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TERMS AND CONDITIONS

Supply and Maintenance of Mains Fed and Bottled Water Coolers and other Drinks Dispensers

1. INTERPRETATION

1.1 In these Conditions, the following definitions apply:
  1. Agreement: the agreement between you and us for the Services, comprised of the Specification Form and the Conditions.
  2. Bottles: water bottles which are filled with water for consumption by you, but which will remain our property, and which are supplied to you on a rental basis.
  3. Bottle Deposit: the deposit amount set out in the Specification Form in relation to the Bottles.
  4. Bottle Rental and Refilling Fees: our rates from time to time for the supply of Bottles.
  5. Business Day: a day (other than a Saturday, Sunday or bank or public holiday) when banks in London are open for business;
  6. Chargeable Maintenance: any maintenance, repair, adjustment or other work or services (together with the cost of attendance and fitting) required to restore any malfunctioning, damaged or failed Equipment to Good Working Order, where the malfunction, damage or failure results from, or is caused by, any of the Excluded Causes.
  7. Chargeable Maintenance Fees: the fees payable for any Chargeable Maintenance, calculated in accordance with our current rates from time to time.
  8. Charges: together, the Bottle Rental and Refilling Fees, the Chargeable Maintenance Fees and the Rental and Servicing Fees.
  9. Commencement Date: the date set out in the Specification Form or (if earlier) the date that we commence the Rental Services.
  10. Conditions: these terms and conditions (as amended from time to time in accordance with the Agreement).
  11. Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (Representatives) to the other party and that party's Representatives in connection with this Agreement, which is either labelled as such or else which should reasonably be considered as confidential because of its nature and/or the manner of its disclosure.
  12. Deposit: the deposit amount set out in the Specification Form, other than the Bottle Deposit.
  13. Drinks Dispensers: hot or cold drinks dispensers supplied by us to you in accordance with the Agreement, as specified in the Specification Form.
  14. Equipment:as the context requires, any one or more of the Drinks Dispensers, Water Coolers, water bottles and any other equipment, materials and parts provided by the Supplier to the Customer.
  15. Excluded Cause: any one or more of the following: (i) use of the Equipment with equipment or materials not supplied or approved in writing by us; (ii) any maintenance, alteration, modification or adjustment performed by persons other than us or our employees or agents; (iii) you or a third party moving Leased Equipment; (iv) use of any Equipment in breach of any of the provisions of the Agreement; (v) a failure, interruption or surge in the electrical power or its related infrastructure connected to any Equipment; (vi) neglect, misuse (including deliberate damage) or careless treatment of any Equipment.
  16. Good Working Order: the Equipment operates in accordance with the Operating Manuals and is otherwise in good condition.
  17. Initial Rental Period: the initial period identified in the Specification Form or, if no such period is specified, a period of 36 months from the Commencement Date.
  18. Leased Equipment: asthe context requires, the Water Coolers or the Drinks Dispensers, or a combination of them.
  19. Location: the location(s) specified in the Specification Form at which the Rental Services are to be provided.
  20. Normal Business Hours:08:30 to 17:00 on a Business Day.
  21. Operating Manuals: operating manuals, specifications and other documentation relating to the Equipment supplied by either us, or the relevant manufacturer.
  22. Rental and Servicing Fees: the fees payable to the Supplier in consideration of the provision of the Rental Services, Repair Services and Servicing, as specified in the Specification Form.
  23. Rental Services: the supply, installation and hire of Leased Equipment at the Location(s).
  24. Repair Services: means: (i) making any adjustments to the Equipment; and/or (ii) replacing any parts or components of the Equipment, in each case, required to restore the Equipment to Good Working Order during Normal Business Hours and at the Location, in accordance with clause 3.6, provided always that such adjustment or replacement is not Chargeable Maintenance.
  25. Risk Period: has the meaning given to it at clause 9.1.
  26. Services: together, Chargeable Maintenance, Rental Services, Repair Services, and Servicing.
  27. Servicing: the sanitising, service and filter change (where appropriate) of Equipment at such regular intervals as reasonably determined by the Supplier and during Normal Business Hours, but excluding any Chargeable Maintenance or Repair Services.
  28. Specification Form: the specification form to which these Conditions are appended, specifying (amongst other things) the number and type of Equipment, the Location(s), the Bottle Deposit, the Deposit and the Services to be provided.
  29. Term: means the period from the Commencement Date to the date upon which the Agreement terminates or expires.
  30. Total Loss: means that due to your breach of contract, negligence, or other some other fault on your behalf, the Equipment is, in our reasonable opinion, damaged beyond repair, lost, stolen or confiscated.
  31. Us/we:Selsius Limited of Unit 7, Mercia Way, Bells Close Industrial Estate, Newcastle upon Tyne, NE15 6UG (registered in England and Wales with company number 05073658).
  32. Water Coolers: mains fed and/or (as the case may be) bottlefed water coolers supplied by us to you in accordance with the Agreement, as specified in the Specification Form.
  33. You: the customer identified in the Specification Form to whom we have agreed to provide Services.


1.2 In these Conditions, the following rules apply:
  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a party includes its personal representatives, successors or permitted assigns.
  3. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
  4. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
  5. Subject to clause 8.4, a reference to “writing” or “written” includes emails, but excludes faxes.


2. COMMENCEMENT AND DURATION

2.1 In consideration of the Charges, we will provide the Services to you on the terms and conditions of the Agreement.

2.2 Subject to any earlier termination in accordance with its terms, the Agreement will commence on the Commencement Date and continue for the Initial Rental Period and will automatically extend at the end of the Initial Term for a period equal to the Initial Rental Period (Additional Rental Period), and for the same period at the end of each Additional Rental Period thereafter.

2.3 Subject to clause 8.2, either of us may give written notice to the other, not later than ninety (90) days before the end of the Initial Rental Period or (as the case may be) the relevant Additional Rental Period, to terminate the Agreement at the end of the Initial Term or (as the case may be) the relevant Additional Rental Period.

2.4 We will deliver any Equipment ordered by you as part of the Rental Services. We will use our reasonable endeavours to effect delivery by the date and time agreed between us.

3. OUR OBLIGATIONS

3.1 All Equipment is provided to you strictly on a hire basis and for use at the Location(s).

3.2 We will, subject to:
  1. payment of the Rental and Servicing Fees, provide to you: (1) the Rental Services and Servicing; and (2) subject also to clauses 3.6 and 5, provide the Repair Services;
  2. payment of the Bottle Rental and Refilling Fees and to clauses 6.1(i) – 6.1(j), supply any Bottles ordered by you to the Location(s), and remove any empty Bottles;
  3. refundthe Bottle Deposit due to you in relation to any Bottles collected by us in accordance with clause 3.2(b);
  4. the Equipment being returned in good condition and there being no Charges, interest or other payments outstanding to us, refund any outstanding Deposit due to you (if any) within 90 days of the date of termination or expiry of this Agreement.


3.3 The Rental and Servicing Fees do not include the cost of Chargeable Maintenance, which will be recoverable from you as Chargeable Maintenance Fees within the Charges.

3.4 Without prejudice to clause 10.3, we warrant to you that the Services will be carried out using reasonable care and skill.

3.5 We will not, other than in the exercise of our rights under the Agreement, interfere with your quiet possession of the Equipment.

3.6 We will procure that our personnel shall, while on site at the Location, comply with your reasonable health and safety and security policies, provided that these policies have been brought to the attention of our personnel.

4. REPAIR SERVICES

4.1 During the Term, we will provide you with Repair Services for any Leased Equipment at the Location.

4.2 On you informing us that any Leased Equipment is malfunctioning or has failed or is otherwise not in Good Working Order, we will:
  1. use our reasonable endeavours to attend at the Location during Normal Business Hours;
  2. use our reasonable endeavours to perform Repair Services as soon as reasonably practicable.


4.3 If you inform us outside of Normal Business Hours that the Maintained Equipment is malfunctioning, has failed, or is otherwise not in Good Working Order, we will:
  1. use our reasonable endeavours to attend at the Location as soon as reasonably possible during Normal Business Hours on the next Business Day; and
  2. subject to clause 4.4, use our reasonable endeavours to perform Repair Services on the relevant item of Leased Equipment as soon as reasonably practicable.


4.4 In performing the Repair Services, we will use our reasonable endeavours to:
  1. restore any malfunctioning or failed Leased Equipment to Good Working Order while in attendance at the Location. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours, we will either arrange for a further visit to the Location within Normal Business Hours to complete the repair, or remove the relevant Leased Equipment (or part of the Leased Equipment) for repair off-site; and
  2. source spare parts required to restore the Leased Equipment to Good Working Order. Where we are unable to source individual spare parts, or it would be uneconomical for us to source them, we reserve the right to replace the relevant Leased Equipment with alternative equipment of a similar or higher standard and specification.


4.5 All spare parts and/or replacements provided by us to you will become part of the relevant Equipment and will remain our property.

5. CHARGEABLE MAINTENANCE

Where we are performing (or have performed) any Services, and/or it is otherwise established that anyLeased Equipment requires Chargeable Maintenance to restore it to Good Working Order, we may charge, and you will pay, the Chargeable Maintenance Fees in respect of that work as part of the Charges.

6. YOUR OBLIGATIONS

6.1 You will:
  1. co-operate with us in all matters relating to the Agreement;
  2. procure that a duly authorised representative is present at the installation of the Equipment, whose acceptance of the installation will be conclusive proof that you have examined the Equipment and have found it to be in good condition, complete and fit in every way for the purpose for which it is intended and (if required by us), you will procure that your duly authorised representative will sign a receipt, confirming such acceptance;
  3. provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  4. be responsible (at your own cost) for preparing, maintaining and providing access to the Location, so it is suitable for the provision of Services;
  5. inform us of all health and safety rules and regulations and any other reasonable security requirements that apply at the Location;
  6. obtain before the date on which the Rental Services are to commence, and maintain at all times during the Agreement, all necessary licences and consents and comply with all relevant legislation in relation to the Agreement, the installation of the Equipment and your use of the Equipment under the Agreement;
  7. keep and maintain the Equipment in good condition and at the Location(s) and not dispose of or use the Equipment other than in accordance with our written instructions or authorisation;
  8. during the Term and at your 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 we may from time to time reasonably nominate in writing;
  9. use bottled Water Coolers only with our Bottles;
  10. pay all Bottle Rental and Refilling Fees within 14 days of invoice;
  11. notify us within 3 working days of any damage to the Equipment whether arising from deliberate damage, careless treatment, or otherwise;
  12. be responsible for the cleanliness and hygiene of the Equipment, including changing refill water bottles, emptying drip trays, and cleaning splash panels and collars at each bottle change;
  13. pay all invoices for Charges raised by us within 30 days of issue;
  14. allow us access to the Location to collect the Equipment upon termination of the Agreement;
  15. not pledge, or in any way charge by way of security, the Equipment;
  16. without prejudice to clause 14.1, return the equipment to us at the end of the Term at such address as we require or, if necessary, allow us or our representatives access to the Location(s) for the purpose of removing the Equipment.


6.2 If the performance of our obligations under this Agreement is prevented or delayed by any act or omission by you, your agents, subcontractors, consultants or employees, we will not be liable for any costs, charges or losses sustained or incurred by you that arise directly or indirectly from such prevention or delay.

6.3 You acknowledge that we are not be responsible for any loss of or damage to any Equipment due to your negligence, misuse, mishandling of the Equipment or otherwise caused by you or your officers, employees, agents and contractors (including where such negligence, misuse or mishandling is an Excluded Cause), and you undertake to indemnify us on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by you to comply with the terms of this Agreement

7. CHARGES, DEPOSIT AND PAYMENT

7.1 All charges (including as set out in the Specification Form) are exclusive of VAT, which we will add to our invoices at the appropriate rate.

7.2 You will pay the Deposit on or before the Commencement Date.

7.3 The Charges are payable by you in accordance with the Specification Form and this Agreement. You will pay all Charges paid without any withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever, but we may at our discretion offset any amounts which may be due to you in relation to Bottle Deposits against any Charges which would otherwise be due from you.

7.4 The Deposit is paid as a deposit against failure by you to pay any part of the Charges, and/or any loss of, or damage caused to, any Equipment. You will pay the Deposit to us on the Commencement Date. If you fail to make payment of any part of the Charges to us, or cause any loss or damage to any Equipment, we are entitled to apply the Deposit against such failure to pay the Charges and/or loss or damage to the Equipment. You will pay to us any sums deducted from the Deposit within ten (10) Business Days of a demand for them, in order that the amount of the Deposit held by us is restored to the full amount set out in the Specification Form. The Deposit (or any remaining balance of it, if any) shall be refundable within five (5) Business Days of the end of the Term.

7.5 We may vary the Charges with effect from the expiry date of the Initial Rental Period or any Additional Rental Period by not less than 56 days’ prior written notice to you.

7.6 If you fail to pay us any Charges or any other sums payable under this Agreement by the due date for payment then, without limiting our rights under clause 13, you will pay interest on such sums for the period from and including the due date of payment, up to the actual date of payment, whether before or after judgment. You will pay such interest at the rate of four per cent (4%) per annum above the base rate from time to time of Barclays Bank plc.

7.7 If any cheque or other payment from you is returned by a bank as unpaid for any reason, we may charge an administration fee of £30.00.

7.8 If any Leased Equipment is damaged beyond economical repair, lost or stolen, you will notify us in writing within 14 days and pay to our the sum of £450.00 which is acknowledged by the Customer as an agreed amount for the reasonable damages and costs which we will incur in replacing the Leased Equipment.

7.9 If any invoice remains outstanding for more than 30 days, we may withhold Services and the supply of refill water bottles until such payment is made. This does not relieve you of your obligation to pay any outstanding Charges and interest.

8. NOTICES

8.1 A notice or other communication given to a party under this Agreement shall be given in writing and marked for the attention of the Managing Director of the relevant party and may be delivered by hand or sent by pre-paid post or email to:
  1. us, by post to Cambridge House, 91 High Street, Longstanton, Cambridge, CB24 3BS, or by email to info@selsius.co.uk; and
  2. you, at the address and or email identified in the Specification Form, or to such other address as either of us may notify to the other from time to time in accordance with the Agreement.


8.2 Any notice or document will be deemed served: (a) if delivered by hand, at the time of delivery unless delivered after 5.00 pm or on a day which is not a Business Day, in which case it will be deemed to have been given at 9:00 am on the next Business Day; (b) if posted, two Business Days after posting (five Business Days if sent by airmail post); and (c) if sent by email, at the time of transmission printed on the transmission confirmation sheet, provided that an error free transmission report has been received by the sender and if the time of transmission is after 5.00 pm on a Business Day or at any time on a day that is not a Business Day, the notice shall be deemed to have been received at 9.00 am on the next Business Day.

8.3 In proving the service of any notice it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of a fax, that such fax was duly dispatched to a current fax number of the addressee.

8.4 Neither of us may use email as a valid means of serving on the other party any: (a) notice of breach of this Agreement; or (b) legal or court document including the service, delivery or notification of any claim form, notice, order, judgement of other document relating to or in connection with any proceedings, suit or action arising out of or in connection with this Agreement.

8.5 Any notice of termination served by you on us in accordance with clause 2.3 will be deemed to be invalid and entirely ineffective if there are any Charges, interest or other amounts overdue for payment to us under the Agreement.

9. RISK AND TITLE TO THE EQUIPMENT

9.1 Risk in the Leased Equipment will pass to you on installation and will remain at your sole risk during the Term and any other period during which the Leased Equipment is in your possession, custody or control (Risk Period), until such time as the Leased Equipment is redelivered to us.

9.2 Title to the Leased Equipment will remain with us and shall at no time pass to you.

10. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

10.1 Nothing in these Conditions shall limit or exclude our liability for:
  1. death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation; or
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).


10.2 Subject to clause 10.1:
  1. we are not liable to you (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any:
    (i) loss of profit;
    (ii) loss of business;
    (iii) loss of revenue;
    (iv) loss of anticipated savings;
    (v) pure economic loss;
    (vi) or any indirect or consequential loss whatsoever, arising under or in connection with the Agreement, and in each case, whether or not such loss was foreseeable; and
  2. our total liability to you in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the Rental and Servicing Fees paid by you to us in the preceding twelve (12) months immediately prior to the act or omission giving rise to the loss (or, if the event giving rise to the loss occurs during the first twelve (12) months of the Agreement, the amount of Rental and Servicing Fees paid by you to us during that period).


10.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.

10.4 Where plumbing work is required for the provision of Rental Services or the reinstatement of pipework upon termination of the Agreement, it will be your responsibility to arrange for a suitably qualified contractor to carry out such work and we will not be liable for any losses whatsoever arising from such work.

10.5 This clause 10 shall survive termination of the Agreement.

11. CONFIDENTIALITY

11.1 We undertake to each other that we will not at any time during this Agreement and for a period of five (5) years after its termination or expiry, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or companies of the other party, except as provided by clauses 11.2 and 11.3.

11.2 Either of us may disclose the other party's confidential information:
  1. to those of our employees, officers, representatives or advisers who need to know such information for the purpose of carrying out our obligations under this Agreement. Each of us shall ensure that our employees, officers, representatives or advisers to whom we disclose the other party's Confidential Information comply with this clause 11; and
  2. as may be required by law, court order or any governmental or regulatory authority.


11.3 We may disclose confidential information to any member of our group of companies to which we belong from time to time.

11.4 Neither of us shall use the other’s Confidential Information for any purpose other than to perform our obligations under this Agreement. 12. DATA PROTECTION

12.1 For the purposes of this clause 12, Data Protection Legislation means: (i) unless and until the General Data Protection Regulation (EU) 2016/679 (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998, and the terms “controller”, “data subject”, “processor”, “personal data”, “process” and “processing” have the meanings given to them by the Data Protection Legislation.

12.2 We will process personal data in compliance with the Data Protection Legislation. This clause 12.2 is in addition to, and does not relieve, remove or replace, our respective obligations under the Data Protection Legislation.

12.3 We acknowledge and agree that for the purpose of the Data Protection Legislation, you are the controller and we are the processor in respect of personal data in any data inputted or transmitted by you, or your employees, agents or subcontractors, or by us on your behalf for the purpose of using the Services or facilitating your use of the Services, from the point when such Customer Data is transferred or transmitted by you to us.

12.4 You confirm that you have the legal right to disclose all personal data that you do in fact disclose to us under or in connection with the Contract, and that the processing of that personal data by us for the purposes of providing the Services will not breach any Data Protection Legislation.

12.5 If, despite our intentions recorded at clause 12.3, we processes personal data as a controller, we will comply with the provisions of the Data Protection Legislation imposed on a controller.

12.6 You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Data to us for the duration and purposes of the Contract.

12.7 In addition to our general obligations under clause 12.2, we will, in relation to any personal data processed in connection with the Contract:
  1. process that personal data only for the purposes of the Contract and otherwise in accordance with your lawful, reasonable and documented instructions, unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us to process personal data, in which case we will, to the extent permitted by such law, inform you of that legal requirement before processing that personal data;
  2. having regard to the state of technological development and the cost of implementing any measures, ensure that we have in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, including, amongst other things as appropriate:
    (i) thepseudonyimisation and encryption of personal data;
    (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
    (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and
    (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing;
    (v) ensuring that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
    (vi) ensuring that we will not transfer personal data provided to us by you outside of the European Economic Area (“EEA”), unless such transfer is undertaken in accordance with applicable Data Protection Legislation.
  3. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
  4. notify you without undue delay on becoming aware of a personal data breach; and
  5. maintain complete and accurate records and information to demonstrate our compliance with clauses 12.2 to 12.7.


12.8 In relation to Sub-processors:
  1. you acknowledge and hereby authorize us to engage in connection with the performance of the Contract those Sub-processors previously agreed in writing with you (“Approved Sub-processors”);
  2. we may amend, update, replace or introduce a new Approved Sub-processors list by providing written notice to you of any proposed new Sub-processor(s). You may notify us promptly in writing within ten (10) business days after receipt of our notice if you have a reasonable basis for objecting to a new Sub-processor. We will not appoint (or disclose any personal data to) such proposed Sub-processor(s) until reasonable steps have been taken to address the objections raised by you and you have been provided with a reasonable written explanation of the steps taken;
  3. prior to giving any Sub-processor access to personal data, we will ensure that such Sub-processor has entered into a written agreement with us including terms in the contract between us and the sub-processor which are substantially the same as those set out in this clause 12 and the requirements of article 28(3) of the GDPR; and we will remain fully liable to you for any failure by a Sub-processor to fulfil its obligations in relation to the processing of any personal data under the Contract; and
  4. the extent that such sub-processing does not occur in the EEA, or in circumstances or a country that is the subject of a valid adequacy decision by the European Commission (“Restricted Country”), we may only authorise a third party to process the personal data in a Restricted Country if, when requested by you and required by the Data Protection Legislation, you shall enter into (or procure that any relevant third party enters into) a controller to processor data transfer agreement, incorporating the standard contractual clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of protection (as set out in Commission Decision C(2010) 593), as updated and amended from time to time.


12.9 You acknowledge that we are reliant on you as controller for direction as to the extent to which we are entitled to use and process personal data. Consequently, we will not be liable for any unauthorised or non-compliant loss, access or other processing of personal data or any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted directly from the your instructions, your failure to provide instructions. You will indemnify and hold us harmless against all costs, expenses (including legal and other professional fees), claims and losses that we suffer or incur as a result of: any breach by you of this clause 12; and/or any claim pursuant to the Data Protection Legislation as a result of the your instructions, or your failure to provide instructions, under the Contract.

13. TERMINATION

13.1 We may (without affecting any of our other rights or remedies) terminate the Agreement immediately by written notice to you if:
  1. fail to meet any of your obligations under the Agreement;
  2. you commit a material breach of this Agreement which is incapable of remedy, or commit a breach which is capable of remedy, but fail to remedy the breach within ten (10) Business Days of service of written notice from us requiring you to do so;
  3. you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of the Insolvency Act 1986;
  4. you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors; or
  5. (if you are a corporate entity): (i) 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 your company (other than for the sole purpose of bona fide scheme of solvent restructuring within your group); (ii) 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 Hirer; or (iii) the holder of a qualifying floating charge over the assets of the Hirer has become entitled to appoint or has appointed an administrative receiver; (iv) a person becomes entitled to appoint a receiver over the assets of the Hirer or a receiver is appointed over the assets of the Hirer;
  6. (if you are an individual), you die or, by reason of illness or incapacity (whether mental or physical), you are incapable of managing your own affairs or become a patient under any mental health legislation;
  7. a creditor or encumbrancer 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 your assets and such attachment or process is not discharged within 14 days; or
  8. any event occurs, or proceeding is taken, with respect to you in any jurisdiction to which you are subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(c) – 13.1(k) (inclusive); or
  9. you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business;
  10. you are subject to a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
  11. you breach the terms of any other Agreement you have us, or a company within our group.
13.2 This Agreement will automatically terminate if a Total Loss occurs in relation to the Leased Equipment.

14. EFFECT OF TERMINATION

14.1 Upon any termination of the Agreement:
  1. our consent to your possession of the Leased Equipment will terminate and we may, directly or through our authorised representatives, without notice, retake possession of the Leased Equipment and for this purpose may enter the Location(s) or any premises at which Leased Equipment is located; and
  2. without prejudice to any other rights or remedies we may have, you will pay us on demand: (i) all Charges and other sums due but unpaid at the date of termination, together with any interest accrued pursuant to clause 7.6; (ii) any costs and expenses incurred by the Company in recovering the Leased Equipment and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).


14.2 Upon termination of this Agreement pursuant to clause 13.1, any other repudiation of this Agreement by you which is accepted by us, or pursuant to clause 13.2, without prejudice to any of our other rights or remedies, you will shall pay to us on demand a sum equal to the whole of the Charges 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 Term.

14.3 We agree that: (1) any sums paid in accordance with clause 14.2 would be by way of agreed compensation for our reasonable losses and shall be payable in addition to the sums payable pursuant to clause 14.1(b); and (2) such sums may be partly or wholly recovered from any Deposit.

14.4 Termination of this Agreement shall be without prejudice to the rights, obligations and remedies of either of us accrued up to the date of termination or which, expressly or by implication, or intended to survive the termination or expiry of the Agreement.

15. FORCE MAJEURE

15.1 Neither of us shall be liable to the other, or be deemed to be in breach of the Agreement, by reason of any delay in performing, or failure to perform, any of our obligations under this Agreement if the delay or failure was beyond our reasonable control (including without limitation, fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other industrial action, act of God, war, warlike hostilities or threat of war, terrorist activities, accidental or malicious damage and any prohibition or restriction by any government or other legal authority which affects this Agreement and which is not in force on the date of this Agreement).

15.2 If either of us claim to be unable to perform our obligations under this Agreement (either on time or at all) in any of the circumstances set out in clause 15.1 (Affected Party) shall notify the other party of the nature and extent of the circumstances in question as soon as practicable.

15.3 This clause 15 will cease to apply when such circumstances have ceased to have effect on the performance of this Agreement and the Affected Party will give notice to the other party that the circumstances have ceased.

15.4 If any circumstance relied on by either party for the purposes of this clause 15 continue for more than six (6) months, the other party will be entitled to terminate this Agreement by giving one month's notice.

16. ENTIRE AGREEMENT

16.1 This Agreement constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the subject matter of this Agreement.

16.2 You acknowledge that, in entering into this Agreement, you do not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement and that the only remedies available to you arising out of or in connection with a representation shall be for breach of contract.

16.3 Nothing in this clause 16 shall limit or exclude any liability for fraud.

17. GENERAL

17.1 A person who is not a party to this Agreement shall not have any rights under or in connection with it.

17.2 You will not, without our prior written consent, assign, transfer, charge, subcontract (in whole or in part) or deal in any other similar manner with this Agreement or its rights.

17.3 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

17.4 No amendment or variation of the Agreement shall be effective unless it is in writing and signed by both of us.

17.5 If a court or any other competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.

17.6 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

17.7 By signing and returning a copy of the Specification Form you are confirming that you wish us to supply Rental Services in accordance with these Conditions.

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