ELECTRICAL POWER ENGINEERING SERVICES LIMITED t/a E.P.E.S.
Standard Terms and Conditions of Hire
- Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date set out in the Order Form.
Company: means Electrical Power Engineering Services t/a E.P.E.S., registered in England and Wales with company number 04203336.
Conditions: means these terms and conditions, as amended from time to time by the Company.
Contract: means the contract between the Company and the Hirer for the hire of the Equipment.
Delivery: the transfer of physical possession of the Equipment to the Hirer at the Site.
Deposit: the deposit amount set out in the Order Form (if any).
Equipment: the items of equipment listen in the Order Form, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Hirer: means the firm, company or business set out in the Order Form who is hiring the Equipment.
Insolvency Event: means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
Order: means the Hirer’s order for hiring the Equipment as set out in the Order Form.
Order Form: means the document appended to these Conditions, signed by both parties, setting out the terms of the Order.
Site: the Hirer’s premises set out in the Order Form.
Rental Payments: the payments made by or on behalf of Hirer for hire of the Equipment.
Total Loss: the equipment is, in the Company’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere
1.2 Clause headings shall not affect the interpretation of these conditions.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.5 A reference to writing or written includes email.
1.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Equipment hire
2.1 These Conditions 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.
2.2 The Order constitutes an offer by the Hirer to hire the Equipment in accordance with these Conditions. The Hirer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when both parties agree and sign the Order Form, at which point the Contract shall come into existence.
2.4 The Hirer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Hirer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Company and any descriptions or illustrations contained in the Company’s catalogues, website or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 The Company shall hire the Equipment to the Hirer for use at the Site subject to the terms and conditions of these Conditions.
2.7 The Company shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Hirer’s quiet possession of the Equipment.
3. Rental Period
The period of hire for the Equipment shall start on the Commencement Date and shall continue for the Rental Period unless the Contract is terminated earlier in accordance with these Conditions.
4. Rental Payments and Deposit
4.1 The Hirer shall pay the Rental Payments to the Company in accordance with the payment terms set out in the Order Form. The Rental Payments shall be paid in pound sterling.
4.2 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 from time to time prescribed by law.
4.3 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).
4.4 If the Hirer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 10 (Termination), the Hirer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
4.5 Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
4.6 The Deposit is a deposit against default by the Hirer of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Hirer shall, on the Commencement Date, pay a deposit of the amount set out in the Order Form to the Company. If the Hirer fails to make any Rental Payments in accordance with the payment terms set out in the Order Form, or causes any loss or damage to the Equipment (in whole or in part), the Company shall be entitled to apply the Deposit against such default, loss or damage. The Hirer shall pay to the Company any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Rental Period.
5. Delivery
5.1 Unless agreed otherwise in writing delivery of the Equipment shall be made by the Company. The Company shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 (Title, risk and insurance) of the Contract.
5.2 The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Hirer 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 the Company, the Hirer’s duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery, the Hirer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
6. Title, risk and insurance
6.1 The Equipment shall at all times remain the property of the Company, 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 the Contract).
6.2 The risk of loss, theft, damage or destruction of 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 the Company. During the Rental Period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:
6.2.1 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 Company may from time to time nominate in writing;
6.2.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Company 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
6.2.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Company may from time to time consider reasonably necessary and advise to the Hirer.
6.3 All insurance policies procured by the Hirer shall be endorsed to provide the Company 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 Company’s request name the Company 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.
6.4 The Hirer shall give immediate written notice to the Company 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.
6.5 If the Hirer fails to effect or maintain any of the insurances required under the Contract, the Company 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.
6.6 The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Company and proof of premium payment to the Company to confirm the insurance arrangements.
7. Hirer’s responsibilities
7.1 The Hirer shall during the term of the Contract:
7.1.1 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;
7.1.2 take such steps (including compliance with all safety and usage instructions provided by the Company) as may be necessary to ensure, so far as is reasonably practicable, that 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;
7.1.3 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 the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
7.1.4 make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Company unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Company immediately upon installation;
7.1.5 keep the Company fully informed of all material matters relating to the Equipment;
7.1.6 keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without the Company’s prior written consent;
7.1.7 permit the Company or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
7.1.8 maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Company, together with such additional information as the Company may reasonably require;
7.1.9 not, without the prior written consent of the Company, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
7.1.10 not without the prior written consent of the Company, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Hirer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Company against all losses, costs or expenses incurred as a result of such affixation or removal;
7.1.11 not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Company in the Equipment and, where the Equipment has become affixed to any land or building, the Hirer must take all necessary steps to ensure that the Company may enter such land or building and recover the Equipment both during the term of the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Company of any rights such person may have or acquire in the Equipment and a right for the Company to enter onto such land or building to remove the Equipment;
7.1.12 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, but if the Equipment is so confiscated, seized or taken, the Hirer shall notify the Company and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Company on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
7.1.13 not use the Equipment for any unlawful purpose;
7.1.14 ensure that at all times the Equipment remains identifiable as being the Company’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
7.1.15 deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as the Company requires, or if necessary allow the Company or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
7.1.16 not do or permit to be done anything which could invalidate the insurances referred to in clause 6(Title, risk and insurance).
7.2 The Hirer acknowledges that the Company shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Hirer or its officers, employees, agents and contractors, and the Hirer undertakes to indemnify the Company on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Hirer to comply with the terms of the Contract.
8. Warranty
8.1 The Company warrants that the Equipment shall materially conform to its specification (as made available by the Company), be of satisfactory quality and fit for any purpose held out by the Company.,
8.2 In the event that any material defect in the Equipment manifests itself within six (6) months from Delivery the Company shall (at its discretion) use all reasonable endeavours to remedy such defect, replace the Equipment with materially similar equipment or (provided that the Equipment is returned to the Company by the Hirer) refund any Rental Payments for the period during which the Equipment was inoperative due to the defect (in which case the Rental Period shall, without further liability on the Company come to an end) , provided that:
8.2.1 Hirer notifies the Company of any defect in writing within three (3) Business Days of the defect occurring;
8.2.2 the Company is permitted to make a full examination of the alleged defect;
8.2.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Company’s authorised personnel;
8.2.4 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
8.2.5 the defect is directly attributable to defective material, workmanship or design.
8.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Company, the Hirer shall be entitled only to such warranty or other benefit as the Company has received from the manufacturer.
9. Liability
9.1 Without prejudice to clause 9.2, the Company’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 a sum equal to 110% (one hundred and ten percent) of the Rental Payments made by the Hirer up to the date on which the Hirer makes a claim for such breach.
9.2 Nothing in the Contract shall exclude or in any way limit:
9.2.1 either party’s liability for death or personal injury caused by its own negligence;
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.
9.3 The Contract sets forth the full extent of the Company’s obligations and liabilities in respect of the Equipment and its hiring to the Hirer. 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 the Company 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.
9.4 Without prejudice to clause 9.2, the Company shall not be liable under the Contract for any:
9.4.1 loss of profit;
9.4.2 loss of revenue
9.4.3. loss of business;
9.4.4 indirect loss or damage; or
9.4.5 consequential loss or damage,
in each case, however caused, even if foreseeable
10. Termination
10.1 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving notice to the Hirer if:
10.1.1 the Hirer fails to pay any amount due under the Contract on the due date for payment;
10.1.2 the Hirer 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 7 days after being notified to do so;
10.1.3 the Hirer 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;
10.1.4 the Hirer is subject to an Insolvency Event in; or
10.1.5 the Hirer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.2 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11. Consequences of termination
11.1 Upon termination of the Contract, however caused:
11.1.1 the Company’s consent to the Hirer’s possession of the Equipment shall terminate and the Company may, by its authorised representatives, without notice and at the Hirer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
11.1.2 without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to the Company on demand:
i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4;
ii) any costs and expenses incurred by the Company in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 Upon termination of the Contract pursuant to clause 10.1, any other repudiation of the Contract by the Hirer which is accepted by the Company or pursuant to clause 10.2, without prejudice to any other rights or remedies of the Company, the Hirer shall pay to the Company on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period.
11.3 The sums payable pursuant to clause 11.2 shall be agreed compensation for the Company’s loss and shall be payable in addition to the sums payable pursuant to clause 11.1(b). Such sums may be partly or wholly recovered from any Deposit.
11.4 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.
12. 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 the Contract 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. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
13. Confidential Information
13.1 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 13.2.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13.; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14. Assignment and other dealings
The Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
15. Entire Agreement
15.1 The Contract 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.
15.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
16. Variation
No variation of the Contract shall be effective unless it is in writing and signed by the Company (or its authorised representative).
17. No partnership or agency
17.1 Nothing in the Contract 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.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Counterparts
18.1 The Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
19. Third party rights
19.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
19.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
20 Notices
20.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
20.1.1 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
20.1.2 sent by email to the address specified in the Order Form.
20.2 Any notice or communication shall be deemed to have been received:
20.2.1 if delivered by hand, on signature of a delivery receipt; and
20.2.2 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; and
20.2.3 if sent by email, at the time of transmission, of this time falls outside Business Hours at 9.00 am on the next Business Day after transmission.
20.3 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.
21. Waiver
No failure or delay by a party to exercise any right or remedy provided under the Contract 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. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22. Rights and Remedies
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
23. Severance
23.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
23.2 If any provision or part-provision of the Contract is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
25. Jurisdiction
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
