Terms and Conditions
In these terms and conditions the following definitions and rules of interpretation apply:
“agreement” means the agreement between JJ and the Client contained in these terms and conditions and the Order Form;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Client” means the client whose details are set out in the Order Form;
“Commencement Date” means the date that the Client takes Delivery of the Equipment;
“Delivery” means the transfer of physical possession of the Equipment to the Client;
“Deposit” means the deposit set out in the Order Form;
“Equipment” means the items of equipment listed in the Order Form and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it;
“JJ” has the meaning given in the Order Form;
“Payment Schedule” means the payment schedule set out in the Order Form;
“Order Form” means the order form attached to these terms and conditions;
“Rental Payments” means the payments made by or on behalf of the Client for hire of the Equipment, detailed in the Order Form;
“Rental Period” means the period of hire as set out in clause 3;
“Risk Period” has the meaning given in clause 6.2;
“Total Loss” means the Equipment is, in JJ’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated; and
“VAT” means value added tax chargeable under the Value Added Tax Act 1994.
Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and vice versa and a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
A reference to writing or written includes e-mail.
Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Equipment Hire 2.1
JJ shall hire the Equipment to the Client, subject to the terms and conditions of this agreement.
JJ shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Client’s quiet possession of the Equipment.
3. Rental Period
The Rental Period starts on the Commencement Date and shall continue until the date and time of return set out in the Order Form, or such later date and time as may be agreed in writing, unless this agreement is terminated earlier in accordance with its terms.
4. Rental Payments and Deposit 4.1
The Client shall pay the Rental Payments to JJ in accordance with the Payment Schedule. The Rental Payments shall be paid in Sterling and shall be made by BACS, wire transfer, credit card or cash payment.
The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Client at the rate and in the manner from time to time prescribed by law.
All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding.
If the Client fails to return the Equipment on the date of return on or before 10 am (unless otherwise agreed with JJ and stated on the Order Form), the Client shall pay an extra day’s Rental Payment for each additional day that the Client retains the Equipment until it is returned to JJ.
If the Client fails to make a payment due to JJ under this agreement by the due date, then, without limiting JJ’s remedies under clause 9, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
Interest under clause 4.5 will accrue each day at the rate from time to time determined by the Late Payment of Commercial Debts (Interest) Act 1998.
The Deposit is a deposit against default by the Client of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Client shall, on the date of this agreement, pay the Deposit to JJ. If the Client fails to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), JJ shall be entitled to apply the Deposit against such default, loss or damage. The Client shall pay to JJ any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refunded by JJ to the Client within five (5) Business Days of the end of the Rental Period, provided the Equipment is returned by the Client in a condition satisfactory to JJ.
5. Delivery 5.1
Delivery of the Equipment shall take place when the Client collects the Equipment from JJ’s premises or when JJ delivers the Equipment to a site nominated by the Client, as agreed between the parties and as set out in the Order Form. Title and risk shall transfer in accordance with clause 6 of this agreement.3
Collection of the Equipment by a representative of the Client (in the event that the Client collects the Equipment) or acceptance of delivery of the Equipment (in the event that JJ delivers the Equipment) shall constitute conclusive evidence that the Client 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 JJ, the Client’s representative shall sign a receipt confirming such acceptance.
6. Title, Risk and Insurance 6.1
The Equipment shall at all times remain the property of JJ, and the Client shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).
The risk of loss, theft, damage or destruction of the Equipment shall pass to the Client on Delivery. The Equipment shall remain at the sole risk of the Client during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Client ( the “Risk Period”) until such time as the Equipment is returned to JJ. During the Rental Period and the Risk Period, the Client shall, at its own expense, obtain and maintain 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 JJ may from time to time nominate in writing.
A damage and loss waiver insurance facility is available from JJ at a fee calculated at 15% of the Rental Payments (prior to any discount given) or 20% for areas outside the standard international cover. The facility is comprehensive but carries an excess of £300, which means the Client is liable for the first £300 of any claim. The Client should be aware of the exclusions due to negligence and that broken bulbs and domes are not covered by this facility and are chargeable items.
The Client shall give immediate written notice to JJ in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Client’s possession or use of the Equipment. In the event of a loss or theft of all or any of the Equipment, the Client shall promptly report such crime to the local police and supply JJ with a crime reference number.
If the Client chooses not take out the damage and loss waiver insurance facility available through JJ and fails to separately effect or maintain the insurance required under this agreement, JJ 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 Client.
The Client shall, on demand, supply copies of the relevant insurance policy or other insurance confirmation to JJ, together with proof of premium payment, to enable JJ to confirm the Client’s insurance arrangements.
7. Clients’s Responsibilities 7.1
The Client shall during the term of this agreement:
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 the manufacturers operating procedures;
take such steps 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;4
make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of JJ 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 JJ immediately upon installation;
keep JJ fully informed of all material matters relating to the Equipment;
at all times keep the Equipment in the possession or control of the Client and keep JJ informed of its location;
permit JJ or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
not, without the prior written consent of JJ, 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;
not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of JJ in the Equipment;
not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Client shall notify JJ and the Client shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify JJ on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
not use the Equipment for any unlawful purpose;
ensure that at all times the Equipment remains identifiable as being JJ’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
deliver up the Equipment at the end of the Rental Period or on earlier termination of this agreement at such address as JJ requires, or if necessary allow JJ or its representatives to access any premises where the Equipment is located for the purpose of removing the Equipment; and
not do or permit to be done anything which could invalidate the insurance referred to in clause 6.
The Client acknowledges that JJ 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 Client or its officers, employees, agents or contractors, and the Client undertakes to indemnify JJ 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 Client to comply with the terms of this agreement.
8. Liability 8.1
Without prejudice to clause 8.2, JJ’s maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall be limited to the total Rental Payments received by it under this agreement.
Nothing in this agreement shall exclude or in any way limit:5
either party’s liability for death or personal injury caused by its own negligence;
either party’s liability for fraud or fraudulent misrepresentation; or
any other liability which cannot be excluded by law.
This agreement sets forth the full extent of JJ’s obligations and liabilities in respect of the Equipment and its hiring to the Client. 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 JJ except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
Without prejudice to clause 8.2, and save as set out in this agreement, neither party shall be liable under this agreement for any loss of profit, loss of revenue, loss of business or indirect or consequential loss or damage, in each case, however caused, even if foreseeable.
9. Termination 9.1
Without affecting any other right or remedy available to it, JJ may terminate this agreement with immediate effect by giving written notice to the Client if:
the Client fails to pay any amount due under this agreement on the due date for payment;
the Client commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of five days after being notified in writing to do so;
the Client 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the Client commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
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 Client other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
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 Client;
the holder of a qualifying floating charge over the assets of the Client has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
a creditor or encumbrancer of the Client 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 Client’s assets and such attachment or process is not discharged within 14 days;6
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 9; or
the Client suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
10. Consequences of Termination 10.1
Upon termination of this agreement, however caused:
JJ’s consent to the Client’s possession of the Equipment shall terminate and JJ may, by its authorised representatives, without notice and at the Client’s expense, retake possession of the Equipment and for this purpose may enter any premises at which the Equipment is located; and
without prejudice to any other rights or remedies of the Client, the Client shall pay to JJ on demand:
all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.5;
any costs and expenses incurred by JJ in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
Upon termination of this agreement pursuant to clause 9.1, any other repudiation of this agreement by the Client which is accepted by JJ or pursuant to clause 9.2, without prejudice to any other rights or remedies of JJ, the Client shall pay to JJ on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
The sums payable pursuant to clause 10.2 shall be agreed compensation for JJ’s loss of opportunity to re-market the Equipment for hire to another party and shall be payable in addition to the sums payable pursuant to clause 10.1.2. Such sums may be partly or wholly recovered from any Deposit.
Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
11. Confidential Information 11.1
Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. 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 11; and7
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
12 Assignment and Other Dealings 12.1
The Client shall not, without the prior written consent of JJ, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
JJ may, to the extent permitted by law, at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
13 Entire Agreement 13.1
This agreement 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.
Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15 No Partnership or Agency 15.1
Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16 Further Assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18 Third Pary Rights 18.1
Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
19 Notices 19.1
Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement or such other address as may have been notified by that party for such purposes, or sent by email to any email address provided by one party to the other from time to time.8
A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
21 Rights and Remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
23 Governing Law
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.
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 agreement or its subject matter or formation (including non-contractual disputes or claims).