Terms and Conditions
- 1 Interpretation
In this Agreement:
‘CUSTOMER’ means the person, firm, company or other organisation hiring the Equipment.
‘COMPANY’ means Nexus Dry Hire Limited.
‘CHARGES’ means the Company’s charges for the hire of the Equipment which are current from time to time during the Hire Period.
‘CONDITIONS’ means this Agreement.
‘DEPOSIT’ means any advance payment required by the Company in relation to the Equipment which is to be held as security by the Company.
‘EQUIPMENT’ means any goods and/or materials which are hired by the Company to the Customer.
‘HIRE PERIOD’ means the period commencing when the Equipment is delivered to the Site or collected from the Company’s premises (as agreed) and ending upon: (i) the physical return of the Equipment by the Customer into the Company’s site; or (ii) the physical collection of Equipment by the Company. For the avoidance of doubt, the Hire Period includes Saturdays, Sundays and Bank Holidays.
‘SITE’ means the place at which the Equipment is to be deployed.
- 2 Hire of the Equipment
The Company shall hire the Equipment to the Customer, subject to the Conditions, for the Hire Period.
The Equipment is to be used only as permitted by the Conditions.
The Company may correct any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Equipment without any liability to the Customer.
The Company may, from time to time and without notice, effect minor variations to the Equipment and any other obligation of the Company under the Agreement, provided that such variations do not materially affect the quality, nature, scope of, or the charges for the Equipment. If the Company requests any other variation to the Equipment or any other obligation of the Company under the Agreement, the Customer shall not unreasonably withhold or delay consent to it.
If the Customer wishes the Company to effect any variation to the Equipment or any other obligation of the Company under the Agreement, the Company has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to the Company’s charges and any other relevant terms of the Agreement to take account of the change.
Equipment is hired subject to it being available for hire to the Customer at the time required by the Customer. The Company will not be liable for any loss suffered by the Customer as a result of the Equipment being unavailable for hire where the Equipment is unavailable due to circumstances beyond the Company’s control.
Where the Company delivers the Equipment to the Site, the Customer shall be responsible for providing unobstructed access to and for unloading and loading of the Equipment at, the Site.
The Customer shall pay the cost of and, if required by the Company, arrange transport of the Equipment from the Company’s premises to the Site and return the Equipment to the Company’s premises at the end of the Hire Period. Unless notification in writing to the contrary is received by the Company from the Customer within 24 hours of the Equipment being delivered to the Site by the Company or collected by the Customer, the Equipment shall be deemed to be complete and in good order, save for any inherent fault. The Customer shall be responsible for its safe keeping, use in a workmanlike, skilful and proper manner within the manufacturer’s rated capacity and return at the end of the Hire Period in a complete state and in equal good order (fair wear and tear excepted). Without limitation, the Customer shall ensure that the Equipment is used, stored and operated in accordance with any instructions issued for the Equipment and by properly trained and skilled personnel.
- 3 Charges
Subject to any special terms agreed in writing, the Customer shall pay the Charges and any additional sums which are agreed between the Company and the Customer for the provision of the Equipment or which, in the Company’s sole discretion, are required as a result of the Customer’s instructions or lack of instructions or any other cause attributable to the Customer, including any delay in returning the Equipment.
The Company shall be entitled to vary the Charges from time to time by giving not less than one months’ written notice to the Customer.
All charges quoted to the Customer for the provision of the Equipment are exclusive of any Value Added Tax, for which the Customer shall be additionally liable at the applicable rate (current UK VAT rate 20%) from time to time.
The Company shall be entitled to invoice the Customer in advance of delivery or collection of the Equipment, as appropriate.
The Charges and any additional sums payable shall be paid by the Customer (together with any applicable Value Added Tax, and without any set-off or other deduction).
The amount of any Deposit and the Charges shall be as quoted to the Customer or otherwise as shown in the Company’s current price list from time to time. Where a Deposit is required for the Equipment it must be paid in advance of the Customer hiring the Equipment. The Company may also require an initial payment on account of the Charges in advance of the Customer hiring the Equipment.
The Customer shall pay the Charges and/or any other sums payable under the Agreement to the Company at the time and in the manner agreed.
If the Company has agreed monthly credit terms with the Customer, invoices from the Company to the Customer must be paid within 30 days following the date of the invoice. If no credit terms have been agreed with the Customer, the Company’s invoices are due for payment in advance of the delivery or collection of the Equipment.
If payment is not made on the due date, the Customer shall be liable to pay interest to the Company from the due date for payment at the annual rate of 5 % above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 3.
The Company shall be entitled to vary the charges and costs payable to the Company under this Agreement (including but not limited to the Charges) in the event of any variation to the Equipment, or any other obligation of the Company under the Agreement, subject always to the requirements of Conditions 2.4 and 2.5.
The Company may set a reasonable credit limit for the Customer. The Company reserves the right to terminate the Agreement if allowing it to continue would result in the Customer exceeding its credit limit or if the credit limit is already exceeded.
The Company withholds the right to invoice, in full, the Charges and any additional sums which are agreed between the Company and the Customer for the provision of the Equipment if cancellation is received less than 24 hours before the first date of the Hire Period, inclusive of cancellation requests received after delivery of the Equipment.
- 4 Warranty and Liability
- 4.1 The Company warrants to the Customer that the Equipment will be provided, as far as reasonably possible, in accordance with the Customer’s request. Where the Company supplies any goods supplied to it by a third party, the Company does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Customer the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Company.
- 4.2 Except in respect of death or personal injury caused by the Company’s negligence, or as expressly provided in these Conditions, the Company shall not be liable to the Customer whatsoever.
- 4.3 Subject to any special terms agreed in writing, the entire liability of the Company under or in connection with the Agreement shall not in any event exceed the total charges paid by the Customer to the Company under the Agreement.
- 4.4 The Company shall have no liability for any loss, damage, costs, expenses or other claims for compensation arising directly or indirectly from any act or omission or any other fault of the Customer or any other party in possession of the Equipment with the Customer’s consent and the Customer shall hold the Company harmless and shall fully and promptly indemnify the Company against any loss, damage, costs, expenses or other claims for compensation falling within the scope of this Condition 4.4. For the avoidance of doubt, the indemnity in this Condition 4.4 shall extend to any act or omission or any other fault of any party involved in the use, storage or operation of the Equipment, including but not limited to any of the Customer’s employees, agents, servants or subcontractors.
- 4.5 Neither the Customer nor the Company shall be liable for any indirect, special or consequential loss suffered by the other party or for loss of profit of the other party.
- 5 Breakdown of Equipment
The Company shall arrange for any breakdown of the Equipment to be rectified on condition that the Customer immediately informs the Company of the breakdown.
The Company will at its own cost carry out all routine maintenance and repairs to the Equipment during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Equipment. The Customer will be responsible for the cost of all repairs necessary to the Equipment during the Hire Period which arise otherwise than as a result of fair wear and tear, an inherent fault and/or the negligence of the Company while carrying out routine maintenance and/or repairs.
The Company may, in the event the Equipment is unusable, either refund the Charges (or part thereof) paid by the Customer or replace such unusable Equipment with suitable alternative Equipment (as the Company in its absolute discretion decides). No allowance will be made in relation to the Charges, or otherwise, for any non-use of the Equipment due to breakdown.
Each item of Equipment specified in the Agreement is hired as a separate unit and the breakdown of one or more units shall not entitle the Customer to any refund of the Charges (in whole or in part) for any other unit or units of Equipment working in conjunction therewith.
The Customer must not repair or attempt to repair the Equipment unless authorised to do so in writing by the Company.
The Customer shall be responsible for all expenses, loss (including loss of Charges) and/or damage suffered by the Company arising from any breakdown of the Equipment due to the Customer’s negligence, misdirection and/or misuse of the Equipment. For the avoidance of doubt, any outdoor use of the Equipment shall constitute misuse of the Equipment, unless such outdoor use has been pre-approved by the Company in writing.
- 6 Risk, Ownership and Insurance
Risk in the Equipment will pass immediately to the Customer when it leaves the physical possession of the Company.
Risk in the Equipment will not pass back to the Company from the Customer until the Equipment is back in the physical possession of the Company. This shall apply even if the Company has agreed to cease charging the Charges.
Ownership of the Equipment remains at all times with the Company. The Customer has no right, title or interest in the Equipment except that it is hired to the Customer.
The Customer must not deal with the ownership or any interest in the Equipment. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, withholding, exerting any right to withhold, disposing of and/or lending. The Customer shall further protect the Equipment against distress, execution or seizure.
The Customer shall at all times throughout the Hire Period maintain adequate insurance in respect of the Equipment at its full replacement value with a company of good repute.
If the Customer fails to insure the Equipment adequately or if the insurance lapses the Company may take out insurance on the Customer’s behalf and at its cost.
If the Customer refuses to take out insurance itself and refuses to allow the Company to take out insurance on its behalf then the Customer agrees to indemnify the Company on a full and continuing basis against any loss or damage suffered by the Company arising out of damage/loss to the Equipment.
- 7 Care of Equipment
The Customer shall:-
7.1.1 not remove from, nor cover up, alter or deface any labels, names or proprietary marks on the Equipment, nor damage, interfere with or alter the Equipment, its working mechanisms or any other parts of it and shall take reasonable care of the Equipment and only use it for its proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
7.1.2 notify the Company immediately after any breakdown, loss and/or damage to the Equipment;
7.1.3 take adequate and proper measures to protect the Equipment from theft, damage and/or other risks;
7.1.4 permit the Company at all reasonable times and upon reasonable notice to inspect, test, adjust, repair or replace the Equipment, including procuring access to any property where the Equipment is situated;
7.1.5 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Equipment required by any legislation, best practice and/or operating instructions;
7.1.6 not do or omit to do anything which the Customer has been notified will or may be deemed to invalidate any policy of insurance related to the Equipment;
7.1.7 not use, nor continue to use any Equipment in an unsafe or unsatisfactory state or environment, or where it has been damaged and will notify the Company immediately if the Equipment is involved in an accident resulting in damage to the Equipment, other property and/or injury to any person;
7.1.8 notify the Company of any change of its address and upon the Company’s request provide details of the location of the Equipment; and
7.1.9 not remove the Equipment from the United Kingdom without the prior written consent of the Company and subject to the payment of any additional charges which the Company reserves the right to impose.
The Equipment will be PAT tested by the Company prior to hire unless the Customer is notified otherwise, in which case the Customer shall have the Equipment PAT tested by a competent person prior to its use.
All Equipment must be used with plugs and/or sockets as fitted. If other plugs or sockets are to be fitted, a competent person who shall also reinstate the same to the original condition shall carry out such work. Any such alteration must be PAT tested and certification provided to the Company.
The Customer shall be responsible at all times to arrange the proper supply of electricity for use with the Equipment and for ensuring that the correct voltage is used and that where appropriate, the Equipment is properly installed by a qualified and competent person.
The Customer shall ensure that the Equipment shall at all times be properly earthed once installed.
The Customer shall ensure that the Equipment is compatible and may safely be used with any other equipment with which it will or may be used.
No painting, marking, labelling, signage, letting or advertising shall be affixed on the Equipment without the Company’s written consent.
Prior to the return of the Equipment to the Company, all cables must be neatly coiled and tied (a charge of £1.00 per cable may be made if this is not the case).
The Equipment must be returned by the Customer in good working order and condition (fair wear and tear excepted) and in a clean condition together with all insurance policies, licences, registration and other documents.
If the 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 Equipment, the Customer shall be liable to pay the Company for the cost of any repair and/or cleaning required to return the Equipment to a condition fit for re-hire and to pay the Charges, in accordance with the provisions of Condition 3 until such repairs and/or cleaning have been completed.
The Customer will pay to the Company the replacement cost of any Equipment which is lost, stolen and/or damaged beyond economic repair during the Hire Period.
The Customer shall pay the Charges for the Equipment up to and including the date it notifies the Company that the Equipment has been lost, stolen and/or damaged beyond economic repair. From that date until the Company has replaced such Equipment the Customer shall pay, as a genuine pre-estimate of lost profit, a sum as liquidated damages being equal to two thirds of the Charges that would have applied for such Equipment for that period. The Company shall use its reasonable commercial endeavours to purchase replacements for such Equipment as quickly as possible.
- 8 Default
In the event of the Customer failing to make any payment to the Company when the payment falls due under these Conditions, or the Customer being in material or persistent breach of any of these Conditions, the Company shall in its absolute discretion be entitled to treat the Agreement between the Customer and the Company incorporating these Conditions as terminated and in which case:-
8.1.1 The Company shall immediately cease to have any obligations under these Conditions; and
8.1.2 The Customer shall immediately return the Equipment at its risk and cost and at such time and to such place as the Company may specify.
In the event of the Customer failing to return the Equipment as aforesaid, or if the Customer goes into liquidation or steps are taken to levy a distress over the Customer’s assets, the Company may enter the Site without prior notice and repossess the Equipment.
- 9 Health and Safety
The Customer agrees that it will comply with all policies and requirements of the Company that the Company may from time to time specify, in relation to matters of health and safety.
- 10 General
The Conditions constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law
No obligation of the Customer hereunder shall be excused or negated by virtue of the use, storage or operation of the Equipment by any other party who is in possession of the Equipment with the Customer’s consent.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
No failure or delay by either party in exercising any of its rights under the Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of the Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Conditions and the remainder of the provision in question shall not be affected.
The Customer shall not use any information which is confidential for any purpose other than to perform its obligations under the Agreement. The Company shall, however, be free to disclose the Company’s role and involvement in the hire of the Equipment to the Customer for the purposes of advertising or otherwise promoting the Company's work.
If, and to the extent that, any failure to perform, or delay in performance, on the part of the Company, shall be the result of any Act of God, riot, strike, lockout, insurrection, civil disorder, natural catastrophe, or the exercise of authority of any governmental agency, or any political subdivision of any of same, or any other event beyond the reasonable control of the Company, its agents or employees, the Company shall be excused from further performance until the cause of the interruption has abated, and shall not be liable for any loss, cost or expense resulting from such failure to perform or delay in performance of its obligations hereunder.
Each party to any dispute arising under or in connection with the Conditions shall be responsible for the payment of its own legal fees, subject always to the decision of any arbitrator or court regarding the allocation or apportionment of costs.
Any dispute arising under or in connection with the Conditions shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Law Society.
English law shall apply to the Conditions, and the parties agree to submit to the non-exclusive jurisdiction of the English courts.