Terms and Conditions
1. INTERPRETATION AND CONSTRUCTION
1.1 In these Conditions the following words have the following meanings:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Charges” means our charges for the hire of Equipment, sale of Products and/or the supply of Services (as appropriate); “Conditions” means these terms and conditions as amended from time to time in accordance with these terms and conditions.
“Contract” means the contract between you and us for the hire of Equipment, the provision of Services and/or the sale of Products created by the acceptance by you of our Quotation incorporating these Conditions;
“Deposit” means any advance payment required by us in relation to the hire of Equipment which is to be held as security by us;
“Equipment” means the equipment (including any accessories) hired by you as specified in the Quotation or as otherwise agreed between you and us in writing;
“Force Majeure” means an event beyond a party’s reasonable control including but not limited to strikes, lockouts or other industrial disputes (whether involving our workforce or that of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;
“Hire Period” means the period of hire of the Equipment commencing on the date you obtain possession of the Equipment on hire (including Saturdays, Sundays and Bank Holidays) and ending on the happening of any of the following events:
(i) you return the Equipment to our possession; or
(ii) we repossess or collect the Equipment from you;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including knowhow), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs (including but without limitation all legal costs and disbursements) and any other losses and/or liabilities;
“Products” means the products to be sold by us and purchased by you as set out in the Quotation or as otherwise agreed between you and us in writing; “Quotation” means our quotation for the hire of Equipment, sale of Products and/or supply of Services to you;
“Services” means the services and/or work (if any) to be performed by us for you, whether in conjunction with the hire of Equipment and/or sale of Products (including any delivery and/or collection service for the Equipment and/or Products) or otherwise as specified in the Quotation or as agreed between us and you in writing;
“we/us/our” means Durham Lifting Limited, a limited company registered in England and Wales with company number 03208012 ;
“you/your” means the person, company, firm or other organisation who purchases the Products and/or Services from us or hires the Equipment from us.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Quotation constitutes an offer by us to hire Equipment, sell Products and/or provide Services (as appropriate) to you in accordance with these Conditions. The Quotation shall only be deemed accepted when you issue a written or verbal acceptance of the Quotation (including by sending to us a purchase order) or we deliver the Equipment and/or Products and/or commence supply of the Services (as appropriate) to you, whichever is earlier, at which point and on which date the Contract shall come into existence.
2.2 These Conditions shall be incorporated into all Contracts for the hire of Equipment, sale of Products and/or supply of Services from us to you and shall be the sole terms and conditions under which the hire of Equipment, provision of Services and/or the sale of Products takes place. All other terms, conditions and other representations are, to the fullest extent permitted by law, excluded from the Contract including any terms and conditions which you may purport to apply under any Contract or which are implied by trade, custom, practice or course of dealing. The Contract constitutes the entire agreement between the parties and you acknowledges that you have not relied on any statement, promise, representation, assurance or warranty made or given by us or on our behalf which is not set out in the Contract.
2.3 Our employees or agents are not authorised to make any representations concerning the Services, Equipment and/or Products unless confirmed in writing and any advice or recommendation given by us to you as to the storage, application or use of the Equipment and/or Products which is not confirmed in writing is followed or acted upon entirely at your own risk.
2.4 We reserve the right to provide Equipment and/or Products similar or comparable to that ordered by you. 2.5 These conditions shall be applicable to all repeat orders made by you unless we notify you otherwise. 2.6 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Products or Equipment or illustrations or descriptions of the Services contained in the our catalogues or brochures, or on the our website, are issued or published for the sole purpose of giving an approximate idea of the Services, Products and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
3. PRODUCTS, SERVICES AND EQUIPMENT
Products
3.1 The Products are described in our catalogues, brochures and other promotional material, on our website and/or, in any applicable specification for the Products (as the case may be).
3.2 To the extent that the Products are to be manufactured in accordance with any specification supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the our use of such specification. This clause 3.2 shall survive termination of the Contract.
3.3 We reserves the right to amend any specification of the Products if required by any applicable statutory or regulatory requirements.
Services
3.4 We shall provide the Services to you in accordance with any applicable specification or as otherwise agreed in writing between us and you in all material respects.
3.5 To the extent that the Services are to be provided in accordance with any specification or instructions supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the our use of such specification or our following of such instructions. This clause 3.5 shall survive termination of the Contract.
3.6 We shall use all reasonable endeavours to meet any performance dates for the Services specified by us to you but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.7 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services.
3.8 We warrant to you that the Services will be provided using reasonable care and skill.
Equipment
3.9 The Equipment is described in our catalogues, brochures and other promotional material, on our website and/or, in any applicable specification for the Equipment (as the case may be).
3.10 To the extent that the Equipment is to be manufactured in accordance with any specification supplied by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us in connection with any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the our use of such specification. This clause 3.10 shall survive termination of the Contract.
3.11 You shall hire the Equipment from us for the Hire Period subject to the Contract. Any fixed Hire Period or minimum Hire Period will be set out in the Quotation or otherwise agreed between us and you in writing.
3.12 The Hire Period shall immediately come to an end on termination of the Contract for any reason.
3.13 We shall not, other than in the exercise of our rights under the Contract or applicable law, interfere with the your quiet possession of the Equipment.
3.14 Equipment is hired subject to it being available for hire at the time you request it. We will not be liable for any loss suffered by you as a result of the Equipment being unavailable for hire.
3.15 You shall obtain and comply with all permissions, consents and licences required for the Equipment under any statute, regulation or by-law.
3.16 We reserves the right to amend any specification of the Equipment if required by any applicable statutory or regulatory requirements.
4. YOUR OBLIGATIONS
4.1 You shall:
4.1.1 ensure that any information you supply to us (including within any applicable specification for Products, Equipment and/or Services) is complete and accurate;
4.1.2 co-operate with us in all matters relating to the Products, Equipment and/or Services and the Contract generally;
4.1.3 provide us and our employees, agents, consultants and subcontractors, with access to and from your premises, office accommodation and any other premises, facilities or other locations (whether owned by you or otherwise) as reasonably required by us to provide the Services, deliver or collect the Equipment and/or deliver the Products and otherwise perform our obligations under the Contract;
4.1.4 procure sufficient loading space, facilities, equipment and access to power supplies and utilities for our employees, agents, consultants and subcontractors to allow them to carry out the Services and ensure that all relevant sites where the Services are to be performed are cleared and prepared before the Services are due to commence;
4.1.5 provide us with such information and materials as we may reasonably require to perform all of our obligations under the Contract, and ensure that such information is accurate in all material respects;
4.1.6 prepare your premises, office accommodation and/or any other premises, facilities or other locations (whether owned by you or otherwise) for the supply of the Services, the delivery/collection of the Equipment and/or the delivery of the Products or performance of the Contract by us;
4.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the Services, Products and/or Equipment; and
4.1.8 keep and maintain all of our materials, equipment, documents and other property at the your premises (or any other premises) in safe custody at your own risk, maintain such in good condition until returned to us, and not dispose of or use of such other than in accordance with our written instructions or authorisation.
4.2 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation including, but not necessarily limited to those listed in clause 4.1 (Customer Default):
4.2.1 we shall, without limiting our other rights or remedies, have the right to suspend performance of the Contract until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations to the extent the Customer Default prevents or our performance of any of our obligations;
4.2.2 we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from the our failure or delay to perform any of our obligations; and
4.2.3 you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
4.3 Where we provide Services to you, the persons performing the Services are your responsibility. You shall be solely responsible for any damage which occurs as a result of such persons following your instructions except to the extent that the persons performing the Services are negligent.
5. CHARGES AND PAYMENT
5.1 The amount of any applicable Deposit (in respect of the Equipment) and the Charges are detailed in the Quotation or are as otherwise agreed between us and you in writing.
5.2 If no Charges are detailed in the Quotation or are agreed between us and you in writing:
5.2.1 in respect of the hire of Equipment or the sale of Products, the amount of the Charges shall be those set out in our current published price list (which are available from us at any time on request) as at the date of the Contract comes in existence in accordance with clause 2.1; or
5.2.2 in respect of the supply of Services, the Charges shall be on a time and material basis calculated in accordance with our standard daily fee rates which are available from us at any time on request.
5.3 The Charges are exclusive of all costs and charges of packaging, insurance and transport of the Equipment and/or Products which shall be paid by you in addition when you pay the Charges;
5.4 Where a Deposit is required for the Equipment it must be paid before you hire the Equipment from us. The Deposit is a deposit against default by you of payment of the Charges or any loss of or damage caused to the Equipment. If you fail, without due cause, to make any payment due to us in respect of the Equipment in accordance with the Contract, or cause any loss or damage to the Equipment (in whole or in part), we shall be entitled to apply the Deposit against such default, loss or damage. You shall repay to us any sums deducted from the Deposit within two (2) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Hire Period.
5.5 Unless otherwise agreed between us and you in writing, in respect of the supply of Services, we shall be entitled to charge you for any expenses reasonably incurred by the individuals whom we engage in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by us for the performance of the Services, and for the cost of any materials.
5.6 In respect of the hire of Equipment, you shall pay the relevant Charges from the start of the Hire Period and will continue paying the Charges until: 5.6.1 we have given you a collection or off-hire number which must be requested from us prior to 10.00am on Business Days; and
5.6.2 you have returned the Equipment to us, or we have collected the Equipment from you within a reasonable period after the issue of the off-hire number, being not more than 1 Business Day (please see clause 7.8 below), and the Equipment is in a clean and serviceable condition and we have given you a receipt for the relevant Equipment. If you request an off-hire number from us on a day that is not a Business Day or after 10.00am on a Business Day we will give to you a collection or off-hire number effective from the next Business Day and the full Charges will be payable in respect of that day and any other day(s) until that next Business Day when the collection or offhire number becomes effective and the Equipment has been returned to, or collected by, us in accordance with clause 5.6.2. For the avoidance of doubt, all time (including non-Business Days) during a Hire Period is
chargeable and the Charges may be payable in respect of Saturdays, Sundays and Bank Holidays. 5.6 If we are unable to collect the Equipment for any reason whatsoever after a collection or off-hire number has been issued, the Contract shall continue and the Charges shall continue to be payable in accordance with the Contract until the Equipment is collected.
5.7 Unless a credit account has been granted by us to you:
5.7.1 in respect of the purchase of Products, you shall pay the Charges on the date of your acceptance of the Quotation unless we agree otherwise in writing. If the Charges are not paid for the Products in accordance with this clause 5.7.1 we reserve the right to invoice you in respect of the Charges at any time after your acceptance of the Quotation and such an invoice will be payable immediately;
5.7.2 in respect of the supply of Services, we shall invoice you monthly or weekly in arrears or on completion of the Services (in our absolute and sole discretion) unless we agree otherwise in writing;
5.7.3 in respect of the hire of Equipment, we shall invoice you on the expiry of each 7 day period during the Hire Period in respect of the Charges accrued for the previous 7 days and, again at the end of the Hire Period in respect of any further Charges accrued and for which an invoice has not be raised. If the Hire Period is for less than 7 days we shall invoice you at the end of the Hire Period for all Charges accrued in respect of the Hire Period.
5.8 All amounts payable by you under the Contract are, unless otherwise stated, exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, the you shall, on receipt of a valid VAT invoice from us, pay to the us such additional amounts in respect of VAT as are chargeable at the same time as payment is due under the Contract.
5.9 You shall pay each invoice submitted by us within the timeframe stipulated on the invoice or, if no timeframe is so stipulated, within 30 days of the date of the invoice, in full and cleared funds to a bank account nominated in writing by us. Time for payment shall be of the essence of the Contract.Payment shall not be deemed to be made until we have received either cash or cleared funds in respect of the full amount outstanding.
5.10 Without prejudice to any of our other rights or remedies, if you fail to make any payment in full on the due date we may charge you interest (both before and after judgment) on the amount unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002.
5.11 You shall pay all sums due to us under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
5.12 We may set a reasonable credit limit for you. We reserve the right to terminate or suspend the Contract for hire of the Equipment and/or the provision of Services if allowing it to continue would result in you exceeding your credit limit or you have already exceeded the credit limit.
6. RISK, OWNERSHIP AND INSURANCE
Products
6.1 The risk in the Products shall pass to you on completion of delivery of the Products. This means that the Products are your responsibility when delivery of the Products has been completed.
6.2 Title (i.e. ownership) to the Products shall not pass to you until the earlier of:
6.2.1 we receive payment in full (in cash or cleared funds) for the Products and any other Products, Equipment and/or Services that we have supplied to you in which case title to the Products shall pass at the time of payment of all such sums; and
6.2.2 you resell the Products, in which case title to the Products shall pass to you at the time specified in clause 6.4.2.
6.3 Until title to the Products has passed to you, you shall:
6.3.1 store the Products separately from all other goods held by you so that they remain readily identifiable as the our property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
6.3.3 maintain the Products in satisfactory condition and keep them insured against all risks for their full price on our behalf from the date of delivery;
6.3.4 notify us immediately if you become subject to any of the events listed in clause 12.1.7 and clause12.1.8 below; and
6.3.5 give us such information relating to the Products as we may require from time to time.
6.4 Subject to clause 6.5, you may resell or use the Products in the ordinary course of your business (but not otherwise) before we receive payment for the Products. However, if you resell the Products before that time:
6.4.1 you do so as principal and not as our agent; and
6.4.2 title to the Products shall pass from us to you immediately before the time at which resale by you occurs.
6.5 If before title to the Products passes to you, you become subject to any of the events listed in clause 12.1.7 and clause 12.1.8 below, then, without limiting any other right or remedy we may have:
6.5.1 your right to resell Products or use them in the ordinary course of its business ceases immediately; and
6.5.2 we may at any time:
6.5.2.1 require you to deliver up all Products in your possession which have not been resold, or irrevocably incorporated into another product; and
6.5.2.2 if you fail to do so promptly, enter any premises of yours or of any third party where the Products are stored in order to recover them.
Equipment
6.6 The Equipment shall at all times remain our property, and you 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 Contract)
6.7 You must not deal with the ownership or any interest in the Equipment. This includes, but is not limited to, selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending.
6.8 The risk of loss, theft, damage or destruction of the Equipment shall pass to you immediately when the Equipment leaves our physical possession. The Equipment shall remain at your sole risk during the Hire Period and any further term during which the Equipment is in your possession, custody or control (Risk Period) until such time as the Equipment is redelivered to us or is otherwise put into our physical possession, custody or control. During the Hire Period and the Risk Period, unless we agree otherwise in writing, you shall, at your own expense, obtain and maintain the following insurances:
6.9.1 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 we may from time to time nominate in writing;
6.9.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as we 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
6.9.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as we may from time to time consider reasonably necessary and advise to you.
6.10 All insurance policies procured by you shall upon our request name us on the policies as a loss payee in relation to any claim relating to the Equipment. You shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.11 You shall give immediate written notice to us in the event of any loss, accident or damage to the Equipment arising out of or in connection with your possession or use of the Equipment.
6.12 If you fail to effect or maintain any of the insurances required under the Contract, we 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 you. 6.13 You shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to us and proof of premium payment to us to confirm the insurance arrangements.
7. DELIVERY, COLLECTION AND SERVICES
7.1 Unless otherwise agreed by us in writing, you shall collect the Products and/or Equipment from our premises (which shall be notified to you) or such other location as may be advised by us (Collection Location) within two (2) Business Days of us notifying you that the Products and/or Equipment are ready for collection. If it is agreed between us and you in writing that we shall deliver the Products and/or Equipment to you, we shall deliver the Products and/or Equipment to such location as us and you agree in writing (Delivery Location) at any time after we notify you that the Products and/or Equipment are ready to be delivered and we reserve the right to charge you for the delivery of the Products and/or Equipment to you.
7.2 Subject to clause 7.8, delivery of the Products and/or Equipment shall be completed on the completion of loading of the Products and/or Equipment at the Collection Location or, if it is agreed that we shall deliver the Products and/or Equipment to you in accordance with clause 7.1 above, on the Products’ and/or Equipment’s’ arrival at the Delivery Location (as the case may be) and, on completion of such delivery (in respect of the delivery of Equipment), the Equipment will have been delivered into your possession and/or control for the purpose of the Contract.
7.3 Any dates quoted for delivery of the Products and/or Equipment are approximate only and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Products and/or Equipment that is caused by a Force Majeure event or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products and/or Equipment.
7.4 If we fail to deliver the Products and/or Equipment, your liability shall be limited to the costs and expenses you incur in obtaining replacement products and/or equipment of similar description and quality in the cheapest market available, less the Charges in respect of the Products and/or Equipment. We shall have no liability for any failure to deliver the Products and/or Equipment to the extent that such failure is caused by a Force Majeure event, your failure to provide us with adequate delivery instructions for the Products and/or Equipment or any relevant instruction related to the supply of the Products and/or hire of the Equipment.
7.5 If you fail to collect, accept or otherwise take delivery of the Products within 2 Business Days of us notifying you that the Products are ready, then, except where such failure or delay is caused by a Force Majeure event or by the our failure to comply with our obligations under the Contract in respect of the Products:
7.5.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the 3rd Business Day following the day on which we notified you that the Products were ready; and
7.5.2 we shall store the Products until delivery takes place, and charge you for all related costs and expenses (including insurance).
7.6 If ten (10) Business Days after we notified you that the Products were ready for collection/delivery you have not taken or accepted (as the case may be) delivery of the Products, we may resell or otherwise dispose of part or all of the Products.
7.7 We may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
7.8 Unless otherwise agreed in writing between us and you, at the end of the Hire Period and upon your compliance with clause 5.6, you shall deliver the Equipment back to our premises (which shall be notified to you) or such other location as may be advised by us. If it is agreed between us and you in writing that we shall collect the Equipment from you, we shall collect the Equipment from such location as us and you agree in writing and we reserve the right to charge you for the collection of the Equipment from you.
7.8 If we agree to deliver and/or collect the Products and/or Equipment to/from you:
7.8.1 we, or our agents or carriers, shall only deliver to or collect from the address agreed between us and you if, and only if, such delivery/collection would be lawful and there is suitable and safe access to this address (which shall be determined in our sole discretion or that of our agents or carriers (including that of the driver of the relevant delivery/collection vehicle)). If we, or our agents or carriers, determine, in our, or our agents’ or carriers’, sole discretion (including that of the driver of the relevant delivery/collection vehicle), that delivery /collection is not lawful and/or there is not suitable and safe access to the delivery/collection address, delivery/collection will be made to the nearest point which is, in our, or our agents’ or carriers’ sole opinion, lawful, suitable and safe and, on completion of such delivery (in respect of the delivery of Products and/or Equipment only), the Products and/or Equipment will have been delivered into your possession and/or control for the purpose of the Contract;
7.8.2 if no one is available at your address to take delivery of the Products and/or Equipment or to hand over the Equipment for collection, we, or our agents or carriers, will leave you a note that (a) the Products and/or Equipment have been returned to our premises, in which case, please contact us to rearrange delivery of, or to collect, the Products and/or Equipment from us (please note that we reserve the right to charge additional delivery costs if we are required to attempt delivery of Products and/or Equipment more than once) or (b) we have attempted to collect the Equipment from you but, as a result of your nonavailability, we have returned to our premises, in which case, please contact us to rearrange collection of the Equipment (please note that we reserve the right to charge additional costs if we are required to attempt collection of the Equipment more than once);
7.8.3 if Products and/or Equipment are to be delivered/collected at a location other than your private premises, you are solely responsible for compliance with all regulations and for all steps which need to be taken for the protection at all times of persons and property and will indemnify us in respect of all costs, claims, losses and expenses we may incur as a result of such delivery/collection.
7.9 Unless otherwise agreed by us in writing:
7.9.1 in respect of where you are collecting Products and/or Equipment from us, you shall be responsible for loading the Products and/or Equipment onto your vehicle and shall provide all necessary labour, equipment and materials to do so. The loading of the Products and/or Equipment by you is to be completed lawfully, safely and with reasonable speed. If we are required to provide labour, materials and/or equipment to load the Products and/or Equipment onto your vehicle, we reserve the right to make additional charges to you in this regard; and
7.9.2 in respect of where we have agreed to deliver the Products and/or Equipment to you, you shall be responsible for unloading the Products and/or Equipment from our delivery vehicle, or that of our agents or carrier, and shall provide all necessary labour, equipment and materials to do so. The unloading of the Products and/or Equipment by you is to be completed lawfully, safely and with reasonable speed and, if our delivery vehicle, or that of our agent or carrier, is kept waiting for an unreasonable time (to be determined in our sole discretion, or that of our agent or carrier, acting reasonably) or is obliged to return without having made delivery of the Products and/or Equipment or if we, or our agents or carriers, are required to provide additional labour, materials or equipment to unload the Products and/or Equipment from our delivery vehicle, or that of our agent or carrier, we reserve the right to make an additional charge to you in this regard.
7.9.3 in respect of where you are delivering Equipment back to us at the end of the Hire Period, you shall be responsible for unloading the Equipment off of your vehicle and shall provide all necessary labour, equipment and materials to do so. The unloading of the Equipment by you is to be completed lawfully, safely and with reasonable speed. If we are required to provide labour, materials and/or equipment to unload the Equipment off of your vehicle, we reserve the right to make additional charges to you in this regard; and 7.9.2 in respect of where we have agreed to collect the Equipment from you at the end of the Hire Period, you shall be responsible for loading the Equipment onto our delivery vehicle, or that of our agents or carrier, and shall provide all necessary labour, equipment and materials to do so. The loading of the Equipment by you is to be completed lawfully, safely and with reasonable speed and, if our collection vehicle, or that of our agent or carrier, is kept waiting for an unreasonable time (to be determined in our sole discretion, or that of our agent or carrier, acting reasonably) or is obliged to return without having collected the Equipment or if we, or our agents or carriers, are required to provide additional labour, materials or equipment to load the Equipment onto our collection vehicle, or that of our agent or carrier, we reserve the right to make an additional charge to you in this regard.
8. CARE OF EQUIPMENT
8.1 You shall during the Hire Period and any further period during which the Equipment is in your possession, custody or control:
8.1.1 not deface or remove any labels from and/or interfere with the Equipment or its working mechanisms or any other part of them;
8.1.2 notify us immediately, and in any event within 24 hours, after any breakdown, loss and/or damage to the Equipment or of any accident resulting in death, personal injury or damage to property in connection with the Equipment;
8.1.3 take adequate and proper measures to protect the Equipment from theft, damage and/or other risks;
8.1.4 notify us of any change of your address and upon our request provide details of the location of the Equipment;
8.1.5 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Equipment required by any legislation, best practice and/or operating instructions except to the extent that we have agreed to provide them as part of any Services;
8.1.6 not do or omit to do anything which will or may be deemed to invalidate any policy of insurancerelated to the Equipment;
8.1.7 not continue to use Equipment where it has been damaged;
8.1.8 where the Equipment requires fuel, oil and/or electricity, ensure that the proper type and/or voltage is used in relation to the Equipment and that, where appropriate, the Equipment is properly installed by a qualified and competent person.
8.1.9 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 applicable operating and/or safety instructions and any applicable law or regulations;
8.1.10 take reasonable care of the Equipment, keep it properly maintained and take such steps (including compliance with all safety and usage instructions) 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;
8.1.11 maintain, at your 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 date you obtained possession of the Equipment (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
8.1.12 make no alteration to the Equipment and not remove any existing component(s) from the Equipment, without our prior written consent, unless carried out to comply with any mandatory modifications required by law or any regulatory authority or 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 us immediately upon installation;
8.1.13 keep us fully informed of all material matters relating to the Equipment;
8.1.14 at all times keep the Equipment in your possession or control and not remove the Equipment from the United Kingdom without our prior written consent;;
8.1.15 permit us or our duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon any premises or other locations at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
8.1.16 maintain operating and maintenance records of the Equipment and make copies of such records readily available to us together with such additional information as we may reasonably require;
8.1.17 not, without our prior written consent, 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;
8.1.18 not without our prior written consent, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and you shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify us against all losses, costs or expenses incurred as a result of such affixation or removal;
8.1.19 not do or permit to be done any act or thing which will or may jeopardise our right, title and/or interest of or in the Equipment and, where the Equipment has become affixed to any land or building, you must take all necessary steps to ensure that we may enter such land or building and recover the Equipment both during the term of the 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 our favour of any rights such person may have or acquire in the Equipment and a right for us to enter onto such land or building to remove the Equipment;
8.1.20 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, you shall notify us and you shall at your sole expense use your best endeavours to procure an immediate release of the Equipment and shall indemnify us on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
8.1.21 not use the Equipment for any unlawful purpose; and 8.1.22 ensure that at all times the Equipment remains identifiable as being the our property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment.
8.2 You must return the Equipment in good working order and condition (fair wear and tear excepted) and in a clean condition together with all licences, registration and other documents relating to the Equipment.
8.3 It is your responsibility to check the calibration of the Equipment on each occasion before use. Final determination of the suitability of the Equipment for your specific use is your responsibility and you must assume all risk and liability in this regard.
8.4 You acknowledge that we 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 you or your officers, employees, agents and contractors, and you undertake to indemnify us 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 you to comply with the terms of the Contract.
9. BREAKDOWN
9.1 Allowance will be made in relation to the Charges for any non-use of the Equipment due to breakdown caused by the development of an inherent fault and/or fair wear and tear provided that you inform us as soon as practicable of the breakdown.
9.2 You shall be responsible for all expenses, loss (including loss of Charges) and/or damage suffered by us arising from any breakdown of the Equipment due to your negligence, misdirection and/or misuse of the Equipment.
9.3 We will, at our own cost, carry out all routine maintenance and repairs to the Equipment during the Hire Period (but you agree that you are responsible for applying all lubricating oils and other maintenance detailed in the operating instructions) and all repairs which are required due to fair wear and tear and/or an inherent fault in the Equipment.
9.4 You will be responsible for the cost of all repairs necessary to Equipment during the Hire Period and any further period during which the Equipment is in your possession, custody or control which arise otherwise than under clause9.3 above.
9.5 If applicable, it is your responsibility to return Equipment to us or arrange for us to collect Equipment for retesting 3 months after the date on which the Hire Period commenced.
9.6 You must not repair or attempt to repair the Equipment without our prior written consent.
10. LOSS OR DAMAGE TO THE EQUIPMENT
10.1 If the Equipment is returned to us in a damaged, unclean and/or defective state (except where due to fair wear and tear and/ or an inherent fault in the Equipment) you shall be liable to pay us for the cost of any repair and/or cleaning required to return the Equipment to a condition fit for re-hire.
10.2 You will pay to us the replacement cost of any Equipment (on a new for old basis) which is lost, stolen and/or damaged beyond economic repair during the Hire Period and any further period during which the Equipment is in your possession, custody or control.
10.3 You will pay to us the costs which we may incur in tracking or recovering any lost or stolen Equipment.
10.4 You shall pay the Charges for the Equipment up to and including the date you notify us that the Equipment has been lost, stolen and/or damaged beyond economic repair. From that date until we have replaced such Equipment (or retrieved any lost or stolen Equipment), you shall pay, as a genuine pre-estimate of lost Charges, a sum as liquidated damages being equal to two thirds of the Charges that would have applied for such Equipment for that period. We shall use our reasonable commercial endeavours to purchase replacements for such Equipment as quickly as possible using the monies paid under clause 10.2.
10.5 You agree that where you are in breach of clause 8.1.4 or clause 8.1.14, we shall be entitled to treat the Equipment as lost and the provisions of this clause 10 shall apply.
11. TERMINATION AND CANCELLATIONS
11.1 If the Hire Period is subject to a fixed or minimum period as stipulated in the Quotation or as otherwise agreed between you and us in writing, subject to the provisions of clause12, neither party shall be entitled to terminate the Contract and/or end the Hire Period (as the case may be) before the expiry of that fixed or minimum period unless we agree otherwise in writing. For the avoidance of doubt, when the Hire Period is subject to a fixed or minimum duration, you shall be liable to pay the full amount of the Charges for the full fixed period or minimum period (as the case may be) notwithstanding the fact that you may have cancelled the Contract and/or returned the Equipment to our possession and/or control before the expiry of the fixed or minimum period (as the case may be).
11.2 You may only cancel a Contract for use of our 1250 Ton universal testbed service by giving notice to us in writing at any time up to the date that is 7 days prior to the date on which the service is due to start (i.e. the date, or first date, on which this testbed is booked for). If you attempt to cancel the Contract otherwise than in accordance with this clause (i.e. outside of this period or once the service has commenced (or is due to commence))we reserve the right to charge you the full amount of the Charges for the use of the 1250 Ton universal testbed service as well as all costs and losses sustained or incurred by us arising from the cancellation of the Contract including, but not necessarily limited to, labour and materials.
11.3 You may only cancel a Contract for any of our other Services (including use of any of our other testbed services other than that detailed in clause 11.2) by giving notice to us in writing at any time up to the date that is 7 days prior to the date on which the relevant Services are due to commence. If you attempt to cancel a Contract forany of our other Services (including use of any of our other testbed services other than that detailed in clause 11.2) otherwise than in accordance with this clause (i.e. outside of this period or once the Services have commenced (or are due to commence)), we reserve the right to charge you for all costs and losses sustained or incurred by us arising from such cancellation of the Contract including, but not necessary limited to, labour and materials.
12. DEFAULT
12.1 If you:
12.1.1 fail to make any payment to us when due; or
12.1.2 breach the terms of the Contract and, where the breach is capable of remedy, have not remedied the breach within 14 days of receiving notice from us requiring the breach to be remedied;
12.1.3 persistently breach the terms of the Contract;
12.1.4 provide incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
12.1.5 attempt to pledge, charge or create any form of security over any Equipment;
12.1.6 cease or threaten to cease to carry on business;
12.1.7 being an individual or partnership, have a bankruptcy petition presented against you or compound with or come to an arrangement with your creditors, enter into an individual voluntary arrangement or suffer any similar action in any jurisdiction;
12.1.8 being a company, enter into voluntary or compulsory liquidation, have an administrator or administrative receiver appointed over all or any of your assets, or compound with or come to an arrangement with your creditors or enter into a company voluntary arrangement, any attachment order is made against you, any distress, execution or other legal process is levied on any of your property or you suffer any similar action in any jurisdiction;
12.1.9 have circumstances in which we reasonably believe that any of the events mentioned in clauses12.1.7 or 12.1.8 above is about to occur and we notify you of this belief;
12.1.10 appear reasonably to us to be financially inadequate to meet your obligations under the Contract; or
12.1.11 appear reasonably to us to be about to suffer any of the above events; then we shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause12.2 below.
12.2 If any of the events set out in clause12.1 above occurs in relation to you then:
12.2.1 we may enter, without prior notice, any of your premises (or premises of third parties) where the Equipment and/or Products may be and repossess any Equipment and/or Products;
12.2.2 we may withhold the performance of any Services and cease any Services in progress under this and/or and other Contract between you and us;
12.2.3 we may immediately cancel, terminate and/or suspend, without Liability to you, the Contract and/or any other contract between you and us; and
12.2.4 any credit period in relation to payment of the Charges shall be accelerated and all sums, all monies owed by you to us under the Contract or any other contract between you and us shall immediately become due and payable.
12.3 Any repossession of the Equipment and/or Products shall not affect our right to recover from you any monies due under the Contract or any other contract between you and us and/or any damages in respect of any breach which occurred prior to repossession of the Equipment and/or Products.
12.4 On termination or expiry of the Contract for any reason:
12.4.1 at your expense, you must return the Equipment to us or, if we agree to collect the Equipment, make the Equipment available for us to collect and our consent to your possession of the Equipment shall terminate;
12.4.2 you shall immediately pay to us all of our outstanding unpaid invoices and interest (if any) and, in respect of Products, Equipment and/or Services supplied to you but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
12.4.3 you shall return all of our materials and equipment which have not been fully paid for. If you fail to do so, then we may enter your premises (or that of a third party) and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
12.4.4 the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
12.4.5 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13. LIMITATION OF LIABILITY
13.1 All warranties, representations, terms, conditions and duties implied by law (whether statute, common law or otherwise) are excluded to the fullest extent permitted by law.
13.2 If we are found to be liable in respect of any loss or damage to your property the extent of our Liability will be limited to the retail cost of replacement of the damaged property.
13.3 Any defective Equipment and/or Products must be returned to us at your expense for inspection before we have any Liability for defective Equipment and/or Products.
13.4 We shall have no Liability to you if any Charges or monies due in respect of the Equipment, the Services and/or the Products have not been paid in full and cleared funds by the due date for payment.
13.5 We shall have no Liability resulting from or contributed to by your continued use of defective Equipment and/or Products after a defect has become apparent or suspected or should reasonably have become apparent to you.
13.6 We shall have no Liability to you to the extent that you are covered by any policy of insurance and you shall ensure that your insurers waive any and all rights of subrogation they may have against us.
13.7 We shall have no Liability to you for any:
13.7.1 losses whether arising from breach of contract, tort (including but not limited to negligence), or otherwise, and whether flowing naturally and directly from such breach, negligence or other cause, or not, for:
(a) loss of revenue,
(b) loss of profit,
(c) loss of anticipated saving,
(d) loss of goodwill; or
(e) loss of reputation;
13.7.2 economic and/or other similar losses;
13.7.3 special damages, indirect losses and/or consequential losses; and/or
13.7.4 business interruption, loss of business, contracts and/or opportunity.
13.8 Our total Liability to you under and/or arising in relation to any Contract shall not exceed five times (5x) the amount of the Charges or the sum of one thousand pounds (£1,000.00), whichever is the higher, under the Contract. To the extent that any of our Liability to you would be met by our insurance then our Liability shall be extended to the extent that such Liability is met by such insurance.
13.9 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:
13.9.1 Liability for breach of contract;
13.9.2 Liability in tort (including negligence); and
13.9.3 Liability for breach of statutory and/or common law duty; except clause 13.8 above which shall apply only once in respect of all the types of Liability under this clause 13.9.
13.10 Nothing in the Contract or these Conditions shall exclude or limit our Liability for death or personal injury due to our negligence or the negligence of our employees, agents or sub-contractors, fraud or fraudulent misrepresentation, breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973, breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession), breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession), defective products under the Consumer Protection Act 1987 or any other type of Liability which it is not permitted to exclude or limit as a matter of law.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by us.
14.2 You acknowledge that, in respect of any third party Intellectual Property Rights in the Services, your use of any such Intellectual Property Rights is conditional on us obtaining a written licence from the relevant licensor on such terms as will entitle us to license such rights to you.
15. GENERAL PROVISIONS
15.1 Upon termination of the Contract the provisions of clauses 5.6, 5.10, 5.11, 10.1, 10.2, 10.3 and clause 8 shall continue in full force and effect.
15.2 The hiring of each piece of Equipment in the relevant Hire Period shall form a distinct Contract which shall be separate to any other Contract relating to other Equipment.
15.3 You shall be liable for the acts and/or omissions of your employees, agents, servants and/or subcontractors as though they were your own acts and/or omissions under this Contract.
15.4 You shall be responsible for compliance with all relevant legislation and regulations issued by Government, local authorities or otherwise.
15.5 You agree to indemnify, and keep indemnified, us against any Liability suffered by us and arising from or due to your breach of contract, tort (including negligence) and/or any breach of statutory duty and/or any claim from a third party for injury to person or property arising from your use or storage of the Equipment.
15.6 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
15.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
15.8 A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.9 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by us.
15.10 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is
not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.11 We shall have no Liability to you for any delay and/or non-performance of a Contract to the extent that such delay is due to Force Majeure. If we are affected by Force Majeure then time for performance of our obligations under the Contract shall be extended for a period equal to the period of the delayed performance.
15.12 These terms and conditions supersede and replace all prior terms and conditions, communications, representations, warranties, stipulations, undertakings, and agreements whether oral or written between the parties.
15.13 All third party rights are excluded and no third parties shall have any rights to enforce the Contract.
15.14 This agreement 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.
15.15 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
15.16 You shall not, and shall procure that your directors, employees, agents, representatives, contractors or subcontractors shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010. You shall have in place adequate procedures designed to prevent any person working for or engaged by you or any other third party in any way connected to the Contract, from committing offences of corruption or bribery. Breach of this clause15.16 shall entitle us to terminate with immediate effect.
15.17 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 15.17 shall survive termination of the Contract.
15.18 We will use the personal information you provide to us to:
15.18.1 provide the Products, Equipment and/or Services;
15.18.2 process your payment for such Products, Equipment and/or Services; and
15.18.3 inform you about similar products, equipment and/or services that we provide, but you may stop receiving these at any time by contacting us.
16. CONSUMER CREDIT ACT
16.1 Hire of Equipment to individuals or partnerships of 3 individuals or less (or other unincorporated body of individuals) shall not be for a period in excess of 3 months. You shall return the Equipment to us on or before the last day of such three month period.
16.2 If you are an individual or a partnership of 3 individuals or less (or other unincorporated body of individuals) and we (in exceptional circumstances) agree to a contract in excess of 3 months then the Contract will be subject to The Consumer Credit Act 1974. Clauses 16.3, 16.4, 16.5 and 16.6 will only apply in the circumstances listed in this clause 16.2.
16.3 IMPORTANT YOU SHOULD READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS.
The Consumer Credit Act 1974 lays down certain requirements for your protection which should have been complied with when this agreement was made. If they were not, we cannot enforce this agreement against you without getting a court order.
16.4 For further information about your statutory rights under the Consumer Credit Act 1974 and other relevant legislation, contact your local Trading Standards office or Citizens’ Advice Bureau.
16.5 MISSING PAYMENTS. Missing payments could have severe consequences and may make obtaining credit more difficult.
16.6 If you have a complaint please contact us and we will supply you with a copy of our complaints handling procedure. Once you have issued a formal complaint in line with the procedure, we will respond as soon as possible and in any event within eight weeks of receiving your complaint. If you are dissatisfied with our response you may refer your complaint to the Financial Ombudsman Service within six months of the date of our final response.
17. TERMS APPLYING TO CONSUMERS ONLY
PLEASE NOTE THAT THIS CLAUSE ONLY APPLIES WHEN YOU ARE ENTERING THE CONTRACT AS A CONSUMER.
17.1 Where you are acting as a consumer under the Unfair Contract Terms Act 1977 (you enter into the Contract not in the course of business), the following provisions in the Contract may, subject to determination by the Courts, have no force or effect:
17.1.1 clause2.4 (employees’ representatives);
17.1.2 clause4.2.3 (payment as a result of your non-compliance with your obligations under the Contract);
17.1.3 clause5.10 (payment of interest on late payment);
17.1.4 clause5.11 (no right of set-off);
17.1.5 clause8.3 (suitability of Equipment);
17.1.6 clause12.2.1 (right of entry and seizure of Equipment). This clause17.1.6 will also apply to consumers under the Consumer Credit Act 1974;
17.1.7 clause13 (Limitations of Liability) subject to clause11.10 continuing to apply and clause 15.3 then applying;
17.1.8 clause15.5 (indemnity); and
17.1.9 clause 15.15 (jurisdiction).
17.2 Should any defect occur in the Equipment and/or Products, other than one for which you were responsible, we will at our option either, replace or repair the Equipment and/or Products (at no charge to you) as soon as is reasonably practicable. We shall not replace, repair or service any Equipment and/or Products until any outstanding Charges have been paid in full and cleared funds.
17.3 If we fail to comply with the Contract we are responsible for loss or damage you suffer that is a foreseeable result of our breach of the Contract or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into the Contract. If we are installing the Products and/or Equipment and/or providing Services in your property, we will make good any damage to your property caused by us in the course of installation or performance. However, we are not responsible for the cost of repairing any pre-existing faults or damage to your property that we discover in the course of installation and/or performance by us. We only sell Products, hire Equipment and/or supply Services for domestic and private use. You agree not to use the Products, Equipment and/or Services for any commercial, business or re-sale purpose, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
17.4 These Conditions do not affect any of your statutory rights where you are a person dealing as consumer. Any clause which would otherwise exclude or restrict your rights as a consumer will, to that extent, have no force or effect.
17.5 As a consumer you have legal rights in relation to Products that are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Conditions or the Contract will affect these legal rights.
17.6 As a consumer, you have legal rights in relation to Services not carried out with reasonable skill and care, or if the materials we use are faulty or not as described. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office. Nothing in these Conditions or the Contract will affect these legal rights.
18. THE CONSUMER PROTECTION (DISTANCE SELLING) REGULATIONS 2000
PLEASE NOTE THAT THIS CLAUSE ONLY APPLIES WHEN YOU ARE ENTERING THE CONTRACT AS A CONSUMER AND THE DISTANCE REGULATIONS (AS DEFINED BELOW) APPLY
18.1 For the purposes of this clause 18, the “Distance Regulations” means The Consumer Protection (Distance Selling) Regulations 2000.
18.2 This clause only applies when you are entering the Contract as a consumer (as defined in the Distance Regulations), the Contract is a “distance contract” (as defined in the Distance Regulations).and the Distance Regulations otherwise apply to the Contract.
18.3 In respect of the supply of Services only, if the Distance Regulations apply to the Contract, you have a legal right to cancel the Contract at any time within the period starting from the day the Contract comes into existence in accordance with clause 2.1 above and ending on the day that is 7 Business Days after the date on which the Contract comes into existence in accordance with clause 2.1 above. You can cancel the Contract by contacting us using any of the methods and details in clause 19.3 below. However, once the Services have commenced, with your consent, your right to cancel the Contract under the Distance Regulations is lost.
18.4 In respect of the hire of Equipment only, if the Distance Regulations apply to the Contract, you have a legal right to cancel the Contract at any time within the period starting from the day the Contract comes into existence in accordance with clause 2.1 above and ending on the day that is 7 Business Days after the date on which the Contract comes into existence in accordance with clause 2.1 above. You can cancel the Contract by contacting us using any of the methods and details in clause 19.3 below. However, once the Hire Period has commenced, with your consent, your right to cancel the Contract under the Distance Regulations is lost. 18.5 In respect of the sale of Products only, if the Distance Regulations apply, you have a legal right to cancel the Contract at any time within the period starting from the day the Contract comes into existence in accordance with clause 2.1 above and ending on the date that is 7 Business Days from the day after the day you receive the Products from us. You can cancel the Contract by contacting us using any of the methods and details at clause 19.3 below. However, this cancellation right does not apply in the case of:
18.5.1 any made-to-measure or custom-made Products; or
18.5.2 any Products made to your specification or clearly personalised.
18.6 You will receive a full refund of any Charges (or Deposit) you have paid for the Products, Equipment and/or Services (if any) and any applicable delivery or other charges you paid for (if any). We will process the refund due to you as soon as possible and, in any case, within 30 calendar days of the day on which you gave us notice of cancellation. Please note that (so far as the following are applicable):
18.6.1 you must return the Products and/or Equipment to us as soon as reasonably practicable. If the Products and/or Equipment require collection, we will collect the Products from the address to which they were delivered. We will contact you to arrange a suitable time for collection;
18.6.2 unless the Products and/or Equipment are faulty or not as described, you will be responsible for the cost of returning the Products and/or Equipment to us or, where relevant, the cost of us collecting the Products and/or Equipment from you;
18.6.3 you have a legal obligation to keep the Products and/or Equipment in your possession and to take reasonable care of the Products and/or Equipment while they are in your possession.
18.7 Advice about your legal right to cancel the Contract under the Distance Regulations is available from your local Citizens’ Advice Bureau or Trading Standards office. Also, as a consumer, you will always have legal rights in relation to Products, Equipment and/or Services that are faulty or not as described. These legal rights are not affected by this clause 18 and advice about your legal rights is again available from your local Citizens’ Advice Bureau or Trading Standards office.
19. THE PROVISION OF SERVICES REGULATIONS 2009
19.1 For the purposes of this clause 19, the “Regulations” means the Provision of Services Regulations 2009.
19.2 We are Durham Lifting Limited a company limited by shares with company registration number 03208012 and whose registered office is at Britannia Test House, Romaldkirk Road, Middlesbrough, Cleveland, TS2 1HB. Our main trading addresses are at Britannia Test House, Romaldkirk Road, Middlesbrough, Cleveland, TS2 1HB (Teesside Site) and Unit D, Winfield Drive, Aycliffe Industrial Estate, Newton Aycliffe, County Durham, DL5 6AU (Aycliffe Site).
19.3 We can be contacted for information requests or otherwise by any of the following means:
19.3.1 By post to Britannia Test House, Romaldkirk Road, Middlesbrough, Cleveland, TS2 1HB (Teesside Site) and Unit D, Winfield Drive, Aycliffe Industrial Estate, Newton Aycliffe, County Durham, DL5 6AU (Aycliffe Site);
19.3.2 By e-mail to sale@durhamlifting.co.uk; or
19.3.3 By telephone on 01642 240672.
19.4 A copy of our complaints procedure is available on request. Please contact us using the details contained in clause 18.2 for this purpose.
19.5 Our VAT number is 675282215.
19.6 Details of our insurer, insurance cover and its geographical coverage are, so far as you are entitled to this information under the Regulations, available from us on request. Please contact us using the details contained in clause 19.3 for this purpose.
