Terms & Conditions
STANDARD TERMS & CONDITIONS - SUPPLY OF HIRE EQUIPMENT
Version: December 1st 2020
PLEASE NOTE THAT THESE TERMS ARE USED WITH TRADERS AND WITH CONSUMERS AND IN CERTAIN AREAS DIFFERENT PROVISIONS APPLY TO EACH AS FOLLOWS:
- Part A: General Terms applying to Traders and Consumers;
- Part B: Terms applying only to Consumers; and
- Part C: Terms applying only to Traders.
A "Trader" means a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf.
A "Consumer" means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession.
Before placing an order, the Hirer should read these Terms carefully as they contain important information about Independence Mobility/Medical Hire (IM/MH) and the Contract.
WHERE THE HIRER IS A CONSUMER, THE HIRER'S ATTENTION IS DRAWN IN PARTICULAR TO THE SECTIONS CONCERNING IM/MH LIABILITY TO THE HIRER AND CANCELLATION SET OUT IN PART B.
PART A: GENERAL TERMS APPLYING TO TRADERS AND CONSUMERS
1.1 In these Terms:
the following words and expressions shall, unless the context or circumstances require otherwise, have the meanings assigned to them below:
“Additional Charges” means charges applicable to the provision of the Equipment which are charged in addition to the Charges including those additional costs and expenses referred to in these Terms;
“Charges” means the charges set out in the Contract or if no charges are detailed in the Contract, IM/MH standard charges for the relevant Equipment in force on the date the hire begins;
“Commencement Date” means the date on which the relevant Contract is formed in accordance with clause 3.2;
“Contract” means the contract between IM/MH and the Hirer formed in accordance with clause 3.2;
“Equipment” means the items of equipment to be hired by the Hirer as listed in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for the equipment;
“Hire Period” means the period of hire of the Equipment as set out in the Contract, unless the Contract is terminated earlier in accordance with these Terms or extended by agreement between IM/MH and the Hirer;
“Hirer” means the Consumer or Trader set out as such in the Contract; “
“Order” means the individual orders for the hire of Equipment placed by the Hirer from time to time in a branch, over the telephone, email/electronically or via our website in accordance with these Terms;
“Replacement Cost” means the cost of replacing with new any item of Equipment or part of it including but not limited to the cost of the item or part of it, any unpaid Charges that would otherwise have been paid by the Hirer were it not for such replacement, and a reasonable administrative charge to be determined by IM/MH covering the cost to IM/MH of administering the replacement;
“Repair Cost” means the cost of repairing any item of Equipment or part of it including but not limited to the cost of the item or part of it, any unpaid Charges that would otherwise have been paid by the Hirer were it not for such repair, and a reasonable administrative charge to be determined by IM/MH;
“Site” means any premises or location at which the Equipment is to be located during the hire period;
“Terms” means these terms and conditions.
1.2 references to the singular include the plural and vice versa and references to any gender include every gender;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 in the event that there is a conflict between Part A, Part B and Part C, Part A shall prevail and then Part B in the case of a Consumer and Part C in the case of a Trader; and
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions shall be construed without limitation and accordingly shall not limit the meaning of the words preceding them.
2. INFORMATION ABOUT IM/MH AND CONTACTING IM/MH
2.1 Who is IM/MH. The name, company registration number, registered office address and VAT number from which the Equipment will be hired is set out in the Contract.
2.2 How to contact IM/MH. If the Hirer has any questions or if the Hirer has any complaints, the Hirer should contact IM/MH. IM/MH can be contacted by calling 01132 628000, e-mailing email@example.com, or by post at Independence House, 6 Buslingthorpe Green, Leeds, LS7 2HG.
2.3 How IM/MH may contact the Hirer. If IM/MH has to contact the Hirer, IM/MH will do so by telephone or by writing to the Hirer at the email address or postal address the Hirer provides to IM/MH in the order process.
3. FORMATION OF CONTRACT AND ORDERS
3.1 The Hirer’s Order is an offer to hire from IM/MH. Each Order placed by the Hirer will be an offer by the Hirer to hire the Equipment on these Terms. The Hirer will ensure that each Order is accurate and complete and that the Equipment is suitable for the Hirer’s requirements.
3.2 How we, IM/MH, accept the Order. A Contract will be formed between IM/MH and the Hirer for the provision of the Equipment when the quote has been approved by telephone or email, after which IM/MH will issue a written acceptance (including by email) by way of an invoice to the Hirer.
3.3 IM/MH may not accept your Order. If IM/MH is unable to accept an Order for any reason, IM/MH will inform the Hirer of this and will not charge for the Equipment.
3.4 When will the Contract commence. The Contract shall commence on the Commencement Date and shall continue for the Hire Period unless terminated earlier in accordance with these Terms.
4. THE EQUIPMENT
4.1 IM/MH retains ownership of the Equipment. The Hirer acknowledges that the Equipment remains at all times the property of IM/MH (or its supplier as applicable). The Hirer has no right, title or interest in the Equipment except that it is hired to the Hirer in accordance with the terms of the Contract.
4.2 The Hirer will have quiet possession of the Equipment. IM/MH shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Hirer’s quiet possession of the Equipment during any Hire Period.
4.3 Hirer to notify IM/MH of issues with, or caused by the Equipment. The Hirer shall immediately notify IM/MH of any loss, accident, damage or defect in the Equipment or if the Hirer considers that the Equipment may cause damage to the Hirer’s property.
4.4 IM/MH may access a Site to inspect and repair the Equipment. The Hirer shall grant (or shall procure that IM/MH or its authorised representative is granted) access to the Site at all such reasonable times on IM/MH giving the Hirer reasonable notice to inspect the Equipment and ensure the Hirer’s compliance with its obligations under the Contract; and/or carry out any inspections or repairs of the Equipment.
4.5 Use and storage of the Equipment by Hirer. The Hirer:
4.5.1 shall keep the Equipment in good repair and condition, (fair wear and tear only excepted) but the Hirer shall not repair or allow any third party to repair the Equipment and shall notify IM/MH immediately if any repair is necessary;
4.5.2 shall not sell, licence or create any security interest or type of preferential arrangement on or over the Equipment;
4.5.3 shall use the Equipment in compliance with all laws and applicable regulations including any health and safety legislation which relates to the use of the Equipment and in accordance with any operating and/or safety instructions provided to or supplied to the Hirer by IM/MH;
4.5.4 shall not make any alteration to the Equipment
4.5.5 shall not, without the prior written consent of IM/MH, part with control of the Equipment;
4.5.6 shall not do or permit to be done anything which could invalidate IM/MH’ insurances;
4.5.7 is responsible for the security of the Equipment whilst in the Hirer’s possession; and
4.5.8 will take all appropriate measures to secure the Equipment at the Site, including when not in use.
4.6 Damage to or loss of Equipment. the Hirer shall pay IM/MH:
4.6.1 all costs and expenses in respect of: (i) rectifying any damage to the Equipment (fair wear and tear excepted) which occurred during the period in which the Equipment was at the Hirer’s risk; and (ii) cleaning the Equipment following collection of the Equipment, in each case to return the Equipment to a condition fit for rehire. Such costs and expenses shall be confirmed to the Hirer by IM/MH, subject to supporting documentation; and
4.6.2 the Replacement Cost in respect of lost or stolen Equipment and/or Equipment which is beyond economic repair and the Hirer will continue to pay the Charges, until the Replacement Cost has been received by IM/MH.
4.7 Consequences of expiry or cancellation of the Contract. On expiry or cancellation of the Contract for whatever reason all Equipment at such time in the possession of the Hirer shall immediately become due for return to IM/MH and unless agreed otherwise in writing, the Hirer will return the Equipment to IM/MH.
4.8 IM/MH requires access to recover or substitute the Equipment. The Hirer will grant, and will ensure that the owner of any third party premises will grant to IM/MH, its agents, employees and sub-contractors the right at any time to enter any premises where the Equipment is or may be stored in order to recover or substitute the Equipment. The rights granted in this clause are without prejudice to any rights and remedies of IM/MH.
5. DELIVERY AND COLLECTION
5.1 When IM/MH will provide the Equipment. During the order process IM/MH will confirm to the Hirer which equipment can be provided during the required Hire dates.
5.2 IM/MH is not responsible for delays outside of IM/MH’s control. If IM/MH’ supply of the Equipment is delayed by an event outside IM/MH’ control (including but not limited to any disruption or delay to IM/MH’ business or supply chains arising as a result of the United Kingdom’s exit from the European Union or any form of health epidemic) then IM/MH will contact the Hirer as soon as possible to let the Hirer know and IM/MH will take steps to minimise the effect of the delay. IM/MH will not be liable for delays caused by any event outside IM/MH’ control, but if there is a risk of substantial delay the Hirer may contact IM/MH to end the Contract and receive a refund for any Equipment paid for but not received.
5.3 If the Hirer does not allow IM/MH access to provide the Equipment. If the Hirer does not allow or procure IM/MH access to its property to provide the Equipment as arranged IM/MH may charge the Hirer additional costs incurred by IM/MH as a result. If, despite IM/MH’ reasonable efforts, IM/MH is unable to contact the Hirer or re-arrange access to the Hirer’s property IM/MH may end the contract. It is the Hirer’s responsibility to ensure that the Site has been inspected by the Hirer and that the Site is adequately prepared to allow IM/MH to access it to effect Delivery in a safe manner without causing damage. The Hirer acknowledges that IM/MH may effect deliveries or collections in large, heavy commercial vehicles and will hold IM/MH harmless in the event of any damage caused by lack of Site preparation by the Hirer, to include poor access routes and/or ground conditions. If the Hirer has any concerns around access and safe delivery, this should be raised with IM/MH staff prior to completing an Order and noted on the Order, failing which IM/MH shall have no liability for damage to Site or delayed or failed delivery and the Hirer shall be liable for any related charges, including redelivery charges.
5.4 When the Hirer becomes responsible for the Equipment. Delivery will occur when the Equipment is made available to the Hirer at the delivery or collection address (whether at IM/MH’ premises or a Site). Unless otherwise agreed by the parties in writing, risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on delivery or collection in accordance with this clause and will return to IM/MH once loading of the Equipment onto the collection vehicle is complete if IM/MH have provided collection or on arrival back to the Company premises if haulage has been organized by the Customer.
5.5 What will happen if the Hirer does not give required information to IM/MH. IM/MH may need certain information from the Hirer so that IM/MH can supply the Equipment, for example, delivery details. IM/MH will contact the Hirer to ask for this information. If the Hirer does not give IM/MH this information within a reasonable time of IM/MH asking for it, or if the Hirer gives IM/MH incomplete or incorrect information, IM/MH may either end the Contract or make an additional charge of a reasonable sum to compensate IM/MH for any extra work that is required as a result. IM/MH will not be responsible for supplying the Equipment late or not supplying any part of it if this is caused by the Hirer not giving IM/MH the information IM/MH needs within a reasonable time of IM/MH asking for it.
5.6 If the Hirer does not allow IM/MH access to collect the Equipment. The Hirer shall grant or procure the grant of access to the Site to IM/MH to allow the collection of the Equipment and make the Equipment available for collection by IM/MH on the date and time agreed between the parties. If IM/MH is unable to collect the Equipment as arranged IM/MH may charge the Hirer any additional costs incurred by IM/MH as a result. IM/MH may make an additional charge of a reasonable sum for any “waiting” time as a result of not being granted access to site to allow collection of the Equipment.
5.7 Branch collections and returns. When a Hirer wishes to collect or return Equipment from or to IM/MH place of business, it shall be the Hirer’s responsibility to prepare it’s vehicle so that the collection/return can be carried out without damage being caused to such vehicle or injuries being sustained by the Hirer or by IM/MH staff and the Hirer shall hold IM/MH harmless in the event of contravention of this. Should the Hirer have any doubt as to whether this can be complied with, it should ask IM/MH to arrange a collection/delivery, subject to Charges (as applicable). The Hirer would remain responsible for all equipment until such time that it’s unloaded and in the possession of IM/MH place of business.
6. CHARGES AND PAYMENT
6.1 Where to find the Charges. The Charges (which includes VAT) will be the price indicated on the quote or invoice pages (or otherwise notified to the Hirer) when the Hirer places the Order.
6.2 Variation of the Charges. IM/MH will be entitled to vary the Charges and any Additional Charges at any time by giving written notice to the Hirer to reflect any variation in the cost of supplying the Equipment which arises as a consequence of:
6.2.1 any variation in the Hirer’s requirements for the Equipment;
6.2.2 any information provided by the Hirer being inaccurate or incomplete; or
6.2.3 any failure or delay by the Hirer in providing information.
6.3 A deposit or other payment information may be required. At the time the Equipment is ordered, IM/MH may require the Hirer to pay a deposit and/or require the Hirer to provide details of a valid credit or debit card and allow IM/MH to take a deposit (“Deposit”).
6.4 Status of the Deposit. The Deposit shall be a deposit against default by the Hirer of payment of any Charges or any Additional Charges or any loss of or damage caused to the Equipment.
6.5 IM/MH may off-set the Deposit against amounts owed by the Hirer to IM/MH. If the Hirer fails without due cause to make any payment of the Charges or any Additional Charges or any Replacement Cost or causes any loss or damage to the Equipment (in whole or in part), IM/MH shall be entitled to apply the Deposit in part or in whole against any such costs and by providing the Deposit the Hirer specifically consents to this.
6.6 Return of Deposit. Unless IM/MH is entitled to make a deduction from the Deposit in accordance with clause 6.5, the full amount of the Deposit will be returned to the Hirer at the end of the Hire Period.
6.7 When the Hirer must pay and how. The Hirer must pay the Charges at the time agreed in the Contract. Unless otherwise agreed by the parties in writing or in the Contract, any invoices submitted by IM/MH shall be paid by the Hirer within a period of thirty (30) days from the end of the month in which the relevant invoice is issued. IM/MH may at their discretion request that payment in full be made prior to delivery/collection of the equipment, this would be agreed with the Hirer in advance and detailed on the quote or invoice.
6.8 IM/MH will pass on changes in the rate of VAT. If the rate of VAT changes between the Order date and the date IM/MH supplies the Equipment, IM/MH will adjust the rate of VAT that the Hirer pays, unless the Hirer has already paid for the Equipment in full before the change in the rate of VAT takes effect.
6.9 IM/MH can charge interest if the Hirer pays late. If the Hirer is a Consumer, the provisions of clause B 17 shall apply. If the Hirer is a Trader, the provisions of clause C 22.5 shall apply.
6.10 Other remedies of IM/MH for late payment. Should any portion of an account fall overdue then the total account will become due on demand. The Hirer will be responsible for reasonable legal charges incurred by IM/MH in the recovery of amounts due or the recovery of the Equipment. In addition IM/MH is entitled to suspend further services to the Hirer.
The Hirer shall be responsible for any damage to, or loss of, the Equipment in the following circumstances:
7.1.1 theft of consumable goods;
7.1.2 theft due to the dishonesty, willful default or negligence of the Hirer, its employees, sub-contractors or agents;
7.1.3 theft from a vehicle where the Equipment was left visible and unattended;
7.1.4 loss of Equipment revealed only when an inventory is made or at collection or return;
7.1.5 loss arising from civil disturbance; and/or
7.1.6 loss occurring outside the UK and Ireland.
7.1.7 theft of Equipment must be reported to the Police and a crime reference number obtained; and
7.1.8 the Hirer must notify IM/MH within forty-eight (48) hours of the theft
8.1 Which version of our Terms apply to your order. IM/MH amends these Terms from time to time. Every time a Hirer orders Equipment from us, the terms in force at the time of the Order and available at www.medicalhire.co.uk will apply to the Contract between the Hirer and IM/MH.
8.2 Amending the Terms applicable to your Order. IM/MH may revise these Terms as they apply to an Order from time to time to reflect the following circumstances:
8.2.1 changes in relevant laws and regulatory requirement; and
8.2.2 changes to IM/MH’ processes and procedures.
If IM/MH have to revise these Terms as they apply to an Order, IM/MH will contact the Hirer to give the Hirer reasonable advance notice of the changes and let the Hirer know how to cancel the Contract if the Hirer is not happy with the changes. The Hirer may cancel either in respect of all the affected Equipment or just any Equipment the Hirer has yet to receive. If the Hirer opts to cancel, IM/MH will have to return (at IM/MH’ cost) any relevant Equipment already received and IM/MH will arrange a full refund of the price paid by the Hirer.
9. HOW IM/MH MAY USE A HIRER’S PERSONAL INFORMATION
IM/MH is the data controller of any personal information a Hirer provides to us. IM/MH will collect and process such information in order to process and fulfil an Order.
If the Hirer is providing personal data of another individual to IM/MH, the Hirer must tell that individual that the Hirer is providing their information to IM/MH and show them a copy of this notice.
10.1 Even if IM/MH delays in enforcing a Contract, IM/MH can still enforce it later. If IM/MH fails to insist that the Hirer performs any of its obligations under a Contract or if IM/MH does not enforce its rights against the Hirer, or if IM/MH delays doing so, that will not mean that IM/MH has agreed not to enforce its rights against the Hirer and will not mean that the Hirer does not have to comply with those obligations. If IM/MH does waive a default by the Hirer, IM/MH will only do so in writing, and that will not mean that IM/MH will automatically waive any later default by the Hirer.
10.2 If a court finds part of the Terms illegal, the rest will continue in force. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any term is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
10.3 Nobody else has any rights under a Contract. The parties do not intend that any term of a Contract shall be enforceable by any person other than the parties.
10.4 The Hirer needs the consent of IM/MH to transfer its rights to someone else. The Contract is personal to the Hirer and the Hirer shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of IM/MH.
11. GOVERNING LAW AND JURISDICTION
11.1 Which laws apply. Subject to clause 11.2, these Terms and any and all Contracts and any non-contractual obligations arising out of or in connection with them will be governed by English law.
11.2 Where you may bring legal proceedings. IM/MH and the Hirer both agree that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with these Terms and any and all Contracts (including in relation to any non-contractual obligations), except if the Hirer is a resident of or has its registered office in Scotland, either party may bring proceedings in Scotland in accordance with Scottish law.
PART B: TERMS APPLYING ONLY TO CONSUMERS
12.If IM/MH fails to comply with the Contract, IM/MH is responsible for loss or damage the Hirer suffers that is a foreseeable result of IM/MH breaking the Contract or failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both the Hirer and IM/MH knew it might happen, for example, if you specifically drew it to our attention during the sales process.
12.2 IM/MH does not exclude or limit in any way IM/MH’ liability where it would be unlawful to do so. This includes liability for:
12.2.1 death or personal injury caused by IM/MH’ negligence or the negligence of IM/MH employees, agents or subcontractors;
12.2.2 for fraud or fraudulent misrepresentation;
12.2.3 for breach of the Hirer’s legal rights in relation to the Equipment including the right to receive Equipment; and
12.2.4 for any matter for which is not permitted by law to exclude or limit, or to attempt to exclude or limit, liability
12.3 IM/MH is not liable for business losses. IM/MH only supply the Equipment for domestic and private use. If the Hirer uses the Equipment for any commercial, business or re-sale purpose IM/MH will have no liability to the Hirer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
12.4 AS A CONSUMER, THE HIRER HAS LEGAL RIGHTS AND REMEDIES IN RELATION TO THE PROVISION OF THE EQUIPMENT. ADVICE ABOUT THE HIRER’S LEGAL RIGHTS AND REMEDIES IS AVAILABLE FROM THE CITIZENS' ADVICE BUREAU. NOTHING IN THESE TERMS WILL AFFECT THE HIRER’S LEGAL RIGHTS AND REMEDIES.
13. THE HIRER’S RIGHTS TO END THE CONTRACT
13.1 Ending the Contract because of something IM/MH has done or are going to do. If the Hirer is ending a Contract for a reason set out at clause 14.1.1 to 14.1.5 below the Hirer may end the Contract immediately and IM/MH will refund the Hirer in full for any Equipment which has not been provided. The reasons are:
13.1.1 IM/MH has told the Hirer about an upcoming change to these Terms which the Hirer does not agree to;
13.1.2 IM/MH has told the Hirer about an error in the price or description of the Equipment ordered and the Hirer does not wish to proceed;
13.1.3 there is a risk that supply of the Equipment may be significantly delayed because of events outside of IM/MH’ control;
13.1.4 IM/MH has suspended supply of the Equipment for technical reasons, or notify the Hirer that it is going to suspend it for technical reasons; or
13.1.5 the Hirer has a legal right to end the contract because of something IM/MH has done wrong.
14. HOW TO END THE CONTRACT WITH IM/MH
14.1 Telling IM/MH. To exercise the right to cancel, the Hirer must inform IM/MH by a clear statement (e.g. a letter sent by post or e-mail),
14.2 Returning Equipment after ending the Contract. If the Hirer ends the Contract for any reason after Equipment has been dispatched or delivered to the Hirer, the Hirer must return them to IM/MH or allow IM/MH to collect them or organise collection via a third party.
14.3 Costs of return. IM/MH may pay the costs of return subject to IM/MH being satisfied, acting reasonably, that:
14.3.1 the Equipment is faulty or misdescribed; or
14.3.2 the Hirer is ending the Contract because IM/MH told the Hirer of an upcoming change to the Equipment or these Terms, an error in pricing or description, a delay in delivery due to events outside IM/MH’ control or because the Hirer has a legal right to do so as a result of something IM/MH has done wrong.
In all other circumstances, the Hirer must pay the costs of return.
14.4 What IM/MH charges for collection. If the Hirer is responsible for the costs of return and IM/MH is collecting the Equipment from the Hirer, IM/MH will charge the Hirer the direct cost to IM/MH of collection.
15. IM/MH RIGHTS TO END THE CONTRACT
15.1 IM/MH may end the Contract if the Hirer breaks it. IM/MH may end the Contract at any time by writing to the Hirer if:
15.1.1 the Hirer does not, within a reasonable time of us asking for it, provide IM/MH with information that is necessary for IM/MH to provide the Equipment;
15.1.2 the Hirer does not, within a reasonable time, allow IM/MH to deliver the Equipment to the Hirer or the Hirer does not collect them from IM/MH; or
15.1.3 the Hirer otherwise breaks these Terms.
16. LATE PAYMENT
16.1 If the Hirer does not make any payment to IM/MH by the due date, IM/MH may charge interest to the Hirer on the overdue amount at the rate of 4% per annum above the base lending rate from time to time of Barclays Bank plc. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Hirer must pay IM/MH interest together with any overdue amount.
17. IF THERE IS A PROBLEM WITH THE EQUIPMENT
17.1 How to tell IM/MH about problems. If the Hirer has any questions or complaints about the Equipment, please contact IM/MH by telephone or email.
PART C: TERMS APPLYING ONLY TO TRADERS
FORMATION OF CONTRACTS
No Hirer Terms will apply to any Contracts. Each Contract will be subject to these Terms to the exclusion of all other terms and conditions, including any terms or conditions which the Hirer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
18. THE EQUIPMENT
18.1 Liability for damage to Hirer’s property. IM/MH shall have no liability to the Hirer for damage to the Hirer’s property if the Hirer fails to comply with clause 4.3.
18.2 Consequences of parting with control of the Equipment. If the Hirer without the prior written consent of IM/MH, parts with control of the Equipment, the Hirer shall, immediately upon IM/MH’ request procure the return of the Equipment to the Hirer. If the Equipment is not returned to the Hirer within 5 days of IM/MH request, the Equipment shall be deemed to be lost and the Hirer shall be responsible for the replacement of the Equipment and the Charges and any Additional Charges will continue to apply until settlement is made to the satisfaction of IM/MH.
18.3 Equipment will comply with the Contract. IM/MH shall:
18.3.1 during each Hire Period, ensure that the Equipment shall be of satisfactory quality, comply with any description provided by the Hirer and shall be fit for its intended purpose; and
18.3.2 include any reasonable instructions and guidelines issued by the Hirer at the time of hire;
18.4 What to do if the Equipment fails to comply with the Contract. If, at any time during the Hire Period, the Hirer becomes aware of a breach of a clause the Hirer shall give written notice of the breach to IM/MH as soon as reasonably possible once the Hirer has become aware of the breach.
18.5 Remedies if the Equipment fails to comply with the Contract IM/MH will:
18.5.1 repair the Equipment;
18.5.2 replace the Equipment with equipment of an equivalent or similar specification; or
18.5.3 reduce the Charges of the relevant Equipment by a sum which is fair in the circumstance.
18.6 Circumstances where IM/MH will not be liable. IM/MH shall not be responsible to the Hirer for any breach and shall not be required to repair or replace the Equipment if:
18.6.1 the breach arose directly as a result of any act or omission of the Hirer; and/or
18.6.2 the breach was caused by or contributed to as a result of the misuse, neglect, alteration, mishandling or unauthorised manipulation of the Equipment.
In such circumstances, and without prejudice to its other rights IM/MH shall be entitled to charge the Hirer for attending Site to repair or replace Equipment.
19.1 The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Site where the Equipment is to be delivered. Acceptance of delivery of the Equipment by such representative shall constitute conclusive evidence that the Hirer has accepted such delivery.
19.2 Time of delivery of the Equipment and/or performance of the Contract will not be of the essence.
19.3 If the Equipment is unavailable for inspection or collection within 5 days of the scheduled date for inspection or collection as agreed between IM/MH and the Hirer, the Equipment shall be deemed to be lost and the Hirer shall be responsible for the replacement of the Equipment and the Charges and any Additional Charges will continue to apply until settlement is made to the satisfaction of IM/MH.
19.4 If IM/MH delivers a quantity of the Equipment less than the quantity specified in the Order, the Hirer shall agree the shortages with IM/MH and note the same on the delivery document. The Hirer may elect to:
19.4.1 refuse to take delivery of or reject the Equipment and the Hirer shall have liability for the cost of delivery only; or
19.4.2 take delivery of and keep the lesser quantity of Equipment or any part thereof and pay for them at the rate specified in the Order subject to a pro-rata reduction in the relevant Charges.
19.5 If IM/MH delivers a quantity of Equipment greater than the quantity specified in the Order, the Hirer may elect to:
19.5.1 accept and pay for all the Equipment delivered at the Charges; or
19.5.2 accept and pay for the quantity specified in the Order and reject the excess.
20. CHARGES AND PAYMENT
20.1 Withholding tax. If the Hirer is required in accordance with the relevant tax laws to make any withholding in respect of taxes from payments made or due to IM/MH, it shall provide IM/MH with a certificate evidencing that withholding has been made and properly accounted for to the relevant tax authorities and shall provide IM/MH with such assistance as may reasonably be required to enable IM/MH to reclaim such taxes.
20.2 Hirer’s with Credit Accounts. If IM/MH has granted a credit account to the Hirer:
20.2.1 then payment of any Charges or any other sums due under the Contract, including VAT, shall be made in full cleared funds by the end of the month following the date of the invoice; and
20.2.2 IM/MH may set a reasonable credit limit.
20.3 IM/MH may terminate if the credit limit is exceeded. IM/MH reserves the right to terminate or suspend the Contract if allowing it to continue would result in the Hirer exceeding its credit limit or the Hirer has already exceeded its credit limit.
20.4 Invoice queries. The Hirer should notify IM/MH in writing of any queries concerning invoices within 14 days of the invoice date. HSS will not grant an extension to credit account payment terms for unresolved invoice queries that have been notified after such date.
20.5 Late payment. If the Hirer does not make any payment to IM/MH in full by the due date, without prejudice to any other rights of IM/MH, IM/MH 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 and/or to suspend further Services to you or any of your associated companies.
21. IM/MH LIABILITY
21.1 Non-excludable liability. Neither party excludes or limits its liability, if any, to the other party for:
21.1.1 death or personal injury resulting from its negligence or by the negligence of a person for whom it is vicariously liable;
21.1.2 any breach of its obligations implied by section 2 of the Supply of Goods and Services Act 1982;
21.1.3 for its fraud or fraudulent misrepresentation or the fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; or
21.1.4 any matter which it would be illegal for it to exclude or to attempt to exclude its liability.
21.2 Tangible property liability. IM/MH’ maximum aggregate liability to the Hirer for loss of or damage to tangible property caused by its negligence or act or omission shall be limited to five million pounds (£5,000,000).
21.3 Excluded types of liability. Neither party shall have any liability to the other party for any:
21.3.1 loss of profit (direct or indirect);
21.3.2 loss of revenue, loss of production or loss of business (in each case whether direct or indirect);
21.3.3 loss of goodwill, loss of reputation, loss of opportunity and/or loss of operation (in each case whether direct or indirect);
21.3.4 loss of anticipated saving or loss of margin (in each case whether direct or indirect);
21.3.5 liability of the other party to third parties (whether direct or indirect); or
21.3.6 indirect, consequential or special loss,
arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of that party’s obligations under the Contract and/or any defect in or breakdown of the Equipment or the Equipment’s unsuitability for the Hirer’s intended purpose.
21.4 The Effect of clause 21.3 on the Hirer’s liability. Clause 21.3 shall not limit or exclude IM/MH’ ability to claim against the Hirer in respect of:
21.4.1 any loss of or damage to Equipment;
21.4.2 the ability to recover the Charges applicable for any remaining Hire Period on early termination of any Contract as set out in these Terms; and/or
21.4.3 costs and expenses in respect of recovery of the Equipment as set out in these Terms.
21.5 IM/MH entire liability. The Contract sets out the full extent of IM/MH’ obligations and liabilities in respect of the Equipment including the hire of Equipment to the Hirer. 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 Hirer except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
22.1 Grounds for mutual termination. Either party may, immediately on giving written notice to the other party, terminate the Contract and/or the relevant Contract without payment of compensation if the other party:
22.1.1 commits a material breach of the Contract which is incapable of remedy;
22.1.2 commits a material breach of the Contract which can be remedied but fails to remedy that breach within seven (7) days of a written notice setting out the breach and requiring it to be remedied being given by the other party; and/or
22.1.3 becomes Insolvent and each party shall notify the other party immediately upon becoming Insolvent.
22.2 Termination on Notice. Either party may terminate the Contract on giving the other party not less than five (5) days’ notice in writing.
22.3 IM/MH rights to terminate. IM/MH may terminate the Contract immediately on giving written notice to the other party if:
22.3.1 the Equipment is lost, stolen, seized, confiscated or in IM/MH’ reasonable opinion or the opinion of its insurer(s), damaged beyond repair;
22.3.2 the Hirer fails to pay any of IM/MH’ invoices within thirty (30) days from the due date for payment; or
22.3.3 the Hirer (or its associated persons, agents or subcontractors) is shown not to be running its business in accordance with applicable law and regulations and with high levels of governance and ethical standards or cannot evidence such standards by way of appropriate policies and controls (or otherwise) to IM/MH reasonable satisfaction, including but not limited to compliance with the Bribery Act 2010, the Modern Slavery Act 2015, the Criminal Finances Act 2017 (anti-facilitation of tax evasion) and the General Data Protection Regulation.
22.4 Accrued rights and remedies will not be prejudiced by termination or expiry. The termination of the Contract (or any part of it) shall be without prejudice to the rights and remedies of either party which may have accrued up to the date on which the Contract expires or is cancelled for whatever reason.
22.5 Consequences of termination or expiry. Upon the termination or expiry of the Contract, howsoever caused, without prejudice to any other rights or remedies of IM/MH:
22.5.1 IM/MH shall be entitled to invoice all Charges and Additional Charges incurred which have not yet been invoiced;
22.5.2 the Hirer shall pay on demand all Charges and Additional Charges which are due but are unpaid at the date of demand, together with any interest accrued; and
22.5.3 the Hirer shall pay on demand all costs and expenses incurred by IM/MH in recovering the Equipment and/or in collecting any sum due under the Contract (including any storage, transport, insurance, repair, legal and remarketing costs).
22.6 Hirer’s rights to Equipment ends when the Contract ends. Without prejudice to the remainder of these Terms, on the termination or expiry of any Contract IM/MH consent to the Hirer’s possession of the Equipment shall terminate and IM/MH may take possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located.
22.7 Definition of Insolvent. “Insolvent” means where a person ceases to trade, is unable to pay its debts as they fall due or where a person becomes, or is likely to become, insolvent or bankrupt including where a person has a receiver, administrative receiver, administrator or provisional liquidator appointed; is subject to a notice of intention to appoint an administrator; passes a resolution for its winding-up has a winding up order made by a court in respect of it; enters into any composition or arrangement with creditors (save in respect of a solvent restructuring) or has any steps or actions taken in connection with any of these procedures in any jurisdiction.
23. INTELLECTUAL PROPERTY RIGHTS
No right of licence is granted to the Hirer in respect of any intellectual and industrial property rights whether registered or unregistered (including know how and rights to prevent passing off) in the United Kingdom and all other
countries in the world and together with all applications, renewals and extensions of the same of IM/MH, except the right to use the Equipment in the Hirer’s ordinary course of business for the purpose for which they were supplied.
24.1 Use of Confidential Information. Each party will keep secret and confidential all confidential information concerning the business, affairs, customers, clients or suppliers of the other party which is disclosed or obtained in connection with the Contract and/or any Contract and shall not use nor disclose the same save for the purposes of the Contract or with the prior written consent of the relevant party. Where disclosure is made to any employee, consultant, sub-contractor or agent, who needs to know the confidential information for the purposes of the Contract and/or any Contract it shall be done subject to the obligations set out in the Contract and each party shall procure that any such employee, consultant, sub-contractor or agent complies with such obligations.
24.2 Exceptions to obligations of confidentiality. The obligations of confidentiality in this clause shall not extend to any matter which:
24.2.1 is in or enters the public domain other than as a result of a breach of the obligations of confidentiality under the Contract; or
24.2.2 is independently disclosed by a third party entitled to disclose the same; or
24.2.3 is required to be disclosed under any applicable law, or by order of a court, governmental body or authority of competent jurisdiction.
25.1 Method and Address for notices. Any notices sent under the Contract must be in writing, sent by pre-paid first class post or recorded delivery to the parties at their registered addresses.
26.1 Entire Agreement. The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
26.1.1 neither party has entered into the Contract in reliance upon, and it shall have no remedy in respect of, any representation or statement which is not expressly set out in the Contract; and
26.2 No Partnership. Nothing in the Contract and no action taken by the parties in connection with it or them shall create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
26.3 Independent Contractor. Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.