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Hire Terms and Conditions

Hire Terms & Conditions

1.                   Interpretation

1.1                The following definitions and rules of interpretation apply in this agreement.

Additional Services: any Excluded Maintenance performed by Applied Torque under this agreement.

Additional Services Fees: the fees payable in consideration of the provision of any Excluded Services as notified to the Hirer at the time.

Business Day: a day other than a Saturday, Sunday or UK public holiday

Commencement Date: the date that the Hirer takes Delivery of the Equipment.

Corrective Maintenance: means:

(a)            making any adjustments to the Equipment; and

(b)           replacing any parts or components of the Equipment, required to restore the Equipment to Good Working Order.

Delivery: the transfer of physical possession of the Equipment to the Hirer at the Site.

Equipment: the equipment set out in the Purchase Order including all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.

Excluded Causes: means:

(a)            any maintenance, alteration, modification or adjustment performed by persons other than Applied Torque or its employees or agents; 

(b)           the use of the Equipment in breach of any of the provisions of this agreement; or 

(c)           the neglect or misuse of the Equipment.

Excluded Services: any maintenance services required to restore any malfunctioning or failed Equipment to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes. 

Good Working Order:  the Maintained Equipment operates in accordance with the Operating Manuals.

Maintenance Services: repair and maintenance of the Equipment.

Normal Business Hours: [8.30] am to [5.00] pm GMT on a Business Day.

Operating Manuals: all operating manuals, specifications and other documentation relating to the Equipment.

Site: the Hirer's premises.

Rental Payments: the sums set out in any quotation, the purchase order or any confirmation thereof. Rental Payments are based on 7 day weeks.  Weekends and Bank Holidays are not exempt.  Prices are per calendar day and are not determined by the time of delivery or collection.

Rental Period: the period as set out in clause 3.

Total Loss: the Equipment is, in Applied Torque's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.

VAT: value added tax chargeable under the Value Added Tax Act 1994.

1.2                Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3                A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)

1.4                A reference to writing or written includes fax and e-mail.

1.5                Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

1.6                Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2.                   Basis of contract

2.1                The Purchase Order constitutes an offer by the Hirer to hire the Equipment in accordance with these terms. 

2.2                The order will only be deemed to be accepted when the Purchase Order is accepted by the Customer on which date the Contract shall come into existence (Commencement Date).

2.3                These terms apply to the Contract to the exclusion of any other terms that the Hirer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4                Any quotation given will not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

 

3.                   Equipment Hire

3.1                Applied Torque shall hire the Equipment to the Hirer subject to these terms.

3.2                Applied Torque shall not, other than in the exercise of its rights under these terms or applicable law, interfere with the Hirer's quiet possession of the Equipment.

 

4.                   Rental Period

                       The Rental Period starts on the Commencement Date and shall continue (subject to clause 14) for the period set out in the Purchase Order or until the Equipment is returned to Applied Torque, whichever is that later.

5.                   Rental Payments and Deposit

5.1                Unless agreed otherwise by Applied Torque, the Hirer shall pay the Rental Payments to Applied Torque in two equal instalments being 50% before delivery of the Equipment and 50% within 14 days of the end of the Rental Period.

5.2                The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the                                 manner f rom time to time prescribed by law.

5.3                All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as                           required by law).

5.4                If the Hirer fails to make any payment due to Applied Torque under this agreement by the due date for payment, then, without limiting Applied Torque's remedies under clause 14, the Hirer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Hirer shall pay the interest together with the overdue amount.

6.                   Delivery

6.1                Delivery of the Equipment shall be made by Applied Torque. Title and risk shall transfer in accordance with clause 7 of these terms.

6.2                The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Delivery of the Equipment.

6.3                The Hirer shall be responsible for any Delivery charges which shall be added to the invoice at the end of the Rental Period.

 

7.                   Title, risk and insurance

7.1                The Equipment shall at all times remain the property of Applied Torque, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).

7.2                All risk in the Equipment shall pass to the Hirer on Delivery. The Equipment shall remain at the sole risk of the Hirer during the Rental Period 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 redelivered to Applied Torque.

7.3                During the Rental Period and the Risk Period, the Hirer shall, at its own expense, insure 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 Applied Torque may from time to time nominate in writing.

7.4                The Hirer shall give immediate written notice to Applied Torque in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Hirer's possession or use of the Equipment.

 

8.                   Hirer's responsibilities

8.1                The Hirer shall:

(a)            ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by Applied Torque;

(b)           ensure the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;

(c)            make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of Applied Torque;

(d)           notify Applied Torque within 2 business days if the Equipment is discovered to be operating incorrectly;

(e)            not allow any person other than Applied Torque to maintain, alter, modify or adjust the Equipment without the prior written approval of Applied Torque;

(f)             at all times keep the Equipment in the possession or control of the Hirer;

(g)           not, without the prior written consent of Applied Torque, sell, let, hire or offer for sale or allow the creation of any mortgage, charge, lien or other security interest in respect of the Equipment;

(h)           not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Applied Torque in the Equipment;

(i)             not suffer or permit the Equipment to be confiscated, seized or taken out of its control under any distress, execution or other legal process;

(j)             not use the Equipment for any unlawful purpose;

(k)           ensure that at all times the Equipment remains identifiable as being Applied Torque's property;

(l)             deliver up the Equipment at the end of the Rental Period in a clean and workmanlike condition.  A Hirer who returns Equipment in a dirty unsatisfactory condition, will be charged £42.50 for cleaning.

(m)          deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as Applied Torque requires, or if necessary allow Applied Torque or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and

(n)           not do or permit to be done anything which could invalidate the insurances referred to in clause 7.

 

8.2                The Hirer undertakes to indemnify Applied Torque on demand against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment by the Hirer and any failure by the Hirer to comply with these terms.

 

9.                   Maintenance Services

9.1                During the Rental Period, Applied Torque shall provide the Hirer with the Maintenance Services for the Equipment.

9.2                On the Hirer informing Applied Torque that Equipment (located in the UK) is malfunctioning or has failed or is otherwise not in Good Working Order, Applied Torque  request the Hirer, if convenient shall arrange for such Equipment to be delivered to the issuing premises to perform the Maintenance Services.  If the Equipment is located outside the UK at the time of malfunctioning, the Hirer shall arrange for the Equipment to be delivered to Applied Torque at the Hirer’s cost.  Once repaired, Equipment will only be redelivered to addresses in the UK.  Customers outside the UK must arrange for collection.

9.3                In performing the Maintenance Services, Applied Torque shall use all reasonable endeavours to restore any malfunctioning or failed Equipment to Good Working Order.

10.                Replacements and spare parts

10.1             In performing the Maintenance Services, Applied Torque shall use all reasonable endeavours to source spare parts required to restore the Equipment to Good Working Order.

10.2             All spare parts and/or replacements provided by Applied Torque to the Hirer shall become part of the Equipment and the property of Applied Torque. All parts and components removed from the Equipment by Applied Torque in the course of performing the Maintenance Services will be the property of Applied Torque.

 

11.                Excluded Maintenance

11.1             Applied Torque is not obliged to perform any Excluded Maintenance.

11.2             Where Applied Torque is performing or has performed the Maintenance Services in circumstances where it is established that the Equipment was not in Good Working Order due to any of the Excluded Causes, Applied Torque may charge, and the Hirer shall pay, the Additional Services Fees in respect of that work.

12.                Warranty

12.1             Applied Torque shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which occurs during the Rental Period, provided that:

(a)            the Hirer notifies Applied Torque of any defect in writing within [two (2)] Business Days of the defect occurring or of becoming aware of the defect;

(b)           Applied Torque is permitted to make a full examination of the alleged defect;

(c)            the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Applied Torque's authorised personnel;

(d)           the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hirer or on its behalf; and

(e)            the defect is directly attributable to defective material, workmanship or design.

12.2             Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Applied Torque, the Hirer shall be entitled only to such warranty or other benefit as Applied Torque has received from the manufacturer.

 

13.                Liability

13.1             Without prejudice to clause 13.2, Applied Torque's maximum aggregate liability for breach of the Contract (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                          Rental Fees.

13.2             Nothing in this agreement shall exclude or in any way limit:

(a)            either party's liability for death or personal injury caused by its own negligence;

(b)           either party's liability for fraud or fraudulent misrepresentation; or

(c)            any other liability which cannot be excluded by law.

13.3             There are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on Applied Torque except as specifically stated in this agreement.

13.4             Without prejudice to clause 13.2, Applied Torque shall not be liable to the Hirer under the Contract for any loss of profit, loss of revenue, loss of business, or indirect or consequential loss or damage, in each case, however caused, even if foreseeable.

14.                Termination

14.1             Without limiting its other rights or remedies, Applied Torque may terminate the Contract with immediate effect by giving written notice to the Hirer if:

(a)            the Hirer commits a material breach of any of these terms and (if such a breach is remediable) fails to remedy that breach within 7 days of the Hirer being notified in writing to do so;

(b)           the Hirer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)            the Hirer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)           the Hirer’s financial position deteriorates to such an extent that in Applied Torque’s opinion the Hirer’s capability to adequately fulfill its obligations under this agreement has been placed in jeopardy.

14.2         Without limiting its other rights or remedies, Applied Torque may terminate the Contract with immediate effect by giving written notice to the Hirer if the Hirer fails to pay any amount due under the agreement on the due date for payment and remains in default not less than [7] days after being notified to make such payment.

14.3         The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.

15.                Consequences of Termination

15.1             Upon termination of the Contract, however caused:

(a)            Applied Torque's consent to the Hirer's possession of the Equipment shall terminate and Applied Torque may retake possession of the Equipment and for this purpose may  enter the Site or any premises at which the Equipment is located; and

(b)           without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to Applied Torque on demand:

(i)             all Rental Payments and other sums due but unpaid at the date of such demand together with any interest;

(ii)           any costs and expenses incurred by Applied Torque in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport and legal costs).

15.2         Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

15.3         Clauses which expressly or by implication survive termination shall continue in full force and effect.

16.                Force majeure

             Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. 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.

17.                Assignment and other dealings

            The Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these terms.

18.                Entire agreement

            These terms constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

19.                Variation

           Applied Torque may revise these terms at any time and shall notify the Hirer in any such event.

20.                No partnership or agency

           Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

21.                Third party rights

           No one other than a party to the Contract shall have any right to enforce any of its terms.

22.                Notices

22.1             Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; sent by fax to its main fax number or to an email address notified by the each party from time to time.

22.2             This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23.                Waiver

               No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

24.                Rights and Remedies

                Except as expressly provided in these terms, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

25.                Severance

               If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

26.                Governing law

            The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales, Scotland and Northern Ireland.

27.                Jurisdiction

            Each party irrevocably agrees that the courts of England, Wales, Scotland and Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

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