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Holemaker Technology Ltd  Terms and Conditions

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  • 1. Interpretation
  • 1.1 Definitions:
  • Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
  • Company: Holemaker Technology Ltd (registered in England and Wales with company number 09365077).
  • Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 19.4.
  • Contract: the contract between the Company and the Customer for the sale and purchase of the Goods and/or the hire of the Equipment (as the case may be) in accordance with these Conditions, the Order and any other documents agreed between the Company and the Customer.
  • Customer: the person or firm who purchases the Goods and/or hires the Equipment from the Company.
  • Delivery: the transfer of physical possession of the Goods and/or Equipment (as the case may be) to the Customer at the Site.
  • Delivery Date: the date the Customer takes delivery of the Equipment from the Company.
  • Deposit: the deposit amount (if any) set out in the Order.
  • Equipment: the items of equipment detailed in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
  • Force Majeure Event: an event or circumstance beyond a party's reasonable control.
  • Goods: the goods (or any part of them) set out in the Order.
  • Hire Payments: the payments made by or on behalf of Customer for hire of the Equipment.
  • Hire Period: the period of hire as set out in clause 10 (Equipment Hire Period).
  • Order: the Customer's written order for the purchase of the Goods and/or hire of the Equipment (as the case may be).
  • Payment Terms: the payment terms set out in the Order or as otherwise agreed between the Company and the Customer in writing.
  • Site: the delivery location set out in the Order confirmation, invoice or as otherwise agreed between the parties in writing.
  • Total Loss: the Equipment is, in the Company’s reasonable opinion, damaged beyond repair, lost stolen, seized or confiscated.
  • 1.2 Interpretation:
  • 1.2.1 A reference to a statute or statutory provision is a reference to such statute or 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.
  • 1.2.2 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.
  • 1.2.3 A reference to writing or written includes faxes and emails.
  • 1.2.4 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
  • 2. Basis of contract
  • 2.1 These Conditions apply to the Contract 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.
  • 2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or hire the Equipment (as the case may be) in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
  • 2.3 The Order shall only be deemed to be accepted on the earlier of the Company issuing a written acceptance of the Order or the Company commencing the supply of the Goods and/or the Equipment (as the case may be), at which point the Contract shall come into existence.
  • 2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
  • 2.5 Any quotation for the Goods and/or hire of the Equipment given by the Company shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) Business Days from its date of issue.
  • 2.6 If the Customer is a consumer, nothing in these Conditions shall affect the Customer’s legal rights.
  • 3. Goods and Equipment
  • 3.1 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company's catalogues, brochures or website are produced for the sole purpose of giving an approximate idea of the Goods and/or Equipment (where applicable) referred to in them. They shall not form part of the Contract nor have any contractual force.
  • 3.2 The Company reserves the right to amend the specification of the Goods and/or the Equipment if required by any applicable statutory or regulatory requirements, or if required to improve the performance and/or suitability of the Goods and/or Equipment.
  • 3.3 The Customer must satisfy itself that the Goods and/or Equipment are fit for the Customer’s purpose and the Company gives no warranty as to the fitness of the Goods and/or the Equipment for any particular purpose.
  • 3.4 The Customer shall comply with all applicable laws, statutes, regulations and industry codes from time to time in force in connection with the Goods and/or the Equipment (as the case may be) including but not limited to the installation and use of such Goods and/or Equipment.
  • 4. Delivery of Goods
  • 4.1 The Company shall ensure that:
  • 4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
  • 4.1.2 if the Company requires the Customer to return any packaging materials to the Company, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Company shall reasonably request. Returns of packaging materials shall be at the Company's expense.
  • 4.2 The Company shall deliver the Goods to the Site or such other location as the parties may agree at any time after the Company notifies the Customer that the Goods are ready.
  • 4.3 Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
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  • 4.4 If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  • 4.5 If the Customer fails to accept delivery of the Goods within three (3) Business Days of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company's failure to comply with its obligations under the Contract:
  • 4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Company notified the Customer that the Goods were ready; and
  • 4.5.2 the Company shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
  • 4.6 If ten (10) Business Days after the day on which the Company notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
  • 4.7 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  • 5. Quality of Goods
  • 5.1 The Company warrants that on Delivery, and for a period of twelve (12) months from the date of Delivery (“warranty period”), the Goods shall:
  • 5.1.1 conform in all material respects with their description;
  • 5.1.2 be free from material defects in design, material and workmanship; and
  • 5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
  • 5.2 Subject to clause 5.3, if:
  • 5.2.1 the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
  • 5.2.2 the Company is given a reasonable opportunity of examining such Goods; and
  • 5.2.3 the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Customer's cost,
  • the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
  • 5.3 The Company shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
  • 5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
  • 5.3.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
  • 5.3.3 the defect arises as a result of the Company following any drawing, design or specification supplied by the Customer;
  • 5.3.4 the Customer alters or repairs such Goods without the written consent of the Company;
  • 5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  • 5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • 5.4 Except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
  • 5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
  • 5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Company.
  • 6. Title and risk in Goods
  • 6.1 The risk in the Goods shall pass to the Customer on completion of Delivery.
  • 6.2 Title to the Goods shall not pass to the Customer until the earlier of:
  • 6.2.1 the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Company has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
  • 6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
  • 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
  • 6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;
  • 6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  • 6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from Delivery;
  • 6.3.4 notify the Company immediately if it becomes subject to any of the events listed in clause 15.1; and
  • 6.3.5 give the Company such information relating to the Goods as the Company may require from time to time.
  • 6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
  • 6.4.1 it does so as principal and not as the Company’s agent; and
  • 6.4.2 title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
  • 6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1, then, without limiting any other right or remedy the Company may have:
  • 6.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
  • 6.5.2 the Company may at any time:
  • (a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
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  • (b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
  • 7. Return of Goods
  • 7.1 The Company may in its discretion accept or reject the cancellation of any Order before it has been dispatched by the Company but for the avoidance of doubt, the Company shall not accept any cancellation where the Goods and/or Equipment have been personalised to the Customer’s specifications or requirements.
  • 7.2 In the event that the Company does accept the cancellation of an Order, the Company will refund any sums paid by the Customer for Goods and/or Equipment not provided but the Company reserves the right to deduct from that refund (or, if the Customer has not made an advance payment, charge the Customer) reasonable compensation for the net costs the Company will incur as a result of the Customer ending the Contract.
  • 8. Price and payment
  • 8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company's published price list in force as at the date of Delivery.
  • 8.2 Where the Customer is hiring Equipment from the Company, the Customer shall pay the Hire Payments to the Company in accordance with the Payment Terms.
  • 8.3 All payments due under the Contract shall be paid in pounds sterling and shall be made to the bank account nominated in writing by the Company. The Company, at its sole discretion, may agree to invoice Goods and/or Equipment and accept payment in foreign currencies.
  • 8.4 The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods and/or the Equipment to reflect any increase in the cost of the Goods and/or the Equipment that is due to:
  • 8.4.1 any factor beyond the Company's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  • 8.4.2 any request by the Customer to change the delivery date(s), quantities or types of Goods or Equipment ordered, or the specification; or
  • 8.4.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
  • 8.5 The price of the Goods and/or the Equipment (as the case may be):
  • 8.5.1 excludes amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
  • 8.5.2 excludes the costs and charges of packaging, insurance and transport of the Goods and/or the Equipment (where applicable), which shall be invoiced to the Customer.
  • 8.6 The Company may invoice the Customer for the Goods on or at any time after the Goods are dispatched.
  • 8.7 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Time for payment is of the essence.
  • 8.8 If the Customer fails to make any payment due to the Company under the Contract by the due date for payment then without limiting the Company’s remedies under clause 15, the Customer shall pay interest on the overdue amount at the rate of four percent (4%) per annum above TSB Bank plc's base rate from time to time but at four percent (4%) a year for any period when the base rate is below zero percent (0%). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
  • 8.9 Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or Equipment under the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
  • 8.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
  • 8.11 The Deposit is a deposit against default by the Customer of payment of any Hire Payments or any loss of or damage caused to the Equipment. If the Customer fails without due cause to make any Hire Payments in accordance with the Payment Terms, or causes any loss or damage to the Equipment (in whole or in part), the Company shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to the Company 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 five (5) Business Days of the end of the Hire Period.
  • 8.12 In the event that an overdue account is referred to a collection agency, the Customer will be liable for all costs associated with the collection of such overdue account.
  • 9. Equipment hire
  • 9.1 Clauses 9 to 14 only apply where the Customer hires Equipment from the Company.
  • 9.2 The Customer shall hire the Equipment from the Company subject to the terms and conditions of the Contract.
  • 9.3 The Company shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Customer's quiet possession of the Equipment.
  • 9.4 Hire charges are for a seven (7) day week, including public holidays and weekends, unless otherwise agreed in writing. Part week hire will be charged at full week rates.
  • 10. Equipment Hire Period
  • The Hire Period starts on the Delivery Date and shall continue for such period as is stated in the Order or as otherwise agreed between the Company and the Customer in writing unless the Contract is terminated earlier in accordance with its terms.
  • 11. Delivery of Equipment
  • 11.1 Delivery of the Equipment shall be made by the Company. The Company shall use all reasonable endeavours to effect delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 12 (Title, risk and insurance of Equipment) of these Conditions.
  • 11.2 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative 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. If required by the Company, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.
  • 11.3 To facilitate Delivery, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
  • 11.4 If the Customer fails to procure that a duly authorised representative of the Customer be present at the Delivery on the Delivery Date, or the Customer otherwise fails or refuses to accept delivery of the Equipment or the Company is unable to deliver the Equipment as a result of the Customer providing inadequate delivery instructions, then except where such failure is caused by a Force Majeure Event or any failure by the Company:
  • 11.4.1 delivery of the Equipment shall be deemed to have been completed on the second Business Day after the day on which the parties had agreed that the Delivery would take place; and
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  • 11.4.2 the Company shall store the Equipment until Delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
  • 12. Title, risk and insurance of Equipment
  • 12.1 The Equipment shall at all times remain the property of the Company, 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 the Contract.
  • 12.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Hire 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 the Company. During the Hire Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
  • 12.2.1 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 the Company may from time to time nominate in writing;
  • 12.2.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Company 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
  • 12.2.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Company may from time to time consider reasonably necessary and advise to the Customer.
  • 12.3 All insurance policies procured by the Customer shall be endorsed to provide the Company with at least twenty (20) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Company's request name the Company 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.
  • 12.4 The Customer shall give immediate written notice to the Company 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.
  • 12.5 If the Customer fails to effect or maintain any of the insurances required under these Conditions, the Company 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.
  • 12.6 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Company and proof of premium payment to the Company to confirm the insurance arrangements.
  • 13. Customer's responsibilities in relation to Equipment
  • 13.1 The Customer shall during the term of the Contract:
  • 13.1.1 ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Company;
  • 13.1.2 take such steps (including compliance with all safety and usage instructions provided by the Company) 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;
  • 13.1.3 maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
  • 13.1.4 make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Company;
  • 13.1.5 keep the Company fully informed of all material matters relating to the Equipment;
  • 13.1.6 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 Company's prior written consent;
  • 13.1.7 permit the Company or its duly authorised representative to inspect 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;
  • 13.1.8 maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Company, together with such additional information as the Company may reasonably require;
  • 13.1.9 where the Equipment requires fuel, oil and/or electricity, ensure that the proper type of fuel, oil and/or electricity is used;
  • 13.1.10 not, without the prior written consent of the Company, 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;
  • 13.1.11 not without the prior written consent of the Company, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the 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 Company against all losses, costs or expenses incurred as a result of such affixation or removal;
  • 13.1.12 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company 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 Company 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 favour of the Company of any rights such person may have or acquire in the Equipment and a right for the Company to enter onto such land or building to remove the Equipment;
  • 13.1.13 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 Company and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Company on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
  • 13.1.14 not use the Equipment for any unlawful purpose;
  • 13.1.15 ensure that at all times the Equipment remains identifiable as being the Company's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
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  • 13.1.16 deliver up the Equipment at the end of the Hire Period or on earlier termination of the Contract at such address as the Company requires, or if necessary allow the Company or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
  • 13.1.17 not do or permit to be done anything which could invalidate the insurances referred to in clause 12 (Title, risk and insurance of Equipment).
  • 13.2 The Customer acknowledges that the Company 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 Company 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 the Contract.
  • 14. Equipment Warranty
  • 14.1 The Company warrants that the Equipment shall substantially conform to its specification (as made available by the Company), be of satisfactory quality and fit for any purpose held out by the Company. The Company shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within twelve (12) months from Delivery, provided that:
  • 14.1.1 the Customer notifies the Company of any defect in writing within ten (10) Business Days of the defect occurring or of becoming aware of the defect;
  • 14.1.2 the Company is permitted to make a full examination of the alleged defect;
  • 14.1.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Company's authorised personnel;
  • 14.1.4 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
  • 14.1.5 the defect is directly attributable to defective material, workmanship or design.
  • 14.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Company, the Customer shall be entitled only to such warranty or other benefit as the Company has received from the manufacturer.
  • 14.3 If the Company fails to remedy any material defect in the Equipment in accordance with clause 14.1, the Company shall, at the Customer's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Hire Payments payable during the remaining term of the Contract and, if relevant, return any Deposit (or any part of it).
  • 15. Termination
  • 15.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
  • 15.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
  • 15.1.2 the Customer repeatedly breaches any of the terms of the 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 the Contract;
  • 15.1.3 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;
  • 15.1.4 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;
  • 15.1.5 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);
  • 15.1.6 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);
  • 15.1.7 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;
  • 15.1.8 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;
  • 15.1.9 the Customer (being an individual) is the subject of a bankruptcy petition or order;
  • 15.1.10 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 fourteen (14) days;
  • 15.1.11 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 15.1.3 to clause 15.1.10 (inclusive);
  • 15.1.12 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
  • 15.1.13 the Customer's financial position deteriorates to such an extent that in the Company's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
  • 15.1.14 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.
  • 15.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or the Equipment (as the case may be) under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 15.1.3 to clause 15.1.10, or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
  • 15.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
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  • 15.4 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
  • 16. Consequences of termination
  • 16.1 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest.
  • 16.2 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
  • 16.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
  • 16.4 Where the Customer hires Equipment, upon termination of the Contract, however caused:
  • 16.4.1 the Company's consent to the Customer's possession of the Equipment shall terminate and the Company 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
  • 16.4.2 without prejudice to any other rights or remedies of the Customer, the Customer shall pay to the Company on demand:
  • (a) all Hire Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 8.8;
  • (b) any costs and expenses incurred by the Company in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
  • 16.5 Upon termination of the Contract pursuant to clause 15.1, any other repudiation of the Contract by the Customer which is accepted by the Company or pursuant to clause 15.4, without prejudice to any other rights or remedies of the Company, the Customer shall pay to the Company on demand a sum equal to the whole of the Hire 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 Hire Period, less a discount for accelerated payment at the percentage rate set out in the Payment Terms.
  • 16.6 The sums payable pursuant to clause 16.5 shall be agreed compensation for the Company's loss and shall be payable in addition to the sums payable pursuant to clause 16.4.2. Such sums may be partly or wholly recovered from any Deposit.
  • 16.7 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
  • 17. Limitation of liability
  • 17.1 Nothing in these Conditions shall limit or exclude the Company's liability for:
  • 17.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  • 17.1.2 fraud or fraudulent misrepresentation;
  • 17.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
  • 17.1.4 defective products under the Consumer Protection Act 1987; or
  • 17.1.5 any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
  • 17.2 Subject to clause 17.1:
  • 17.2.1 the Company shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  • 17.2.2 the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods or the Hire Payments (as the case may be) paid in the previous six (6) month period during which the breach occurred.
  • 17.3 These Conditions set forth the full extent of the Company's obligations and liabilities in respect of the Goods and/or 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 Company except as specifically stated in the Contract. Any condition, warranty or other term concerning the Goods and/or Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
  • 18. Force majeure
  • Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for eight (8) weeks, the party not affected may terminate this Contract by giving fourteen (14) days written notice to the affected party.
  • 19. General
  • 19.1 Assignment and other dealings.
  • 19.1.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
  • 19.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
  • 19.2 Confidentiality.
  • 19.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 19.2.2.
  • 19.2.2 Each party may disclose the other party's confidential information:
  • (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the 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 19.2; and
  • (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • 19.2.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
  • 19.3 Entire agreement.
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  • 19.3.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • 19.3.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
  • 19.4 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  • 19.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the 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.
  • 19.6 Severance. 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.
  • 19.7 Further assurance. Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the Contract.
  • 19.8 Rights and remedies. Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
  • 19.8 Notices.
  • 19.8.1 Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
  • 19.8.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.8.1; 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
  • 19.8.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
  • 19.9 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
  • 19.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
  • 19.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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