The following definitions and rules of interpretation apply in this Contract.
Business Day: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Contract: means the contract between the Provider and the Customer arising form a quotation of such other arrange that refers to these Hire Conditions;
Hire Start Date: means the date that the Customer takes Delivery of the Equipment or Delivery is attempted by the Provider but for some reason not due to the Provider’s fault it cannot be completed;
Delivery: means the transfer of physical possession of the Equipment to the Customer at the Site;
Deposit: means the deposit amount set out in the Quotation;
Equipment: means the items of plant, machinery and equipment listed in the Contract Details, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it;
Payment Schedule: means the parts of the Contract Details which sets out the sums payable under this Contract;
Site: means the Customer’s site as stated in the Contract Details and such other site pre-approved by a director of the Provider in writing;
Rental Payments: means the payments required to be made by or on behalf of Customer for hire of the Equipment under the Contract;
Rental Period: means the period of hire referred to in clause 4;
Quotation: means the Contract Details;
Total Loss: means the Equipment is, in the Provider’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated;
VAT: means value added tax chargeable under the Value Added Tax Act 1994.
Clause, schedule and paragraph headings shall not affect the interpretation of this Contract.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
The Contract Details form part of this Contract and shall have effect as if set out in full in the body of this Contract and any reference to this Contract includes the Contract Details.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
A reference to writing or written includes fax and e-mail.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
A reference to this Contract or to any other Contract or document referred to in this Contract is a reference to this Contract or such other Contract or document as varied or novated (in each case, other than in breach of the provisions of this Contract) from time to time.
References to clauses and schedules are to the clauses and schedules of this Contract and references to paragraphs are to paragraphs of the relevant schedule.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Basis of contract
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Provider which is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued by the Provider, and any descriptions or illustrations contained in the catalogues or brochures of the Provider, are issued or published for the sole purpose of giving an approximate idea of the Equipment described in them. They shall not form part of the Contract or have any contractual force.
These Hire Conditions apply to the Contract and to any contract for the hire of equipment between the parties, to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any Quotation given by the Provider shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue. Any Quotation is subject to the availability of the Equipment to the provider at the time required by the Customer.
By accepting the Equipment at the Site the Customer is agreeing to these Hire Conditions unless otherwise agreed in writing signed by a director of the Provider.
The Provider shall hire the Equipment to the Customer for use at the Site subject to the terms and conditions of this Contract.
The Provider shall not, other than in the exercise of its rights under this Contract or applicable law, interfere with the Customer’s quiet possession of the Equipment.
The Rental Period starts on the Hire Start Date and shall continue, unless this Contract is terminated earlier in accordance with its terms or the period continues under clause 5.13, for the period stated in the Contract Details (as extended by the agreement of the parties or under clause 5.13) or if not stated then until the date notified in advance in writing by the Customer to the Provider during the Rental Period or otherwise until the Equipment is collected by the Provider.
Payments and Deposit
The Customer shall pay the Rental Payments and all other payments under the Contract to the Provider in accordance with the Payment Schedule but if not stated then by the end of the month in which the date 30 days after the date the Provider issues an invoice falls. The Provider may issue an invoice at any time after delivery and installation, on the termination of the Contract or any hire within it, weekly or as otherwise agreed for ongoing hire, on collection and for fuel used by Equipment during the hire after collection and for other payments then on supply, delivery or cancellation of the product or service applicable. Invoices for damage may be issued once identified and costed.
All payments under the Contract shall be paid in pounds sterling and shall be made by cheque or direct bank transfer to the account nominated by the Provider from time to time.
The Rental Payments and all other payments that become due under the Contract 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.
All amounts due under this Contract shall be paid in full without any demand, set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). In respect of any sums payable by the Customer under the Contract time shall be of the essence and that a condition of this Agreement is that failure to pay any sums due within 7 days after the due date shall be a repudiation of this Contract.
If the Customer fails to make any payment due to the Provider under this Contract by the due date for payment, then, without limiting the Provider’s remedies under clause 11, the Customer shall pay interest on the overdue amount at the rate of 5% per annum above the Provider’s main banker’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and compounded quarterly. The Customer shall pay the interest together with the overdue amount. The Deposit is a deposit against default by the Customer of payment of any Rental Payments, any other payments and/ or any loss of or damage caused to the Equipment. The Provider reserves the right to retain the Deposit if the Equipment is not returned or returned damaged or dirty, without prejudice to any other claims of the Provider against the Customer by virtue of the Contract. The Customer shall, on the date of this Contract, pay the deposit stated in the Contract Details to the Provider. If the Customer fails to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), the Provider shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to the Provider any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within fifteen (15) Business Days of the end of the Rental Period.
Rental Payments shall be calculated as follows:
If the Contract Details say charge by usage then at the hourly rates stated and measured by the Equipment’s meter or estimated by the Provider if the meter is broken or has been tampered with – part of an hour will be rounded up;
If the Contract Details say charge by a daily rate then so charged for the whole or part of a day – where only a weekly rate is quoted then the day rate will be 20% of the weekly rate – the rate quoted assumes the usage stated and any excess will be charged at the special rate stated;
If the Contract Details say charge by weekly rate then so charged for a minimum of one week and otherwise on the basis of the corresponding daily rate of 20% of the weekly rate per day– the rate quoted assumes the usage stated and any excess will be charged at the special rate stated.
Delivery, return and installation charges shall be as stated in the Contract Details. Fuel rates whether or not quoted in the Contract Details may fluctuate during the hire to reflect the cost to the Provider and will be invoiced for fuel used by the Equipment during the hire in line with the applicable revised prices. Cleaning of tanks and replacement of fuel when returned contaminated will be charged in addition.
“A Day” for the purposes of any daily rate calculation means the period from commencement of hire to 6pm and non-return or collection of the Equipment by that time shall entitle the Provider to charge further days hire and the day of Delivery or collection shall always be included as a day of hire;
“A week” for the purposes of a weekly rate calculation means 5 consecutive Business Days;
Extra days over that “working week” will be charged at 20% of the weekly rate.
Hire rates do not include carriage and any expenses incurred by the Provider in delivering or recovering Equipment will be charged to the Customer. Not less than 12 hours written notice must be given to the Provider if the Customer wishes Equipment to be collected.
Equipment not returned will be charged for at the manufacturer’s published list price in force at that time. Hire fees will continue up to the time the Provider is able to replace the lost Equipment.
Delivery and installation
Delivery of the Equipment shall be made by the Provider at the Customer’s cost, unless stated otherwise in the Contract Details. The Provider shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall be governed by clause 7 of this Contract.
If stated in the Contract Details, the Provider shall at the Customer’s expense install the Equipment at the Site. The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery and installation of the Equipment. Acceptance by such representative of Delivery/,where provided by the Provider, installation shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Provider, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
To facilitate Delivery and installation, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously including any materials, facilities, access and working conditions specified in the Contract Details.
The Customer shall be responsible for unloading and reloading the Equipment at site and any driver, operator or flagman supplied by the Provider shall be deemed to be under the Customer’s control.
If the Provider is responsible for collection and does not consider that collection is safely achievable or is prohibited due to site conditions, access problems or connection problem, then the hire will be deemed to continue until such time that the Equipment is freely and safely available for collection as re-notified to the Provider by the Customer.
A qualified electrician must connect electrical Equipment to the correct supply. Under no circumstances should electrical Equipment be used unless it is correctly earthed and if installation is to be carried out other than by the Supplier then the Customer takes responsibility for providing such.
Title, risk and insurance
The Equipment shall at all times remain the property of the Provider or its financiers, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this Contract).
The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery/installation. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to or uninstalled by the Provider. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Provider may from time to time nominate in writing;
insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Provider 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 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Provider may from time to time consider reasonably necessary and advise to the Customer;
provided that where the Customer has paid the Provider the relevant supplementary charge stated in the Contract Details then the risks insured against by the Provider shall be its responsibility in the absence of fraud or dishonesty on the part of anyone for whom the Customer is responsible but the Provider shall have no liability to the Customer in respect of the matters covered by its insurance.
All insurance policies procured by the Customer shall be endorsed to provide the Provider with prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Provider’s request name the Provider on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
The Customer shall give immediate written notice to the Provider in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
If the Customer fails to effect or maintain any of the insurances required under this Contract, the Provider 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 Customer.
During the Rental Period the Customer shall make good to the Provider all loss of or damage to the Equipment from whatever cause, the same may arise, fair wear and tear excepted and except as insured by the Provider under clauses 7.2 and [breakdown] and shall also fully and completely indemnify the Provider in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the Equipment and in respect of all costs and charges in connection therewith whether arising under statute or common law.
The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Provider and proof of premium payment to the Provider to confirm the insurance arrangements.
The Customer shall during the term of this Contract:
ensure that the Equipment is kept and operated in a suitable environment, which shall as a minimum meet any requirements set out or referred to in the Contract Details, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with all operating instructions;
take such steps (including compliance with all safety and usage instructions provided by the Provider) 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 and if the Equipment were continued to be used in an unsafe and unsatisfactory state the Customer shall be solely responsible for any damage loss or accidents whether directly or indirectly arising there from;
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 Hire Start Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts (in each case after obtaining written approval of the Provider), and shall make good any damage to the Equipment subject to obtaining the advance written approval of the Provider;
regularly clean the Equipment and return it in a perfectly clean condition. The Customer shall be responsible for any expense involved in cleaning Equipment and fuel tanks incurred by the Provider;
make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Provider unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Provider or its financiers immediately upon installation;
keep the Provider fully informed of all material matters relating to the Equipment;
keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without the Provider’s prior written consent;
permit the Provider or its duly authorised representative to inspect and maintain the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Provider, together with such additional information as the Provider may reasonably require;
not, without the prior written consent of the Provider, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, re-hire, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
not without the prior written consent of the Provider, 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 (or in Scotland a heritable fixture). 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 Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Provider against all losses, costs or expenses incurred as a result of such affixation or removal;
not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Provider in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that the Provider may enter such land or building and recover the Equipment both during the term of this Contract 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 Provider of any rights such person may have or acquire in the Equipment and a right for the Provider to enter onto such land or building to remove the Equipment;
not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Provider and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Provider on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
not use the Equipment for any unlawful purpose;
keep the Equipment safe and secure and ensure that all relevant government and local authority regulations are complied with and all provisions of any lease of the Equipment to the Provider once notified of such;
ensure that at all times the Equipment remains identifiable as being the Provider’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
deliver up the Equipment at the end of the Rental Period or on earlier termination of this Contract at such address as the Provider requires, or if necessary allow the Provider or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
not do or permit to be done anything which could invalidate the insurances referred to in clause 7.
The Customer acknowledges that the Provider shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify the Provider on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of this Contract and/or the Customer’s use of the Equipment.
The Provider shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself after Delivery, provided that:
the Customer notifies the Provider of any defect in writing within one (1) Business Day of becoming aware of the defect;
the Provider is permitted to make a full examination of the alleged defect;
the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Provider’s authorised personnel;
the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
the defect is directly attributable to defective material, workmanship or design.
Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Provider, the Customer shall be entitled only to such warranty or other benefit as the Provider has received from the manufacturer.
If the Provider fails to remedy any material defect in the Equipment in accordance with clause 1, the Provider shall, at the Customer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the Contract and, if relevant, return any Deposit (or any part of it) unless the Provider substitutes the Equipment for the remainder of the Rental Period.
No claims will be admitted for stoppages through causes outside the Provider’s control, including bad weather or ground conditions nor shall the Provider be responsible for the cost or expense of recovering any machine from soft ground or derailment.
Without prejudice to clause 2, the Provider’s maximum aggregate liability for breach of this Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed 100% of the Rental Payments paid by the Customer or, if higher, the amount received from the Provider’s insurance cover for the particular matter.
Nothing in this Contract shall exclude or in any way limit:
either party’s liability for death or personal injury caused by its own negligence;
either party’s liability for fraud or fraudulent misrepresentation; or
liability for any other liability which cannot be excluded by law.
This Contract sets forth the full extent of the Provider’s obligations and liabilities in respect of the Equipment and its hiring to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Provider except as specifically stated in this Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this Contract, whether by statute, common law or otherwise, is expressly excluded.
Without prejudice to clause 2, neither party shall be liable under this Contract for any:
loss of profit;
loss of revenue;
loss of business; or
indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
Without affecting any other right or remedy available to it, the Provider may terminate this Contract with immediate effect by giving written notice to the Customer if:
the Customer fails to pay any amount due under this Contract on the due date for payment;
the Customer commits a breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
the Customer repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company);
the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
the Customer (being an individual) is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
if the Customer shall abandon the Equipment;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 1(d) to clause 11.1(l) (inclusive);
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
This Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
Consequences of termination
Upon termination of this Contract, however caused:
the Provider’s consent to the Customer’s possession of the Equipment shall terminate and the Provider may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
without prejudice to any other rights or remedies of the Customer, the Customer shall pay to the Provider on demand:
all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5 and all payments related to or arising in the period from the last invoice for such to the date of termination and/or to the end of any minimum period of rental and/or arising due to termination or otherwise under the Contract;
any costs and expenses incurred by the Provider in recovering the Equipment and/or in collecting any sums due under this Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
Upon termination of this Contract pursuant to clause 1, any other repudiation of this Contract by the Customer which is accepted by the Provider or pursuant to clause 11.2, without prejudice to any other rights or remedies of the Provider, the Customer shall pay to the Provider on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period, less a discount for accelerated payment at the percentage rate of 1%.
The sums payable pursuant to clause 2 shall be agreed compensation for the Provider’s loss and shall be payable in addition to the sums payable pursuant to clause 12.1(b). Such sums may be partly or wholly recovered from any Deposit.
Termination or expiry of this 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.
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. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this Contract by giving at least 7 days’ written notice to the affected party.
Each party undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or Providers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
Assignment and other dealings
This Contract is personal to the Customer and it shall not assign, transfer, mortgage, charge, subcontract, pledge, declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
This Contract constitutes the entire Contract between the parties and supersedes and extinguishes all previous Contracts, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this 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 this Contract.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives which for the provider shall be a director).
No partnership or agency
Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
This Contract may be executed in any number of counterparts, each of which when signed shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.
No counterpart shall be effective until each party has signed at least one counterpart but the Customer’s acceptance of Equipment at the Site shall be deemed acceptance of the provisions of this Contract.
Third party rights
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
Any notice given to a party under or in connection with this contract shall be in writing and shall be:
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by fax to its main fax number.
Any notice shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting[or at the time recorded by the delivery service.
if sent by fax, at 9.00 am on the next Business Day after transmission.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall include e-mail.
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
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.
If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
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 or its subject matter or formation (including non-contractual disputes or claims).
This Contract has been entered into on the date stated at the beginning of it.