Terms and Conditions

1.1. “Business Days” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

 

1.2. “Charges” means all amounts payable by the Customer to the Supplier under the Contract, including any Rental Payments, maintenance charges, purchase price for Equipment, Fuel charges, transport charges, call-out charges and any other fees, costs, or any charges specified in the Order Form.

 

1.3. “Contract” means the contract between the Supplier and the Customer comprising:

• 1.3.1. these Cross Rental Services Terms & Conditions, including any applicable Schedule (“Terms and Conditions”); and
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• 1.3.2. the Order Form issued by the Supplier and accepted by the Customer.
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In the event of any inconsistency between the documents comprising the Contract, the Order Form shall take precedence over these Terms and Conditions. The Supplier’s Order Form and these Terms and Conditions shall prevail over any terms or conditions proposed, incorporated or relied upon by the Customer, whether before or after the date of the Contract, unless expressly agreed in writing by an authorised representative of the Supplier.

 

1.4. “Confidential Information” means any information (whether written, oral, in electronic form or in any other media) disclosed by or on behalf of a party (the “Discloser”) to the other party (the “Recipient”) in connection with the Contract which is confidential in nature, or would reasonably be regarded as confidential and relates (in whole or in part) to the Discloser or its business, including information relating to:

• (a) that Party's business, operations, affairs, customers, suppliers, products, services, personnel, plans, strategies and finances;
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• (b) the Equipment and Services;
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• (c) technical, commercial, operational or financial information;
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• (d) trade secrets, know-how, designs, specifications, drawings, software, data and Intellectual Property Rights; and
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• (e) the terms of the Contract, including any Charges, quotations, pricing arrangements and commercial terms.
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but excluding information which:

• (i) is or becomes publicly available other than through a breach of the Contract;
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• (ii) was lawfully in the Recipient's possession before disclosure by the Discloser;
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• (iii) is lawfully obtained from a third party without restriction on disclosure; or
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• (iv) is independently developed without use of or reference to the Discloser's Confidential Information.
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1.5. “Cross Rental Services Group Company” means any of the following companies:

 

Company name	Co. No.	Registered address
Fridge Rentals Ltd	07409171	Unit 3 Bishops Court, Winwick Quay, Warrington, Cheshire, WA2 8QY
Cross Rental Ltd	11101652	Unit 9, Harewood Farm, London Road, Andover Down, Andover, England, SP11 6LJ

 

1.6. “Customer” means the individual, company, partnership, organisation, or other legal entity purchasing, hiring or otherwise receiving Equipment and/or Services from the Supplier under the Contract, and as identified in the Order Form.

 

1.7. “Damage Waiver” means the optional contractual waiver made available by the Supplier described in the applicable Schedule, subject to the Contract.

 

1.8. “Delivery”means the delivery of the Equipment to the Site in accordance with the Contract, or the transfer of physical possession of the Equipment to the Customer or its duly authorised representative, as applicable.

 

1.9. “Deposit” means the amount specified in the Order Form, if any.

 

1.10. “Dry Hire Equipment” means the Equipment described in Schedule 2.

 

1.11. “Due Date” means the date that Charges are due as set out in the Order Form or where not specifically provided for in the Order Form, 30 days after an invoice is raised.

 

1.12. “Engineer” means any engineer or other individual employed or engaged by or on behalf of the Supplier.

 

1.13. “Equipment” means any plant, products, equipment, parts, accessory or related items, including any substitutions, replacements or renewals of such items and all related accessories, manuals and instructions as detailed in an Order Form or otherwise rented or sold to the Customer by the Supplier or on which Services are performed by the Supplier, and shall include any Fuel supplied by the Supplier under an Order Form..

 

1.14. “Fuel” means any fuel specified in an Order Form to be supplied to the Customer by the Supplier, such as, but not limited to, petroleum products, fuel oils, lubricants and kerosene.

 

1.15. “Maintenance Services” means the maintenance services specified in the Order Form.

 

1.16. “Order” means a written request made by the Customer to hire or purchase Equipment and/or Services from the Supplier, following receipt of a quotation and which the Supplier may at its sole discretion accept or reject.

 

1.17. “Order Form” means any quotation or purchase order issued by the Supplier and accepted by the Customer or a written order form signed by the Parties.

 

1.18. “Party” means either the Supplier or the Customer and “Parties” means both of them together.

 

1.19. “Rental Period” means, in respect of the Serviced Hire Services described in Schedule 1 and the Dry Hire Equipment described in Schedule 2, the period commencing on the date and time agreed in writing between the Parties, or, if earlier, when the Customer takes physical possession of the Equipment and ending when the Equipment is returned into the physical possession of the Supplier, including Saturdays, Sundays and public holidays.

 

1.20. “Rental Payment” means, in respect of the Serviced Hire Services described in Schedule 1 and the Dry Hire Equipment described in Schedule 2, the amount detailed in an Order Form and payable by the Customer to the Supplier for the hire of Equipment during the Rental Period, excluding carriage, Fuel and other consumables supplied by the Supplier unless otherwise agreed in writing.

 

Unless otherwise agreed in writing, any part-day shall constitute a full day of hire. Where Rental Payments are stated as a weekly rate, charges shall accrue daily at one-seventh (1/7) of the applicable weekly rate.

 

1.21. “Services” means any services supplied by the Supplier under the Contract including Serviced Hire Services, Maintenance Services and any delivery, installation, commissioning, decommissioning, operation, collection or related services specified in the Order Form.

 

1.22. “Serviced Hire Services” means the services described in Schedule 1, including the provision of Equipment together with an Engineer, operator or other personnel supplied by the Supplier.

 

1.23. “Service Type” means any of the services or supplies described in Schedule 1 (Serviced Hire Services), Schedule 2 (Dry Hire Equipment), or Schedule 3 (Sale of Equipment), as specified in the Order Form.

 

1.24. “Site” means the Customer’s premises as set out in the Order Form or any building or other location at which the Equipment is delivered and/or installed (as applicable).

 

1.25. “Supplier” means the applicable Cross Rental Services Group Company identified in the Order Form as supplying the Equipment and/or Services under the Contract.

 

1.26. “Total Loss” means the Equipment is, in the Supplier’s reasonable opinion or the opinion of its insurer(s), damaged beyond economic repair, lost, stolen, destroyed, seized or confiscated.

 

1.27. Other capitalised words have the meaning set out in the Order Form.

 

1.28. In this Contract, unless context otherwise requires: (i) the clause headings are for convenience of reference and shall not affect the construction or interpretation of this Contract and (ii) the words “include”, “including”, “includes” and “such as” are to be construed as illustrative and shall not limit the sense of the words preceding those words.

 

2.1. Any Order Form issued by the Supplier shall not be binding on the Supplier until the earlier of:

• (a) the Supplier accepting the Order Form in writing;
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• (b) Delivery;
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• (c) commencement of Services; or
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• (d) the Supplier otherwise notifying the Customer that the Order has been accepted, at which point a binding Contract shall come into existence
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2.2. The Supplier may, at its sole discretion, accept or reject any Order.

 

2.3. The Service Type specified in the Order Form shall determine the applicable Schedule(s), which shall form part of the Contract.

 

2.4. One or more of the Service Types may apply to the same Contract and in such case each applicable Schedule shall form part of the Contract.

 

2.5. To the extent of any inconsistency between these Terms and Conditions and an applicable Schedule, the applicable Schedule shall prevail in relation to that Service Type.

 

2.6. The Supplier shall provide, and the Customer shall purchase and/or hire, the applicable Equipment and/or Services in accordance with the Contract.

 

2.7. The Customer acknowledges that it has not relied on, and shall have no remedy in respect of, any statement, representation, assurance or warranty that is not expressly set out in the Contract. Nothing in this clause shall limit or exclude any liability for fraud or fraudulent misrepresentation.

 

2.8. These Terms and Conditions apply to the Contract to the exclusion of any terms proposed or relied upon by the Customer, whether contained in any purchase order, order acknowledgement, specification, correspondence or other document, unless expressly agreed in writing by the Supplier. The Contract sets out 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.

 

2.9. Subject to clause 8, all conditions, warranties and other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.

 

2.10. Where the Customer is an individual or partnership, or an unincorporated body of persons, the Contract including any amendment or variation to it will end within 89 days from the start of the Rental Period. The Equipment must be returned to the Supplier by the close of business the Business Day before the expiry of the 89 day period. If the Customer fails to do this, the Supplier will be entitled to charge for any financial loss caused by this failure. A Contract entered into pursuant to these Terms and Conditions shall not be a consumer hire agreement as defined by Article 60N of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.

 

3.1. In consideration of the Supplier providing the Equipment and/or Services, the Customer shall pay the Charges in accordance with the Contract.

 

3.2. All Charges are exclusive of VAT and any other applicable taxes and duties or similar charges, which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.

 

3.3. The Customer shall pay all invoices, and/or any other sums payable, to the Supplier in full and in cleared funds in GBP sterling by the Due Date in accordance with the Contract or as otherwise agreed in writing between the Parties from time to time.

 

3.4. All payments shall be made without deduction, withholding, set-off or counterclaim unless required by law.

 

3.5. If the Customer fails to make any payment due to the Supplier under the Contract by the Due Date, the Supplier may:

• (a) charge interest on the overdue amount at the rate implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or any revision thereto, or at the rate of 6% above the base rate from time to time of HSBC Bank Plc, whichever is higher. 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 and any associated administrative and debt recovery costs as a debt to the Supplier;
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• (b) suspend performance of the Contract, including any Maintenance Services, breakdown attendance, delivery obligations, monitoring services, technical support or other ancillary services, in accordance with clause 10;
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• (c) withdraw any credit facility;
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• (d) require payment in advance or additional security;
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• (e) terminate the Contract in accordance with clause 10; and/or
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• (f) exercise any other rights or remedies available to it.
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3.6. Following termination for customer default, all sums accrued and unpaid shall become immediately due. Where the Order Form provides for a minimum or fixed hire term, the Supplier may claim its loss arising from early termination, subject to its duty to mitigate its loss and applicable law. The Customer shall reimburse the Supplier on demand for all reasonable costs and expenses incurred in recovering any overdue sums or Equipment, including legal costs, tracing costs, collection agent costs, transport costs, storage costs, recovery costs and enforcement expenses, to the extent permitted by law.

 

3.7. Where a Deposit is required, the Customer shall pay the Deposit in the amount and by the date specified in the Order Form. Any Deposit may be retained and applied against unpaid invoices, damages, collection, recovery or replacement costs. The Supplier may apply the Deposit towards any sums due under the Contract without prejudice to any other rights or remedies available to the Supplier.

 

3.8. The Supplier may at any time, acting reasonably, require the Customer to provide additional security for payment as a condition of continuing to supply Equipment and/or Services.

 

3.9. The Supplier may increase the Charges (excluding Charges for Fuel which are to be addressed as herein provided for in clause 3.12) in line with any provisions detailed in the Order Form. Where no price increases are detailed in the Order Form then the Supplier may increase the Charges (excluding Charges for Fuel) at any time after the end of the first 12-month period by giving the Customer reasonable written notice of the increase.

 

3.10. If the Customer does not agree to any increase notified under clause 3.9, the Customer may, by written notice to the Supplier no later than 30 days of receiving notice of the increase, reject the increase and terminate the Contract with immediate effect.

 

3.11. If the Customer does not notify the Supplier in writing under clause 3.10 within the applicable 30-day period, the Customer shall be deemed to have accepted the increase and the revised Charges shall apply from the date specified in the Supplier’s notice.

 

3.12. The Customer acknowledges and agrees that they are liable for any increases in relation to Fuel Charges which may be variable from time to time. Notwithstanding clauses 3.9 to 3.11, the Supplier may at any time increase or decrease any Charges relating to Fuel. Where reasonably practicable, the Supplier shall give the Customer written notice of any increase or decrease under this clause. The Customer shall have no right to terminate the Contract as a result of such increase or decrease.

 

3.13. Any dispute relating to an invoice shall be notified to the Supplier within 14 days of the invoice date. The Customer shall pay all undisputed amounts in accordance with clause 3.1, 3.2, 3.3 and 3.4 notwithstanding the existence of any invoice dispute.

 

3.14. For the avoidance of doubt, unless otherwise agreed in writing, where the Supplier provides Fuel under the Contract this is supplied on a sale only basis and no returns can be accepted. The full cost of the Fuel provided shall be payable, irrespective of whether the Fuel is used during the Rental Period and no credit shall be applied for any surplus unused Fuel. Where a Customer has selected fuel management at the time of Order, the Customer shall ensure that advance notice of the end of the Rental Period is given so that the Supplier can run down fuel supply to allow fuel tanks to be collected. Additional charges may be payable if the Supplier needs to delay collection or decant Fuel.

 

4.1. The Supplier shall deliver the Equipment and/or shall perform the Services at the Site or such other location agreed between the Parties, or make the Equipment available for collection by the Customer, as specified in the Order Form.

 

4.2. Where the Equipment is collected by the Customer Delivery shall be deemed to occur when the Equipment leaves the Supplier's premises.

 

4.3. Unless otherwise stated in the Order Form in accordance with Clause 4.1, the Customer shall be responsible for unloading, installation, commissioning, operation and use of the Equipment.

 

4.4. Any dates and times quoted for Delivery are estimates only and time shall not be of the essence in respect of Delivery unless expressly agreed otherwise in writing.

 

4.5. The Customer shall ensure that the Supplier has safe, unobstructed and sufficient access to the Site to enable Delivery and installation to be carried out safely and expeditiously.

 

4.6. The Customer shall be responsible for obtaining and maintaining all necessary permissions, licences, consents and approvals required for Delivery, installation, operation and use of the Equipment, and/or Services at the Site.

 

4.7. The Supplier may suspend, delay or refuse Delivery without liability where in the opinion of the Supplier:

• (a) the Site is unsuitable or unsafe;
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• (b) the Customer has failed to provide adequate access;
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• (c) the Customer has failed to comply with clause 4.5; or
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• (d) the Supplier reasonably considers Delivery would be unsafe or unlawful.
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4.8. Any costs, expenses, losses or delays incurred by the Supplier arising from a suspension, delay or refusal under clause 4.7 shall be payable by the Customer on demand.

 

4.9. Delivery shall be deemed to have occurred upon:

• (a) the Equipment being unloaded at the Site;
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• (b) the Equipment being made available to the Customer or its representative; or
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• (c) commencement of the applicable Services,
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whichever occurs first.

 

4.10. The Customer shall inspect the Equipment upon Delivery and shall notify the Supplier of any apparent shortages, damage or defects as soon as reasonably practicable and in any event within twenty four (24) hours of Delivery, unless otherwise specified in an applicable Schedule.

 

4.11. Failure by the Customer to take Delivery shall not relieve the Customer of its obligations under the Contract and the Supplier may store the Equipment at the Customer's risk and expense until Delivery can be completed.

 

4.12. The Supplier may make Delivery by instalments and each instalment shall constitute a separate obligation of the Supplier.

 

4.13. Delays in Delivery shall not entitle the Customer to:

• (a) terminate the Contract;
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• (b) refuse to accept Delivery; or
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• (c) withhold payment,
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unless otherwise agreed in writing by the Supplier.

 

4.14. If the parties agree in an Order Form that the Supplier shall undertake installation then such Equipment shall be installed by the Supplier at the Site, at the Customers expense. The Customer shall procure that a duly authorised representative is present at the installation of the Equipment. Acceptance by the Customer’s representative of installation shall constitute conclusive evidence that the Customer has examined the Equipment and found it to be in good condition, complete and fit in every way for the purpose for which it is intended.

 

4.15. If the Supplier agrees that the Customer may cancel an Order before Delivery, the Supplier may charge the following cancellation costs:

• (a) 100% of the Rental Payments where cancellation occurs within 7 days of the agreed Delivery date;
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• (b) 50% of the Rental Payments where cancellation occurs between 8 and 21 days before the agreed Delivery date; and
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• (c) any irrecoverable costs and expenses reasonably incurred or committed by the Supplier in connection with the Order where cancellation occurs more than 21 days before the agreed Delivery date.
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Any cancellation charges shall be invoiced by the Supplier and payable in accordance with clause 3.

 

5.1. The Customer shall:

• (a) cooperate with the Supplier in all matters relating to the Equipment and Services;
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• (b) provide the Supplier, its employees, contractors and representatives with timely, safe and unobstructed access to the Site and any other facilities reasonably required for the performance of the Contract;
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• (c) ensure that the Site is suitable for Delivery, installation, operation, maintenance, collection and use of the Equipment and/or Services;
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• (d) provide all information, instructions, specifications and assistance reasonably required by the Supplier to perform the Contract;
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• (e) obtain and maintain, at its own cost, all permissions, licences, consents, permits and approvals required in connection with the Equipment and Services and the use of the Site;
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• (f) comply with all applicable laws, regulations, codes of practice and health and safety requirements relating to the Equipment and Services;
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• (g) ensure that the Site remains safe and secure at all times;
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• (h) comply with all reasonable instructions issued by the Supplier relating to the Equipment, and Services including any instructions regarding health and safety;
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• (i) promptly inform the Supplier of any matter that may affect the Supplier's ability to perform the Contract;
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• (j) not use any of the Supplier’s trademarks without its prior written consent; and
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• (k) where Equipment failure may result in loss of stock, temperature-sensitive products, production interruption or other significant losses, maintain appropriate monitoring systems, alarms, backup arrangements, contingency plans and insurance.
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5.2. The Customer shall, in respect of any Equipment that is rented, rather than sold, to the Customer (such provisions shall apply during any Rental Period irrespective of any option to purchase Equipment at a future date):

• (a) keep the Equipment in good condition (with the exception of fair wear and tear) and protect it against loss, theft, damage and deterioration;
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• (b) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
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• (c) not misuse, alter, interfere with or permit unauthorised access to the Equipment;
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• (d) not remove, obscure or interfere with any identification marks, labels, notices or safety information affixed to the Equipment;
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• (e) make no alteration to the Equipment or remove any existing components from the Equipment without the Supplier’s prior written consent;
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• (f) keep the Equipment at all times at the Site:
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• i. not move or relocate the Equipment from the Site without the Supplier’s prior written consent and, where consent is given, notify the Supplier of the new location before relocation occurs.
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• (g) not without the Supplier’s prior written consent:
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• i. part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
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• ii. 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 damage to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and the Customer shall indemnify the Supplier against all losses, costs or expenses incurred as a result of such affixation or removal;
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• iii. permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Supplier immediately and shall at its sole expense use best endeavours to procure an immediate release of the Equipment. The Customer shall indemnify the Supplier on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation or seizure;
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• (h) not use the Equipment for any unlawful purpose; and
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• (i) ensure that at all times the Equipment remains identifiable as the Supplier’s property and that a visible sign to that effect is attached to the Equipment.
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5.3. The Supplier shall not be liable for any delay, additional cost or failure to perform its obligations to the extent caused by any breach of clause 5.1. or clause 5.2. by the Customer.

 

6.1. Risk in any Equipment that is rented to the Customer shall pass to the Customer upon Delivery and shall remain with the Customer until the Equipment is returned to the Supplier's possession or collected by the Supplier, whichever occurs first.

 

6.2. The Customer shall be responsible for all loss of, theft of, destruction of or damage to the Equipment occurring during the period referred to in clause 6.1, except to the extent caused by the negligence or wilful misconduct of the Supplier.

 

6.3. Title to Equipment that is rented to the Customer shall remain vested in the Supplier at all times and nothing in the Contract shall operate to transfer ownership of the Equipment to the Customer.

 

6.4. Risk and title in any Equipment that is sold to the Customer is dealt with in accordance with Schedule 3 (Sale of Equipment).

 

6.5. The Customer shall immediately notify the Supplier of:

 

• (a) any loss, theft or damage to the Equipment;
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• (b) any seizure, detention or attempted enforcement action affecting the Equipment; or
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• (c) any event that may adversely affect the Supplier's ownership of the Equipment.
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6.6. The Supplier may, upon reasonable notice, inspect the Equipment at the Site and the Customer shall provide access for that purpose.

 

6.7. The Customer shall indemnify the Supplier in connection with the replacement cost of any Equipment that is lost, stolen and/or damaged beyond economic repair during any period that the Equipment is at the risk of the Customer, less any amount paid to the Supplier under any policy of insurance taken out in accordance with these conditions.

 

This clause shall only apply to Equipment that is rented to the Customer (rather than sold).

 

7.1. The Customer shall maintain throughout the Rental Period adequate insurance to cover a value not less than the full replacement value of the Equipment, with a reputable insurer against:

• (a) loss of or damage to the Equipment;
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• (b) theft of the Equipment;
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• (c) public liability risks arising from the Equipment; and
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• (d) such other risks as may reasonably be required by the Supplier.
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7.2. The insurance policy procured by the Customer shall be endorsed to provide the Supplier with at least 20 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount). The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.

 

7.3. Upon request, the Customer shall provide evidence of insurance to the Supplier.

 

7.4. If the Customer fails to effect or maintain the insurance policy required under this Contract then the Supplier may effect and maintain the same and recover the cost of the insurance as a debt due from the Customer.

 

7.5. The Supplier shall maintain such insurance as it considers appropriate in respect of its own business operations, employees and liabilities.

 

7.6. The Customer's liability for loss of or damage to the Equipment shall be subject to any applicable Damage Waiver purchased by the Customer pursuant to the applicable Schedule.

 

8.1. The Supplier warrants that:

• (a) it shall perform the Services with reasonable skill and care and in accordance with good industry practice; and
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• (b) at the time of Delivery, the Equipment shall substantially conform to its specifications, be of satisfactory quality and in materially good working order and suitable for their ordinary purposes.
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8.2. If the Customer reasonably believes that the Equipment or Services do not comply with clause 8.1., the Customer shall notify the Supplier as soon as reasonably practicable and provide such information as the Supplier may reasonably require.

 

8.3. If the Equipment or Services do not comply with clause 8.1., the Supplier may, at its option:

• (a) re-perform the affected Services;
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• (b) repair or replace the affected Equipment; or
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• (c) refund the Charges paid in respect of the affected Equipment or Services,
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and such remedy shall constitute the Customer's exclusive remedy for any breach of the warranties in clause 8.1..

 

8.4. The warranties contained in this clause shall not apply where any defect, failure or non-conformity arises wholly or partly from:

• (a) fair wear and tear;
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• (b) misuse, abuse, negligence or improper operation;
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• (c) failure to follow the Supplier's instructions;
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• (d) unauthorised modification, repair or maintenance;
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• (e) abnormal operating conditions;
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• (f) any act or omission of the Customer or a third party;
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• (g) site conditions;
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• (h) weather conditions; or
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• (i) matters beyond the Supplier's reasonable control.
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8.5. Except as expressly set out in the Contract and to the fullest extent permitted by law, all warranties, conditions and other terms implied by statute, common law or otherwise are excluded.

 

8.6. Nothing in this clause shall affect any warranty that cannot legally be excluded or restricted.

 

8.7. Unless expressly agreed otherwise in writing, the Customer shall be responsible for determining that the Equipment is suitable for its intended purpose and operating environment. Where Equipment is selected by or on behalf of the Customer, the Supplier does not warrant that the Equipment will meet the Customer's particular requirements, capacity requirements, performance expectations or intended use.

 

9.1. Nothing in the Contract shall limit or exclude either Party's liability for:

• (a) death or personal injury caused by negligence;
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• (b) fraud or fraudulent misrepresentation;
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• (c) any breach of obligations implied by section 12 of the Sale of Goods Act 1979;
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• (d) any liability arising under the Consumer Protection Act 1987; or
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• (e) any liability which cannot lawfully be limited or excluded.
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9.2. Subject to clause 9.1., the Supplier shall not be liable to the Customer for any loss of profit, loss of revenue, loss of production, loss of business, loss of anticipated savings or loss of margin, loss of goodwill, loss of opportunity, loss of reputation, or any indirect, special or consequential loss, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise.

 

9.2A. Without limiting clause 9.2, the Supplier shall not be liable for any loss, spoilage, deterioration, contamination, destruction or reduction in value of any food, beverages, pharmaceuticals, chemicals, biological materials, stock, products, work in progress or other contents arising from or in connection with any Equipment failure, malfunction, breakdown, interruption, temperature variation, power interruption, repair, replacement, removal or delayed attendance, except to the extent such liability cannot lawfully be excluded.

 

9.2B. The Supplier shall not be liable for any costs of obtaining substitute equipment or services, loss of use, business interruption, loss of production output, manufacturing interruption or third-party claims arising from Equipment failure except to the extent expressly agreed in the Order Form.

 

9.3. Subject to clauses 9.1., 9.2., 9.2A and 9.2B, the Supplier's total aggregate liability arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the greater of:

• (a) 100% of the Charges paid or payable under the Contract during the 12 month period immediately preceding the event giving rise to the claim; or
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• (b) an amount equal to the Charges that are payable, or would have been payable, under the Contract during the first twelve (12) months of the Contract as specified in the Order Form.
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9.4. The Supplier shall not be liable for any failure, delay, loss, damage or expense arising from:

• (a) any act or omission of the Customer;
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• (b) inaccurate or incomplete information supplied by the Customer;
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• (c) failure by the Customer to comply with the Contract;
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• (d) site conditions;
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• (e) fair wear and tear; or
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• (f) circumstances beyond the Supplier's reasonable control.
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9.5. The Customer shall indemnify and keep indemnified the Supplier against all losses, liabilities, damages, claims, costs and expenses incurred by the Supplier arising from:

• (a) the Customer's use, possession, operation or storage of the Equipment;
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• (b) any injury to or death of any person caused by the Customer's acts or omissions or the Equipment or its use except insofar as the injury or death directly results from the negligence of the Supplier, its employees or agents;
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• (c) all third party claims and losses howsoever arising in relation to the Equipment, including but not limited to damage to or loss or destruction of any property or damage to property caused by the Customer's breach of this Contract;
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• (d) any failure by the Customer to comply with applicable laws, regulations or industry standards; and
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except to the extent caused by the Supplier's negligence or breach of the Contract.

 

9.6. The Customer shall take all reasonable steps to mitigate any loss suffered in connection with the Contract.

 

9.7. The exclusions and limitations contained in this clause shall apply notwithstanding any failure of an exclusive remedy.

 

10.1. Without affecting any other right or remedy available to it, the Supplier may suspend performance of or terminate all or part of the Contract immediately upon written notice to the Customer if:

• (a) the Customer fails to pay any amount due under the Contract on the Due Date;
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• (b) the Supplier reasonably believes that the Customer will be unable to pay its debts as they fall due;
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• (c) the Customer repeatedly breaches the Contract;
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• (d) the Customer ceases or threatens to cease carrying on business;
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• (e) the Customer becomes insolvent, enters administration, liquidation, bankruptcy or any composition or arrangement with its creditors, or any analogous event occurs in any jurisdiction; or
•  
• (f) the Supplier reasonably considers that the Equipment or Services are being used unlawfully, unsafely or otherwise in breach of the Contract; or
•  
• (g) the Supplier reasonably considers that continuing to provide the Equipment and/or Services would be unsafe, unlawful or commercially impracticable.
•  

10.2. During any period of suspension:

• (a) the Supplier shall have no obligation to provide Equipment or Services;
•  
• (b) the Customer shall remain liable for all Charges accrued prior to and during the suspension period, including any ongoing Rental Payments; and
•  
• (c) the Supplier shall not be liable for any loss suffered by the Customer arising from the suspension.
•  

10.3. Either Party may terminate all or part of the Contract immediately upon written notice if the other Party:

• (a) commits a material breach of the Contract which is incapable of remedy;
•  
• (b) commits a material breach of the Contract which is capable of remedy and fails to remedy the breach within 14 days of receiving written notice requiring it to do so; or
•  
• (c) in accordance with clause 11.1 (Force Majeure).
•  

10.4. The Contract shall automatically terminate if a Total Loss occurs in relation to any of the Equipment.

 

10.5. Termination or expiry of the Contract shall not affect:

• (a) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry; or
•  
• (b) the continued operation of any provision which expressly or by implication is intended to survive termination, including without limitation clauses 3, 5, 6, 10 and 11.
•  

10.6. Upon termination or expiry of the Rental Period, or the Contract (whichever is earlier):

• (a) the Customer shall immediately pay all outstanding Charges due to the Supplier;
•  
• (b) all licences, permissions and rights granted to the Customer under the Contract shall cease;
•  
• (c) the Customer shall, at its own cost:
•  
• i. return the Equipment to an address specified by the Supplier; or
•  
• ii. if agreed by the Supplier, make the Equipment available for collection in a clean, accessible and safe condition and allow the Supplier or its representatives access to the Site for the purpose of removing the Equipment; and
•  
• iii. the Customer shall be responsible for all costs, charges and expenses incurred in returning or making available the Equipment for collection in accordance with this clause.
•  
• (d) each Party shall return or destroy the other Party's Confidential Information upon request, subject to any legal or regulatory retention requirements.
•  

10.7. If the Customer fails to return Equipment following termination or expiry:

• 10.7.1. the Customer irrevocably authorises the Supplier and its representatives to enter the Site and any premises where the Equipment is reasonably believed to be located for the purposes of inspecting, isolating, disconnecting and recovering the Equipment;
•  
• 10.7.2. the Customer shall procure all permissions, licences and consents required from any landlord, owner, occupier, site controller or other third party to permit such access and removal;
•  
• 10.7.3. the Customer shall provide safe and unobstructed access to the Equipment; and
•  
• 10.7.4. the Customer shall be responsible for all reasonable costs incurred by the Supplier in recovering the Equipment.
•  

10.8. Additional collection charges may be payable where:

• 10.8.1. the Equipment is not available for collection at the agreed time;
•  
• 10.8.2. access to the Equipment is restricted;
•  
• 10.8.3. the Equipment has not been properly decommissioned; or
•  
• 10.8.4. additional attendance is required.
•  

11.1. Force Majeure: 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 if such delay or failure result from events, circumstances or causes beyond its reasonable control including an act of any sovereign law, judgement, order, decree, embargo or blockade, war or national emergency, acts of terrorism, utility interruption or failure, fuel shortages, power failures, transport disruption, labour shortages, labour disputes, shortage or unavailability of raw materials extreme weather events, supply chain failures, acts of government, acts of God and failures of suppliers or subcontractors. 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 60 days, the Party not affected may terminate this Contract by giving 10 days’ written notice to the affected party.

 

11.2. Variation: This Contract may not be amended, modified, varied or supplemented except in writing and signed by the Parties (or their authorised representatives).

 

11.3. Assignment: The Customer shall not assign the benefit of, transfer, mortgage, charge, subcontract or deal in any other manner with its rights and obligations under this Contract, either in whole or in part, without the Supplier’s express prior written consent.

 

11.4. Relationship: Nothing in this Contract shall make either Party the agent or partner of the other, or give either Party the power to bind the other.

 

11.5. Third party rights: The Parties acknowledge and agree that nothing in this Contract shall confer on any third party any benefit, nor the right to enforce any of its provisions.

 

11.6. Notices: Notices under this Contract shall be in writing and delivered to the other Party by hand, by first class post or by email. A notice shall be deemed served:

• (a) if delivered by hand at the time of delivery; if posted, two (2) Business Days after posting; and
•  
• (b) if sent by email, at the time of transmission if sent during a Business Day and otherwise the next Business Day.
•  

11.7. Survival: The provisions of clauses 3, 5, 6, 10 and 11 shall survive the termination of this Contract for any reason, together with any clauses whose survival is necessary for interpretation or enforcement of this Contract.

 

11.8. Waiver: Failure by either Party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of its rights under this Contract or otherwise.

 

11.9. Dispute resolution: If any dispute arises out of this Contract, the dispute shall be referred to the Financial Controller of each Party who will attempt to settle it by negotiation. If the Parties are unable to settle such dispute within 14 days of such referral (or such longer period as they shall agree), then the Parties may elect (but shall not be obliged) to refer the dispute to mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation. Nothing in this clause shall limit either Party’s right to bring court proceedings against the other Party at any time.

 

11.10. Severance: If any provision or part-provision of this 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 this Contract.

 

11.11. Anti-Bribery: Each Party shall, and shall procure that its employees, officers, agents and subcontractors shall:

• (a) comply with all applicable laws relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
•  
• (b) not engage in any activity constituting an offence under sections 1, 2 or 6 of the Bribery Act 2010;
•  
• (c) maintain throughout the term of this Contract adequate policies and procedures to prevent bribery, and designed to ensure compliance with applicable anti-bribery and anti-corruption laws; and
•  
• (d) promptly report to the other Party if it becomes aware of any breach of this clause.
•  

Any breach of this clause shall be deemed a material breach of this Contract.

 

11.12. Confidential Information: Each Party shall keep the other Party's Confidential Information confidential and shall not use or disclose such Confidential Information except:

• (a) as necessary for the purposes of performing its obligations or exercising its rights under the Contract;
•  
• (b) to its employees, officers, professional advisers, contractors or insurers who have a need to know such Confidential Information for the purposes of complying with its obligations under the Contract; or
•  
• (c) where disclosure is required by law, court order or any governmental, regulatory or supervisory authority.
•  

11.13. Jurisdiction: This Contract shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract.

 

(Charges and Payment)

• 1. Rental Payments accrue throughout the Rental Period.
•  
• 2. The Customer shall continue to pay the Rental Payments even if the Equipment cannot be used for any reason whatsoever.
•  

(Delivery)

• 3. The Supplier shall deliver the Equipment together with the applicable Engineer or operator specified in the Order Form.
•  
• 4. The Supplier may refuse to commence operation of the Equipment where the Engineer reasonably considers the Site, ground conditions or working environment to be unsafe.
•  

(Customer Obligations)

• 5. The Customer shall ensure that all personnel at the Site cooperate with the Engineer and comply with any reasonable instructions given by the Engineer in relation to the safe operation of the Equipment.
•  
• 6. The Customer shall not require or permit the Engineer to operate the Equipment in an unsafe manner or in breach of any applicable law or safety requirement.
•  
• 7. The Customer shall ensure that suitable access, working areas and operating conditions are available for the Equipment and the Engineer throughout the Rental Period.
•  
• 8. Any additional attendance, call-out or mobilisation costs arising from incorrect instructions, Site conditions or delays caused by the Customer shall be payable by the Customer.
•  
• 9. The Customer shall provide the Supplier with all access reasonably required to perform the Maintenance Services.
•  
• 10. The Customer shall ensure that the Equipment is available for inspection, servicing, maintenance and repair at the agreed times.
•  
• 11. Any additional attendance, call-out, maintenance or repair visits required due to lack of access, restricted access, unavailability of the Equipment or delays caused by the Customer shall be payable by the Customer at the Supplier's prevailing rates.
•  
• 12. The Customer shall provide all relevant operating information reasonably required by the Supplier for diagnostic, maintenance and repair purposes.
•  
• 13. The Supplier shall not be responsible for any delay in performing inspection, servicing, maintenance or repair work caused by restricted access, unavailability of the Equipment or any act or omission of the Customer.
•  

(Risk, Title and Insurance)

• 14. The presence of an Engineer or operator supplied by the Supplier shall not of itself transfer responsibility for the security of the Equipment away from the Customer.
•  
• 15. The Customer shall remain responsible for the security and safekeeping of the Equipment when the Equipment is located at the Site.
•  
• 16. The Customer shall ensure that no third party interferes with, operates or uses the Equipment without the prior approval of the Supplier.
•  

(Product Warranty)

• 17. The Supplier warrants that any Engineer supplied under this Schedule 1 shall possess such qualifications, skills and experience as are reasonably necessary to operate the Equipment and perform the Serviced Hire Services.
•  
• 18. The Supplier shall use reasonable endeavours to replace any Engineer who is unable to perform the Serviced Hire Services.
•  
• 19. The Supplier shall ensure that any inspection, servicing, maintenance or repair work carried out under this Schedule shall be performed with reasonable skill and care.
•  
• 19A. Any attendance times, response times, repair times, restoration times or service levels stated in an Order Form, quotation or other communication are estimates only and shall not constitute a guarantee unless expressly stated to be a contractual service level commitment in the Order Form.
•  
• 19B. Failure to meet any estimated attendance or response time shall not entitle the Customer to terminate the Contract, withhold payment or claim compensation for any indirect, consequential or economic loss.
•  
• 20. The Supplier does not warrant that any inspection, servicing, maintenance or repair work will:
•  
• (a) prevent all breakdowns or failures;
•  
• (b) ensure uninterrupted operation of the Equipment; or
•  
• (c) correct defects arising from misuse, neglect or unauthorised modification.
•  
• 21. The Supplier shall not be liable for any breakdown, failure or deterioration of Equipment resulting from:
•  
• (a) misuse;
•  
• (b) operator error;
•  
• (c) fair wear and tear;
•  
• (d) unauthorised repairs; or
•  
• (e) modifications carried out by any person other than the Supplier.
•  
• 22. The Customer shall indemnify the Supplier against all losses arising from the Customer's failure to comply with any reasonable instruction issued by the Engineer concerning the safe operation of the Equipment.
•  

(Damage Waiver)

• 23. This Damage Waiver applies to all Equipment hired under this Schedule unless the Order Form expressly states that the Customer has elected to opt out of the Damage Waiver.
•  
• 24. Where the Damage Waiver applies:
•  
• (a) subject to clause 26 of this Schedule, the Supplier agrees to waive its right to recover from the Customer certain losses arising from accidental loss of or accidental damage to the Equipment occurring during the Rental Period; and
•  
• (b) an additional Charge of 7.5% of the Rental Payments, or such higher amount specified in the Order Form, shall be due and payable in consideration for such Damage Waiver.
•  
• 25. The Damage Waiver does not constitute insurance and does not affect the Customer's obligation to comply with the Contract.
•  
• 26. The Damage Waiver shall not apply to any loss, damage, cost or expense arising from:
•  
• (a) theft, attempted theft, disappearance or unexplained loss of the Equipment;
•  
• (b) fraud, dishonesty, wilful misconduct or deliberate damage;
•  
• (c) misuse, abuse, negligence, negligent act or omission, carelessness or reckless operation of the Equipment by the Customer or any of its employees, agents, contractors or sub-contractors;
•  
• (d) operation of the Equipment by any person not authorised, trained or competent to do so;
•  
• (e) failure to comply with the Supplier's instructions or recommendations;
•  
• (f) overloading, improper use or use outside the Equipment's intended purpose;
•  
• (g) failure to adequately secure, safeguard, store or protect the Equipment;
•  
• (h) any modification, alteration or repair carried out without the Supplier's prior written consent;
•  
• (i) loss of or damage to tyres, tracks, glass, fuel systems, electrical cables, accessories or consumables;
•  
• (j) acts of war, terrorism, civil commotion or nuclear incident; or
•  
• (k) any other matter expressly excluded in the Order Form.
•  
• 27. Where Damage Waiver has been paid, and provided that the Customer is not otherwise in breach of this Contract and the loss or damage does not arise from any of the matters set out in clause 26, the Customer will not be liable to the Supplier for the first £2,500 plus VAT of repairable damage in respect of any one incident. Any repairable damage in excess of that amount shall be payable by the Customer.
•  
• 28. The Customer shall notify the Supplier immediately upon becoming aware of any loss of or damage to the Equipment.
•  
• 29. The Customer shall:
•  
• (a) take all reasonable steps to minimise any loss or damage;
•  
• (b) preserve evidence relating to the incident;
•  
• (c) cooperate fully with the Supplier in investigating the incident; and
•  
• (d) provide such information and documentation as the Supplier may reasonably require.
•  
• 30. If the Customer fails to comply with clause 29, the Supplier may refuse to apply the Damage Waiver.
•  
• 31. Nothing in this Damage Waiver shall:
•  
• (a) affect the Supplier's ownership of the Equipment;
•  
• (b) relieve the Customer of any liability not expressly waived under this Schedule; or
•  
• (c) limit the Supplier's other rights and remedies under the Contract.
•  

(Open Hire)

• 32. If Equipment is supplied on an open hire basis with no fixed minimum term, the Customer may terminate the hire of any Equipment by giving not less than 48 hours’ prior written notice to the Supplier.
•  
• 33. The Rental Period and the Customer’s obligation to pay Rental Payments shall continue until the expiry of the 48-hour notice period and the Equipment has been returned to the Supplier or made available for collection in accordance with the Contract, whichever occurs later.
•  
• 34. Where an Order Form specifies a minimum Rental Period or fixed hire term, the Customer may not terminate the hire prior to expiry of that period without the Supplier’s written consent and the Customer shall remain liable for all Charges due in respect of that minimum Rental Period or fixed hire term.
•  
• 35. Where an Order Form specifies a minimum Rental Period or fixed hire term and the hire continues beyond the expiry of that period, the hire shall automatically continue on an open hire basis unless otherwise agreed in writing. Thereafter, either Party may terminate the hire by giving not less than 48-hours' prior written notice and clauses 32 and 33 shall apply.
•  

(Charges and Payment)

• 1. Rental Payments accrue throughout the Rental Period.
•  
• 2. Any maintenance, repair, inspection or call-out services requested by the Customer or required during the Rental Period shall be chargeable at the Supplier’s prevailing rates unless otherwise agreed in writing.
•  
• 3. The Customer shall continue to pay the Rental Payments even if the Equipment cannot be used for any reason whatsoever.
•  

(Customer Obligations)

• 4. The Customer shall be solely responsible for the installation, commissioning, operation, use and decommissioning of the Equipment unless otherwise agreed in writing.
•  
• 5. The Customer shall ensure that for the duration of the hire, the Equipment is operated in a proper, safe and correct manner, and only by competent, qualified and suitably trained personnel.
•  
• 6. Where required by law or good industry practice, the Customer shall ensure that all operators hold the appropriate certifications, licences and qualifications.
•  
• 7. The Customer shall carry out all daily inspections, routine checks and operator maintenance recommended by the Supplier.
•  
• 8. Any call-out, repair, inspection or Maintenance Services provided by the Supplier during the Rental Period shall be chargeable to the Customer at the Supplier’s prevailing rates unless otherwise agreed in writing. Any call-out, repair, maintenance or inspection visit arising from misuse, operator error or failure to follow the Supplier's instructions shall be charged to the Customer at the Supplier's prevailing rates. The Customer shall provide the Supplier with safe and timely access to the Equipment and the Site to enable any maintenance, repair, inspection or call-out services to be performed. Any additional visit required due to lack of access, restricted access, unavailability of the Equipment or Customer delay may be charged at the Supplier's prevailing rates.
•  
• 9. The Customer shall ensure that the Equipment is operated only by competent and authorised persons.
•  

(Liability and Indemnity)

• 10. The Customer shall indemnify the Supplier against all losses arising from any defect, breakdown or performance issue arising from:
•  
• (a) operator error;
•  
• (b) improper installation or commissioning;
•  
• (c) misuse of the Equipment; or
•  
• (d) failure to comply with the Supplier's operating instructions.
•  
• 11. The Customer accepts sole responsibility for the operation, use and control of the Equipment during the Rental Period.
•  

(Damage Waiver)

• 12. This Damage Waiver applies to all Equipment hired under this Schedule unless the Order Form expressly states that the Customer has elected to opt out of the Damage Waiver.
•  
• 13. Where the Damage Waiver applies:
•  
• (a) subject to clause 15 of this Schedule, the Supplier agrees to waive its right to recover from the Customer certain losses arising from accidental loss of or accidental damage to the Equipment occurring during the Rental Period; and
•  
• (b) an additional Charge of 7.5% of the Rental Payments, or such higher amount specified in the Order Form, shall be due and payable in consideration for such Damage Waiver.
•  
• 14. The Damage Waiver does not constitute insurance and does not affect the Customer's obligation to comply with the Contract.
•  
• 15. The Damage Waiver shall not apply to any loss, damage, cost or expense arising from:
•  
• (a) theft, attempted theft, disappearance or unexplained loss of the Equipment;
•  
• (b) fraud, dishonesty, wilful misconduct or deliberate damage;
•  
• (c) misuse, abuse, negligence, negligent act or omission, carelessness or reckless operation of the Equipment by the Customer or any of its employees, agents, contractors or sub-contractors;
•  
• (d) operation of the Equipment by any person not authorised, trained or competent to do so;
•  
• (e) failure to comply with the Supplier's instructions or recommendations;
•  
• (f) overloading, improper use or use outside the Equipment's intended purpose;
•  
• (g) failure to adequately secure, safeguard, store or protect the Equipment;
•  
• (h) any modification, alteration or repair carried out without the Supplier's prior written consent;
•  
• (i) loss of or damage to tyres, tracks, glass, fuel systems, electrical cables, accessories or consumables;
•  
• (j) acts of war, terrorism, civil commotion or nuclear incident; or
•  
• (k) improper installation, commissioning, dismantling or decommissioning of the Equipment;
•  
• (l) transportation, loading, unloading or relocation of the Equipment by or on behalf of the Customer;
•  
• (m) failure to carry out routine checks, inspections or maintenance recommended by the Supplier;
•  
• (n) any other matter expressly excluded in the Order Form.
•  
• 16. The Customer acknowledges that, under a Dry Hire arrangement, it retains primary responsibility for the custody, security and operation of the Equipment throughout the Rental Period.
•  
• 17. Where Damage Waiver has been paid, and provided that the Customer is not otherwise in breach of this Contract and the loss or damage does not arise from any of the matters set out in clause 15, the Customer will not be liable to the Supplier for the first £2,500 plus VAT of repairable damage in respect of any one incident. Any repairable damage in excess of that amount shall be payable by the Customer.
•  
• 18. The Customer shall notify the Supplier immediately upon becoming aware of any loss of or damage to the Equipment.
•  
• 19. The Customer shall:
•  
• (a) take all reasonable steps to minimise any loss or damage;
•  
• (b) preserve evidence relating to the incident;
•  
• (c) cooperate fully with the Supplier in investigating the incident; and
•  
• (d) provide such information and documentation as the Supplier may reasonably require.
•  
• 20. If the Customer fails to comply with clause 19, the Supplier may refuse to apply the Damage Waiver.
•  
• 21. Nothing in this Damage Waiver shall:
•  
• (a) affect the Supplier's ownership of the Equipment;
•  
• (b) relieve the Customer of any liability not expressly waived under this Schedule; or
•  
• (c) limit the Supplier's other rights and remedies under the Contract.
•  

(Open Hire)

• 22. If Equipment is supplied on an open hire basis with no fixed minimum term, the Customer may terminate the hire of any Equipment by giving not less than 48 hours’ prior written notice to the Supplier.
•  
• 23. The Rental Period and the Customer’s obligation to pay Rental Payments shall continue until the expiry of the 48-hour notice period and the Equipment has been returned to the Supplier or made available for collection in accordance with the Contract, whichever occurs later.
•  
• 24. Where an Order Form specifies a minimum Rental Period or fixed hire term, the Customer may not terminate the hire prior to expiry of that period without the Supplier’s written consent and the Customer shall remain liable for all Charges due in respect of that minimum Rental Period or fixed hire term.
•  
• 25. Where an Order Form specifies a minimum Rental Period or fixed hire term and the hire continues beyond the expiry of that period, the hire shall automatically continue on an open hire basis unless otherwise agreed in writing. Thereafter, either Party may terminate the hire by giving not less than 48 hours' prior written notice and clauses 22 and 23 shall apply.
•  

(Charges and Payment)

• 1. The purchase price for Equipment shall be as set out in the Order Form and shall be payable in accordance with clause 3.
•  

(The Equipment)

• 2. The Supplier will be entitled at any time to vary the design, finish, or specifications of the Equipment and/or substitute any materials or parts which are used in Equipment and which are unavailable for any reason with alternative materials or parts to the extent that:
•  
• (a) this does not materially affect their quality or performance; or
•  
• (b) this is necessary to comply with any health and safety or other legal requirements.
•  
• 3. With the exception of the specification, all samples, drawings, descriptive and illustrative matter and advertising issued or published by the Supplier (or the manufacturer of the Equipment) whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant Equipment.
•  
• 4. The Contract is not a sale by sample.
•  

(Risk, Title and Insurance)

• 5. Delivery of Equipment shall occur when the Equipment is unloaded at the Site or such other delivery location agreed in writing or when the Equipment has been collected by the Customer.
•  
• 6. Risk in the Equipment shall pass on Delivery.
•  
• 7. Title in the Equipment shall pass on the later of: (i) full payment of any Charges in cleared funds for the Equipment; and (ii) Delivery of the Equipment.
•  
• 8. The Supplier may make partial deliveries of Equipment and invoice each delivery separately.
•  
• 9. The Customer shall provide all labour, equipment and facilities necessary to receive and unload the Equipment unless otherwise agreed in writing.
•  
• 10. Until title passes, the Customer shall:
•  
• (a) store the Equipment separately from other goods;
•  
• (b) clearly identify the Equipment as the property of the Supplier;
•  
• (c) keep the Equipment in satisfactory condition; and
•  
• (d) maintain appropriate insurance in respect of the Equipment.
•  
• 11. If the Customer fails to pay any amount due under the Contract, the Supplier may enter any premises where the Equipment is located and repossess the Equipment.
•  

(Customer Obligations)

• 12. The Customer shall inspect the Equipment upon Delivery and notify the Supplier in writing of any shortage, damage or defect within 5 Business Days of Delivery.
•  
• 13. The Customer shall be responsible for storing, handling, installing and using the Equipment.
•  
• 14. The Customer shall provide all labour, equipment and facilities necessary to receive, unload and install the Equipment unless otherwise agreed in writing.
•  

(Product and Service Warranty)

• 15. The Supplier warrants that title to the Equipment shall pass in accordance with the Contract free from any security interest, charge or encumbrance created by the Supplier.
•  
• 16. There are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Supplier except as specifically stated in these Terms and Conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
•  
• 17. Any warranty applicable to the Equipment shall be as expressly set out in the Order Form.
•  
• 18. Where the Equipment is sold with the benefit of a manufacturer's warranty, the Customer shall look solely to the manufacturer in respect of any warranty claims and the Supplier shall have no obligation to provide any additional warranty unless expressly agreed in writing.
•  
• 19. Except to the extent expressly stated in the Order Form and to the fullest extent permitted by law, the Equipment is supplied on an "as is" basis and the Supplier gives no warranty as to the condition, performance, quality, fitness for purpose or remaining useful life of the Equipment.
•  

(Liability and Indemnity)

• 20. The Customer shall indemnify the Supplier against all third-party claims arising from the Customer's onward use, installation, modification or resale of the Equipment except to the extent caused by a defect for which the Supplier is responsible under this Contract.
•