TERMS AND CONDITIONS FOR SUPPLY OF HIRE EQUIPMENT SERVICES TO ADARE FARM MACHINERY LIMITED, TRADING AS “ADARE MACHINERY”
1. Definition and interpretation
1.1 The following definitions and rules of interpretation apply in these terms.
“Contract” the Order Form and these terms, which together form the contract between you and us for the hire of the Equipment
“Customer” a hirer of the Equipment from us
“Customer Contract” a contract between us and a Customer for the hire of the Equipment from us
“Delivery” delivery of the Equipment as set out in Clause 7
“Delivery Date” has the meaning given in Clause 7.3
“Delivery Location” has the meaning given in Clause 7.1
“Equipment” the items of equipment listed in the Order Form, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it
“Order Form” the standard ADARE MACHINERY order form detailing each order including pricing, delivery address, Equipment and Rental Period
“Rental Payments” the payments made by us for hire of the Equipment, as specified in the Order Form
“Rental Period” the period of hire as set out in the Order Form, or as otherwise communicated by us to you
“VAT” value added tax chargeable under the Value Added Tax Act 1994
“we”, “us”, “our” means ADARE MACHINERY
“you” or “your” the party with whom ADARE MACHINERY is contracting in accordance with these terms, being the supplier of the Equipment
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 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. These terms and the Contract
2.1 These terms apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Our order for Equipment constitutes an offer by us to hire the Equipment from you in accordance with these terms.
2.3 Our order for Equipment shall be deemed to be accepted on the earlier of:
2.3.1 you issuing a written acceptance of the order; and
2.3.2 you doing any act consistent with fulfilling the order, at which point the Contract shall come into existence.
3. Equipment Hire
3.1 You will hire the Equipment to us, subject to these terms.
3.2 You will not, other than in the exercise of your rights under these terms or applicable law, interfere with the Customer’s (or our) quiet possession of the Equipment.
3.3 You agree that we may hire the Equipment to a Customer and you will deliver the Equipment to the Customer and collect the Equipment from the Customer in accordance with these terms and our instructions from time to time.
3.4 You will do nothing to cause us to breach a Customer Contract. In the event that a Customer contacts you directly with regards to the Equipment, to off-hire Equipment directly through you, or in respect of any other matter relating to the Customer Contract, you shall inform us without delay. We shall not be responsible for any related costs in the event that you fail to or delay in doing so and you shall indemnify us in respect of any administrative costs we incur as a result of you not notifying us immediately if a Customer off-hires Equipment directly through you, such costs to be paid to us by you within 14 days of the date of our invoice.
3.5 In performing your obligations under a Contract, you will comply with all applicable laws, statutes, regulations and codes from time to time in force.
4. Rental Period
4.1 The Rental Period starts on the Delivery Date and shall continue for the period stated in the Order Form unless:
4.1.1 the Contract is terminated earlier in accordance with its terms; or
4.1.2 we extend the Rental Period.
4.2 We may extend the Rental Period at any time on written notice to you to that effect.
5. Nature, Quality and Standards of the Equipment
5.1 You will at all times be responsible for ensuring the provision, nature, quality and standard of all Equipment supplied to us and/or our Customer and in particular but without limitation will:
5.1.1 ensure that the Equipment will conform with its specification, be of satisfactory quality and fit for any purpose held out by you;
5.1.2 provide the Equipment, with the best care, skill and diligence in accordance with best practice in the Equipment hire industry, profession or trade; and
5.1.3 provide the Equipment in an economic, efficient and safe manner free from any
unreasonable and/or avoidable risk to any person’s health and well-being.
5.2 You will ensure that at all times you have and maintain all the licences, permissions, authorisations, consents and permits that you need to carry out your obligations under these terms.
6. Rental Payments
6.1 The Rental Payments will be as set out in the Order Form.
6.2 The Rental Payments will:
6.2.1 exclude amounts in respect of VAT, which we will additionally be liable to pay to you at the prevailing rate, subject to the receipt of a valid VAT invoice; and
6.2.2 include all related costs, including delivery.
6.3 No extra charges shall be effective unless agreed in writing with us.
6.4 You may invoice us for the Rental Payments plus VAT at the prevailing rate (if applicable) at the end of the calendar month in which you have collected the Equipment in accordance with clause 7.6 or, for hires with a duration of more than one calendar month, at the end of each calendar month of hire. You will ensure that the invoice includes the date of the order, the invoice number, our order number, your VAT registration number, and any supporting documents that we may reasonably require.
6.5 We will pay correctly rendered and undisputed invoices within 60 days of the end of the month of receipt of the invoice plus 20 days. Payment shall be made to the bank account nominated in writing by you
6.6 If we fail to make any payment due to you on any undisputed invoice under these terms by the due date for payment, then we will pay interest on the overdue amount at the rate of 2% per annum above Barclays Bank Plc’s base rate from time to time.
7. Delivery and Collection
7.1 Delivery of the Equipment shall be made by you to the address specified by us in the Order Form or as otherwise notified by us from time to time (the “Delivery Location”).
7.2 Delivery of the Equipment shall be completed on the completion of unloading the Equipment at the Delivery Location which shall be effected by you at your risk. You shall ensure that your operatives are properly trained and present in sufficient numbers to ensure safe delivery without causing injury or damage. You must not let our Customer undertake the unloading or assist you with the unloading. If you breach the provisions of this clause, you shall indemnify us and hold us harmless in respect of any damage, loss or injury claims.
7.3 You will effect and complete delivery by the date and time agreed between you and us (the “Delivery Date”).
7.4 Time shall be of the essence in respect of delivery.
7.5 You will not deliver the Equipment in instalments without our prior written consent. Where it is agreed that the Equipment is to be delivered by instalments, it will be invoiced and paid for separately.
7.6 You will collect the Equipment from the Delivery Location at the end of the Rental Period and in accordance with any instructions provided by us. You will load the Equipment on your vehicle on collection and will be responsible for the Equipment from the point at which the Equipment is made available to you by the Customer for loading onto your vehicle. You shall ensure that your operatives are properly trained and present in sufficient numbers to ensure safe collection without causing injury or damage. You must not let our Customer undertake the loading or assist you with the loading. If you breach the provisions of this clause, you shall indemnify us and hold us harmless in respect of any damage, loss or injury claims.
7.7 You shall effect Delivery and collections using vehicles that are suitable and practical given the type and size of Equipment to be delivered. You shall notify us in advance if you expect to have any access requirements for the Delivery or Collection and you shall indemnify us if we incur any costs if you fail to make such notification.
8.1 If the Equipment is not delivered on the Delivery Date, or does not comply with these terms, then, without limiting any of our other rights or remedies, and whether or not the Customer has accepted the Equipment, we may exercise any one or more of the following remedies:
8.1.1 terminate the Contract;
8.1.2 reject the Equipment (in whole or in part) and you will collect it at your own expense;
8.1.3 require you to repair or replace the rejected Equipment forthwith, or to provide a full refund of the price of the rejected Equipment (if paid);
8.1.4 recover from you any costs incurred by us in obtaining substitute equipment from a third party; and
8.1.5 claim damages for any other costs, loss or expenses incurred by us which are in any way attributable to your failure to carry out your obligations under these terms, including any costs and charges claimed from us by our Customer, in respect of which you shall indemnify us.
8.2 Clause 8.1 shall also apply to any repaired or replacement Equipment supplied by you.
8.3 Our rights and remedies under this clause 8 are in addition to its rights and remedies implied by statute and common law.
9. Title, Risk, Insurance and Damage
9.1 The Equipment shall at all times remain your property, and neither ADARE MACHINERY nor the Customer will have any right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms).
9.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on completion of Delivery, provided that you can show evidence of acceptance of delivery by an authorised signatory, and shall pass back to you at the point that you begin collection in accordance with clause 7.6.
9.3 We will give notice to you in writing or by telephone as soon as possible after becoming aware of any loss, accident or damage to the Equipment arising out of or in connection
with our hire of the Equipment for use by our Customer. When you collect the Equipment, you shall inspect the Equipment and record any damage or missing items on the collection note which should be signed by you and by the Customer. You will provide us with a copy of such collection note in accordance with clause 9.4 below.
9.4 If you wish to make a claim in respect of any loss of, or damage to Equipment, you must submit full details of the claim to us within 5 business days after you have collected the Equipment. In the event that you fail to do so, we shall have no liability for any such damage or loss. Any repair or replacement costs we agree to pay to you in respect of the Equipment shall be out of scope of VAT and therefore exclude VAT as permitted by HMRC rules applicable from time to time.
10.1 You shall keep us indemnified against all liabilities, costs, expenses, damages and losses (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us as a result of or in connection with:
10.1.1 any claim made against us by a third party (including a Customer) for death, personal injury or damage to property arising out of or in connection with the Equipment;
10.1.2 any amounts paid as settlement or compensation to a Customer, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by you, your employees, agents or subcontractors;
10.1.3 any claim made against us by a third party (including a Customer) arising out of or in connection with the supply of the Equipment, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by you, your employees, agents or subcontractors; and
10.1.4 any claim made or any action taken against us or fines imposed on us or any reputational damage we suffer arising directly or indirectly through your breach of clause 15.
10.2 This clause 10 shall survive termination of the Contract.
Our maximum aggregate liability for breach of a Contract, whether arising in contract, tort (including negligence), and misrepresentation or otherwise, shall in no circumstances exceed the net book value of the Equipment concerned.
12.1 You will maintain in force, with a reputable insurer, insurances to cover the liabilities that may arise under or in connection with the Contract, including:
12.1.1 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;
12.1.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
12.1.3 insurance against such other or further risks relating to the Equipment as may be required by law.
12.2 You will, on our request, produce both the insurance certificates giving details of cover and the receipt for the current year’s premium in respect of each insurance.
13.1 We may terminate an order for Equipment in whole or in part at any time before Delivery with immediate effect by giving you written or oral notice.
13.2 Without affecting any other right or remedy available to us and without prejudice to the generality of Clause 13.1, we may terminate a Contract with immediate effect by giving written notice to you if:
13.2.1 you commit a material breach of these terms;
13.2.2 a Customer terminates their contract with us for any reason;
13.2.3 you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986;
13.2.4 you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
13.2.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up;
13.2.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you;
13.2.7 the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
13.2.8 you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
13.2.9 you fail to comply with all applicable laws, statutes, regulations and codes including but not limited to the Bribery Act 2010, the Modern Slavery Act 2015, the Criminal Finances Act 2017 (anti-facilitation of tax evasion) and the General Data Protection Regulation, or if we have reasonable grounds to believe that you (or your associated persons, agents or subcontractors) do not have adequate policies and procedures in place to comply with such legislation, regulations and codes and to evidence good and safe business practice.
13.3 Termination of a Contract, however arising, shall not affect any of the parties’ rights and
remedies that have accrued as at termination.
13.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
14. Confidential Information
14.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
14.2.1 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 14; and
14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority or applicable stock exchange rules.
14.3 No party shall use any other party’s confidential information for any purpose other than to
perform its obligations under these terms.
15. Data Protection
15.1 For the purposes of this clause 15, “Personal Data” shall have the meaning given to it in the Data Protection Legislation. “Data Protection Legislation” means all applicable data protection and privacy legislation, regulations and guidance including:
15.1.1 prior to 25 May 2018, the Data Protection Act 1998;
15.1.2 from 25 May 20018 onwards, Regulation (EU) 2016/679 (the “General Data Protection Regulation”) and Data Protection Act 2018 (or, in the event that the UK leaves the European Union, all legislation enacted in the UK in respect of the protection of personal data) and any guidance or codes of practice issued by the Information Commissioner’s Office from time to time (all as amended, updated or re-enacted from time to time).
15.2 You will use any Personal Data provided to you by us, or by the Customer (“Customer Personal Data”) only for the purposes of the delivery of the Equipment to the Customer and shall not use it for any other purpose.
15.3 You will comply with the Data Protection Legislation at all times when processing Customer Personal Data.
15.4 You shall notify us immediately on discovery of any security breach concerning Customer Personal Data or any complaint from the Customer or investigation from the Information Commissioner’s Office concerning the processing of Personal Data.
16. Assignment and Other Dealings
You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under a Contract without our prior written consent nor source Equipment from, or procure that orders are fulfilled by, your third party providers without our prior written consent. Without affecting any other right or remedy available to us, in the event that you breach this clause 16, we shall be entitled to refuse to pay for that specific order.
17. Entire Agreement
17.1 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.
17.2 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of these terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. No Partnership or Agency
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.
20. Third Party Rights
No one other than a party to the Contract shall have any right to enforce any of its terms.
21.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
21.1.1 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
21.1.2 sent by email to an email address provided by the relevant party for business purposes.
21.2 Any notice or communication shall be deemed to have been received:
21.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
21.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the third day after posting or at the time recorded by the delivery service; or
21.2.3 if sent by email, at 9.00 am on the business day after transmission.
21.3 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.
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.
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. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. 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.
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 and Wales
Each party irrevocably agrees that the courts of England and Wales 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.