1. Definitions and interpretation
In these Conditions:
"Hirer" means the person who accepts a quotation from the Company for the hire of the Product or whose order for the Product is accepted by the Company;
"Conditions" means the standard terms and conditions of hire set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Hirer and the Company;
"Contract" means the contract for the hire of the Product;
"Minimum Term" means one year from the date of installation of the Product;
"Product" means the data acquisition platform and the associated services which the Company is to supply in accordance with these Conditions in accordance with the description in the quotation;
"Company" means Edensure Limited (company registration number 04536379) whose registered office is at Business & Innovation Centre, Wearfield, Enterprise Park East, Sunderland, SR5 2TA
1.1 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Hire
2.1 The Hirer shall hire the Product in accordance with any written quotation of the Company which is accepted by the Hirer, or any written order of the Hirer which is accepted by the Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or any such order is made by the Hirer. No order submitted by the Hirer shall be deemed to be accepted by the Company unless and until confirmed in writing by the Company’s authorised representative.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Hirer and the Company.
2.3 The Company shall provide no services other than those automatically generated by the Product or as identified in the written quotation. The Hirer shall deal direct with its fuel suppliers unless Hirer contracts Company to provide such consultancy services as required.
2.4 The Company’s employees or agents are not authorised to make any representations concerning the Product unless confirmed by the Company in writing. In entering into the Contract the Hirer acknowledges that it does not rely on any such representations other than those confirmed in writing.
2.5 Any advice or recommendation given by the Company or its employees or agents to the Hirer or its employees or agents regarding the Product which is not confirmed in Writing by the Company is acted upon entirely at the Hirer’s own risk. The Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Hire charge
3.1 The hire charge of the Product shall be the quoted charge. All charges quoted are valid for 30 days only or until earlier acceptance by the Hirer. The charge is exclusive of any applicable value added tax, which the Hirer shall be additionally liable to pay to the Company.
3.2 The Company reserves the right, by giving notice to the Hirer at any time before delivery, to increase the hire charge of the Product to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates or any delay caused by any instructions of the Hirer or failure of the Hirer to give the Company adequate information or instructions.
3.3 These charges apply for year one and are to be renegotiated at the end of the period.
4. Terms of Payment
4.1 The Hirer shall pay the hire charge in accordance with the quotation. The time of payment shall be of the essence.
4.2 If the Hirer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract and charge the Hirer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above Barclays Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5. Delivery
5.1 Delivery and installation of the Product shall be made by the Company delivering the Product to the Hirer’s place of business and installing the Product in accordance with the quotation.
5.2 Any dates quoted for delivery of the Product are approximate only and the Company shall not be liable for any delay in delivery of the Product however caused. Time for delivery shall not be of the essence.
5.3 If the Hirer fails to take delivery of the Product or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Hirer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may store the Product until actual delivery and charge the Hirer for the reasonable costs (including insurance) of storage or at the Company’s sole discretion rescind the Contract.
5.4 The Company and its representatives shall be entitled to enter the Hirer's premises at any time on giving reasonable notice for the purposes of installation, repairing or removing the Product in accordance with the Contract or on termination.
6. Risk and Property
6.1 Risk of damage to or loss of the Product shall pass to the Hirer at the time on delivery.
6.2 Notwithstanding delivery and the passing of risk in the Product, or any other provision of these Conditions, the property in the Product shall remain with the Company. The Hirer shall hold the Product as the Company’s fiduciary agent and bailee and shall keep the Product properly stored, protected and identified as the Company’s property.
6.3 The Hirer shall keep the Product insured with a reputable insurer against theft and accidental damage, including but not limited to fire, impact by road vehicles and explosion and shall produce to the Company on demand evidence of such insurance policy.
6.4 The Hirer shall not be entitled to pledge or in any way charge the Product by way of security for any indebtedness.
6.5 If the Hirer sells the premises at which the Product is installed, the Hirer shall use its best endeavours to procure that the purchaser of the garage enters into an agreement for hire of the Product with the Company. For the avoidance of doubt, sale of the premises shall not entitle the Hirer to terminate the Contract prior to expiry of the Minimum Term.
7. Warranties and Liability
7.1 Subject to the conditions set out below the Company warrants that the Product will be free from defects in material and workmanship and be satisfactory for the purpose provided in the quotation.
7.2 The Hirer shall not sabotage, seek to repair or in any way interfere with the Product after installation. The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in Writing), misuse or alteration or repair of the Product without the Company’s prior approval in writing.
7.3 The above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Hirer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
7.4 All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.5 Any claim by the Hirer which is based on any defect in the quality or condition of the Product shall (whether or not delivery is refused by the Hirer) be notified to the Company within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within seven days of discovery of the defect or failure. If delivery is not refused, and the Hirer does not notify the Company accordingly, the Hirer shall not be entitled to reject the Product, the Company shall have no liability for such defect or failure, and the Hirer shall be bound to pay the hire charge payable under the Contract including any bonuses for the remainder of the Minimum Term or for 30 days whichever is the greater as if the Product had been delivered in accordance with the Contract.
7.6 Where any valid claim in respect of any of the Product which is based on any defect in the quality or condition of the Product is notified to the Company in accordance with these Conditions, the Company shall be entitled to repair or replace the Product free of charge or, at the Company’s sole discretion, refund to the Hirer charges made for the duration of the defect and shall have no further liability to the Hirer.
7.7 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Hirer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit, use, contract, goodwill or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Product or its use by the Hirer.
7.8 The entire liability of the Company under or in connection with the Contract shall not exceed 12 months charges.
7.9 The Company shall not be liable to the Hirer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Product, if the delay or failure was due to any cause beyond the Company’s reasonable control including without prejudice to the generality of the foregoing Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery and power failure or breakdown in machinery.
8. Termination
8.1 Without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract without any liability to the Hirer if the Hirer breaches any term of the Contract or goes into liquidation or insolvent or the Company reasonably apprehends that the Hirer may go insolvent within the meaning set out in s.247 of the Insolvency Act 1986.
8.2 If the Contract is terminated other than due to the fault of the Company during the Minimum Term the full price payable in accordance with the quotation including full bonuses shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8.3 Following expiry of the Minimum Term, either party may terminate the Contract by giving one month notice in writing.
9. Intellectual Property
The Company grants the Hirer a non exclusive licence to use the software incorporated into the Product in order to utilise the Product for the purpose set out in the quotation only. The Hirer shall not decompile, reverse engineer, disassemble or otherwise reduce any part of the software to human readable form. The Hirer acknowledges that any copyright and any other intellectual property rights in respect of the Product generally and the software in particular belong to the Company and that the Hirer shall have no rights in respect of the software or Product other than those expressly granted by the Contract.
10. General
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by the Company of any breach of the Contract by the Hirer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
10.4 Except as expressly provided in this Agreement, a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement provided that this does not affect any right or remedy of the third party which exists or is available apart from that Act.
10.5 The Contract shall be governed by the laws of England, and the Hirer agrees to submit to the exclusive jurisdiction of the English courts.