1.4 "the Price" means the price exclusive of VAT accepted by Hydra-Capsule as payable to the Supplier for the supply of Services in accordance with the Contract and shall be fully inclusive of all costs including but not limited to labour payroll costs and payroll burden, materials, plant, and equipment together with all overheads and profit;
1.5 “Payroll Burden” means all additional payroll costs, including but not limited to, any or all of the following costs, where applicable; incentive payments, holiday pay and stamps, sick leave pay, any payroll tax, levy, contribution or payment for which the Supplier is liable as an employer, general expenses, Employee Benefits, personal protective equipment and non-powered hand tools, all training, briefings on standards/statute and/or procedures, fees, medicals and the like including the employee’s time in attending the same;
1.6 “Employee Benefits” shall include but not be limited to, company car and fuel allowances and expenses, private medical insurance, permanent Health Insurance, Life Insurance and other benefits.
1.7 "Hydra-Capsule" means Hydra-Capsule Ltd (registered in England under number 454872813), whose registered office is Hydra House, Bishops Frome, Worcestershire, WR6 5BP, United Kingdom and its successors and/or permitted assignees;
1.8 ‘Hydra-Capsule' Brief’ means Hydra-Capsule requirements for the provision of services referred to or described in the Order against which the Services are to be supplied, and any modification to them that may be agreed in writing.
1.9 ‘Hydra-Capsule Standard Payment Terms’ referred to in the Order means the payment terms described in Condition 11 of these Conditions.
1.10 ‘Hydra-Capsule’s Representative’ means the person or persons in the Order appointed for the time being by Hydra-Capsule to act on his behalf in carrying out those duties described in the Contract.
1.11 ‘Services’ means the services, duties and responsibilities to be provided, performed and observed by the Supplier pursuant to this Contract and the Order.
1.12 ‘Supplier’ means the person or persons named in the Order and whose tender is accepted by Hydra-Capsule and his or their, successors and/or permitted assignees, employees, agents, subcontractors and sub-suppliers and the employees and agents of subcontractors and sub suppliers.
2. DURATION
2.1 The Supplier shall commence the provision of the Services on the Commencement Date shown in the Order and shall continue to provide the Services until the Completion Date shown in the Order or termination of the Contract as provided in Condition 15.3 or 15.4.
3. KEY PERSONNEL
3.1 The Supplier agrees that the where the Services are to be performed by key personnel named in the Order, no changes in the key personnel shall be made without the prior approval of Hydra-Capsule’s Representative, which shall not be unreasonably withheld.
4. CONSTRUCTION INDUSTRY SCHEME
4.1 Where the Supplier is a Subcontractor as defined under the Construction Industry Scheme (“the CIS”), they shall provide, details of their Unique Taxpayer Reference (UTR) number as per the requirement of HM Revenue and Customs.
4.2 The Supplier undertakes to discharge all of their obligations as a “Subcontractor” under the CIS and to provide such other assistance to Hydra-Capsule as is required to enable them to discharge their obligations as a “Contractor”.
4.3 If any dispute, difference or question arises between either Hydra-Capsule or the Supplier and the Inland Revenue in relation to any tax payable, or alleged to be payable, in connection with the Contract, Hydra-Capsule and the Supplier shall render to one another such support and assistance as may be necessary to resolve the dispute, difference or question.
4.4 In the event that;
a) Any amount is deducted by Hydra-Capsule from the Supplier in respect of tax which should not have been deducted; Hydra-Capsule shall repay such amount to the Supplier.
b) Hydra-Capsule fail to deduct from the Supplier, an amount in respect of tax which should have been deducted, the Supplier shall repay such amount to Hydra-Capsule.
5. HYDRA-CAPSULE BRIEF
5.1 Without prejudice to or limitation of Hydra-Capsule’s statutory rights, the Services shall comply in all respects with Hydra-Capsule’s Brief, and if no such Brief is referred to in the Order, the Services shall be of the best quality appropriate for the purposes (if any) specified by Hydra-Capsule.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Unless otherwise agreed in writing between the parties, all copyright, design rights and other intellectual property rights in any work which is developed in the course of the provision of the Services shall be vested in Hydra-Capsule and the Supplier shall do all things and render all such assistance as may be reasonably required by Hydra-Capsule Rail in order to vest such rights in Hydra-Capsule.
6.2 Any plans, drawings, documents, handbooks, codes of practice or other information (the "Documents") provided by Hydra-Capsule pursuant to the Contract shall at all times remain its property and the Supplier shall not use, reproduce, disseminate, adapt, transmit in any form or by any means the Documents or any part thereof or permit the same to be so used, reproduced, Disseminated, adapted or transmitted as aforesaid or published other than for the purposes of carrying out its obligations under the Contract.
6.3 The Supplier hereby grants to Hydra-Capsule an irrevocable, non-exclusive, royalty-free licence to use for any purpose in connection with the Services all the Supplier’s intellectual property which the Supplier has used or supplied in connection with the Services, provided that the Supplier shall have no liability for any use of such intellectual property other than for the purposes for which it is intended. Hydra-Capsule may grant sub- licences out of the said licence.
6.4 The Supplier shall indemnify Hydra-Capsule against all loss, damage, costs and expenses for which Hydra-Capsule is or becomes liable as a result of any infringement or alleged infringement by the Supplier of any third party’s intellectual property rights.
7. CONFIDENTIALITY
7.1 The Supplier agrees to keep all documents supplied to it by Hydra-Capsule or which are created in connection with this Contract and the Services and all other matters arising or coming to its attention in connection with the provision of the Services secret and confidential and not at any time for reason whatsoever to disclose them or permit them to be disclosed to any third party except as permitted hereunder to enable the Supplier to carry out its duties and obligations. The Supplier’s obligations under this Condition shall survive the expiry or the termination of the Contract for whatever reason.
8. LIABILITY
8.1 Hydra-Capsule will be relying upon the Supplier’s skill, expertise and experience in the provision of the Services and also upon the accuracy of all representations or statements made and the advice given by the Supplier in connection with the provision of the Service hes and the accuracy of all contractual documentation and the Supplier hereby agrees to indemnify Hydra-Capsule against all loss, damage, costs, legal costs and professional and other expenses of any nature whatsoever incurred or suffered by Hydra-Capsule or by a third party as a result of such reliance.
8.2 The Supplier accepts:
a) Liability for death and personal injury howsoever resulting from the Supplier’s negligence; and
b) Liability for damage to property resulting from the Supplier’s negligence where such negligence has arisen or arises in connection with the provision of the Services or in connection with any other activities undertaken by the Supplier pursuant to or for any purpose related to the Contract; and
c) The Supplier hereby agrees to indemnify Hydra-Capsule against all and any liability, loss, damage, costs and expense of whatsoever nature incurred or suffered by Hydra-Capsule or by any third party whether arising from any disputes, contractual, tortuous or other claims or proceedings which seek to recover loss and damage incurred by reason of any such death, personal injury or damage to property in relation to the provision of the Services.
8.3 The Supplier undertakes to:
a) Maintain, at its own cost, employer’s liability insurance for the amount of £10,000,000 (ten million pounds) or such other amount as may be stated in the Order, in respect of any one occurrence or series of occurrences arising out of one event.
b) Maintain, at its own cost, public liability insurance for the amount of £1,000,000 (one million pounds) or such other amount as may be stated in the Order, in respect of any one occurrence or series of occurrences arising out of one event.
c) Maintain (where stated as applicable in the Order), at its own cost, professional indemnity insurance for the amount of £1,000,000 (one millions pounds) or such other amount as may be stated in the Order, in respect of any one occurrence or series of occurrences arising out of one event to ensure that its activities under the Contract are insured and remain insured under an annual professional indemnity policy or policies (if applicable).
8.4 The provisions of this Condition 8 shall survive the termination of the Contract for any reason.
9. ACCESS TO THE SITE AND SAFETY REQUIREMENTS
9.1 The Supplier shall comply with the safety requirements and the requirements for access to the site set out in any specification or otherwise stipulated by Hydra-Capsule and shall procure that its employees, agents, sub-contractors and sub-suppliers comply with such requirements.
10. INVOICING
10.1 Sums contained in invoices shall be calculated in accordance with the Price. Invoices must be forwarded to Hydra-Capsule in accordance with the provisions of the Contract. Unless otherwise agreed in writing, invoices must be dated no earlier than the latest date of the Services to which the invoice relates, and must show any applicable trade or settlement discount. Invoices must conform with all requirements set out from time to time in legislation relating to tax invoices, and
Be addressed to Hydra-Capsule Ltd, Hydra House, Bishops Frome, and Worcestershire, WR6 5BP.
10.2 Where the Services are to be provided on an “hourly” basis, the sums claimed shall be accompanied by appropriate Time sheets and/or Allocation sheets, signed by a Hydra-Capsule Representative and contractor/subcontractor.
10.3 The Invoice shall specify the Contract reference number, Order Number, a description of the Services, and such other particulars as it may be appropriate to supply.
11. PAYMENT
11.1 Provided that the Services have been supplied in accordance with the Contract, the Supplier shall submit a request for payment to Hydra-Capsule together with all necessary supporting documentation. Within 14 days of receipt of this application Hydra-Capsule will either confirm that the amount requested is correct or inform the Supplier of the amount due.
11.2 The Supplier will then raise an invoice for the amount due and without prejudice to its rights under Condition 17 Hydra-Capsule shall pay the Supplier in respect of that invoice no later than forty five days from the end of the month in which the invoice is dated.
11.3 Where pursuant to Condition 4, the Supplier is a Subcontractor under the CIS; they shall provide such additional information as Hydra-Capsule may reasonably request to enable the payment to be made in accordance with requirements of the CIS. As a minimum, the Supplier shall ensure that all invoices bear, in addition to the information noted in 10.3;
a) A breakdown of the invoice amount between “Net Labour” and “Materials”, as defined in the CIS;
b) A summary of the actual hours worked within the Net Labour amount
11.4 Payment by Hydra-Capsule shall be without prejudice to any claims or rights which Hydra-Capsule may have against the Supplier and shall not constitute any admission by Hydra-Capsule as to the performance by the Supplier of its obligations hereunder.
12. VALUE ADDED TAX
12.1 Hydra-Capsule shall pay to the Supplier upon receipt of a valid VAT invoice, in addition to the Price, a sum equal to the Value Added Tax properly chargeable on the value of the supply of Goods provided in accordance with the Contract.
12.2 Any overpayments by Hydra-Capsule to the Supplier in respect of VAT shall be a sum of money recoverable from the Supplier in accordance with Condition 17, and the Supplier shall issue a valid VAT credit note in an appropriate amount to Hydra-Capsule.
12.3 If any dispute, difference or question arises between either Hydra-Capsule or the Supplier and the Commissioners of Customs and Excise in relation to any tax chargeable, or alleged to be chargeable, in connection with the Contract, Hydra-Capsule and the Supplier shall render to one another such support and assistance as may be necessary to resolve the dispute, difference or question. In the event that any amount is paid by Hydra-Capsule to the Supplier in respect of VAT which is not properly chargeable, the Supplier shall repay such amount to Hydra-Capsule.
12.4 Where under the Contract one party has agreed to reimburse or indemnify the other in respect of any payment made or costs incurred by the other then the first party shall also reimburse any VAT paid by the other which forms part of its payment made or cost incurred to the extent that such VAT is not available for credit for the other or any person with which the reimbursed or indemnified party is treated as a member of a group for VAT purposes, as input tax, under the current Value Added Tax legislation.
13. ASSIGNMENT AND SUB-LETTING
13.1 The Supplier shall not assign or transfer the Contract or any part share or interest therein or thereunder. Hydra-Capsule may assign or transfer the Contract or any part share or interest therein or thereunder.
13.2 The Supplier shall not sublet the whole or any part of the Contract without the prior written consent of Hydra-Capsule which consent shall not be unreasonably withheld.
14. STATUTORY AND OTHER REGULATIONS
14.1 The Supplier shall comply in all respects with the law, including, without limitation, common law, Acts of Parliament (whether general, local or personal), rules, orders, regulations and/or byelaws of any Minister, department or office of Her Majesty’s Government, local authority and/or of any public service or authority.
14.2 Without prejudice to any other rights Hydra-Capsule may have, if the Supplier does not fulfil his responsibilities and obligations under the Contract and Hydra-Capsule thereby incurs costs for which it would not otherwise be liable due to any law or any order, regulation or bye-law having the force of law, the Supplier shall indemnify Hydra-Capsule against all such costs.
15. TERMINATION
15.1 The Contract shall terminate automatically on the Completion Date (as defined in Condition 2). 15.2 In this Condition, "insolvency" shall include:
a) the presentation of a bankruptcy petition where the petitioner is the Supplier, the making of a bankruptcy order, the appointment of an interim receiver and the issue of proposals by the Supplier to creditors for any arrangement or composition with creditors (whether as a voluntary arrangement under the current Insolvency legislation or otherwise) or for a conveyance or assignment for the benefit of creditors, whether under the current Deeds of Arrangement legislation or otherwise;
b) Where the Supplier is a partnership, the insolvency of any partner, the presentation of a petition by the members of the partnership to wind up the partnership as an unregistered company under the current Insolvency legislation; the making of an order to wind up the partnership as an unregistered company as aforesaid; the presentation by the members of the partnership of a petition for the making of an administration order in respect of the partnership; the making of an administration order; the issue of proposals by the members of the partnership to its creditors for a voluntary arrangement;
c) Where the Supplier is a company, when (in respect of that company or its Holding Company) any of the following occurs: the passing of any resolution for the winding-up of the company (except for the purposes of amalgamation or reconstruction); the making by the court of a winding-up order; the appointment of a provisional liquidator; the presentation by the company or its directors of a petition for or the making of an administration order the issue by the company of proposals to creditors for the making of any arrangement or composition with creditors (whether as a voluntary arrangement under the current Insolvency legislation, or a scheme of arrangement under the current Companies legislation, or otherwise) or the appointment of an administrative receiver or a receiver or a receiver and manager in respect of the company or any of its assets;
15.3 If the insolvency of the Supplier occurs, Hydra-Capsule may, without prejudice to any other rights it may have to terminate the Contract or any rights it may have against the Supplier in respect of inferior workmanship, breach of the Supplier’s obligations under the Contract or otherwise, terminate the Contract forthwith by notice. In that event the Supplier shall be liable to Hydra-Capsule for all additional costs, expenses, losses and damages incurred by Hydra-Capsule arising from such termination.
15.4 Without prejudice to Hydra-Capsule are other rights and remedies, Hydra-Capsule may forthwith terminate the Contract by notice if:
a) The Supplier commits any breach of the Contract and fails to remedy such breach within 14 days of being given written notice to do so by Hydra-Capsule; or
b) The Supplier fails to perform its obligations under the Contact with due diligence.
15.5 Termination of the Contract shall not prejudice or affect any right or remedy which has accrued or shall accrue thereafter to Hydra-Capsule, and any provision which is expressed to survive the Contract shall remain in full force and effect.
16. GOVERNING LAW AND JURISDICTION
16.1 The validity, construction and performance of the Contract shall be governed by English Law and all disputes, claims or proceedings between the parties relating to the validity, construction or performance of the Contract shall be subject to the non-exclusive jurisdiction of the High Court of Justice in England to which the parties hereto irrevocably submit except where the Services are provided to Hydra-Capsule entirely in Scotland, in which case the Contract shall be governed by and construed in accordance with Scottish law and the parties prorogation the non- exclusive jurisdiction of the Scottish Courts.
17. SET OFF
17.1 Without prejudice to Hydra-Capsule other rights and remedies, Hydra-Capsule may deduct from any sums due to the Supplier under the Contract an amount equivalent to any sums due from the Supplier to Hydra-Capsule (whether such sums are due to Hydra-Capsule under the Contract or under any other agreement between the Supplier and Hydra-Capsule, and if Hydra-Capsule considers that the Supplier is in breach of any of his obligations under this Contract, (or any other Contract between Hydra-Capsule and the Supplier), the Supplier shall pay or allow to Hydra-Capsule such sum as Hydra-Capsule’ representative estimates to be fair and reasonable in respect of any loss, damage, cost or expense to which Hydra-Capsule is or may become entitled by reason thereof.
Such amount may be deducted from any amount which would otherwise be due to the Supplier under this Contract (or any other contract between Hydra-Capsule and the Supplier). The exercise of such a right by Hydra-Capsule l shall be without prejudice to any other rights or remedies which Hydra Capsule may have in respect of any loss, damage, cost or expense to which Hydra-Capsule is or may become entitled by reason thereof; provided that for the avoidance of doubt, the Supplier shall in every case issue to Hydra Capsule a value added tax (“VAT”) invoice in respect of the VAT properly chargeable on the full value of each supply for VAT purposes.
18. WAIVER
18.1 No failure to exercise or delay in exercising any right, power or remedy under or in connection with the Contract shall operate as a waiver thereof, and no single or partial exercise of any right, power or remedy shall preclude any further or other exercise thereof, or the exercise of any other right or remedy.
19. TRANSFER OF UNDERTAKINGS
19.1 The terms set out in this Condition shall apply on the termination for any reason of the Contract. 19.2 In this Condition 19 the following terms and expressions shall have the following meanings:
a) ‘Indemnified Persons’ means Hydra-Capsule and any person who following the Termination Date provides the Services to Hydra-Capsule;
b) ‘Termination Date’ means one minute before midnight on the date on which this contract terminates.
19.3 The Supplier shall be responsible for and shall fully indemnify and keep indemnified the Indemnified Persons from and against all and any costs, claims, expenses, damages, demands, actions and liabilities arising from any claim in respect of any person (including, without limitation, the dismissal of such person of Hydra-Capsule or any other Indemnified Persons or a change in his terms of employment) which arises or is alleged to arise by reason of the operation of the Transfer of Undertaking (Protection of Employment) legislation as amended or re-enacted from time to time.
19.4 Hydra-Capsule shall notify the Supplier on becoming aware of any claim which may give rise to any liability to indemnify the Indemnified Persons under sub-clause 19.3 and shall give to the Supplier such assistance as the Supplier may reasonably require in contesting any such claim.
Standard Hire and Sale Contract Terms and Conditions of Equipment
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1. DEFINITIONS:
Company:Hydra Capsule Limited. The relevant entity applies in whichever country the hire contract is executed.
Customer:the person/entity hiring the Equipment as named in the Hire Contract.
Equipment:the items for hire listed in the Hire Contract.
Hire Contract:the Hire Contract Specifications, the Standard Terms and Conditions, any applicable Special Terms and Conditions and the invoice.
2. HIRE DUDRATION:
2.1 The Customer is entitled to use the Equipment for the period of time specified in the Hire Contract. Any variation to this period must be agreed by the Company.
2.2 The hire period commences when the Customer takes possession of the Equipment or when the Company delivers the Equipment in accordance with the Customer’s instructions.
2.3 The hire period ends when the Customer returns the Equipment to the Company or when the Company issues the Customer with an off-hire number.
2.4 The Customer must return the Equipment to the Company on the Expected Off-Hire date specified in the Hire Contract, unless the Customer has agreed with the Company that the Company will collect the Equipment from the Customer and has notified the Company that the Equipment is ready for collection. When notifying the Company that the Equipment is ready for collection, the Customer must obtain an ‘off-hire’ number, failing which the Customer will be deemed not to have notified the Company that the Equipment was ready for collection. Any change to the Off Hire date must be agreed by the Company.
3. TITLE TO EQUIPMENT:
3.1 The Customer acknowledges that in all circumstances the Company retains title to the Equipment and the rights of the Customer to use the Equipment are as a bailee only.
3.2 The Customer will not be entitled to offer, sell, assign, sub-let, mortgage, pledge or otherwise deal with the Equipment in any way which is inconsistent with the rights of the Company as owner of the Equipment.
4. HIRE AND OTHERCHARGES:
4.1 Discounts Agreed in Writing: The only discounts available to the Customer shall be those agreed in writing by the Company. If the Customer breaches any of these terms and conditions then any discount on any unpaid invoice is automatically revoked and the non-discounted price is payable for all Hire Charges from that time onwards.
4.2 Hire: The Customer will pay the Company the hire charges set out in the Hire Contract. The Customer is not entitled to any discount or rebate if the Equipment is not used by the Customer for the entire hire period.
4.3 Consumables: The Customer shall be liable for the reasonable cost of consumables provided by the Company and used by the Customer during the hire period.
4.4 Tax and Government Charges: The Customer shall be liable for stamp duty (Where applicable), GST and all other applicable taxes, duties, levies, penalties and any other government charges imposed on the Hire Contract or in respect of the hire period.
4.5 Credit Card Payments: The Customer acknowledges that the Company may impose a charge for accepting payments by credit card.
4.6 Delivery: If the Customer requires the Company to deliver, collect or install the Equipment, the Customer shall be liable for the cost of delivery, collection or installation.
4.7 Late Return of Equipment: If the Customer does not return the Equipment to the Company premises until after 8.00 a.m. on the day following the Expected Off-Hire date specified in the Hire Contract, the Customer will be charged a minimum of an additional full day hire if the Equipment is returned after 12 noon.
4.8 Payment Due Date: The Customer is required to pay all fees, charges and costs that may become due and payable under the Hire Contract within 28 days of the invoice date.
4.9 Late Payment: If a Customer does not pay the amount of the Hire Contract invoice by the payment due date, a late payment fee of 10% per month may be imposed. In addition, the Customer will be liable to indemnify the Company for all expenses and legal costs incurred by the Company as a result of the Customer’s failure to pay the amount of the Hire Contract invoice by the payment due date.
5. CUSTOMERS’ OBLIGATIONS:
5.1 Possession and Use by Customer: The Hire Contract is personal to the Customer and the Customer will not allow any other person or entity to use or have possession of the Equipment at any time during the hire period.
5.2 Operation of Equipment: The Customer warrants that at all times it will:
a) operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s instructions
b) ensure persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are licensed to use it
c) display, maintain and draw attention to safety signs and instructions (as required by law), ensure that instructions are observed and signs are not removed or defaced
d) ensure all persons operating the equipment wear suitable clothing and protective equipment as required or recommended by the manufacturer or by the Company
e) ensure that no persons operating the Equipment are under the influence of drugs or alcohol; and
f) conduct a site hazard assessment prior to using the Equipment at a site
5.3 Cleaning and Maintenance: The Customer must:
(a) clean, fuel, lubricate and maintain the Equipment in good condition and in accordance with the manufacturer’s and the Company’s instructions; and
(b) not in any way alter, modify, tamper with, damage or repair the Equipment without the Company’s written consent
5.4 Safekeeping: The Customer must ensure that during the Hire Period (and until the Equipment is collected by the Company after the issue of an off-hire number) the Equipment is stored safely and securely and is protected from theft and seizure.
5.5 Alteration and Identifying Marks: The Customer must not alter, deface or erase any identifying mark, plate or number on the Equipment.
5.6 Suitability: The Customer is deemed to be satisfied as to the suitability, condition and fitness for purpose of the Equipment unless the Company is otherwise notified within 24 hours of the commencement of the hire period.
5.7 Inspections: The Customer consents to the Company inspecting the Equipment from time to time during the hire period. In addition, the Customer may arrange a joint inspection with the Company at the end of the hire period.
5.8 Safe Loading: The Customer will safely secure all Equipment (or items loaded in or on the Equipment) loaded in or on the Customer’s vehicle.
5.9 Location: The Customer must not remove the Equipment from the State in which it was hired without the Company’s written consent.
6. LOST, STOLEN OR SAMAGED EQUIPMENT:
Subject to Clause 10, if the Equipment is lost, stolen or damaged during the hire period (and until the Equipment is collected by the Company after the issue of an off-hire number), the Customer shall be liable:
(a) for any costs incurred by the Company in repairing or replacing the Equipment; and
(b) for any other costs whatsoever incurred by the Company as a result of the loss, theft or damage to the Equipment
7. EQUIPMENT BREAKDOWN:
7.1 Obligations of Customer: In the event that the Equipment breaks down or becomes unsafe to use during the hire period the Customer shall:
(a) immediately stop using the Equipment and notify the Company
(b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment
(c) take all steps necessary to prevent any further damage to the Equipment
(d) not repair or attempt to repair the Equipment without the Company’s written consent
7.2 Obligations of the Company: In the event that the Equipment breaks down or becomes unsafe to use through no fault, negligence, recklessness or misuse by the Customer, the Company:
(a) will take all steps necessary to repair the Equipment or provide suitable substitute Equipment as soon as reasonably possible after being notified by the Customer; and
(b) will not impose a hire charge for that portion of the hire period for which the Equipment was broken down or unsafe
8. TERMINATION:
8.1 The Company may terminate the Hire Contract immediately by notice to the Customer, if:
(a) the Customer breaches any term of the Hire Contract; or
(b) the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
8.2 The Company may terminate the Hire Contract for any other reason by 24 hours notice.
9. RECOVERY OF EQUIPMENT:
If the Customer is in breach of the Hire Contract or if the Company has terminated the Hire Contract with the Customer pursuant to clause 8 above, the Company may take all steps necessary (including legal action) to recover the Equipment, including entering the Customer’s premises to do so.
10. DAMAGE, LOSS AND THEFT WAIVER:
10.1 Upon payment by the Customer of a damage waiver fee, the Company shall be responsible for the cost of repairs or replacement of the Equipment, due to loss or damage occurring during the hire period (and until the Equipment is collected by the Company after the issue of an off-hire number), such that:
(a) in the event of damage or destruction to equipment on hire which is caused by fire, storm, earthquake, collision, accident or burglary, excluding negligence, abuse or misuse, the Company agrees to limit its claim to the greater of 35% of full new replacement value or £1,250.00 for each item; or
(b) in the event of theft or loss of equipment excluding theft or loss as a result of negligence, abuse or misuse (provided the Customer has reported the incident promptly to the police and Company) the Company agrees to limit its claim to the greater of 35% of full new replacement value or £1,250.00 for each item.
10.2 This clause will not apply to loss or damage arising from damage to equipment during transit (including while on any wharf, bridge or over water) or while goods are being loaded or unloaded from any vehicle or vessel.
10.3 This clause in no way entitles the Customer, or implies availability of compensation from the Company for any liability incurred by the Customer in relation to the use of the Equipment.
10.4 This clause will not continue to operate after the termination of the Hire Contract unless an extension is granted by the Company in writing and an additional fee is paid.
10.5 The Customer is not required to pay a damage waiver fee if it produces to the Company a current Certificate of Currency for an appropriate policy of insurance for damage to or arising from the hire of the Equipment in an amount not less than the full new replacement cost of the Equipment.
11. INDEMNITIES AND EXCLUSION OF LIABILITIES:
11.1 Subject to clause 11.2 and except as expressly provided to the contrary in the Hire Contract all terms, conditions, warranties, undertakings, inducements or representation whether express or implied, statutory or otherwise, relating to the Company’s obligations under the Hire Contract are excluded.
11.2 Where any Act of Parliament implies a term, condition or warranty in this Hire Contract and that Act prohibits provisions in a contract excluding or modifying the application, exercise or liability under that term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement provided that the liability of the Company for breach of the term, condition or warranty is limited to the repair or replacement of the Equipment or the supply of substitute Equipment (or the cost of doing so).
11.3 Subject to clause 11.2, the Company shall not be under any liability to the Customer for consequential loss or damage (including loss of actual or anticipated profits or revenue, economic loss of any kind or any loss suffered as a result of any claim or claims by third parties) in contract, tort (including negligence) under statute or otherwise from or in relation to the Equipment or this Hire Contract.
11.4 The Customer is liable for and indemnifies the Company against all liability, loss, costs and expenses (including legal fees, costs and disbursements on the higher of a full indemnity basis and a solicitor/ client basis, determined without taxation, assessment or similar process and whether incurred or awarded against the Company) arising from or incurred in connection with Customer’s hire and use of the Equipment or its breach of the Hire Contract.
11.5 Each indemnity in this Hire Contract is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Contract. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Contract. The Customer must pay on demand any amount it must pay under an indemnity in this Hire Contract.
11.6 For the purposes of clauses 11.3 to 11.5, use of Equipment operated by an Operator supplied by the Company will be use of the Equipment by the Customer.
12. DIRECTORS GUARANTEE:
Only required for Registered Companies/Trusts etc.
Please be aware that an application may not be considered if the Directors Guarantee has not been signed and witnessed.
13. SEVERABILITY:
If any part of this agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
14. GOVERNING LAW:
The Hire Contract is governed by the laws of United Kingdom where the Hire Contract is entered into by the parties and each party submits to the exclusive jurisdiction of the courts of United Kingodom.
15. ENTIRE AGREMENT:
The Hire Contract issued to the Customer comprises the entire agreement of the parties.
16. NO RELIANCE:
(Acting on the Company’s behalf) has not made any representation or other inducement to it to enter into this Hire Contract and that it
has not entered into this Hire Contract in reliance on any representations or inducements (including in relation to the use of the Equipment) except for those representations or inducements contained herein.
17. VARIATION:
The Company may at any time vary the Hire Contract by giving the Customer 30 day’s written notice of its intention to do so.
18. PRIVACY:
The Customer provides its consent for the Company to disclose personal information about the Customer to other entities in the Hydra Capsule Limited.
19. MISCELLANEOUS:
19.1 No variation of these terms and conditions shall bind either party unless confirmed by the Company in writing.
19.2 Any document which by these terms and conditions may be given by the Company may be served or rendered by leaving it at or posting it to the address of the Customer as stated in the Hire Contract or last notified by the Customer in writing to the owner and shall be deemed to have been served or rendered at the time of leaving or, if posted, on the business day following the day of postage and any notice may be signed by a manager, director or solicitor of the Company on behalf of the Customer.
19.3 Time is to be of the essence of all obligations of the Customer in these terms and conditions.
19.4 No delay or omission to exercise any right, power or remedy accruing to the Company upon any continuing breach or default under this agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any right of the owner to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.
19.5 A statement in writing made up from the books of the Company and signed by any director, secretary or credit manager of the Company of the amount due or owing by the Customer to the Customer as at the date mentioned in such statement shall be prima facie evidence that such amount is due and owing without it being necessary to produce any books or vouchers to verify the same.
19.6 Any credit accommodation granted by the Company to the Customer may be withdrawn at any time and for any reason without notice and a statement may be issued at that time requiring payment within 7 days of any amount due and owing.
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