These terms and conditions govern the relationship between the parties in relation to the goods provided by the Company to the Hirer and incorporate the Zenith Washroom Solutions Limited Service/Rental Agreement.
1.1 Definitions. In these Conditions, the following definitions apply:
- 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 the Goods are installed at the Installation Address.
- Company: Zenith Washroom Solutions Limited registered in England and Wales with company number 470314
- Deposit: has the meaning given in clause 4.1.
- Installation Address: Hirer’s address as set out in the Order.
- Force Majeure Event: has the meaning given to it in clause 12.
- Goods: the goods, materials, equipment and packaging (or any part of them) set out in the Order.
- Hirer: Company, Firm, Person, Corporation or Public Authority taking the Company’s goods on hire and includes their successors and personal representatives.
- Order: the Hirer's order for the hire of Goods as set out in the Hirer’s purchase order.
- Payment Schedule: schedule of Rental Payments as set out in the Service/Rental agreement.
- Rental Payments: the payments made by or on behalf of Hirer for hire of the Goods as set out in the Payment Schedule.
- Rental Period: the period of hire as set out in clause 3.
- Services: the installation, de-installation and routine servicing of the Goods.
- Service/Rental Agreement: the agreement entered into by the Company and the Hirer for hire of the Goods.
- Total Loss: due to the Hirer's default the Goods is, in the Company's reasonable opinion or the opinion of its insurer, damaged beyond repair, lost, stolen, seized or confiscated.
1.2 Construction. In these Conditions, the following rules apply:
- Clause headings shall not affect the interpretation of these terms and conditions.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
- The quotation forms part of these terms and conditions and shall have effect as if set out in full in the body of these terms and conditions and any reference includes the quotation.
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these terms and conditions.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these terms and conditions under that statute or statutory provision.
- A reference to writing or written includes fax and e-mail.
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- References to clauses are to the clauses of these Conditions.
- 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. GOODS HIRE
2.1 The Company shall hire the Goods to the Hirer for use at the Installation Address.
2.2 The Company shall not, other than in the exercise of its rights under these terms and conditions or applicable law, interfere with the Hirer's quiet possession of the Goods.
3. RENTAL PERIOD
The Rental Period starts on the Commencement Date and shall continue until the term specified in the Service/Rental Agreement has expired at which time the Rental Period will be automatically renewed in 12 month increments unless it is terminated in accordance with these terms.
4. DEPOSIT AND RENTAL PAYMENTS
4.1 The Hirer shall pay a deposit against default by the Hirer of payment of any Rental Payments or any loss of or damage caused to the Goods (Deposit). The Hirer shall, on or before the Commencement Date, pay a deposit of the equivalent of three months’ advance rent to the Company. If the Hirer fails without due cause to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Goods (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 to the Hirer within five (5) Business Days of the end of the Rental Period.
4.2 The Hirer shall pay the Rental Payments to the Company in accordance with the Payment Schedule in the Service/Rental Agreement. The Rental Payments shall be paid in Pounds Sterling (GBP) and shall be made by BACS or cheque.
4.3 All amounts due under these terms and conditions 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 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.
4.5 If the Hirer fails to make any payment due to the Company under the Service/Rental Agreement by the due date for payment, then the Hirer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Hirer shall pay the interest together with the overdue amount.
5. DELIVERY OF GOODS
5.1 Delivery of the Goods shall be made by the Company to the Installation Address. The Company shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties.
5.2 Unless the Hirer notifies the Company in writing within 2 days of the Goods being delivered to the Installation Address that the Goods are not satisfactory, they shall be deemed to be delivered in good order.
5.3 To facilitate Delivery the Hirer shall provide access to enable Delivery to be carried out safely and expeditiously.
5.4 The Company shall be responsible for off-loading Goods at the Installation Address.
6. TITLE, RISK AND INSURANCE
6.1 The Goods shall at all times remain the property of the Company, and the Hirer shall have no right, title or interest in or to the Goods (save the right to possession and use of the Goods subject to these terms and conditions).
6.2 The risk of loss, theft, damage or destruction of the Goods shall pass to the Hirer on Delivery. The Goods shall remain at the sole risk of the Hirer during the Rental Period and any further term during which the Goods are in the possession, custody or control of the Hirer (Risk Period) until such time as the Goods are redelivered to the Company, notwithstanding the use of Company’s transport for that purpose. During the Rental Period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:
- insurance of the Goods 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;
- insurance for such amounts as a prudent owner or operator of the Goods 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 Goods; and
- insurance against such other or further risks relating to the Goods 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 The Hirer shall give immediate written notice to the Company in the event of any loss, accident or damage to the Goods arising out of or in connection with the Hirer's possession or use of the Goods.
6.4 If the Hirer fails to effect or maintain any of the insurances required under these terms and conditions, 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.
6.5 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 OBLIGATIONS
7.1 The Hirer shall:
- allow the Company access to the Installation Address and the Goods for the purpose of fulfilling the Services;
- keep the Goods at all times at the Installation Address and shall not move or attempt to move any part of the Goods to any other location without the Company's prior written consent;
- at the end of the Rental Period, allow the Company to access to the Goods in order to remove the Goods from the Installation Address.
8.1 The Company warrants that the Goods shall substantially conform to its specification (as made available by the Company), be of satisfactory quality and fit for any purpose held out by the Company. The Company shall use all reasonable endeavours to remedy, free of charge, any material defect in the Goods, provided that:
- the Hirer notifies the Company of any defect in writing within three 3 Business Days of the defect occurring or of becoming aware of the defect;
- the Company is permitted to make a full examination of the alleged defect;
- 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;
- 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
- the defect is directly attributable to defective material, workmanship or design.
8.2 If the Company fails to remedy any material defect in the Goods in accordance with clause 8.1, the Company shall, at the Hirer's request, accept the return of part or all of the Goods and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement between the Company and the Hirer.
8.3 The Company will be responsible for the cost of repairs to the Goods involved in breakdowns resulting from normal usage and any repairs becoming necessary will be dealt with as quickly as reasonably possible and the Hirer shall at all times allow the Company, his agents or servants, to have access to the Goods.
9. LIMITATION OF LIABILITY
9.1 Nothing in these terms and conditions shall exclude or in any way limit:
- the Company's liability for death or personal injury caused by its own negligence;
- the Company's liability for fraud or fraudulent misrepresentation; or
- liability for any breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973 or any other liability which cannot be excluded by law.
9.2 These terms and conditions sets forth the full extent of the Company's obligations and liabilities in respect of the Goods 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 these terms and conditions. Any condition, warranty or other term concerning the Goods which might otherwise be implied into or incorporated within these terms and conditions, whether by statute, common law or otherwise, is expressly excluded.
9.3 Without prejudice to clause 9.1, the Company shall not be liable under these terms and conditions for any:
- loss of profit;
- loss of revenue
- loss of business; or
- indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
10.1 Without limiting its other rights or remedies either party may terminate the Service/Rental Agreement by giving the other party not less than 3 months' written notice before the expiry of the anniversary of the term as set out in Service/Rental Agreement.
10.2 Without affecting any other right or remedy available to it, the Company may terminate the Service/Rental Agreement with the Hirer with immediate effect by giving written notice to the Hirer if:
- the Hirer fails to pay any amount due under the quotation on the due date for payment;
- the Hirer commits a material breach of any other of these terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 2 days after being notified to do so;
- the Hirer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or being a company or limited liability partnership is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or being an individual is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or being a partnership has any partner to whom any of the foregoing apply;
- the Hirer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Hirer (being a company);
- 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 the Hirer (being a company);
- the holder of a qualifying floating charge over the assets of the Hirer (being a company) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the Hirer or a receiver is appointed over the assets of the Hirer;
- the Hirer (being an individual) is the subject of a bankruptcy petition or order;
- a creditor or encumbrancer of the Hirer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Hirer's assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Hirer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2(c) to clause 10.2(j) (inclusive);
- the Hirer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- the Hirer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.3 For the purposes of clause 10.2(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Company would otherwise derive from:
- a substantial portion of these terms; or
- any of the obligations set out in clause 7.
over any of these terms. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.4 The agreement between the Company and the Hirer shall automatically terminate if a Total Loss occurs in relation to the Goods.
11. CONSEQUENCES OF TERMINATION
11.1 Upon termination of the agreement between the Company and the Hirer, however caused:
- the Company's consent to the Hirer's possession of the Goods shall terminate and the Company may, by its authorised representatives, without notice and at the Hirer's expense, retake possession of the Goods and for this purpose may enter the Installation Address or any premises at which the Goods is located; and
- without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to the Company on demand:
- all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.5; and
- any costs and expenses incurred by the Company in recovering the Goods and/or in collecting any sums due under these terms and conditions (including any storage, insurance, repair, transport, legal and re-marketing costs).
11.2 Upon termination of the agreement between the Company and the Hirer pursuant to clause 10.1, any other repudiation of these terms and conditions by the Hirer which is accepted by the Company or pursuant to clause 10.4, 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 agreement had continued from the date of such demand to the end of the Rental Period, less a discount for accelerated payment at the percentage rate set out in the Payment Schedule.
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).
11.4 Termination shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach which existed at or before the date of termination.
12. FORCE MAJEURE
Neither party shall be in breach of these terms and conditions nor liable for delay in performing, or failure to perform, any of its obligations under these terms and conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 1 month, the party not affected may terminate the agreement between the Company and the Hirer by giving 14 days' written notice to the affected party.
13. ENTIRE AGREEMENT
13.1 These terms and conditions and the Service/Rental Agreement 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.
13.2 The Hirer acknowledges that in accepting these terms and conditions 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 these terms and conditions.
13.3 Each party shall have no claim for innocent or negligent misrepresentation based on any statement in this terms and conditions.
13.4 Nothing in this clause shall limit or exclude any liability for fraud.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions 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.
15. RIGHTS AND REMEDIES
Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1 If any provision or part-provision of these terms and conditions 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 these terms and conditions.
16.2 If any provision or part-provision of these terms and conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
17. GOVERNING LAW
These terms and conditions and any dispute or claim arising out of or in connection with them their 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.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms and conditions or its subject matter or formation (including non-contractual disputes or claims).