the amount unpaid at a rate implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable).
3.5 Any monies received by the Supplier from the Customer may be applied by the Supplier at its option against any administrative costs and interest charged prior to application against any principal sums due from the customer against which it may be applied in any order.
3.6 The Customer shall pay all sums due to the Supplier under the Contract without any set off, deduction, counterclaim and/or any withholding of monies.
3.7 The Supplier may set a reasonable Credit Limit for the Customer. The Supplier reserves the right to terminate the Contract or suspend the Contract for hire of the Hire Equipment and/or the provision of Services if allowing it to continue would result in the Customer exceeding its credit limit or the credit limit is already exceeded.
4. RISK OWNERSHIP AND INSURANCE
4.1 Risk in the Hire Equipment and any Products will pass immediately to the Customer when they leave the physical possession or control of the Suppler.
4.2 Risk in the Hire Equipment will not pass back to the Supplier from the Customer until the Hire Equipment is in the physical possession of the Supplier. This shall apply even though the Supplier has agreed to cease charging the Hire Charges.
4.3 Ownership of the Hire Equipment remains at all times with the Supplier. The Customer has no rights, title or interest in the Hire Equipment except that they are hired to the Customer. Ownership of any Products remains with the Supplier until all moneys payable to the supplier by the Customer for the Products have been paid in full.
4.4 The Customer must not deal with the ownership or interest in the Hire Equipment. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending.
4.5 The Supplier may provide reasonably priced insurance in respect of the Hired Goods at an additional cost to the Hire Charges. Alternatively, the Supplier may require the Customer to insure the Hire Equipment on such reasonable terms and for such reasonable risks as the supplier may specify. The proceeds of any such insurance shall be held in trust for the Supplier and be paid to the Supplier on demand.
5. DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Equipment from the Supplier and return them to the Supplier at the end of the Hire Period. If the Supplier agrees to deliver or collect the Hire Equipment to/or from the Customer it will do so at an additional cost to the Hire Charges and will form part of the Contract.
5.2 Where the Supplier provides Services, the person performing the Services are servants of the Customer and once the Customer instructs such person they are under the direction and control of the Customer. The Customer shall be solely responsible for any instruction, guidance and/or advice given by the Customer to any such person and any damage which occurs as a result of such persons following the Customers instructions, guidance and/or advice except to the extent that the persons performing the Services are negligent.
5.3 The Customer will allow and/or procure sufficient access to and from the relevant site and provide sufficient unloading space, facilities, equipment and access to utilities for the supplier’s employees, sub-contractors and/or agents to allow them to carry out the Services. The Customer will ensure that the site where the Services are to be performed is, where necessary, cleared and prepared before the Services are due to commence.
5.4 If any Services are delayed, postponed and/or are cancelled due to the Customers failing to comply with its obligations the Customer will be liable to pay the Supplier’s additional charges from time to time for such delay, postponement and/or cancellation.
6. CARE OF HIRE EQUIPMENT
6.1 The Customer shall:-
6.1.1 not remove any labels from and/or interfere with the Hire Equipment, their working mechanisms or any other parts of them and shall take reasonable care of the Hire Equipment and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
6.1.2 notify the supplier immediately after any breakdown, loss and/or damage to the Hire Equipment;
6.1.3 take adequate and proper measures to protect the Hire Equipment from theft. damage and/or other risks;
6.1.4 notify the Supplier of any change of its address and upon the Suppliers request provide details of the location of the Hired Goods;
6.1.5 permit the Supplier at all reasonable times to inspect the Hire Equipment including providing access to where the Hire Equipment is situated
6.1.6 keep the Hire Equipment at all times in its possession and control and not to remove the Hire Equipment from the country where the Supplier is located without written consent of the Supplier;
6.1.7 not do or omit to do anything which will or may be deemed to invalidate any insurance policy related to the Hire Equipment;
6.1.8 not continue to use the Hire Equipment where it has been damaged and will notify the Supplier immediately if the Hire Equipment is involved in an accident resulting in damage to the Hire Equipment, other property and/or injury to any person; and
6.1.9 where the Hire Equipment require fuel, oil and/or electricity ensure that the proper type, and/or voltage is used and that, where appropriate, the Hire Equipment is properly installed by a qualified person.
7.1 Allowances will be made in relation to the Hire Charges to the Customer for any non-use of the Hire Equipment due to breakdown caused by a development of an inherent fault and/or fair wear and tear on condition that the Customer informs the Supplier as soon as practicable of the breakdown.
7.2 The Customer shall be responsible for all expenses, loss (including loss of Hire Charges) and/or damage suffered by the Supplier arising from any breakdown of the Hire Equipment due to the Customer’s negligence misdirection and /or misuse of the Hire Equipment.
7.3 The Supplier will at its own cost carry out all routine maintenance and repairs to the Hire Equipment during the Hire Period and all repairs, which are required due to fair wear and tear and/or an inherent fault in the Hire Equipment. The Customer will be responsible for the cost of all repairs necessary to the Hire Equipment which arise otherwise than as a result of fair wear and tear, an inherent fault and/or the negligence of the Supplier while carrying out routine maintenance and/or repairs.
7.4 The Customer must not repair or attempt to repair the Hire Equipment unless authorised in writing by the Supplier.
8. LOSS OR DAMAGE TO THE HIRE EQUIPMENT
8.1 If the Hire Equipment is returned in a damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hire Equipment, the Customer shall be liable to pay the Supplier for the cost of any repair and/or cleaning required to return the Hire Equipment to a condition fit for re-hire and to pay the Hire Charges, in accordance with the provisions of clause 8.3. until such repairs and/or have been completed.
8.2 The Customer will pay the Supplier the replacement cost on a new for old basis of any Hire Equipment which are lost, stolen and/or damaged beyond economic repair during the Hire period less the amount paid to the Supplier under any insurance policy taken out in accordance with these conditions.
8.3 The Customer shall pay the Hire Charges for the Hire Equipment up to and including the date it notified the Suppler that the Hire Equipment had been lost, stolen and/or damaged beyond economic repair. From that date until the Supplier has replaced such Hire Equipment the Customer shall pay, as a genuine pre-estimate of lost profit based on two thirds of the Hire Charges that would have been applied for such Hire Equipment for that period. The Supplier shall use its reasonable commercial endeavours to purchase replacements as quickly as possible.
9. TERMINATION BY NOTICE
9.1. If the Hire Period has a fixed duration, subject to the provisions of section 10 neither the Customer nor the Supplier shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed with the other party.
9.2 If the Hire Period does not have a fixed duration either the Customer or the Supplier is entitled to terminate the Contract upon giving to the other party any agreed period of notice.
9.3 If no period of notice has been agreed or specified the Customer may terminate the Hire Period by the physical return of the Hire Equipment to the Supplier.
9.4 The Supplier shall be entitled to terminate the hire of the Hire Equipment giving the Customer not less than 2 days notice to the Customer.
10.1 If the Customer:-
10.1.1 fails to make any payment to the Supplier when due without just cause;
10.1.2 Breaches the terms of the Contract and, where the breach is capable of remedy, has not been remedied within 14 days of receiving written notice requiring the breach to be remedied;
10.1.3 Persistently breaches the terms of the Contract;
10.1.4 Pledges charges or creates any form of security over the Hire Equipment
10.1.5 Being a company, enters into voluntary or compulsory liquidation, has a receiver, administrator or an administrative receiver appointed.
10.1.6 Appears reasonably to the Supplier to be about to suffer any of the above; then the Supplier shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below.
10.2 If any of the events set out in clause 10.1 above occur in relation to the Customer then: -
10.2.1 the Supplier may enter without prior notice, any premises of the Customer (or premises of third parties with their consent) where the Hire Equipment and/or Products owned by the Supplier may be and repossess any Hire Equipment and/or Products
10.2.2 the Supplier may withhold the performance of any Services and cease any Services in progress under this and any other Contract with the Customer.
10.2.3 The Supplier may immediately cancel, terminate and/or suspend without Liability to the Customer the Contract and/or any other Contract with the Customer; and/or
10.2.4 all monies owed by the Customer to the Supplier shall become immediately due and payable.
10.3 Any repossession of the Hire Equipment and/or Products shall not affect the Supplier’s right to recover any damages in respect of any breach which occurred prior to repossession of the Hire equipment and/or Products.
10.4 Upon termination of the Contract the Customer shall immediately:
10.4.1 return the Hire Equipment to the Supplier or make the Hire Equipment available for collection by the Supplier and requested by the Supplier; and
10.4.2 pay to the Supplier all arrears of Hire Charges, charges for any Services, monies for any Products and/or any other sums payable under the Contract.
11. LIMITATIONS OF LIABILITY
11.1 All warranties, representations, terms, conditions and duties implied by law relating to the fitness, quality and/or adequacy are excluded to the fullest extent permitted by law.
11.2 If the Supplier is found to be liable in respect of any loss or damage to the Customer’s property the extent of the Suppliers Liability will be limited to the retail cost of replacement of the damaged property.
11.3 Any defective Hire Equipment must be returned to the Supplier for inspection if requested by the Supplier before the Supplier will have any Liability for defective Hire equipment.
11.4 The Supplier will have no Liability to the Customer if, without just cause, any monies due in respect of the Hire Equipment and/or the Services have not been paid in full by the due date for payment.
11.5 The Supplier shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Hire Equipment and/or Services after the defect has become apparent or suspected or should reasonably become apparent to the Customer.
11.6 The Customer shall give the Supplier a reasonable opportunity to remedy any matter for which the Supplier is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so the Supplier shall have no Liability to the Customer.
11.7 The Supplier shall have no Liability to the Customer to the extent that the Customer is covered by any insurance policy arranged as a result of the Contract and the Customer shall ensure that the Customer’s insurers waive any rights of subrogation they may have against the Supplier.
11.8 The Supplier shall have no Liability to the Customer for any: -
11.8.1 Consequential losses (including loss of profits and/or damage to goodwill)
11.8.2 economic and/or other similar losses;
11.8.3 special damages and indirect losses and/or
11.8.4 business interruption, loss of business, contracts and/or opportunity.
11.9 The Suppliers total Liability to the Customer in relation to any Contract shall not exceed 5 times the amount of Hire Charges and charges for Services under that Contract.
11.10 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of: -
11.10.1 Liability for breach of contract
11.10.2 Liability intort/delict (including negligence); and
11.10.3 Liability for breach of statutory and/or common-law duty; except clause 11.9 above which shall apply once only in respect of all the said types of Liability.
11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier for Death or personal injury due to the Suppliers negligence nor exclude or limit any other type of Liability, which is not permitted to exclude as a matter of law.
12.1 Upon termination of the Contract, the provision of Clauses 3.2, 3.4, 3.5, 8.1, 8.2, 8.3 and Section 6 shall continue in full force and effect.
12.2 Each hire of an item shall form a distinct Contract, which shall be separate to any other Contract relating to other Hire Equipment.
12.3 The Customer shall be liable for the acts of its employees, agents, servants and other sub-contractors as though in its own acts and/or omissions under the Contract.
12.4 The Customer agrees to indemnify and keep indemnified the Supplier against any and all losses, lost profits, damages, claims (including legal costs on a full indemnify basis), actions and any other losses and/or liabilities suffered by the Supplier and arising from or due to any breach of contract, any tortuous/delictual act and/or omission and/or any breach of statutory duty by the Customer.
12.5 No waiver by the Supplier of any breach of this Contract shall be considered as a waiver of any subsequent breach of the same provision or any other provision. If any competent authority to be unenforceable in the whole or in part holds any provision the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
12.6 The Supplier shall have no Liability to the Customer for any delay and/or non-performance of a Contract to the extent that such delay is due to any Force Majeure events. If the Supplier is affected by any such event then time for performance shall be extended for a period that such event or events delayed such performance.
12.7 All third-party rights are excluded and no third-parties shall have rights to enforce the Contract. This shall not apply to any finance company with whom the Supplier has an outstanding finance agreement relating to the Hire Equipment. Such finance company shall, subject to the Suppliers consent, have right to enforce this contract as if they were the Supplier.
12.8 The Contract, 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.