1. 1.1 In this Agreement unless the context otherwise requires:
"Commencement Date" means the date when the Equipment is first delivered to the Hirer for the purpose of the hire of the Equipment under this Agreement subject nevertheless to the provisions of Condition 7.4;
“Conditions” means the terms and conditions set out in this Agreement;
“Contract” means a contract created by acceptance of the Order and which incorporates these Conditions and any special Conditions detailed in the Order of the hire of the Equipment;
“Delivery” means the delivery or transfer of physical possession of the Equipment by the Owner to the Hirer;
"Equipment" means the equipment described in the Schedule and includes all accessories additions and accessions thereto and all replacements and renewals thereof whether made before or after the date of this Agreement;
“Hirer” means the person specified in the Schedule as the hirer of the Equipment;
"Inspection Period" means the period of forty-eight (48) hours from the time the Equipment is delivered (or deemed delivered) to the Hirer;
"month" means a period of one month, each of which shall commence from the date in a calendar month which corresponds to the Commencement Date, except that where the Commencement Date is the last day of a calendar month, the period of one month shall commence from the last day of the calendar month;
“Order” means the purchase order containing the details of the Contract;
"Owner" means MCS Test Equipment Ltd (UK Company No: 4147703);
"person" or "party" shall include any company or association or body of persons, corporate or unincorporate;
"rental" means the rental in respect of hire of the Equipment (as specified in the Schedule);
"Replacement Value of the Equipment" in relation to any time shall mean either of the following at the election of the Owner:
(i) the amount for which the manufacturer or any supplier of the Equipment would sell to the Owner at such time equipment which is identical in make and model, or where the same is unavailable, similar or substantially similar in design function specification and performance to the Equipment; or
(ii) the cost incurred by the Owner in the purchase of the Equipment;
"Schedule" means the Schedule to this Agreement containing the specific terms of the Order ;
"software" means any and all software and computer programmes of any kind and including all documentation and relevant codes;
"Term" means the period of hire referred to in Conditions 3 and specified in the Schedule;
"Termination Sum" means the sum determined and payable in accordance with Condition 21;
"working day" means any day which is not a Saturday, Sunday or Public Holiday in England;
all references to any Condition shall be construed as a reference to that Condition in this Agreement;
words importing the singular number only include the plural number and vice versa; and
words importing only one gender shall include any gender; and
references to any statute or statutory provision shall include any statute or statutory provision which amends or replaces it, or which has amended or replaced it, and shall include any subordinate legislation made under it.
1.2 The captions to the Conditions of this Agreement are for reference only and are not an aid in the interpretation of the provisions of this Agreement.
2. BASIS OF CONTRACT
2.1 These Conditions shall be incorporated into the Contract and shall be the sole Conditions under which the hire of Equipment take place (including the provision of any services and the sale of any Equipment). All other terms, conditions and other representations are excluded from the Contract between the Hirer and the Owner.
2.2 The Contract becomes binding when the Owner has acknowledged the Order either verbally or in writing, as appropriate.
2.3 A quotation for the hire of the Equipment given by the Owner shall not constitute an offer. A quotation shall only be valid for a period of  working days from its date of issue.
2.4 These Conditions shall be applicable to all repeat orders made by the Hirer unless the Owner notifies the Hirer otherwise.
2.5 The employees of the Owner are not authorized to make any representations concerning the Equipment unless confirmed in writing by the Owner and any advice or recommendation given by the Owner or its employees which is not confirmed in writing is followed or acted upon entirely at the Hirer’s risk.
2.6 The Owner reserves the right to provide Equipment similar to or comparable with that ordered by the Hirer.
2.7 The Hirer shall obtain and comply with any permissions, consents and licenses required for the Equipment under any statute, regulation or by law.
3.1 The Hirer shall hire the Equipment from the Owner upon the Conditions set out in this Agreement for the Term commencing from the Commencement Date.
3.2 In the event that the Hirer wishes to extend the hire of the Equipment beyond the expiry of the Term, the Hirer shall notify the Owner in writing not less than five (5) working days prior to the expiry of the Term and the Owner may, but shall not be obliged to, extend the Term of the hire on the basis of these Conditions or on such terms as may be agreed between the Owner and the Hirer.
4. RENTAL AND OTHER CHARGES
4.1 The Hirer shall during the Term and unless and until the hire of the Equipment shall have been terminated in accordance with the provisions of Condition 18 (or otherwise as set out in this Agreement), pay to the Owner without demand free of any set-off or deduction whatsoever the rental charges (“Charges”) specified in the Schedule (or as otherwise detailed in the Order) which:
4.1.1 where the Term is for less than a month, shall be paid in advance before the delivery of the Equipment to the Hirer; and
4.1.2 where the Term is for greater than one month, shall be payable monthly in advance, the first such Charge to be paid on the Commencement Date and the subsequent Charges to be paid on the first day of each month, subject to the provisions of Condition 4.5.
4.2 All payments of Charges shall be made in cleared funds to the Owner into the bank account notified by the Owner to the Hirer, or at the registered office or trading address of the Owner (as notified by the Owner) and by the means and in the currency specified in the Schedule (or at such other address or bank account as the Owner may from time to time specify in writing). Payments made by post shall be at the risk of the Hirer. Payments shall be deemed to be made after they reach the Owner’s bank account or 3 working days after their receipt at the Owner’s address.
4.3 The Hirer shall pay the Owner on the Commencement Date the total of any other Charges specified in the Schedule.
4.5 All Charges are, unless otherwise stated, exclusive of any applicable VAT.
4.5 The Hirer shall be responsible for and pay to the Owner all goods and services tax (including VAT) and other taxes and levies that may be imposed on the Order and any other charges or payments to the Owner. Where any deduction or withholding is required by any applicable law from any rental, charge or payment to the Owner, the Hirer shall increase the sum to be paid by such amount that the net amount received by the Owner is equal to the sum which would have been received had no deduction or withholding been applied. No other withholding or set off on account of disputes, counterclaim or for any other reason shall be permitted.
4.6 Unless otherwise expressly provided in this Agreement,
4.6.1 any rental in respect of any month or in respect of a Term not exceeding one month shall not be apportioned notwithstanding the termination of the hire of the Equipment for any reason whatsoever before the last day of any month or the Term; and
4.6.2 the termination of the hire of the Equipment shall not discharge or release the Hirer from its obligation to pay any and all Charges due prior to termination and any and all the other Charges referred to in the Schedule and any sum paid in respect of rental or such charges shall not be refundable.
4.7 Time shall be of the essence for payment of Charges and all sums due under the Contract.
4.8 Without prejudice to any other rights available to the Owner, if the Hirer fails to make full payment on the due date, the Owner may charge interest (both before and after judgement) on the amount unpaid in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 and otherwise as set out in Condition 17.
5.1 Subject to Condition 4 and the payment of Charges in advance, the Hirer shall where demanded by the Owner, pay to the Owner a deposit of the amount detailed in the Order and/or otherwise as specified in the Schedule ("Deposit").
5.2 The Deposit shall not bear any interest.
5.3 The Deposit shall be held by the Owner as a security for the prompt and full payment of the Charges and other monies payable by the Hirer and the due observance and performance by the Hirer of all provisions of this Agreement including any extension or renewal of it. In the event of any default on the part of the Hirer, the Owner shall be entitled (but shall not be obliged) to apply or utilise the Deposit (or any part of it) in any such manner as the Owner may in its discretion think fit towards discharging or satisfying wholly or in part any payment (including any Charges) due from the Hirer to the Owner or any of the obligations or liabilities of the Hirer under this Agreement. Provided always that the Hirer shall have no right to set off the Deposit (or any part of it) against any Charges or any other monies payable or any liability to the Owner under this Agreement.
5.4 Without prejudice to the generality of Condition 5.3, the Owner shall be entitled (but not obliged) to apply or utilise the whole or any part of the Deposit towards the payment in full or in part of any Charges or other monies payable by the Hirer by way of damages or by way of indemnity to the Owner under this Agreement.
5.5 In the event of the Deposit or any part thereof being applied or utilised by the Owner pursuant to the Conditions 5.3 or 5.4 and as long as this Agreement shall continue to be in force, the Hirer shall on written demand by the Owner immediately pay to the Owner any such sum as shall restore the Deposit to the full amount and any such sum so further paid by the Hirer to the Owner shall be treated as and shall form part of the Deposit.
5.6 At the end of the Term or otherwise upon the termination of the Agreement and provided that the Hirer has observed and performed all the obligations on the part of the Hirer and has discharged all the Hirer's liabilities to the Owner, the Owner shall refund any then remaining balance of the Deposit (without interest) to the Hirer.
6. DELIVERY OF THE EQUIPMENT
6.1 Unless otherwise agreed in writing between the Owner and the Hirer, the Owner shall deliver the Equipment to the Hirer at the Hirer’s address stated in the Contract or otherwise as set out in the Schedule.
6.2 The Owner shall not be liable for any loss or damage whatsoever suffered by the Hirer for any delay in delivery or non-delivery of the Equipment however caused.
6.3 The Owner shall use reasonable endeavors to effect delivery by the time and date agreed between the parties. Time of delivery is not of the essence. The Owner shall not be liable for any delay in delivery of the Equipment that is caused by an event of Force Majeure or the Hirer’s failure to provide the Owner with adequate delivery instructions or by any other instructions that are relevant to the supply of the Equipment.
6.4 Where the Owner is required to deliver the Equipment to any place other than the Hirer’s address stated in the Order (or in the Schedule), the Hirer shall pay the Owner the cost and expenses incurred by the Owner in the transportation and delivery of the Equipment to such place upon being invoiced for the same.
6.5 The Hirer shall upon delivery of the Equipment by the Owner, issue to the Owner an acceptance receipt stating the date of delivery of the Equipment to the Hirer, the serial numbers of the Equipment and, where available, of the parts of the Equipment.
6.6 The Owner will charge the Hirer for delivery costs as detailed in the Contract or as otherwise specified in the Schedule.
7. INSPECTION OF EQUIPMENT
7.1 The Hirer shall within the Inspection Period inspect and test the operation of the Equipment and immediately notify the Owner in writing of all the defects, deficiencies and malfunction, if any, found in the Equipment.
7.2 The Equipment shall be deemed to have been delivered to and accepted by the Hirer in satisfactory condition, free of all defects, deficiencies and malfunction, save only for such defects, deficiencies and malfunction as the Hirer shall have notified the Owner in writing during the Inspection Period.
7.3 In the event that the Hirer notifies the Owner in writing within the Inspection Period of any defect, deficiency or malfunction of the Equipment and any of the defects, deficiencies or malfunction so notified are found on the Equipment, the Owner may (at its discretion) elect to do and complete any one of the following courses of action:
7.3.1 rectify the defects deficiencies and malfunction and, where the Equipment had been returned to the Owner, redeliver the Equipment to the Hirer, in which event Conditions 7.1 and 7.2 shall apply to the Equipment when it is redelivered to the Hirer; or
7.3.2 replace the Equipment; or
7.3.3 terminate this Agreement by giving written notice thereof to the Hirer.
7.4 In the event that the Owner elects the course in Condition 7.3.1 the Commencement Date shall be:
7.4.1 if the defects deficiencies and malfunction were rectified without the Equipment being returned to the Owner, the date when all the defects, deficiencies and malfunction have been rectified; and
7.4.1 if the Equipment was returned to the Owner for rectification of the defects and deficiencies, the date when the Equipment is redelivered to the Hirer after rectification of all the defects, deficiencies and malfunction.
In the event that the Owner elects the course in Condition 7.3.2 the provisions of this Agreement, including Conditions 7.1 and 7.2, shall apply to the replacement and the Commencement Date shall be the date when the replacement was delivered to the Hirer.
7.5 In the event that the Owner elects either of the courses in Condition 7.3.1 or 7.3.2 and the Owner fails within a period of thirty (30) days from the date of service on the Owner of the acceptance receipt:
7.5.1 to rectify all the defects deficiencies and malfunction, where the Owner has elected to do so; or
7.5.2 to replace the Equipment, where the Owner has elected to replace the Equipment,
then the Hirer shall be entitled to terminate this Agreement by giving written notice to the Owner (in accordance with Condition 26.9).
8. DEFECTS AND DEFICIENCY OF EQUIPMENT
The Equipment shall not be regarded as defective or deficient or to be malfunctioning in any way if at the time of the delivery of the Equipment to the Hirer, the Equipment meets the specifications of the manufacturer for that Equipment and is in a condition where it may function and operate within those specifications.
9. LIMITATION OF LIABILITY
9.1 Without prejudice to clause 9.2, the Owner'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 in no circumstances exceed the Charges paid by the Hirer.
9.2 Nothing in this agreement shall exclude or in any way limit:
9.2.1 either party's liability for death or personal injury caused by its own negligence or the negligence of its employees, agents or subcontractors (as applicable);
9.2.2 either party's liability for fraud or fraudulent misrepresentation; or
9.2.3 any other liability which cannot be excluded by law including but not limited to the statutory rights of any Hirer who is a “consumer” within the meaning of the Unfair Contract Terms Act 1977.
9.3 These Conditions set out the full extent of the Owner's obligations and liabilities in respect of the Equipment and its hiring and sale to the Hirer. In particular, there are no conditions, warranties, representations, or other terms or duties, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Owner except as specifically stated in these Conditions. Any condition, warranty, representation or other term concerning the Equipment which might otherwise be implied into or incorporated within these Conditions, whether by statute, common law or otherwise, is expressly excluded to the fullest extent permissible by law.
9.4 Without prejudice to Condition 9.2, the Owner shall not be liable under these terms for any:
9.4.1 loss of profit;
9.4.2 loss of revenue;
9.4.3 loss of business; or
9.4.4 indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
9.5 The Owner shall be have no liability to the Hirer if any Charges or monies due in respect of the Equipment or otherwise under the Contract have not been paid in full and cleared funds by the due date for payment (as detailed in the Schedule).
9.6 The Owner shall have no liability resulting from or contributed to by the Hirer’s continued use of any defective Equipment after a defect has become apparent, suspected or should reasonably have become apparent to the Hirer.
9.7 The Owner shall have no liability to the Hirer to the extent that the Hirer is covered under any policy of insurance and the Hirer shall ensure that the insurers waive any and all rights of subrogation they may have against the Owner.
10. RISK, OWNERSHIP AND INSURANCE OF EQUIPMENT
10.1 The Equipment shall remain the property of the Owner and the Hirer shall have no right or interest in the Equipment.
10.2 The Owner may and the Hirer shall if so required by the Owner, affix (at the Hirer's expense) on the Equipment in such form and manner as the Owner shall think fit labels, marks or other indicia representing the Equipment as owned by the Owner and/or hired to the Hirer.
10.3 The Hirer shall not remove or deface any such labels, marks or indicia affixed to the Equipment as well as such insignia, identifications, markings or plates as maybe affixed on the Equipment by the manufacturers of the Equipment.
10.4 The risk of loss, theft, damage or destruction of the Equipment shall immediately pass to the Hirer on Delivery. The Equipment shall remain at the sole risk of the Hirer during the Term and any further term during which the Equipment is in the possession, custody or control of the Hirer (Risk Period) until such time as the Equipment is returned to the Owner. During the Term and the Risk Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:
10.4.1 insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing;
10.4.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
10.4.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Hirer.
10.5 All insurance policies procured by the Hirer Hirereshall be endorsed to provide the Owner with at least twenty (20) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Owner's request name the Owner on the policies as a loss payee in relation to any claim relating to the Equipment. The Hirer shall be responsible for paying any deductibles due on any claims under such insurance policies.
10.6 The Hirer shall give immediate written notice to the Owner in the event of any loss, accident or damage to the Equipment or arising out of or in connection with the Hirer's possession or use of the Equipment.
10.7 If the Hirer fails to effect or maintain any of the insurances required under this agreement, the Owner 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 Hirer.
10.8 The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Owner and proof of premium payment to the Owner to confirm the insurance arrangements.
11. CUSTODY, MAINTENANCE AND USE OF EQUIPMENT
11.1 The Hirer shall keep the Equipment at all times in the possession and control of the Hirer at the location stated in the Contract or as otherwise specified in the Schedule (Location). The Hirer shall not at any time move the Equipment from the Location without the prior written consent of the Owner. Moving the Equipment without the prior written consent of the Owner shall entitle the Owner to terminate the Contract and the provisions of Conditions 18-21 shall apply.
11.2 Where by the specifications or recommendations of the manufacturer of the Equipment, the Equipment is required to be installed or set up in any manner for use or operation, the Hirer shall before using or operating the Equipment install or set up the Equipment in accordance with such specifications or recommendations and with such other conditions and specifications as may be prescribed by the Owner from time to time.
11.3 The Hirer shall conduct and carry out daily and/or routine maintenance and service of the Equipment in accordance with the recommendations, conditions and specifications made or prescribed by the manufacturer. The Hirer shall not keep maintain, service, use and/or operate the Equipment otherwise than in accordance with the recommendations conditions and specifications made or prescribed by the manufacturer for that Equipment and with such other conditions and specifications as may be prescribed by the Owner from time to time.
11.4 The Hirer represents and warrants to the Owner that the Hirer has (and will continue to have throughout the Term) knowledge of all the recommendations, conditions and specifications made or prescribed by the manufacturer of the Equipment for the installation, storage, maintenance, service, use and operation of the Equipment.
11.5 The Hirer shall obtain all necessary licences, permits and permissions for the use of the Equipment, and, where the Equipment is to be moved from one location to another (only as permitted by the Owner in accordance with Condition 11.1) for the import export and transportation of the Equipment the Hirer shall observe and comply with all requirements instructions and directives of any governmental authorities as well as all legal and regulatory requirements wherever and whenever arising which are applicable in connection with the possession and use of the Equipment.
11.6 The Hirer shall keep the Equipment free from distress, execution or any other legal process.
11.7 The Hirer shall assume all responsibility and risk in respect of the possession, custody and use of the Equipment and undertakes to act at all times with the utmost care so as to ensure the highest standards of safety of all persons and property who or which may come within the vicinity of the Equipment.
11.8 The Hirer shall not copy or use in any way any design marks, text, patents or other intellectually property rights subsisting in the Equipment or any part without obtaining the prior written consent of the Owner.
12. DAMAGE AND REPAIR OF EQUIPMENT
12.1 The Hirer shall immediately notify the Owner (and in any event within 24 hours) in writing of any defect, malfunction or breakdown occurring in the Equipment.
12.2 The Hirer shall, as and when so requested by the Owner, permit, and where appropriate, obtain the requisite permission for, the Owner and any person authorised by the Owner to enter from time to time at all reasonable times the premises in which the Equipment is located or kept for the purpose of inspecting and examining the condition of the Equipment and to carry out such maintenance and service of the Equipment as the Owner may consider appropriate or prudent Provided that nothing in this Condition shall be construed to detract from or reduce the obligations of the Hirer with respect to the Equipment.
12.3 The Owner shall repair and rectify any defect, malfunction or breakdown in the Equipment which is not attributable to any breach or non-observance by the Hirer of any of the provisions of this Agreement and to any negligence abuse, mischief or misconduct of any person other than the Owner or its servants or agents. The Owner shall be entitled to re-possess the Equipment for this purpose. The Owner shall be entitled to replace such Equipment in lieu of repairing the same. In the event that the Equipment is not replaced, rectified, repaired and returned to the Hirer within seven (7) days from the date when the Owner is served with written notice of such defect, malfunction or breakdown by the Hirer, the Hirer shall not be required to pay the rental in respect of the period from the service of such notice by the Hirer until the date when the Equipment is returned to the Hirer. For the purpose of this Condition 12.3, the rental for each month shall be apportioned on the basis of a thirty-day month and the rental in respect of a Term not exceeding one month shall be apportioned based on the number of days in the Term.
12.4 Save as expressly provided in this Agreement, any failure on the part of the Owner to maintain and service the Equipment and or any defect, malfunction or breakdown in the Equipment howsoever caused and/or the retention of the Equipment by the Owner for the purpose of repairing and or rectifying the same:
12.4.1 shall not affect the continuance of the hire of the Equipment by the Hirer and shall not in any way suspend diminish or discharge the liability of the Hirer to pay each month the Charges in respect of the Equipment or any other charges hereunder; and
12.4.2 shall not constitute a basis for any claim by the Hirer for any loss and damages whatsoever and howsoever suffered or incurred as a consequence.
13. ALTERATION OF EQUIPMENT
13.1 The Hirer shall not without the prior written consent of the Owner make any alterations, additions or improvements to the Equipment or any changes to the working order or function of the Equipment.
13.2 All additions, replacements or improvements made to the Equipment (with or without the consent of the Owner) shall be deemed to form part of the Equipment and be the property of the Owner and be subject to the terms and conditions of this Agreement.
13.3 Provided always that if any such alterations or changes shall have been made without the Owner's consent, the Hirer shall immediately upon being required to do so by the Owner remove such alterations or changes and restore the Equipment to the same quality, function and condition as before.
14. ANNEXATION OF EQUIPMENT
The Hirer shall not affix or attach the Equipment to any land or building without the prior written consent of the Owner.
15 . LOSS AND DAMAGE OF EQUIPMENT
15.1 The Hirer shall assume as from the time of Delivery the entire risk of loss and damage to the Equipment (or any part of the Equipment) occasioned in any manner or by whoever or by any cause whatsoever (including lawful forfeiture) and shall fully indemnify the Owner against all such loss or destruction of or damage to the Equipment. For the purposes of this Condition, the Equipment shall be deemed to be lost if the same has been stolen, moved location without the Owner’s prior written consent, or if the Owner's title to it is lost.
15.2 Save as otherwise instructed by the Owner, the Hirer shall promptly at its own expense replace all missing, damaged or broken parts of the Equipment with parts supplied by or recommended by the manufacturer of the Equipment or, subject to the prior written consent of the Owner, with parts of equal quality and value and shall in default of doing so permit the Owner to take possession of the Equipment for the purpose of replacing those parts and shall promptly repay the Owner the full cost of effecting such replacements. The Owner shall be entitled to retain the Equipment until such repayment but such retention shall not prevent the accrual of Charges under this Agreement.
15.3 In the event of any loss of the Equipment or if the Equipment shall be damaged to such extent as to be incapable of economic repair, the Hirer shall be entitled to terminate the hire of the Equipment by service of a written notice on the Owner and making payment equivalent to the Replacement Value of the Equipment at the time of termination.
15.4 Save as may be expressly provided in this Agreement, the loss of or any damage to the Equipment or any part of the Equipment howsoever caused shall not affect the continuance of the Contract and the hire of the Equipment by the Hirer and shall not in any way suspend, diminish or discharge the liability of the Hirer to pay each month the Charges in respect of the Equipment or any other charges under this Agreement.
15.5 Where the Equipment or any part thereof is lost, stolen, destroyed or damaged by the negligence or wrongful act of a third party, the Hirer:
15.5.1 shall immediately notify the Owner;
15.5.2 shall not compromise any claim without the consent of the Owner;
15.5.3 shall allow the Owner to take over the conduct of any negotiations (except in relation to claims of the Hirer for personal injuries loss of use of the Equipment or loss or damage to the property of the Hirer unconnected with the Equipment); and
15.3.4 shall (to the extent permitted by any applicable law) at the expense of the Hirer take such proceedings (in the sole name of the Hirer or jointly with the Owner) in such jurisdictions as the Owner shall direct holding all sums recovered on trust for the Owner and paying or applying as the Owner directs such part thereof as is necessary towards discharging the Hirer's obligations and liability to the Owner with respect to the loss of or damage to the Equipment and also all other liabilities of the Hirer under the Contract at the date of such payment.
The Hirer shall indemnify the Owner against and hold the Owner harmless from any and all claims, actions, suits proceedings, costs, expenses, damages and liabilities (including legal costs and expenses incurred in defending any such claims actions suits or proceedings) arising out of, connected with or resulting from the possession, use and or operation of the Equipment by the Hirer or any person during the Term or from any breach by the Hirer of the terms of this Agreement.
17. INTEREST ON OVERDUE PAYMENT
Without prejudice to the Owner's rights under any of the other terms in these Conditions, the Hirer shall pay to the Owner interest at the rate of 2% above the base rate of HSBC Bank plc from time to time on any Charges and any other monies payable under the Contract which may from time to time be due to the Owner and on any damages which may be recoverable by the Owner and until payment of the same, such interest shall be calculated daily with monthly compounding of interest as from the time when the same is due and payable and shall accrue before as well as after any judgment.
18.1 The Owner may immediately terminate the Contract and the hire of the Equipment by the Hirer under this Agreement at any time after the occurrence of any of the following events by giving written notice to the Hirer:
18.1.1 the Hirer defaults in payment of any Charges or other sum which becomes due and payable to the Owner under this Agreement or under any other agreement made with the Owner (or of any part thereof) and such default continues for more than five working days after the same becomes due and payable;
18.1.2 the Hirer breaches any terms of the Contract or fails to observe or perform any of the express or implied Conditions of this Agreement or of any other agreement made with the Owner;
18.1.3 the Hirer does or suffers to be done any act or thing which may prejudice or jeopardise the Owner's property in or right to the Equipment, including but not limited to, attempting to pledge, charge or create any form of security or encumbrance over the Equipment;
18.1.4 a petition for the bankruptcy of the Hirer is presented or, the Hirer, being a corporation, a resolution for winding up or liquidation of the Hirer is passed or any proceedings for the judicial management, administration winding up or liquidation of the Hirer or for the appointment of a receiver or an administrative receiver in relation to the Hirer or its assets are commenced (and all of the aforementioned processes shall be deemed to include equivalent or similar legal processes which may be applicable to the Hirer) in the European Union or elsewhere;
18.1.5 the Hirer abandons the Equipment or moves the Equipment to an alternative Location without the prior written consent of the Owner; or
18.1.6 the Hirer becomes insolvent or unable to pay its debts as they become due.
18.2 Notwithstanding the above Conditions, the Owner may at any time terminate the Contract and the hire of the Equipment by giving the Hirer not less than seven (7) days written notice in advance.
18.3 Where the Term exceeds one month, the Hirer may at any time after the expiry of the minimum rental period specified in the Schedule from the Commencement Date terminate the hire of the Equipment by giving the Owner not less than seven (7) days written notice in advance. Provided that any termination by the Hirer of the hire of the Equipment shall not be effective until the Equipment is delivered to the Owner in accordance with the provisions of Condition 18.
18.4 The termination of the hire of the Equipment pursuant to any of the provisions of this Agreement shall not affect or discharge the Hirer's obligations and liabilities, including the obligation to pay any Charges or other sum, which by any of the provisions of this Agreement have accrued or become due or payable prior to termination.
18.5 In the event that the hire of the Equipment is terminated pursuant to Conditions 7.3 or 7.5, the Owner shall refund the Deposit and other Charges stated in the Schedule paid to the Owner prior to termination.
19. RETURN OF EQUIPMENT
19.1 Upon the termination of the Contract whether by the Owner or the Hirer pursuant to any of the provisions of this Agreement, the Hirer shall, if so required by the Owner deliver up at the Hirer's own expense, the Equipment to the Owner at the Owner's address or at such other address as the Owner may specify or if not so required shall hold the Equipment available for collection by the Owner or its agents and shall permit the Owner or its agents without notice to retake possession of the Equipment and for that purpose to enter upon any premises to which the Hirer may grant access on or in which the Equipment is or is believed by the Owner or its agents to be situated. Where the Hirer may not legally grant access in the manner set out in this Condition it shall obtain any requisite permission for the Owner or its agents to enter the premises to retake possession of the Equipment.
19.2 If the Equipment is returned in damaged, unclean and/or defective state (except where due to fair wear and tear and/or an inherent fault in the Equipment) the Hirer shall be liable to pay the Owner for the cost and repair and/or cleaning required to return the Equipment to a condition suitable for re-hire.
19.3 The Hirer must pay the Owner the replacement cost of any Equipment (on a new for old basis) which is lost, stolen and/or damaged beyond economic repair during the period of hire of the Equipment.
19.4 The Hirer must pay the Owner all costs incurred in tracking or recovering any lost or stolen Equipment, or any Equipment moved from the Location without the Owner’s prior written consent, or any Equipment not duly returned to the Owner, or on termination of the Contract, whether upon expiry of the Term or for any other reason whatsoever.
20. FAILURE TO RETURN EQUIPMENT
20.1 If, for any reason whatsoever including but not limited to the Hirer's failure to comply with Condition 19, the Owner shall not recover possession of the Equipment on the termination of the hire of the Equipment, then in addition to any Charges and other monies payable by the Hirer under the Contract, the Hirer shall on demand pay to the Owner by way of liquidated damages a sum equivalent to the Replacement Value of the Equipment at the time of termination.
20.2 Nothing in this Condition shall be construed to impose any obligation on the Owner to do any act or take any legal proceedings for the purpose of recovering possession of the Equipment.
21. TERMINATION SUM
21.1 In the event that the Contract and hire of the Equipment is terminated whether by the Owner or the Hirer before the expiry of the Term pursuant to any of the Conditions of this Agreement other than pursuant to Conditions 7.3, 7.5 or 18.2 the Hirer shall pay the Owner within seven (7) days from the date of termination, the termination sum (Termination Sum) determined in accordance with Condition 21.2 Provided that the provisions of this Condition 21 shall not apply to where the Term does not exceed one month.
21.2 The Termination Sum in relation to any termination of the Contract shall be determined in accordance with the following formula:
X = (Z x A) - (A x B )
"X" represents the amount of the Termination Sum;
"Z" represents the total number of months relating to the minimum rental period as specified in the Schedule;
"A" represents the monthly rental Charges specified in the Contract or otherwise as set out in the Schedule.
"B" represents the total number of months in the period from the Commencement Date to the date of termination, inclusive of the month in which the termination of the hire of the Equipment occurred
The Termination Sum shall be paid in addition to any Charges or other sums which have become due or payable to the Owner as at the date of the termination of the Contract and/or hire of the Equipment.
22. FORCE MAJEURE
The Owner shall not be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from an event of Force Majeure, and in such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
23.1 No licence or rights to any software installed or supplied in conjunction with the Equipment are conferred on or granted to the Hirer by this Agreement and none of the provisions of this Agreement shall be construed to confer upon or grant the Hirer any licence or rights to the software.
23.2 Where any software is installed and or supplied in conjunction with the Equipment, the Hirer shall use the software only on and in relation to the Equipment and only for the duration of the hire of the Equipment (Term) by the Hirer and shall comply in all respects with all conditions and restrictions contained in any licence agreement (whether between the Owner and the proprietor or licensor of such software or otherwise) regulating the use of the software installed or supplied in conjunction with the Equipment and such other conditions and restrictions as may be imposed by the Owner from time to time.
23.3 The Hirer shall not copy or duplicate or permit any person to copy or duplicate, in any manner, the software, except and to the extent that it is expressly permitted by the terms of the licence agreement referred to in Condition 23.2 or by the prior written consent of the Owner.
23.4 Upon the expiration or termination of the Contract and/or hire of the Equipment, the Hirer shall return to the Owner all the software in the form in which the same were supplied or made available to the Hirer for use in conjunction with the hire of the Equipment.
23.5 The Owner makes no statement representation or warranty as regards the condition suitability or performance of any software installed or supplied in conjunction with the Equipment or as regards the right of the Hirer to use the software whether in conjunction with the Equipment or otherwise.
23.6 The Owner shall assume no responsibility or liability to the Hirer for any liability loss or damage incurred or suffered as a consequence of:
23.6.1 any claim by any person (other than the Owner or any successor in title of the Owner) against the Hirer for infringement of any rights in the software arising from the Hirer's possession or use thereof (whether in accordance with the terms of any licence agreement referred to in Condition 23.2 or otherwise); or
23.6.2 any error, defect, deficiency, unsuitability or failure in the performance of any such software; and
the Charges shall not be abated diminished or suspended notwithstanding any such claim or such error, defect, deficiency, unsuitability or failure in performance.
24. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and supersedes any and all previous agreements and understandings between the parties in relation to the subject matter of this Agreement whether written or oral. The parties agree that, save as expressly set out in this Agreement, neither party will have any liability for any untrue statement or representation made by it (whether innocently or negligently) upon which the other party relied in entering into this Agreement, unless such untrue statement was made fraudulently.
25. ASSIGNMENT AND SUBCONTRACTING
25.1 The Hirer shall not assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with this Agreement or any of its rights and obligations under or arising out of this Agreement (or any document referred to in it), or purport to do any of the same.
25.2 The Hirer shall not subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent. The Hirer shall retain sole responsibility for the performance of the tasks assigned to it under this Agreement, regardless of the use of authorised subcontractors.
25.3 Each party that has rights under this Agreement is acting on its own behalf and not for the benefit of another person.
26.1 Any delay or other indulgence in the exercise or non-exercise of any right by the Owner is not a waiver of that right and shall not prejudice the Owner’s rights in any way.
26.2 If a provision in this Agreement is or becomes illegal, invalid or unenforceable under any applicable law it shall not affect the validity of the other provisions (including the remainder of any affected provision). If any provision is or becomes illegal, invalid or unenforceable in whole or in part as a result of the degree or extent which it purports to be effective it shall be construed to give effect to the maximum extent permitted by law.
26.3 A party who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999.
26.4 The Hirer shall be liable for acts and/or omissions of its employees, agent, servants or subcontractors as though they were the Hirer’s own acts and/or omissions under the Contract.
26.5 The Hirer shall be responsible for compliance with all relevant legislation and regulations, including (but not limited to) regulations under the Factories Act and Health and Safety at Work Act.
26.6 The Hirer shall indemnify the Owner against any liability suffered and arising from or due to the Hirer’s breach of contract to it and/or breach of statutory duty and/or any claim from a third party for injury to person/property arising from the Hirer’s use of or storage of the Equipment.
26.7 These Conditions supercede and replace all prior terms and conditions, communications, representations, ultimatums, undertakings and agreements, whether oral or written, between the parties.
26.8 The Hirer shall not and shall procure that its directors, employees, agents, sub-contractors and suchlike shall not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010. The Hirer should have in place procedures designed to prevent any party connected with this Contract from committing offences or corruption or bribery.
26.9.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier.
26.9.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 26.9.1; if sent by pre-paid first class post or other next working day delivery services, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
26.9.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
27. GOVERNING LAW
27.1 This Agreement shall be governed by and construed in accordance with English Law
27.2 The English courts shall have exclusive jurisdiction to hear or otherwise decide any suit, application, action or other proceedings which may arise out of or in connection with this Agreement and for these purposes each party irrevocably submits to the jurisdiction of the English court.
27.3 Each party irrevocably waives any objection it might at any time have to the English courts being nominated as the forum to hear or otherwise decide any Proceedings and agrees not to claim that the English courts are not a convenient or appropriate forum.