dBD Communications – Hire Terms and Conditions
1 Definitions and interpretation
Charges: all of the following: (a) any Hire Charges; (b) any interest due by the Customer to the Supplier under the Contract; and (c) any other sums payable under, or in connection with, the Contract. Any Deposit shall form part of the Charges.
Contract: the agreement under which the Supplier will provide hire to the Customer consisting of the Terms and Conditions and any Order acknowledgement
Customer: the person described as such on the Order acknowledgement;
Deposit: any payment required by the Supplier in relation to the Hired Goods which is to be held as security by the Supplier;
Force Majeure: anything outside of a party's reasonable control, including any of the following to the extent that it is beyond a party's reasonable control: government action, change in the law, acts of God, flood, drought, earthquake, windstorm or other disaster; epidemic or pandemic or a realistic prospect of either; outbreak of Swine Flu, Avian Flu, or any similar disease; terrorist attack, war including civil war, civil commotion or riots; change in law; fire, explosion or damage (including malicious damage); loss during transport; adverse weather conditions (including unusual temperatures); interruption or failure of utility service, including, but not limited to, electric power, gas or water; any labour dispute, including, but not limited to, strikes, industrial action or lockouts; non‐performance by suppliers or subcontractors; collapse of building structures.
Goods: any hire of products or goods, including any machines, articles, tools, equipment, devices supplied by the Supplier to the Customer.
Hire Charges: The Supplier’s charging rate for the hire of the Hired Goods which is current from time to time during the Hire Period;
Hired Goods: Goods which are, or are to be, hired to the Customer;
Hire Period: the period commencing when the Customer receives the Hired Goods on hire.(including Saturdays Sundays and Bank Holidays) and ending upon the happening of any of the following events: (i) the physical return of the Hired Goods by the Customer into the Supplier’s possession; or (ii) the physical repossession or collection of Hired Goods by the Supplier;
Fair Wear and Tear: The Hired Goods must be returned by the Customer in good working order and condition and in a rehireable condition that they were in prior to the hire.
Liability: any liability whatsoever, the consequences arising from the liability, any direct, indirect or consequential loss, damage, costs or expenses resulting from the liability, whether the liability arises as a result of breach of the Contract, breach of statutory duty, liability in tort or otherwise, and even if the liability results from a party's negligence or from negligence for which that party would otherwise be liable;
Order Acknowledgement: any document supplied by the Supplier to the Customer setting out the particulars of the order.
Supplier: the organisation named on the Order Acknowledgement being dBD Communications Limited, a company registered in England and Wales with company number 4431602 (VAT number GB-795861859) with a registered office at 2 Nobel Square, Burnt Mills Industrial Estate, Basildon, Essex SS13 1LS.
Trigger Event: any of those events listed in clause 12.1.
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.
A reference to a statute or statutory provision is a reference to it as amended, extended or
re‐enacted from time to time. A reference to a statute or statutory provision shall include all
subordinate legislation made from time to under that statute or statutory provision.
2 Dealing in Hired Goods prohibited
2.1 Ownership in the Hired Goods remains at all times with the Supplier. The Customer has no right, title or interest in the Hired Goods.
2.2 The Customer must not deal with the ownership, or any interest in the Hired Goods. This includes selling, assigning, mortgaging, pledging, charging, securing, withholding, exerting any right to withhold, disposing of and/or lending. However the Customer may re‐hire the Hired Goods to a third party with the prior written consent of the Supplier.
3 Customer's obligations in respect of Hired Goods
3.1 The Supplier may require the Customer to insure the Hired Goods on such reasonable terms and for such reasonable risks as the Supplier may specify. The proceeds of any such insurance that relate directly to the Hired Goods shall be held by the Customer in trust for the Supplier and be paid to the Supplier on demand. The Customer must not compromise any claim in respect of the Hired Goods and/or any associated insurance without the Supplier’s written consent.
3.2 Risk in the Hired Goods will not pass back to the Supplier from the Customer until the Hired Goods are back in the physical possession of the Supplier. This shall apply even if the Supplier has agreed to cease charging the Hire Charges, the Hire Period has ceased, or if the Contract has expired or terminated.
4 Delivery, collection and services
4.1 Delivery shall be Ex Works dBD Basildon site (Incoterms 2010), unless otherwise specified. Any time or date quoted by us for delivery is given and intended as an estimate only. Whilst every endeavour will be made to meet an estimated time of delivery, we shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery.
4.2 dBD reserve the right to deliver in instalments against any order. No partial shipment or delivery shall constitute a breach by dBD. Risk against loss or damage to all or any of the Products shall transfer from dBD to the Buyer in accordance with the specified Incoterm.
4.3 Non delivery must be reported immediately in writing to us and to the carrier within 2 working days of the date of dispatch. Where we tender delivery in accordance with the Contract and the Buyer either refuses to accept delivery at that time or subsequently returns the Goods without good cause, he shall be deemed to be in breach of the Contract and we shall be entitled to treat the order or any relevant part of it as cancelled by the Buyer (without prejudice to any other rights we may have).
4.4 When delivery is delayed for reasons attributable to the Buyer or his agents, storage and other additional cost will be charged to the Buyer and the Goods will be at the Buyer’s risk from the commencement of such delay. We reserve the right to invoice the Goods at the original delivery date.
5 Care of Hired Goods
5.1 The Customer shall:
5.1.1 not remove any labels from and/or interfere with the Hired Goods, their working mechanisms or any other parts of them and shall take reasonable care of the Hired Goods and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
5.1.2 notify the Supplier immediately after any breakdown, loss and/or damage to the Hired Goods;
5.1.3 take adequate and proper measures to protect the Hired Goods from theft, damage and/or other risks;
5.1.4 notify the Supplier of any change of its address and upon the Supplier’s request provide details of the location of the Hired Goods;
5.1.5 permit the Supplier at all reasonable times and upon reasonable notice to inspect the Hired Goods including procuring access to any property where the Hired Goods are situated;
5.1.6 keep the Hired Goods at all times in its possession and control and not to remove the Hired Goods from the country where the Customer is located and/or the country where the Supplier is located without the prior written consent of the Supplier;
5.1.7 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Hired Goods required by any legislation, best practice and/or operating instructions except to the extent that the Supplier has agreed to provide them as part of any Services;
5.1.8 not do or omit to do anything which the Customer has been notified will or may be deemed to invalidate any policy of insurance related to the Hired Goods;
5.1.9 not continue to use Hired Goods where they have been damaged and will notify the Supplier immediately if the Hired Goods are involved in an accident resulting in damage to the Hired Goods, other property and/or injury to any person; and
5.1.10 where the Hired Goods require fuel, oil and/or electricity ensure that the proper type and/or voltage is used and that, where appropriate, the Hired Goods are properly installed by a qualified and competent person.
6 Recovery of Hired Goods
6.1 The Supplier may, if a Trigger Event has occurred, enter without prior notice, any premises of the Customer (or premises of third parties) where Hired Goods are located in order to recover the Hired Goods. The Customer warrants that the Supplier shall have all rights, licences and permissions required to enter the Customer's premises, and the premises of third parties, for the recovery of Hired Goods.
6.2 Any recovery of Hired Goods shall not affect the Supplier’s right to recover from the Customer any monies due under the Contract and/or any damages in respect of any breach which occurred prior to the recovery of Hired Goods.
6.3 The Customer hereby grants the Supplier a licence to enter the premises of the Customer (or any third party premises where Hired Goods are held) to enable the Supplier to recover the Hired Goods in accordance with clause 6.1.
6.4 The Supplier may recover the costs, including but not limited to the costs of replacement, in respect of lost or damaged Goods, and nothing in clauses 6.1, 6.2, and/or
6.5 shall limit the Supplier's right to recover such costs.
6.6 The Supplier may recover the costs, including but not limited to the costs of replacement, in respect of Goods which the Supplier has been unable to collect because they have not been made available for collection by the Customer in breach of this agreement, and nothing in clauses 6.1, 6.2, and/or 6.3 shall limit the Supplier's right to recover such costs.
7.1 Allowance will be made in relation to the Hire Charges to the Customer for any non use of the Hired Goods due to breakdown caused by the development of an inherent fault and/or fair wear and tear on condition that the Customer informs the Supplier as soon as practicable of the breakdown.
7.2 The Customer shall be responsible for all expenses, loss (including loss of Hire Charges) and/or damage suffered by the Supplier arising from any breakdown of the Hired Goods due to the Customer’s negligence, breach of Contract, misdirection and/or misuse of the Hired Goods.
7.3 The Supplier shall at its own cost carry out all routine maintenance and repairs to the Hired Goods during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Hired Goods. The Customer will be responsible for the cost of all repairs necessary to Hired Goods during the Hire Period which arise other than as a result of fair wear and tear, an inherent fault and/or the negligence of the Supplier while carrying out routine maintenance and/or repairs.
7.4 The Customer must not repair or attempt to repair the Hired Goods unless authorised to do so in writing by the Supplier.
8 Delays, loss or damage
8.1 If the Hired Goods are returned in a damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hired Goods the Customer shall be liable to pay the Supplier for the cost of any repair and/or cleaning required to return the Hired Goods to a condition fit for re‐hire and to pay the Hire Charges, in accordance with the provisions of clause 8.3, until such repairs and/or cleaning have been completed.
8.2 The Customer will pay to the Supplier the replacement cost of any Hired Goods which are lost, stolen and/or damaged beyond economic repair during the Hire Period less the amount paid to the Supplier under any policy of insurance taken out in accordance with the Contract.
8.3 The Customer shall pay the Hire Charges for the Hired Goods up to and including the date it notifies the Supplier that the Hired Goods have been lost, stolen and/or damaged beyond economic repair. From that date until the Supplier has replaced such Hired Goods the Customer shall pay, as a genuine pre‐estimate of lost rental profit, a sum as liquidated damages being equal to two thirds of the Hire Charges that would have applied for such Hired Goods for that period. The Supplier shall use its reasonable commercial endeavours to purchase replacements for such Hired Goods as quickly as possible using the monies paid under clause 8.2 above.
8.4 If, in breach of the Contract, the Customer delays returning the Hired Goods to the Supplier after the expiry of the Hire Period, then the Hire Charge shall continue to apply until the Hired Goods are returned to the Supplier.
9.1 The warranty clause shall apply to Hired Goods for the duration of the hire, the Goods will conform in all material respects with their description, be of satisfactory quality, and be reasonably fit for the purposes for which products of that kind are commonly supplied.
10.1 Terms of payment are strictly pro-forma unless a credit account has been established with us. Where a credit account has been established with us, payment must be made for each instalment of Goods delivered for hire within 30 (thirty) calendar days after delivery in the currency specified on the quotation (whether the goods delivered are the whole or only part of the goods delivered) and time of payment of the price shall be of the essence.
10.2 The Buyer must raise any dispute relating to an invoice within 15 (fifteen) days of the date of invoice. If the Buyer’s dispute is held valid, dBD shall credit the Buyer the disputed amount.
10.3 We reserve the right at our discretion to refuse to establish credit account facilities, and/or to terminate any such credit account facilities already in existence.
10.4 If the Buyer fails to pay any sum due to dBD by its due date, the Buyer shall pay to dBD, in addition to such sum or sums due, interest thereon at the prevailing UK Statutory rate for interest on late payment calculated on a daily basis together with any additional costs and expenses incurred by dBD and dBD may at its sole discretion and without liability postpone or cancel all or part of the Contract or any other contract between the Buyer and dBD without prejudice to any other right or remedy which dBD may have against the Buyer in respect of such default
10.5 Prices exclude VAT which shall be added by the Supplier. However, if the rate of VAT changes between the date of the order and the date of delivery, the Supplier will, if permitted by law, adjust the VAT the Customer pays, unless the Customer has already paid for the Goods in full before the change in VAT takes effect.
11.1 The Customer's credit limit shall be as specified by the Supplier from time to time.
11.2 The Supplier may, in its absolute discretion, reduce the Customer's credit limit.
11.3 Where Goods are supplied in excess of this limit (for any reason) at the request of the Customer, the Customer's employees, staff, servants or agents, any other person, purporting to act on behalf of the Customer, or any person authorised by the Customer to make use of the account, then the Customer will be held responsible for the entire account, including the excess. In such circumstances, the Customer shall reduce the Customer's balance to within the credit limit by the end of the calendar month during which the credit limit was exceeded.
12 Breach of the Contract
12.1 If the Customer:
12.1.1 fails to make any payment to the Supplier when due (whether under the Contract or otherwise);
12.1.2 commits a material breach of the Contract and, where the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
12.1.3 persistently breaches the terms of the Contract;
12.1.4 fails to return to the Supplier the Hired Goods by the due date for return;
12.1.5 otherwise fails to return to the Supplier the Hired Goods when the Supplier has, in accordance with its rights under the Contract, requested that the Hired Goods be returned;
12.1.6 causes or allows to be caused the loss of, or damage to, the Goods;
12.1.7 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
12.1.8 pledges, charges or creates any form of security over any Hired Goods s or proposes to compound with its creditors, creates a trust deed for its creditors, applies for an interim moratorium in respect of claims and/or proceedings, of if any distress/diligence, execution or other legal process is levied on any property of the Customer, or the Customer has a Bankruptcy Petition/Petition for Sequestration presented against it or the Customer takes or suffers any similar action in any jurisdiction;
12.1.9 being a company, ceases or threatens to cease to carry on business, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver or in the Republic of Ireland an examiner is appointed over all or any of its assets, any attachment order/arrestment is made against the Customer, any distress/diligence, execution or other legal process is levied on any property of the Customer or the Customer takes or suffers any similar action in any jurisdiction;
12.1.10 appears reasonably to the Supplier due to the Customer’s credit rating to be financially unable to meet its obligations under the Contract; and/or
12.1.11 appears reasonably to the Supplier to be about to suffer any of the above events; each, a Trigger Event, then the Supplier shall have the rights set out in clause 12.2.
12.2 The Customer acknowledges and agrees that if a Trigger Event has occurred then the following shall apply:
12.2.1 The Customer shall, at the Supplier's request, promptly return any Relevant Hired Goods to the Supplier.
12.2.2 The Supplier may recover any Hire Goods, in accordance with clause 6
12.2.3 The Supplier may, without Liability, withhold the performance of any Services and cease any Services in progress under this and/or any other Contract with the Customer;
12.2.4 The Supplier may immediately cancel, terminate and/or suspend, in whole or in part, and without Liability, the Contract and/or any other contract with the Customer;
12.3 If any Trigger Event occurs, the Customer will be liable for the costs arising from loss or damage to Goods including but not limited to the costs of replacement, repair and/or recovery.
13.1 Subject to clause 13.2, a person who is not a party to the Contract shall not have any rights under it. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.2 Clause 13.1 shall not apply to any finance company with whom the Supplier has an outstanding finance agreement relating to the Hired Goods. Such finance company shall, subject to the Supplier’s consent, have the right to enforce this Contract as if they were the Supplier.
13.3 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 law of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts.
13.4 If the Supplier fails, at any time during the term of the Contract, to insist upon strict performance of any of the Customer's obligations under the Contract, or if the Supplier fail to exercise any of the rights or remedies to which the Supplier is entitled under the contract, this will not constitute a waiver of such rights or remedies and will not relieve the Customer from compliance with such obligations.
13.5 A waiver by the Supplier of any default will not constitute a waiver of any subsequent default.
13.6 No waiver by the Supplier of any of the Terms and Conditions will be effective unless it is expressly stated to be a waiver and is communicated to the Customer in writing.
13.7 The Customer shall not transfer, assign, charge or otherwise dispose of a Contract, or any of the Customer's rights or obligations arising under it, without the Supplier's prior written consent.
13.8 The Supplier may transfer, assign, charge, or otherwise dispose of a Contract, or any of its rights or obligations arising under it, at any time during the term of the Contract.
13.9 The Supplier may subcontract its obligations under the Contract but the Supplier shall remain liable for the performance of its obligations to the same extent as it would have been but for the subcontracting. For example, the Supplier may hire to the Customer Goods which the Supplier has itself hired from a third party but the Supplier shall remain liable (to the extent set out in the Contract) if those Goods are faulty.
13.11 The Terms and Conditions constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.12 Each party agrees that it 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 Terms and Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this agreement.
13.13 If any provision of this Contract is held by any competent authority to be unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14.1 If the Hire Period has a fixed duration, subject to the provisions of clause 12, neither the Customer nor the Supplier shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed in writing with the other party.
14.2 If the Hire Period does not have a fixed duration either the Customer or the Supplier is entitled to terminate the Contract upon giving to the other party any period of notice as may be agreed in writing, save that either party may terminate the hire by giving the other party 5 working days notice.
14.3 If no period of notice has been agreed or specified the Customer may terminate the Hire Period by the physical return of the Hired Goods to the Supplier.