Terms and Condition of Hire


 
AGREEMENT FOR THE HIRE OF EQUIPMENT [AND THE PROVISION OF RELATED SERVICES]

IT IS HEREBY AGREED AS FOLLOWS:

1. Agreement
1.1 All defined terms will have the meanings set out in the attached Order Form save where they are defined in this Agreement. In the event of any inconsistency between this Agreement and the Order Form the terms of the Order Form will apply.

1.2 IML agrees to provide the Equipment for hire and the Services. The Hirer agrees to hire the Equipment and receive the Services. The hire of the Equipment and the provision of the Services shall be governed by the terms of this Agreement and the attached Order Form. 

2. Basis of Charging
2.1 The Hirer will pay the Charges in accordance with the Payment Terms

2.2 Interest is payable on the balance of any overdue invoice at an annual rate equal to 3 % plus the base rate from time to time of The Royal Bank of Scotland plc.  Interest shall be calculated daily on the outstanding balance, from 31 days following the date of the invoice until receipt by IML of the Hirer’s payment in cleared funds.

3. Term and Termination
3.1 This Agreement commences on signature of the Order Form by the parties.  Subject to Clause 3.2, this Agreement will terminate when all parties have discharged their contractual obligations.

3.2 Notwithstanding the provisions of Clause 3.1, this Agreement may be terminated by either party by notice in writing if the party other than the party seeking to give notice:

a. shall be in persistent or material breach of any term of this Agreement and shall not have remedied such breach (if capable of being remedied) within 3 working days of receiving notice of such breach and a request for such remedy; or

b. goes into insolvency or liquidation (not being a members' voluntary winding up) or administration or a receiver is appointed over any part of its undertaking or assets.

4. Liability
4.1 All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this agreement whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.

4.2 Nothing in this Agreement shall be construed as excluding the liability of one party to the other for:

4.2.1 death or personal injury to the extent that it results from its negligence;
4.2.2 any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982; or
4.2.3 or fraud,
 save to the extent it is lawful to do so.

4.3 Where IML does not provide any Services, IML shall not be liable for any indirect or consequential expenses, liability, loss, damage, claim or proceedings, whatsoever caused by, or arising out of, the late delivery, non-delivery, unsuitability, or repossession of the Equipment, or any part thereof or any breakdown, or stoppage of the same.

4.4  IML’ s total liability under this Agreement, whether such liability arises under any express or implied term of this Agreement, in tort, for misrepresentation, for breach of contract, a contribution or any other duty imposed by law or in any other way shall in be limited to the higher of the charges received by it under this Agreement OR the resupply of the Equipment and the Services, where applicable.

4.5 In the event that the Hirer wishes to assert that IML did not perform its obligations as set out in this Agreement, it shall do so within 10 working days of completion of the parties’ contractual obligations under this Agreement.

5. Loss of or Damage to Equipment
5.1 Unless the Hirer signs and returns an insurance waiver declaration in the form provided by IML (the “Insurance Waiver Declaration”), IML will charge an insurance fee in respect of all damage to the Equipment for the term of this Agreement. If the Hirer signs the Insurance Waiver Declaration, the Hirer shall fully indemnify IML, on demand, for all loss or damage to the Equipment during the term of this Agreement.

5.2 Not withstanding the foregoing, the Hirer shall at all times during the term of this Agreement have a duty of care to treat the Equipment with at least the same standard of care as it does its own assets. Such care shall include, without limitation, the provision of a safe and secure environment for, where appropriate, the transportation, storage and use of the Equipment.

5.3 In the event that the Equipment is lost or damaged as a result of the Hirer not complying with Clause 5.2, or otherwise due to the Hirer’s negligence or any negligent act or omission by the Hirer’s employees, contractors, suppliers or any third parties under its control, the Hirer shall pay to IML, on demand, the standard list price for purchase of the Equipment so lost or damaged.

5.4 The Hirer shall at all times and in all respects indemnify IML on demand against and from any and every expense, liability, loss, claim or proceeding whatsoever in respect of any personal injury whatsoever and in respect of damage to any property whatsoever (including the Equipment) arising out of or in connection with or consequent upon the hire, delivery, use, misuse, non-use, collection or return of the Equipment by the Hirer or any part thereof.

6. Determination of Hire
IML shall be entitled at any time and for any reason whatsoever without explanation, to terminate this Agreement (such termination to be effective immediately) and to repossess or withdraw the Equipment or any part thereof. In the event that IML so terminates the Agreement no cancellation fee will be payable by the Hirer.

7. Cancellation
7.1 Cancellation of this Agreement by the Hirer for whatever reason will make it liable to pay immediately on demand all Charges due to IML as set out in Clause 7.2.

7.2 CANCELLATION TERMS:

 More than 60 days from the Event - 10% of the Charges
 Less than 60 days from the Event - 25% of the Charges
 Less than 30 days from the Event - 50% of the Charges
 Less than 7 days from the Event - 100% of the Charges

7.3 Cancellation charges apply to Equipment Hire and Service Charge only, unless other work has already commenced, in which case the Charges for those services will also become due in accordance with Clause 7.2 if the Agreement is cancelled. 

7.4 Any reduction in the amount of Equipment required after signature of the Order Form will be treated as a cancellation for the purposes of this Agreement and the Cancellation Terms will apply to the Equipment so cancelled.

8. Data Protection
8.1  The parties hereby acknowledge and agree that for the purposes of the Data Protection Act 1998 (the “DPA”) IML is a data processor and the Hirer is the data controller. For the avoidance of doubt the parties acknowledge that all the personal data, as defined in the DPA, is the property of the Hirer.

8.2 Each party shall comply with the provisions of the DPA in relation to its processing of any personal data pursuant to the provisions of this Agreement.

8.3 If a party fails to comply with the DPA it shall indemnify and keep indemnified the other party on demand against any loss it may suffer as a result of any breach of the provisions of Clause 8.1, such indemnity to include (but not be limited to) any fine which may be levied under the DPA.

8.4 IML will co-operate so far as is reasonable, with the Hirer in complying with any subject access request and/or responding to any enquiry made, or investigation or assessment of processing initiated by the Information Commissioner in respect of the personal data.

9. Return of equipment
Where the Hirer is responsible for arranging transportation of the Equipment, the Equipment must be returned to IML prior to 17.30 on the final Date of Hire unless otherwise arranged.  Late returns will be charged at IML’s then current daily hire rate.

10. Electrical Equipment
If IML is only hiring the Equipment and is not providing any related Services, the Hirer acknowledges that the Equipment comprises electrical equipment and should normally be used with plugs and/or sockets as fitted but if temporarily replaced with other suitable plugs or sockets, this must be carried out by a competent person who must also reinstate to the original condition and under no circumstances should electrical Equipment be used without it being correctly earthed unless it is of double insulated construction. IML shall not be liable for any liability arising from any failure of the Hirer to comply with this clause.

11. Responsibility
11.1 Risk in the Equipment transfers to the Hirer where it takes receipt of it and, in such circumstances, continues until IML confirms receipt of the return of all Equipment. The Hirer agrees that it will not sell or otherwise part with control of the Equipment unless it is using a third party carrier for transportation.  Where the Hirer uses a third party carrier for transportation, the Hirer has a duty of care to select a reliable and reputable third party carrier and the Hirer will co-operate fully with IML to enable IML to make a claim from the third party carrier if required.

11.2 The Hirer undertakes to ensure that (i) no one uses the Equipment who is not properly instructed, (ii) it shall not allow the Equipment to be misused; and (iii) it shall ensure that no one but its or IML’s authorised representatives have access to the Equipment.

11.3 The Hirer hereby acknowledges that it is responsible for satisfying itself as to the suitability and fitness for its own purpose(s) of the Equipment and that IML shall not be liable for any failure of the Equipment to meet the requirements of the Hirer save as explicitly set out herein.

12. Intellectual Property Rights
12.1 IML owns all proprietary and intellectual property rights in the Equipment, the software embedded therein and any material arising from the use or manipulation of the software (including but not limited to copyrights, patents, trade marks and trade secrets).

12.2 The Hirer may not copy or keep any part of the Equipment or any elements of the software.

12.3  The Hirer undertakes not to translate, decompile or reverse-engineer any part of the software or allow any third party to carry out such activities unless prior agreement is received in writing from IML.

12.4  The Hirer may only use the software provided by IML on the computers supplied or authorised as compatible with the Equipment by IML.

13. Ownership of Data
13.1 Subject to clauses 12 and 13.2, all intellectual property rights in the data collated, resulting from, or produced by use of the Equipment shall vest in the Hirer on receipt of payment in full of the Charges to IML.  All pre-existing patents, trademarks, copyright and all other intellectual property rights shall remain with IML and/or its licensor. 
13.2 Notwithstanding any other term herein, IML reserves the right to use in any way it thinks fit any skills, knowledge and techniques acquired by it in providing the Equipment and Services pursuant to this Agreement.

14. Confidential Information
Both parties confirm and agree that all confidential information (obtained whether in preparation for entering into this Agreement or otherwise in the course of performance of their respective obligations under its terms, will be treated by them as secret and confidential and will not be disclosed by them to a third party except:

a. to employees, agents and sub-contractors instructed by either party in connection with the proper performance of its obligations under the terms of this Agreement and who require such information for the performance of their duties; or
b. to its professional advisers (including for the avoidance of doubt its auditors); or
c. as may be required by law or by a competent regulatory or government authority; or
d. with the prior written consent of the other party; or
e. insofar as the information shall have entered the public domain, other than as a result of a breach of this Agreement by the disclosing party.

15.     Entire Agreement
This Agreement and the Order Form constitutes the entire understanding between the parties concerning the subject matter of this Agreement. No waiver or amendment of any provision of this Agreement or the Order Form shall be effective unless made by a written instrument signed by both parties. Each provision of this Agreement and the Order Form shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.

16. Use of Agents
In providing the Services, IML will be entitled to employ agents for the purposes of carrying out certain matters of a specialist nature which IML may consider appropriate (including, without limitation, printing, personalisation, mailing, storage and the entry and processing of data on computers).

17. Notices
Any notice to be served under this Agreement shall be in writing and may be served by sending it to the relevant party at its address or fax number as last notified to the party giving the notice, and any notice so served shall be deemed to have been served, if sent by first class post, upon the expiry of 48 hours after posting and, if sent by fax, on the date on which it is transmitted.

18. Force Majeure
Neither party shall be responsible for delays or failure to perform any of its obligations under the terms of this Agreement resulting from acts beyond the reasonable control of such party.  Such acts shall include, but not limited to, acts of God, strikes, lockout, riots, acts of war, epidemics, governmental regulations superimposed after the fact, communication line failures, power failure, earthquakes or other disasters, or any failure or breakdown of any system, computer or otherwise.

19. Waiver
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of any party to avail itself of any right, power or privilege that it has or may have under this Agreement operate as a waiver of any breach or default by any other party.  
 
20. Contracts (Rights of Third Parties) Act 1999
Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against IML and any such third parties shall not be entitled to enforce any term of this Agreement against IML.

21. Governing Law and Jurisdiction
The law of England shall govern the rights and obligations of the parties to this Agreement; the construction of the same; and, so far as possible, all other matters arising out of or connected with, the making, execution and termination of the same and both parties hereby submit to the exclusive jurisdiction of the English Courts.