Terms & Conditions
THX STANDARD TERMS AND CONDITIONS OF HIRE AND SALE
IMPORTANT SAFETY WARNING
The Hirer’s attention is drawn to the following points:
A. INSTRUCTION ON USE
The Hirer must ensure that all users of the Equipment have been instructed in the safe use and operation of the Equipment and that such use is in accordance with any relevant operating and safety instructions supplied with the Equipment or as instructed by the Owner from time to time
B. ELECTRICAL EQUIPMENT
The Hirer must ensure that:
(a) All electrical Equipment is used in accordance with any operating and safety instructions supplied with the Equipment or as instructed by the Owner .
(b) All electrical Equipment is connected to the correct supply via suitable plugs or sockets. Where a temporary change in plugs or sockets is required then this must be carried out by a competent qualified person who must also reinstate the Equipment to its original condition.
(c) All electrical Equipment is correctly earthed and insulated.
(d) All 240v electrical Equipment must be protected by an electrical circuit breaker. Portable circuit breakers are available for hire.
C. LIQUID FUELS AND COMPRESSED GASES
The Hirer must ensure that all liquid fuels and compressed gases supplied for use with the Equipment are transported, stored and used in a safe manner in accordance with any safety instructions supplied with the Equipment or as instructed by the Owner.
PURSUANT TO CLAUSE 13 BELOW, YOU, THE HIRER, MUST ENSURE THAT YOU ARE PROPERLY COVERED BY INSURANCE IN RESPECT OF ANY LIABILITY FALLING ON YOU UNDER THIS CONTRACT
1. DEFINITIONS AND INTERPRETATION
1.1 The ‘Owner’ is THX Ltd (registered in England & Wales with company number 07279384).
1.2 The ‘Hirer’ is the company, firm, person, corporation or public authority named on the Account Sign-Up Form or the Order Confirmation in connection with taking the Owner’s Equipment on hire and includes their successors or personal representatives.
1.3 ‘Account Sign-Up Form’ means the Owner’s standard form to apply for a Trade Account.
1.4 ‘Business Day’ means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.5 ‘Conditions’ means these standard terms and conditions of hire and sale.
1.6 ‘Contract’ means the contract between the Owner and the Hirer for the hire of Equipment in accordance with these Conditions and incorporating the signed Account Sign-Up Form (if one is submitted) and the contents of any Order Confirmation issued by the Owner to the Hirer.
1.7 ‘Delivery Date’ has the meaning in clause 4.1.
1.8 ‘Equipment’ means plant, machinery, tools, equipment and accessories thereto which the Owner agrees to hire to the Hirer as set out in an Order Confirmation (as amended by the Owner) or, if no Order Confirmation is issued, in the Hirer’s order and confirmed in accordance with clause 2.2 below together with any recommended safety equipment or clothing to be used when operating the Equipment.
1.9 ‘Hire Period’ has the meaning given in clause 3.
1.10 ‘Order Confirmation’ means the Owner’s email acknowledging and accepting an order from the Hirer to hire Equipment and confirming the details of that order.
1.11 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.12 A reference to a party includes its personal representatives, successors and permitted assigns.
1.13 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.14 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.15 A reference to writing or written excludes fax but includes email.
2. EXTENT OF CONTRACT
2.1 Any order placed by the Hirer constitutes an offer to the Owner to hire Equipment and is not binding on the Owner until the Owner has issued an Order Confirmation.
2.2 These Conditions shall become binding on the Hirer, and a Contract shall come into existence, upon the earlier of: (i) when the Hirer submits a completed Account Sign-Up Form to the Owner which is subsequently accepted in writing by the Owner; or (ii) the Owner issues an Order Confirmation for an order from the Hirer to hire Equipment. These Conditions shall apply to all Contracts between the Hirer and the Owner for the hire of Equipment.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Hirer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2.5 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
2.6 Governing law: The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
2.7 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
3. DURATION AND MAXIMUM HIRE PERIOD
3.1 Subject to clause 3.2, the length of the Hire Period shall be:
(a) as detailed in the Order Confirmation; or
(b) if no hire period is specified in the Order Confirmation, an open hire of at least one week (as defined in clause 17.1) with no fixed end date and charged to the Hirer at a weekly rate (as set out in the Order Confirmation or as otherwise notified by the Owner from time to time and calculated in accordance with clause 17.3).
For the avoidance of doubt, the time period of delivery of Equipment to, and collection from, the site agreed in clause 4.1 shall not be included in the Hire Period.
3.2 If the Hirer is an individual, partnership or other unincorporated body, the Hire Period will automatically terminate not later than 88 days from the date of its commencement and the Hirer shall make the Equipment available for collection to the Owner on or before the last day of that period.
4. DELIVERY
4.1 Unless otherwise agreed in writing, the Owner shall deliver the Equipment on the date and to the site agreed between the parties or as otherwise set out in the Order Confirmation (‘Delivery Date’).
4.2 The Hirer shall satisfy itself as to the condition of the Equipment supplied at the time of delivery of the Equipment.
4.3 Unless written notice to the contrary is received by the Owner within twenty-four hours of the supply of the Equipment, the Equipment shall be deemed to have been supplied in accordance with the Order Confirmation and in good working order, except for defects which could not have been discovered by reasonable examination.
5. TRANSPORTATION, LOADING AND UNLOADING
5.1 Unless otherwise agreed in writing, the Owner shall arrange to transport the Equipment from its premises to the agreed site of the Hirer and to collect the Equipment at the end of the Hire Period. All costs of the transportation to and from the Hirer’s site shall be payable by the Hirer as set out in the relevant Order Confirmation and invoice issued by the Owner.
5.2 Unless otherwise agreed in writing, the Owner shall be responsible for unloading at the time of delivery at the Hirer’s site and loading at the time of collection from the Hirer’s site at the end or termination of the Hire Period.
5.3 Notwithstanding clause 5.2, in the event that the parties have agreed in writing that the Hirer has responsibility for any loading or unloading of Equipment, any person supplied by the Owner to assist in the loading and unloading shall be deemed to be under the Hirer’s control and shall comply with all the directions of the Hirer who alone shall be responsible for any damage caused to the Equipment as a result of such loading and unloading.
6. UNAUTHORISED CHANGE OF SITE
6.1 The Equipment or any part of it must not be moved from the site to which it was delivered (or if the Equipment is collected by the Hirer, the site specified in the Order Confirmation), without the prior written consent of the Owner.
7. MAINTENANCE, OPERATION AND USE OF EQUIPMENT
7.1 The Hirer shall ensure that before using the Equipment, the Hirer will read all instructional and safety literature (including the manufacturer’s operating instructions) provided by the Owner (‘Instructions’) and ensure that anyone using the Equipment has also read and understood the Instructions. Furthermore, the Hirer will ensure that he or the person using the Equipment correctly applies and uses all safety clothing provided (this may be termed Personal Protective Equipment or PPE) with the Equipment. If no PPE is provided with the Equipment, the Hirer is responsible for provided their own PPE in accordance with the Instructions.
7.2 The Hirer shall:
(a) ensure that the Equipment is kept and operated in a suitable environment and used only for the purposes for which it is designed;
(b) take such steps (including compliance with all safety and usage instructions provided by the Owner) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(d) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require;
(e) not use the Equipment for any unlawful purpose;
(f) ensure that a competent person checks daily all aspects of the Equipment which are safety-critical, consumable or subject to deterioration in normal use. These items include (but not limited to) such items as engine oil, coolant fluid, hydraulic oil, air and fuel filters. The Hirer, at his own expense, must maintain these items at their correct operating condition/level, in accordance with any applicable legislation, best practice and/or the Instructions, using the correct grade/specification materials as required.
7.3 The Hirer shall not use or permit the use of the Equipment for any purpose beyond its capacity or in a manner likely to result in excessive wear or damage.
7.4 The Hirer shall not make any alterations or modifications to the Equipment and shall not remove any existing accessory from the Equipment unless necessary in accordance with clause 8 below. Title and property in all such accessories or other substitutions, replacements or renewals made in or to the Equipment shall vest in the Owner immediately on installation.
7.5 The Hirer acknowledges that the Hirer, his agent, or employee has been instructed in the safe use and operation of the Equipment supplied or otherwise made available to the Hirer and undertakes to ensure that any other user of the Equipment will also be accordingly instructed.
8. FITTING OF ACCESSORIES
8.1 When the Equipment requires the fitting or re-fitting of any accessory (which term includes but is not confined to drill bits, wheels, discs and blades), it shall be the Hirer’s responsibility to ensure that any such accessory is approved by the manufacturer and correctly fitted or re-fitted in a manner so as not to render the Equipment unsafe to the user and that any legislation and/or instructional literature supplied relating to the fitting or use of such accessory is complied with.
8.2 The Hirer shall be responsible for any injury or damage to persons or property arising from the incorrect or unsafe fitting or use of any accessory.
9. CONSUMABLE ITEMS
9.1 Fuel, oil and grease shall, when supplied as separate items by the Owner, be paid for by the Hirer in accordance with the Owner’s price scale prevailing at the time of the hire. Fuel, oil and grease supplied by the Hirer shall be of a grade and type specified by the Owner.
9.2 Any required cost of re-sharpening drills cutting edges and other tools shall be met by the Hirer.
9.3 Consumable items including ear and eye protectors supplied by the Owner to the Hirer for use with the hired Equipment shall be deemed to have been sold to the Hirer at the time of supply, but the Owner may at his discretion refund to the Hirer the price of any consumable items which have been used and which are returned to the Owner in a suitable condition for taking back into stock.
9.4 When items are supplied for sale they remain the property of the Owner until such times as they are paid for in full to the Owner.
10. ACCESS BY OWNER FOR SERVICING AND INSPECTION OF EQUIPMENT
10.1 The Hirer shall at all reasonable times allow the Owner, his agent, employees and insurers to have access to the relevant site where the Equipment is located to inspect, test, adjust, repair or replace the Equipment.
11. WARRANTY AND BREAKDOWN OF EQUIPMENT
11.1 The Owner warrants that the Equipment supplied shall be in good working order as at the Delivery Date and fit for any purpose held out by the Owner.
11.2 The Owner does not warrant that the Equipment supplied shall be fit for any special purpose.
11.3 Subject to the terms of this clause 11, the Owner shall repair, free of charge, any material defect in the Equipment’s failure to meet the warranty under clause 11.1 that manifests itself during the Hire Period, provided that:
(a) any breakdown or unsatisfactory working of the Equipment must be notified to the Owner immediately in writing;
(b) the Owner 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 Owner’s authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hirer or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
In the event of a breakdown in the Equipment which is not readily repairable the Owner shall be entitled to substitute Equipment of a similar type. If the Owner is not able to do so, the hire of the affected Equipment shall be terminated as from the date of notification of breakdown. In relation to any repair or substitution of Equipment above, the Owner shall be responsible for the costs of return of the defective Equipment and supply of repaired or substituted Equipment to the Hirer’s site, provided that subclauses (c) and (d) above do not apply.
11.4 Subject to clause 11.6, no hire charge will be made to the Hirer from the date when notice is received by the Owner in accordance with clause 11.3 in respect of stoppage due to breakdown of the Equipment directly caused by the development of a defect not discovered by reasonable examination.
11.5 Except for any remedies expressly provided in this clause 11, the Owner accepts no liability or responsibility for any loss or damage arising from any stoppage due to breakdown of the Equipment from any cause whatsoever.
11.6 In the case of wheeled Equipment, punctures and their repair shall be the responsibility of the Hirer and no refund of hire charges will be made by the Owner in respect of stoppages caused by punctures.
11.7 Except for the repair of punctures which the Hirer will be responsible in accordance with clause 11.6, the Hirer shall not repair or attempt to repair Equipment unless authorised in writing to do so by the Owner.
11.8 Where breakdown of the Equipment arises from a cause other than through the development of a defect not discovered by reasonable examination, all costs incurred by the Owner in repairing the Equipment, including transportation costs, shall be chargeable to the Hirer.
11.9 Subject to clause 15.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under the Contract are, to the fullest extent permitted by law, excluded from the Contract. The warranties set out in this clause 11 are the sole and exclusive warranties provided by the Owner with respect to the Equipment and no other warranty shall apply to the Equipment.
11.10 The express remedies set out in this clause 11 shall be the Hirer’s sole and exclusive remedies in relation to any claims it may have arising out of or in respect of any defects breaching any warranty given in relation to the Equipment, whether such claims are based in contract, equity, indemnity, warranty, tort (including negligence), strict liability or otherwise.
12. NOTIFICATION OF ACCIDENTS
12.1 If the Equipment is involved in any accident resulting in damage to the Equipment or to other property or injury to any person the Owner must be notified in writing immediately.
13. HIRER‘S RESPONSIBILITY FOR LOSS OF OR DAMAGE TO EQUIPMENT
13.1 Subject to clause 14, the risk of any loss of or damage to the Equipment shall pass to the Hirer on delivery of the Equipment (in accordance with clauses 4 and 5). The Equipment shall remain at the sole risk of the Hirer during the Hire 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 collected by the Owner. During the Hire Period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain:
(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
(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 Owner may from time to time consider reasonably necessary and advise to the Hirer in writing.
13.2 The Hirer shall give immediate written notice to the Owner in the event of any loss, theft, damage or destruction to the Equipment arising out of or in connection with the Hirer’s possession or use of the Equipment.
13.3 Subject to clause 14, if the Hirer fails to effect or maintain any of the insurances required under these Conditions, the Owner shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Hirer.
13.4 The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Owner and proof of premium payment to the Owner to confirm the insurance arrangements.
13.5 For the avoidance of doubt, off hiring the Equipment shall not terminate the Hirer’s liability for the safekeeping of the Equipment and the Hirer must keep the Equipment safe on site until collected by the Owner.
14. THX PROTECT DAMAGE WAIVER
14.1 Subject to the terms of this clause 14, the Owner will waive the costs of repair to or replacement of Equipment arising from accidental damage to or theft of Equipment whilst in the possession, custody or control of the Hirer up to the value of £10,000 per Contract provided that:
(a) the damage waiver has been accepted in writing prior to the hire; and
(b) the corresponding waiver fee relating to the Contract has been paid in full cleared funds.
Any losses or costs of repair or replacement above £10,000 per Contract will remain the Hirer’s responsibility and the provisions of clause 13 shall apply.
14.2 The damage waiver does not cover any loss of or damage to the Equipment:
(a) caused by any wilful or deliberate act, negligence or fraud;
(b) caused by any disregard or failure to follow any operating instructions as provided by the Owner;
(c) to any Equipment left in non-secure locations (including where not secured properly on an open site or located within a building but where all locks and/or alarms have not been set) or left visible and unattended in a vehicle;
(d) where the Hirer’s negligence or lack of reasonable care in securing Equipment has contributed to the loss or damage;
(e) in the case of any Equipment stolen, where the Hirer does not: (i) report the theft to the police; (ii) provide the Owner with the relevant crime reference number; and (iii) provide sufficient details as the Owner may require to its reasonable satisfaction to evidence that the Hirer has complied with the terms of this clause 14, including in relation to how such Equipment has been kept safe and secure on site;
(f) resulting from tyre punctures and/or replacement due to irreparable tyre damage;
(g) where such Equipment includes any: (i) alloy scaffold towers, (ii) attachments, accessories or consumable items such as abrasives and drill bits, (iii) accessories of items for which a specific wear charge is made;
(h) arising from breakdown of Equipment caused by a failure to comply with these Conditions;
(i) arising from a failure to clean and conduct routine maintenance of Equipment where the Hirer is responsible under these Conditions;
(j) caused to Equipment by or arising out of materials treated by the Hirer or by foreign bodies entering the Equipment with such materials;
(k) to Equipment that is only notified to the Owner at the end of the Hire Period and/or when an inventory is made; and
(l) where such losses or costs of repair or replacement exceed £10,000 per Contract.
14.3 The damage waiver is subject to the Hirer’s full and continuing compliance with all of its obligations in these Conditions and under the Contract.
14.4 The current cost of the damage waiver shall be as displayed on the Owner’s website from time to time or as otherwise notified by the Owner at the time of the Order Confirmation and must be accepted in writing at the commencement of the relevant Contract.
14.5 Notwithstanding the above clauses and the application of the damage waiver, in relation to any loss of or damage to any of the Equipment set out in the list below, the Hirer shall remain liable for the first £500 of any claim, which shall be payable by the Hirer on demand for each and every claim, per piece of Equipment:
- any medium to heavy plant, including without limit generators, diggers, dumpers and telehandlers;
- PAVs (Push Around Vertical) lifts and aerial platforms; and
- powered access including without limit scissor lifts and boom lifts.
15. LIMITATION OF LIABILITY
15.1 The restrictions on liability in this clause 15 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Nothing in these Conditions shall exclude or in any way limit either party’s liability for death or personal injury by its own negligence, either party’s liability for fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited by law.
15.3 Subject to clause 15.2, the Owner shall not be liable in relation to any claim arising under or in connection with the Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
15.4 Subject to clause 15.2, the Owner’s total liability to the Hirer in relation to any claim arising under or in connection with the Contract shall not exceed the lower of:
(a) the total hire charges payable by the Hirer to the Owner in respect of the Equipment to which the claim relates; or
(b) the average 12-monthly hire charges payable by the Hirer to the Owner over the term of the Contract.
16. HIRER TO INDEMNIFY OWNER AGAINST THIRD PARTY CLAIMS
16.1 The Hirer shall at all times indemnify the Owner against all liabilities, costs, expenses, damages and losses (including direct, indirect or consequential losses) and all other reasonable professional costs and expenses suffered or incurred by the Owner in respect of any and all claims by any third party for death or personal injury or damage to property caused by, in connection with or arising out of the hire or use of the Equipment by the Hirer, its employees or representatives.
17. CHARGES AND PAYMENT
17.1 Unless otherwise stated in the Order Confirmation, all hire charges are based on a weekly rate (one week for the purpose of this clause 17 being a period of five (5) Business Days).
17.2 In the event that there is no minimum Hire Period stated in the Order confirmation, the minimum Hire Period shall be one week (as defined in clause 17.1).
17.3 Once the Equipment has been on hire for one week, each subsequent Business Day on hire is charged at 20% of the weekly rate.
17.4 All hire charges (including where relevant the weekly rate) and other charges shall be those set out in the Order Confirmation or (where no hire charges are set out) the Owner’s price list from time to time in force as set out on the Owner’s website and are payable on demand.
17.5 All hire charges and other charges 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.
17.6 Hire charges shall continue until such time as the Equipment is returned to the Owner or until, in the Owner’s sole discretion:
(a) payment has been made by the Hirer as described in clause 21.3; or
(b) where clause 14 applies, replacement Equipment has been procured by the Owner.
17.7 All payments made by the Hirer shall be made without withholding or set-off (other than any deduction or withholding required by law) on account of disputes, counterclaims or for any other reason whatsoever.
17.8 If any sums under this Contract remain unpaid after the due date on which they become payable: (a) the Owner reserves the right to suspend supply under this Contract or under any other contract or account with the Hirer (or an associated business or group company of the Hirer); (b) the Hirer shall pay to the Owner immediately on demand all hire charges and other sums due but unpaid at the date of such demand; and (c) the Hirer shall pay interest on such sums for the period from and including the due date of payment up to the actual date of payment, whether before or after judgment. The interest shall accrue each day at the rate of 8% per annum above the base rate from time to time of Bank of England (but at 8% per annum for any period when the base rate is below 0%).
18. DEPOSITS
18.1 Where a deposit is paid by the Hirer it is held against default by the Hirer of payment of any hire charges or any loss of or damage caused to the Equipment. If the Hirer fails to make any hire charge payment in accordance with the Contract, or causes any loss or damage to the Equipment (in whole or in part), the Owner shall be entitled to apply the deposit against such default, loss or damage. The Hirer shall pay to the Owner any sums deducted from the deposit within ten (10) Business Days of a demand for the same. The deposit (or balance of the deposit) shall be refundable within ten (10) Business Days of the end of the relevant Hire Period once all Equipment has been returned to the Owner (or otherwise compensated in accordance with these Conditions).
19. OWNERSHIP OF THE EQUIPMENT
19.1 The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Conditions) except where the Owner agrees in writing to sell the Equipment to the Hirer on such terms as the Owner may require at that time.
19.2 The Equipment or any part thereof shall not be re-hired, sublet, or lent to any third party without the written consent of the Owner.
19.3 The Hirer shall not sell, mortgage, charge pledge or part with possession of, or otherwise deal with the Equipment except with the written consent of the Owner.
19.4 The Hirer shall protect the Equipment against confiscation, seizure or being taken out of its possession or control under any distress, execution or other legal process. In the event the Equipment is so confiscated, seized or taken, the Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation.
19.5 The Hirer shall not, without the prior written consent of the Owner, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Hirer shall:
(a) repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Owner against all losses, costs or expenses incurred as a result of such affixation or removal; and
(b) take all necessary steps to ensure that the Owner may enter such land or building and recover the Equipment both during the term of this 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 Owner of any rights such person may have or acquire in the Equipment and a right for the Owner to enter onto such land or building to remove the Equipment.
19.6 The Hirer shall not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Owner in the Equipment.
19.7 The Hirer shall indemnify the Owner against all losses, damage, costs, charges and expenses (including legal costs) arising as a result of any failure to observe and perform its obligations under this clause, except in the event of Government requisition.
20. OWNER’S NAME-PLATES
20.1 The Hirer shall ensure that at all times the Equipment remains identifiable as being the Owner’s property and shall not remove, deface or cover up any name or identification or number on the Equipment, or any safety or warning notice displayed on the Equipment, nor shall he put any mark on the Equipment which might indicate or suggest that the Equipment is not the property of the Owner.
20.2 If at the end of a Hire Period the Owner (whose decision shall be final and binding) shall deem it necessary to replace any name-plate, identification plate, or any safety or warning notice displayed on the Equipment, the cost thereof shall be the sole responsibility of the Hirer.
21. RETURN OF EQUIPMENT ON COMPLETION OF HIRE
21.1 The Hirer shall be responsible for returning the Equipment on completion of the Hire Period in a condition equal to that as at commencement of the hire, fair wear and tear excepted.
21.2 When Equipment is returned in unclean condition a charge shall be made for the cleaning and restoration of the Equipment to its condition as at the commencement of the hire.
21.3 Subject to clause 14, when Equipment (or any part of the Equipment) cannot be returned to the Owner on the completion of the Hire Period owing to the loss of or damage to the Equipment (or such part), whether or not due to any fault of the Hirer, his agent or employee, the Hirer shall pay to the Owner the manufacturer‘s current recommended selling price of that Equipment (or that part of the Equipment) or, if the machine is no longer in production, the manufacturer’s suggested equivalent model plus a reasonable administrative charge for the Owner’s costs and expenses in arranging such replacement.
22. TERMINATION
22.1 Without affecting any other right or remedy available to it, the Owner may terminate the Contract by giving the Hirer not less than 7 days’ prior written notice.
22.2 Without affecting any other right or remedy available to it, the Owner may terminate the Contract with immediate effect by giving written notice to the Hirer if: (i) the Hirer defaults in the payment of any sums due to the Owner for the hire of Equipment or other charges: or (ii) the Hirer fails to observe and perform the terms of this Contract: or (iii) the Hirer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, becoming bankrupt or ceasing to carry on business; or (iv) the Hirer does or causes to be done or permits or suffers any act or thing whereby the Owner’s rights in the Equipment may be prejudiced; or (v) the Hirer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
22.3 If this Contract is terminated under this clause, it shall be lawful for the Owner or its authorised representatives without notice and at the Hirer’s expense to re-take possession of the Equipment and, for that purpose, to enter into or upon any premises where the Equipment may be for which purpose the Hirer grants the Owner specific licence (or shall procure the same from the site owner).
22.4 The termination of the Contract under this clause shall not affect the right of the Owner to recover from the Hirer any moneys due under this Contract or damages for breach of this Contract.
22.5 On termination of the Contract, the Hirer shall pay to the Owner immediately on demand all hire charges and other sums due but unpaid at the date of termination together with any costs and expenses incurred by the Owner in recovering the Equipment or in collecting any sums due under the Contract (including any storage, insurance, repair, transport or legal costs). In the event the Hirer has paid any sums in advance which, following termination under clause 22.1, would result in an overpayment, the Owner shall reimburse the Hirer on a pro rata basis in relation to the remaining unused Hire Period, less any costs and expenses of recovery of Equipment or collecting sums due.
22.6 Any provision of these Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
22.7 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
23. FORCE MAJEURE
23.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (except for the payment of any sums due by the Hirer to the Owner) if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one hundred and eighty (180) days, the party not affected may terminate the Contract immediately on written notice to the affected party.
24. DATA PROTECTION
24.1 In this clause:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures shall be as defined in the Data Protection Legislation.
Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018); the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
24.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
24.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Hirer is the Controller and the Owner is the Processor.
24.4 The Hirer is primarily responsible for handling and responding to requests made by data subjects. The Owner shall use commercially reasonable efforts to assist the Hirer, at the Hirer’s cost, with any appropriate and possible technical and organizational measures to respond to requests for exercising the data subjects’ rights.
24.5 The Hirer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Owner for the duration and purposes of the Contract.
24.6 The Owner shall, in relation to any Personal Data processed in connection with the performance by the Owner of its obligations under Contract, use its commercially reasonable efforts to:
(a) process that Personal Data only as necessary to perform its obligations under the Contract or on the written instructions of the Hirer;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Hirer has been obtained;
(e) notify the Hirer without undue delay on becoming aware of a Personal Data Breach;
(f) at the written direction of the Hirer, delete or return Personal Data and copies thereof to the Hirer on termination of the Contract unless required by any applicable law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause.
24.7 To the extent the Owner appoints any third party processors, the Owner confirms it will enter with the third-party processor into a written agreement substantially on terms of business to reflect the requirements of the Data Protection Legislation.
25. GENERAL
25.1 The waiver by the Owner of any breach of any term or condition of this Contract shall not prevent the subsequent operation of that term or condition and shall not be deemed a waiver of any subsequent breach.
25.2 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.
25.3 Any notice required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s email address stated on the Account Sign Up Form or otherwise nominated as the main contact email address. A notice shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next working day after transmission.
25.4 The Owner may amend these Conditions or any Order Confirmation at any time by giving written notice of the amendments to the Hirer.
25.5 The Contract is personal to the Hirer and the Hirer shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of the Owner.
APRIL 2024