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Terms & Conditions of Hire

1. DEFINITIONS

  1. In these Terms:

  • "the Customer” any party with whom Dening & Co contracts.

  • Collection Fee” the fee payable by the Customer to Dening & Co for collection of the Equipment from the Location.

  • the Contract” the contract between Dening & Co and the Customer for the hire of the Equipment in accordance with these Terms and the Order.

  • Delivery” the transfer of physical possession of the Equipment to the Customer at the Location.

  • Delivery Fee” the fee payable by the Customer to Dening & Co for delivery of the Equipment to the Location.

  • Dening & Co” Thomas Dening and Samantha Nutt of Shutteroaks Cottage, Hinton Road, Crewkerne, Somerset, TA187TQ trading as Dening & Co.

  • Deposit” means the non-refundable deposit amount set out in the Order.

  • ''the Equipment" means the equipment supplied by Dening & Co to the Customer under the Contract.

  • Late Return Fee” means the fee payable by the Customer to Dening & Co for failing to return the Equipment in accordance with the Contract. 

  • Location” means the Customer’s premises, Dening & Co’s premises or such other location for Delivery as outlined in the Order.

  • Order” the Customer's order for the hire of the Equipment as set out overleaf.

  • Purchase Option” the Customer’s option to purchase the Equipment as outlined in clause 7.

  • Purchase Option Price” the price of the Purchase Option as outlined in writing by Dening & Co to the Customer.

  • Rental Fee” means the payment of the price made by or on behalf of the Customer for the hire of the Equipment.

  • Rental Period” means the period of hire as set out in the Order.

  • Retention Fee” a deposit to be held by Dening & Co against any loss of or damage caused to the Equipment or late return of the Equipment.

  • Return” means the re-transfer of possession of the Equipment to Dening & Co in a Satisfactory Condition whether delivered by the Customer to Dening & Co or collected by Dening & Co and returned shall be interpreted accordingly.

  • Satisfactory Condition” means clean, undamaged and unaltered as determined in Dening & Co’s sole discretion.

  • Terms” means these terms and conditions as amended from time to time in accordance with clause 13.3.

  1. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

  2. A reference to writing or written includes email but not fax.

  3. 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 THE EQUIPMENT HIRE

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

  2. The Customer shall be responsible to Dening & Co for ensuring the accuracy of the Order.

  3. An Order submitted by the Customer shall only be binding on Dening & Co once the Order is accepted in writing (including email) by Dening & Co, at which point the Contract shall come into existence.

  4. Any representation or warranty in relation to the Equipment made prior to the Contract is expressly excluded. 

  5. Any quotation given by Dening & Co is an invitation to the Customer to place an Order within 7 days of the quotation date only.

  6. No Order which has been accepted by Dening & Co may be cancelled by the Customer except  with Dening & Co's agreement and on the basis that the Customer shall indemnify Dening & Co in full against all loss (including  loss  of  profit), costs and expenses incurred by Dening & Co as a result of such cancellation.

3. RENTAL FEE, DELIVERY FEE AND PAYMENT

  1. Dening & Co reserves the right, by giving notice to the Customer at any time before Delivery, to increase the Rental Fee to reflect any increase in the costs to Dening & Co which is due to:

  2. any factor beyond Dening & Co’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);

  3. any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered; or

  4. any delay caused by any instructions of the Customer or failure of the Customer to give Dening & Co adequate or accurate information or instructions.

  5. The Deposit and the Retention Fee are due and payable upon acceptance of the Order by Dening & Co.

  6. The Customer shall pay the remaining Rental Fee to Dening & Co in accordance with the payment schedule outlined in the Order, payment of the Rental Fee shall be of the essence of the Contract. 

  7. Carriage and packing charges are not included within the Rental Fee. The Delivery Fee and the Collection Fee are outlined within the Order and the Customer shall pay the Delivery Fee and/or the Collection Fee in accordance with the payment schedule outlined in the Order, payment of the Delivery Fee and/or the Collection Fee shall be of the essence of the Contract.  

  8. Unless otherwise stated the Rental Fee, the Delivery Fee and the Collection Fee are exclusive of Value Added Tax, any other applicable taxes and duties of a similar charge.

  9. 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). 

  10. If the Customer fails to make any payment by or on the due date Dening & Co shall be entitled to charge interest at the rate of 8% above the Bank of England base rate from time to time, but at 8% a year for any period when the base rate is below 0% from the due date until payment of the overdue sum, whether before or after judgement. The Customer agrees to indemnify Dening & Co for all costs and expenses which it may incur (including any legal costs) in recovering any unpaid sum.

 

4. DELIVERY, RETURN OF EQUIPMENT AND RETENTION FEE

  1. The Rental Period starts on the date the Customer takes Delivery of the Equipment and shall continue for the period outlined in the Order, unless the Contract is terminated earlier in accordance with these Terms.

  2. Subject to payment by the Customer of the Delivery Fee, Dening & Co shall deliver the Equipment to the Location. If the Customer does not pay the Delivery Fee, the Customer shall collect the Equipment from the Location. 

  3. Any dates and times quoted for Delivery of the Equipment are approximate only and Dening & Co shall not be liable for any delay in Delivery of the Equipment. Time for Delivery of the Equipment shall not be of the essence of the Contract.

  4. The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by Dening & Co, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.

  5. To facilitate Delivery and Collection, the Customer shall at its sole expense provide all requisite materials, facilities, access, licenses and suitable working conditions to enable Delivery and Collection to be carried out safely and expeditiously including but not limited to Dening & Co’s delivery vehicle shall have proper access to the Location. Dening & Co will not deliver or collect the Equipment over roads or grounds that in Dening & Co's (or its authorised representative's) opinion is considered to be unsuitable. The Customer shall indemnify Dening & Co in respect of all costs, claims, losses or expenses which Dening & Co may incur as a result of Delivery to or Collection from the Location.

  6. Subject to the Customer paying the Collection Fee, on the last day of the Rental Period, Dening & Co shall arrange for the Return of the Equipment from the Location by 9pm.

  7. If the Customer does not pay the Collection Fee, the Customer shall be responsible for the Return of the Equipment by 6pm on the last day of the Rental Period.

  8. The Equipment must be in a Satisfactory Condition when Returned. If the Equipment is not of Satisfactory Condition when Returned, the Customer shall pay to Dening & Co the costs of cleaning (as outlined in the Order) and/or repair of the Equipment.

  9. If the Equipment is not returned, is lost, stolen or in the opinion of Dening & Co is damaged beyond repair, the Customer shall pay to Dening & Co the current published list price of the Equipment. The decision to undertake repairs is at Dening & Co’s sole discretion.

  10. Dening & Co reserves the right to make a deduction from the Retention Fee for any payments due under clause 4.8 and clause 4.9.

  11. The Retention Fee (or balance of the Retention Fee) shall be refundable within ten working days of the end of the Rental Period.

5. TITLE, RISK AND INSURANCE

  1. The Equipment shall at all times remain the property of Dening & Co, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Terms) except where the Customer exercises the Purchase Option in clause 7.

  2. The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is Returned to Dening & Co.

  3. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain insurance of the Equipment to a value not less than its full replacement value. Such insurance shall be comprehensive against all usual risks of loss, damage or destruction by fire, theft or accident, third party, public liability and such other risks as Dening & Co may from time to time nominate in writing.

  4. The Customer shall give immediate written notice to Dening & Co in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer's possession or use of the Equipment.

  5. If the Customer fails to effect or maintain the insurance required under these Terms, Dening & Co 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 Customer.

  6. The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Dening & Co and proof of premium payment to Dening & Co to confirm the insurance arrangements.

6. THE CUSTOMER’S RESPONSIBILITIES

  1. The Customer shall during the term of the Contract:

  2. ensure that the Equipment is kept 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 and all healthy, safety and usage instructions provided;

  3. only fill the Equipment with clean tap or salt water;

  4. shall not use the Equipment to collect human, animal or plant waste;

  5. maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on Delivery (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Dening & Co immediately upon installation;

  6. make no alteration to the Equipment, except in accordance with clause 6.1.4;

  7. at all times keep the Equipment in the possession and control of the Customer and keep Dening & Co informed of its location if the Equipment is not at the Location;

  8. at all reasonable times permit Dening & Co or its duly authorised representative to enter the Location or any location at which the Equipment is stored to inspect the Equipment, and shall grant reasonable access and facilities for such inspection;

  9. maintain operating and maintenance records of the Equipment and make such records available to Dening & Co;

  10. not without the prior written consent of Dening & Co, cause the Equipment to become a permanent or immovable fixture on such land or building;

  11. not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Dening & Co  in the Equipment;

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

  13. deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract in accordance with clause 8.2.1; and

  14. not do or permit to be done anything which could invalidate the insurances referred to in clause 5.

  15. The Customer indemnifies Dening & Co against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer, its officers, employees, agents or contractors to comply with the Contract.

7. PURCHASE OPTION

  1. The Customer shall, subject to clause 7.2, have the option, exercisable by not less than ten (10) days' written notice to Dening & Co, to purchase the Equipment on the last working day of the Rental Period at the Purchase Option Price.

  2. The Purchase Option may be exercised only if:

  3. all amounts due to Dening & Co under the Contract up to the date of exercise of the Purchase Option have been paid in full by the Customer; and

  4. the Rental Period has not ended by reason of Dening & Co terminating the Contract in accordance with clause 9.1. 

  5. Upon completion of the purchase of the Equipment under this clause 7, such title to the Equipment as Dening & Co had on the commencement of the Rental Period shall transfer to the Customer. The Equipment shall transfer to the Customer in the condition and at the location in which it is found on the date of transfer.

8. LIMITATION OF LIABILITY

  1. Subject to clause Error: Reference source not found, Dening & Co's total liability to the Customer (including any liability for the acts or omissions of its employees, agents and subcontractors) shall not exceed the total Rental Fee for the duration of the Rental Period.

  2. Nothing in the Contract limits any liability which cannot legally be limited including but not limited to liability for: death or personal injury caused by negligence; fraud or fraudulent misrepresentation; breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973; and any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.

  3. The Contract sets forth the full extent of Dening & Co’s obligations and liabilities in respect of the Equipment and its hiring to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on Dening & Co except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.

  4. Subject to clause Error: Reference source not found, Dening & Co shall not be liable under the Contract for any: loss of profit; loss of revenue; loss of sales or business; loss of anticipated savings; loss or damage to goodwill; or indirect or consequential loss or damage, in each case, however caused, even if foreseeable.

  5. The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9. TERMINATION AND CONSEQUENCES OF TERMINAITON

  1. Without affecting any other right or remedy available to it, Dening & Co may terminate the Contract with immediate effect by giving written notice to the Customer if:

  2. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default for not less than 14 days after being notified in writing to make such payment; or

  3. the Customer commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

  4. the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;

  5. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

  6. any distress or execution is levied upon the goods or property of the Customer; or

  7. the Customer offers to make any arrangements with or for the benefit of its creditors or commits  any  act  of  bankruptcy  or,  being  a  limited  company,  has  a  receiver, administrative receiver or administrator appointed of the whole or any part of its undertakings property or assets; or

  8. any order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Customer (save for the purposes of reconstruction or amalgamation without insolvency and previously approved in writing by Dening & Co).

  9. Upon termination or expiry of the Contract, however caused:

  10. except if the Purchase Option has been exercised by the Customer, Dening & Co’s consent to the Customer’s possession of the Equipment shall terminate;

  11. Dening & Co may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Location or any premises at which the Equipment is located; and

  12. without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Dening & Co on demand:

  13. any Rental Fee, Delivery Fee or Collection Fee and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 3.7; and

  14. any costs and expenses incurred by Dening & Co in recovering the Equipment or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).

  15. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

  16. 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 Contract which existed at or before the date of termination or expiry.

10. FORCE MAJEURE

  1. Dening & Co shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances Dening & Co shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four weeks, Dening & Co may terminate the Contract by giving 14 days written notice to the Customer and clause 9.2 shall apply.  

11. CONFIDENTIAL INFORMATION

  1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause Error: Reference source not found.

  2. Each party may disclose the other party's confidential information:

  3. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with clause Error: Reference source not found; and

  4. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

  5. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12. NOTICES

  1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

  2. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

  3. sent by email to the address specified in the Order.

  4. Any notice shall be deemed to have been received:

  5. if delivered by hand, at the time the notice is left at the proper address;

  6. if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

  7. if sent by email at 9.00am on the first Business Day after transmission.

  8. 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.

  9. Any notice required or permitted to be given by either party to the other under the Contract shall be in writing addressed to that other party at its registered office or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

  10. Any notice shall be deemed to have been received if delivered by hand, on the signature of delivery receipt or at the time the notice is left at the proper address and if sent by pre-paid first-class post or other next working day delivery services at 9.00am on the second working day after posting.

13 GENERAL

  1. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute

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