Avery Weigh-Tronix: Conditions for Equipment Hire

Avery Weigh-Tronix: Conditions for Equipment Hire
AVERY WEIGH-TRONIX: CONDITIONS FOR EQUIPMENT HIRE
1. CONTRACTUAL AGREEMENT
This Agreement governs the hire of the Equipment to the Hirer to
the exclusion of all other representations, statements,
understandings, negotiations, proposals or agreements unless
specifically agreed or notified in writing by an authorised official of
the Supplier.
2. DEFINITIONS
In this Agreement words in the singular include the plural and vice
versa unless the context otherwise requires, the following
expressions have the following meaning:
‘Agreement’ – means the contract for the hire of Equipment which
shall be deemed to include these Conditions.
‘Commencement Date’ – means the date specified on the Hire
Agreement form on which the Hire Period commences or is
scheduled to commence, or if no such date is stated the date of the
delivery of the Equipment.
‘Conditions’ – means these conditions for equipment hire and any
documents referred to herein.
‘Equipment’ – means the equipment specified in the Agreement
together with all associated software, drawings, operating
instructions and technical manuals supplied by the Supplier and
such additions and changes thereto as shall from time to time be
agreed in writing between the parties.
‘Hazardous Substances’ – means any substance in any form
whatsoever which is or can in particular circumstances be corrosive,
poisonous, radioactive, carcinogenic or in any way whatsoever
either dangerous or to pose a risk to health or which is controlled by
special regulations or guidelines for its possession or use or which
can be considered hazardous to people or property in any other way
whatsoever.
‘Hire Charges’ – means the charges for the hire as notified by the
Supplier to the Hirer from time to time in accordance with the
Agreement.
‘Hire Period’ – means the period commencing on the
Commencement Date and ending on the latest date of:
I. the latest agreed date for the termination of hire or
II. the date on which the Equipment is returned to the Company’s
premises or
III. where the Supplier has agreed to collect the equipment, the
date the equipment is made ready and available for collection
by the Supplier.
‘Hirer’ – means the person(s), company or firm identified as such on
the Hire Agreement and will include any person giving the Supplier
reasonable cause to believe he is acting on the Hirer’s behalf.
‘Location’ – means the specific part of the Hirer’s premises in
which the equipment is installed or is to be installed.
‘Maintenance Hours’ – means the hours between 8.15 am and 4.30
pm each day excluding Saturdays, Sundays and public holidays.
‘Supplier’ – means ITW Limited, trading as Avery Weigh-Tronix.
Our principle place of business for correspondence is Foundry Lane,
Smethwick, West Midlands, B66 2LP, England. Our registered
office is at Admiral House, St Leonards Road, Windsor, Berkshire,
SL4 3BL, England. Brecknell, Central Weighing, Exactrak, GSE
and Railweight are all parts of Avery Weigh-Tronix. Registered in
England and Wales under number 559693.
3. SPECIFICATIONS OF EQUIPMENT
3.1 The Supplier will supply, wherever possible, equipment as
requested by the Hirer. The Supplier, however, reserves the right to
supply any model of Equipment which in the Supplier’s opinion
meets the Hirer’s stated requirements in all material respects.
3.2 The Hirer may, before entering into this Agreement and by
prior arrangement with the Supplier, inspect the Equipment but in
any event the Hirer is wholly responsible for ensuring that the
Equipment is sufficient and suitable for the purpose intended.
4. SUPPLY AND RETURN OF EQUIPMENT
4.1 Delivery
(a) The Hirer is responsible (unless otherwise agreed) for
transporting the Equipment to or from the Location, loading and off
loading the same upon any transport and for safeguarding and
storing any packing materials and cases for returning the Equipment.
(b) The Supplier’s packaging materials and cases are chargeable in
full to the Hirer if they are not returned with the Equipment at the
end of the Hire Period.
4.2 Installation – The Hirer is responsible for providing all
necessary site preparation facilities and assistance including but not
limited to: suitable access to and possession of the site; proper
foundations ready to receive the Equipment as and when delivered;
adequate lifting facilities and scaffolding; hire and carriage of test
weights; all unskilled labour; masons’, joiners’, and builders’ work;
weights and measures stamping fees; provision of customised
software; input of date; labeling of keys; suitable guarding and
protection for the Equipment from time of delivery; all power
supply and interconnecting cabling and wiring; electric power
lighting and heating necessary on the site during and after
installation; dismantling and removal of Equipment at the end of the
hire period; and all other necessary facilities and adequate
assistance. Where necessary, skilled labour to set up and calibrate
the Equipment and provide operator training is chargeable to the
Hirer at the Supplier’s applicable hourly rate.
4.3 Return of Equipment
On termination of the Hire Period the Equipment shall, at the option
of the Supplier either be:
(a) returned by the Hirer at the Hirer’s risk and expense, to an
appropriate address notified by the Supplier; or
(b) collected by the Supplier
4.4 Right of Search
The Supplier reserves the right to search any vehicles leaving its
premises at any time and the Hirer agrees that the Supplier may
exercise this right in respect of any transport arranged by the Hirer.
4.5 Supplier Delivering
When the Supplier takes responsibility for delivery the Supplier will
repair or at its option, replace free of charge Equipment lost or
damaged in transit, providing that the Supplier is given written
notification of such loss or damage within three days of delivery, or,
in the case of loss, the date when the delivery ought of occurred.
4.6 Delivery Times
(a) All dates quoted or stated for delivery are approximate only,
unless specifically described as a fixed date. Any fixed date for
despatch or delivery shall be extended by a reasonable period if a
delay is caused by instructions or lack of instructions from the Hirer
or by industrial dispute or by any cause beyond the Supplier’s
reasonable control.
(b) If the Supplier fails to despatch or deliver by an agreed fixed
date or by an extended date provided by this clause, and if as a result
the Hirer shall have suffered loss, the Supplier undertakes to pay for
each week or part of a week of delay, liquidated damages at the rate
of 0.25% up to a maximum of 2.5% of the weekly rate of Hire
Charges for the late delivered items of the Equipment and any other
items of the Equipment as cannot in consequence of the delay be
used commercially and effectively. Such payment shall be in full
settlement of the Supplier’s liability for delay.
5
PERIOD OF HIRE
5.1 Failure by the Hirer to return the Equipment at the end of the
period of hire or failure by the Hirer to make the Equipment
available for collection at the agreed time and place if it is agreed
that the Supplier shall collect the Equipment will entitle the Supplier
to charge at the same rate as the Hire Charges until the Equipment is
returned to the Supplier and should the return of the Equipment be
delayed for any reason whatsoever that is not the sole responsibility
of the Supplier for a period of one calendar month from the due date
then the Supplier shall at any time thereafter at his sole discretion be
entitled to invoice and be paid by the Hirer for the full replacement
value of new replacement Equipment of the same or equivalent
specification.
5.2 Subject to the above, unless a fixed period of hire has been
agreed the hire will continue at the end of any minimum period until
the end of the Hire Period at the rate of charge shown in the
Agreement for further extensions of the hire.
5.3 Nothing above shall affect the Supplier’s right to terminate
under clause 14 hereof and repossess the Equipment.
6. HIRE CHARGES
6.1 The Hirer is liable to the Supplier for hire charges from the
Commencement Date and throughout the Hire Period.
6.2 Hire Charges are as set out in the Agreement. The Hirer agrees
to pay the total amount of charges in respect of any minimum period
specified notwithstanding the earlier return of any or all of the
Equipment to the Company before the end of such minimum period.
6.3 Hire Charges quoted without prior inspection of the Location
or without the Hirer’s disclosure of special circumstances assume
normal site conditions with reasonable access and normal use of
Equipment (as reasonably determined by the Supplier). The
Supplier reserves the right to make reasonable extra charges where
there are adverse site conditions or special use of the Equipment,
and such charges shall apply retrospectively from the
Commencement Date.
6.4 The Supplier may at any time and by giving not less than two
weeks notice in writing, after the rate of Hire Charges payable under
this Agreement provided that the rate of Hire Charges may not be
altered to take effect during any minimum hire period.
6.5 If the intended or actual use or Location of the Equipment is
changed at any time the Supplier reserves the right to increase the
Hire Charges and any other charges payable under this Agreement
with effect from the actual date of change by an amount which in
the Company’s reasonable opinion covers additional costs it will
incur as a result of the change.
7. CREDIT AND PAYMENT TERMS
7.1 The Supplier reserves the right not to extend credit to the Hirer
or to impose a limit on any credit extended.
7.2 When credit is not extended to the Hirer, charges are payable
(on pro-forma invoice) in advance and will be invoiced on receipt of
payment. In such cases the charges for delivery, installation and
return of Equipment and the Hire Charges for the minimum hire
period are due before delivery of the Equipment. Other Hire
Charges are payable monthly in advance and other charges are
payable before the work commences.
7.3 Where credit is extended to the Hirer, Hire Charges are
invoiceable during each month and are payable 30 days from the
invoice date. Other charges payable in respect of this Agreement
are invoiceable as the services are supplied and are payable 30 days
from the invoice date.
7.4 If payment is not made on the due date, the Supplier is entitled
in addition to its other rights, including but not limited to
termination of this Agreement, to charge the Hirer a minimum
administration fee of £40.00.
7.5 Interest shall be payable by the Hirer on any amount not paid
by the Hirer when due in accordance with the terms set out in the
Hire Agreement or these Conditions at the rate of 8% above the base
rate from the time to time of National Westminster Bank PLC's
(calculated on a day to day basis) in respect of the period from the
date when such amount shall fall due until receipt by us of the full
amount thereof (whether before or after any judgement).
8. LIABILITY OF HIRER FOR VALUE ADDED TAX
Hire charges and all other charges are exclusive of Value Added
Tax which shall be payable by the Hirer and charged at the
appropriate rate at the time of invoicing.
9. DAMAGE AND INSURANCE
9.1 Except to the extent caused by fair wear and tear or the
Supplier’s neglect or fault the Hirer is strictly liable for any loss or
damage to the Equipment however caused, and for any repairs
required to the Equipment during the Hire Period.
9.2 The Hirer agrees to arrange (and if required, produce evidence
of) adequate all risks insurance cover for the Equipment throughout
the Hire Period and during transit to and from the Location. The
interest of the Supplier shall be noted on the policy and the proceeds
of any claims under such cover in respect of the Equipment will be
paid over promptly to the Supplier and until such time as such
proceeds are paid over, such proceeds and any claims are held on
trust for the Supplier. Any shortfall in the proceeds of such
insurance claims against the Supplier’s costs of repair/replacement
of Equipment shall be borne by the Hirer.
10. HIRER’S RESPONSIBILITY FOR EQUIPMENT
The Equipment will at all times remain the property of the Supplier
and the Hirer shall:
10.1 not assign, re-hire, sell, mortgage, charge, pledge or
otherwise part with possession of the Equipment in whole or in part;
10.2 keep the Equipment at the Location unless the Supplier gives
prior written consent to move it elsewhere;
10.3 be responsible for the safekeeping and proper use of the
Equipment and notify the Supplier promptly of any fault in the
Equipment;
10.4 observe all duties of care for the Equipment required under
any contract of insurance which subsists in respect of the
Equipment;
10.5 not repair or attempt to repair the Equipment or allow
anyone else to do so other than the Supplier’s employee or a person
authorised by the Supplier;
10.6 not tamper with the Equipment or do anything likely to
damage it or adversely affect its performance, or obliterate or deface
any words or signs on it, nor permit any other person (except a
person authorised by the Supplier) to do so;
10.7 be responsible for cleanliness of the Equipment and take any
necessary action to prevent damage caused by adverse
environmental conditions and shall return the Equipment promptly
at the end of the Hire Period in a state of cleanliness similar to that
in which the Equipment was received by the Hirer;
10.8 only use consumable supplies either supplied by the Supplier
or approved by the Supplier with or in conjunction with the
Equipment;
10.9 provide or pay the cost of transport to and from the
Supplier’s premises of the Equipment if needing repair or
adjustment where the Supplier opts to repair the Equipment at its
premises and the Equipment cannot readily be carried in the
Supplier’s normal service vehicle;
10.10 provide the Supplier with full and safe access to the
Equipment for the purposes of this Agreement including adequate
working space around the Equipment;
10.11 provide suitable lifting equipment together with unskilled
assistance for lifting or moving test weights and heavy parts and
take all steps necessary to safeguard the site where the Equipment
has been installed;
10.12 make available to the Supplier such programs, operating
manuals and information as may be necessary to enable the Supplier
to perform its obligations hereunder, and, if requested by the
Supplier, provide staff familiar with the Hirer’s programs and
operations to co-operate with the Supplier’s personnel in the
diagnosis of any malfunction of the Equipment;
10.13 make available to the Supplier free of charge all facilities
and services reasonably required by the Supplier to enable the
Supplier to maintain the Equipment including but not limited to the
provision of such telecommunications facilities as are reasonably
required by the Supplier for testing and diagnostic purposes at the
Hirer’s expense;
Issue 4 -
Apr 2013
AVERY WEIGH-TRONIX: CONDITIONS FOR EQUIPMENT HIRE
10.14 notify the Supplier of any changes in the use of the
Equipment which may affect its life expectancy, serviceability,
general conditions or appearance; and
10.15 inform the Supplier in writing prior to the commencement of
the Agreement whether the Equipment will or may come into
contact with any Hazardous Substances which may contaminate the
Equipment and inform the Supplier in writing if and when such
event occurs and thereafter decontaminate the Equipment of any
Hazardous Substances before return to the Supplier or pay for the
decontamination of the Equipment to be performed by the Supplier
or its agents.
11.
CONSUMABLE SUPPLIES
11.1 The Hirer must replace, by purchase from the Supplier, any
necessary battery or consumable supplies, printheads or ink ribbons
whenever needed.
11.2 Consumable supplies supplied by the Supplier on a sale or
return basis are chargeable to the Hirer unless returned in good
condition and with the original packaging intact and unopened to the
Supplier with the Equipment at the end of the Hire Period.
12.
EQUIPMENT MAINTENANCE
12.1 If the Hirer reports a fault in the Equipment the Supplier will
attend to it during Maintenance Hours in accordance with the
Supplier’s normal Comprehensive Hardware Maintenance Service
Agreement (a copy of which is available on request) or will provide
any alternative service cover previously agreed in writing by the
Supplier.
12.2 The Supplier may make an additional charge, in accordance
with its standard scale of charges for the time being in force, for
service visits:
(a)
made at the request of the Hirer but which the Supplier finds
are frivolous or not necessary; or
(b)
made at the request of the Hirer by reason of any fault in the
Equipment due to any cause other than fair wear and tear or the
Supplier’s negligence or fault including without limitation:
i.
failure or fluctuation of electric power, air conditioning and
humidity control; vibration or other environmental conditions; or
ii.
the negligence or fault or the Hirer or any third party; or
iii.
any fault in any attachments or associated equipment
(whether or not supplied by the Supplier) which do not form any
part of the Equipment; or
iv.
Act of God, fire, lightning, flood or ingress of foreign
material affecting the functioning of the Equipment; or
v.
faults in or loss of data or software supplied, specified or
programmed by the Hirer.
12.3 If the Supplier agrees with Hirer to carry out work to remedy
a fault in the Equipment outside Maintenance Hours, the Hirer must
pay a charge calculated at the Supplier’s applicable hourly rate for
the time being in force.
12.4 On receipt of notification of a fault, the Supplier undertakes
to use its reasonable endeavours to despatch a suitably qualified
Service Technician to the Location within eight Maintenance Hours
but such response time is an estimate only and shall not be binding
on the Supplier. The Supplier reserves the right to require that the
Equipment be returned to the Supplier’s premises for maintenance
rather than be attended to on site.
12.5 Software maintenance is not provided by the Supplier under
this Agreement, though the Supplier will, following hardware
failure, restore an operating system supplied as part of the
Equipment to the last back-up version as provided by the Hirer
13.
TESTING, AND VERIFICATION
13.1 The Supplier will attend the Trading Standards Officer
whenever verification or reverification of the Equipment is
necessary, the Hirer paying only the Officer’s fees and expenses and
any charge for the transport and use of the Officer’s Test Weights
and/or equipment.
For this purpose:
(a)
the Hirer will allow the Supplier free use of all appropriate
test weights which the Hirer may possess;
(b)
the Supplier will loan, free of charge, test weights (if
available), the Hirer paying the cost of transport for collection and
return of such weights
(c)
for weighbridges in accessible mainland locations the
Supplier will provide the services of a Weighbridge Test Unit and
the Hirer will pay the Supplier’s normal charges for such services
14.
TERMINATION
The Supplier shall be entitled to terminate this Agreement
immediately at any time if the Hirer is in breach of this Agreement
or if any action or proceeding in which the Hirer’s solvency is
involved is commenced and to repossess the Equipment or any part
thereof. Such termination shall not affect the right of the Supplier to
recover from the Hirer any monies due under this Agreement or
damages for breach of contract.
15.
LIABILITY
15.1 The Supplier will indemnify the Hirer against direct damage
or injury to the Hirer’s property or person to the extent that this is
caused solely and directly by the negligent acts or omissions of the
Supplier, his sub-contractors or agents whilst performing the
Agreement, but not otherwise, by making good such damage to
property or compensating personal injury.
Provided that:
(a)
except where the Hirer deals with the Supplier as a
Consumer, and subject to this clause 15.1 the Supplier’s total
liability for damage to the Hirer’s property (including damage
caused by the Supplier’s breach of contract, tort, negligence or
breach of statutory duty) shall not exceed the greater of (i) the total
Hire Charges paid for the hire in question or (ii) £100,000, in respect
of any claim or series of claims arising out of one incident and
£500,000 in the aggregate in respect of all claims whether arising
from one incident or more than one incident under this Agreement;
(b)
the Supplier shall not be liable to the Hirer for any loss of
profit or of contracts or special, consequential or indirect loss,
goodwill or other intangible property (including without limitation
any loss of or spoiling of data) or, loss or use, or save as aforesaid,
for any loss or damage of any kind whatsoever and whether caused
by the Supplier’s breach of contract, tort, breach of statutory duty or
otherwise howsoever, and subject to clause 15.1(a) and save where
the Hirer deals with the Supplier as a Consumer, the Hirer shall
indemnify the Supplier against any liability, loss, damage, costs,
fees or expenses suffered by the Supplier as a result of any claim or
action brought by any third party in respect of any damage or injury
caused whether direct or indirect as a result of or in connection with
the performance or non performance of the Supplier’s obligations
under this Agreement.
(c)
Notwithstanding any other provision to the contrary nothing
in this Agreement shall limit or exclude each party’s liability for
death or personal injury caused by that party’s negligence or that of
its employees, sub-contractors or agents or for fraud or fraudulent
misrepresentation.
16.
LEGAL CONSTRUCTION
The construction validity and performance of the Agreement shall
be governed by the laws of England and any claim or dispute arising
therefrom shall be subject to the exclusive jurisdiction of and be
determined by the English Courts. Nothing in this Condition shall
limit the Supplier’s right to take proceedings against the Hirer in any
other Court of competent jurisdiction.
17.
STATUTORY AND OTHER REGULATIONS
If the cost to the Supplier of performing his obligations under any
Agreement shall be increased by reason of the making or
amendment, after the date of acceptance of the Hirer’s order, of any
law or of any order, regulation or bye-law having the force of law
that shall affect the performance of the Supplier’s obligations under
such Agreement, the amount of such increase shall be added to the
Hire Charges.
18.
EXTRA COST
Should the Supplier incur extra cost owing to variation or
suspension of the supply of the Goods by the Hirer’s instructions or
lack of instructions, delays, over time, unusual hours, mistakes, or
work, for which the Supplier is not responsible, a reasonable sum in
respect of such extra cost including a reasonable element in respect
of profit shall be added to the Hire Charges.
19.
FORCE MAJEURE
This Agreement (including for the avoidance of doubt obligations
arising under these Conditions and the documents referred to in
these Conditions) may be suspended by the Supplier for such period
or periods as the Supplier in his absolute discretion shall elect (and
the Supplier shall have the right to cancel after a period or periods of
suspension aggregating six months) without liability on the
Supplier’s part in the event of the Supplier being unable to fulfil or
being delayed or interrupted in the fulfilment of any of the
Supplier’s obligations under this Agreement by reason of accidents,
statutes, regulations, orders, restrictions, embargoes, boycotts,
prohibitions, recommendations, requisitions or other act of national
or local government, strikes, lockouts, trade disputes, war, invasion,
acts of foreign enemy, hostilities (whether war has been declared or
not), civil war, rebellion, inclement or adverse weather conditions,
fluctuations or failures of electricity and power supplies and
communication line failures, shortages of raw materials or inability
to secure materials, labour, transport or licences, suppliers shortages
or delays or otherwise such other causes as are beyond the
Supplier’s reasonable control and the Hirer shall be obliged to pay
for that part of the Agreement which is actually carried out by the
Supplier on a pro-rata basis relation to the Hire Charges as a whole.
20.
SET-OFF
The Hirer shall not be entitled to withhold payment of any sums
after they have become due by reason of any right of set off or
counter claim which the Hirer may have or allege or for any reason
whatsoever.
21.
GENERAL
21.1 The Hirer shall not, without the Supplier’s prior written
consent, assign or sub let any of its rights or duties under the
Agreement and shall furnish copies of any such assignments or sub
contracts to the Supplier. The Supplier shall have the right, without
prior notice or penalty, and the Hirer hereby consents to and shall do
all acts and execute all documents necessary to enable the Supplier
to assign the benefit of and/or by novation or otherwise transfer the
obligations arising from the Agreement or any part thereof without
restriction. The Supplier shall give to the Hirer notice of any such
assignment, novation or transfer within 14 days of its occurrence.
21.2 The failure on the part of either party to exercise or enforce
any right conferred by the Agreement shall not be deemed to be a
waiver of any such rights nor to operate so as to bar the exercise or
enforcement thereof at any time thereafter.
21.3 Any notice required to be given under this Agreement shall
be given in writing and shall be deemed to have been duly given if
hand delivered or sent by prepaid post first class or email or
telecopier (facsimile) addressed to the party concerned and its
principal place of business or the last known address and in the case
of a notice sent by prepaid post shall be deemed to be served at the
time of actual delivery or 48 hours (if the Hirer’s address for service
is in Europe, and seven (7) days in all other instances) after posting
whichever is the earlier. Notices sent by email or facsimile shall be
deemed delivered when transmitted. Notices delivered by hand shall
be deemed served when delivered.
21.4 In the event that any one or more of the provisions contained
in these Conditions shall be invalid, illegal or unenforceable in any
respect, the validity legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
21.5 The Hirer warrants to the Supplier that:
i.
it has the power to engage in the transactions contemplated
by and/or contained in this Agreement.
ii.
it has full power, authority and legal right to execute and
deliver the Agreement and to comply with the provisions hereof.
iii.
the obligations expressed and or assumed constitute valid
and binding obligations of the Hirer.
iv.
all acts, conditions and things to be done and performed and
to have happened prior to the execution and delivery of the
Agreement in order to constitute all of the obligations of the Hirer
hereunder as valid and binding have been done and performed and
have happened in due and strict compliance with all applicable laws.
21.6 The Supplier may advertise and make known that the
Supplier is undertaking work for the Hirer.
21.7 The Hirer warrants and undertakes that during the
performance, and for a period of nine (9) months following the
completion of the Agreement, it will not without our prior written
agreement, employ or offer to employ or to introduce to any third
party any person employed by us at the time of the making of this
Agreement and not directly or indirectly to induce any such person
to leave our employment as aforesaid.
21.8 The Hirer shall not at any time during the continuance of this
Agreement or for a period of five years thereafter make any public
statements regarding the Supplier which could in any manner bring
the Supplier or his services or products into disrepute.
21.9 The Customer acknowledges that the Company is subject to
and must comply with UK, EU and US law in respect of sanctions,
other trade restrictions, export licencing requirements, bribery and
corruption. Accordingly it is a condition of this Agreement that the
Customer shall comply with all such law in respect of goods and
services supplied directly or indirectly by us or other members of
our group of companies. All Customers buying goods or services
for resale shall also comply with our group global anti-corruption
policy as amended from time to time. This policy is available at
http://investor.itw.com and is alternatively available upon request
from us. Breach of this clause shall be grounds for termination and
shall not be considered a breach capable of remedy.
21.10 Save as otherwise expressly stated, a person who is not a
party to the Agreement has no right under the Contracts (Rights of
Third Parties) Act 1999 to enforce any term of the Agreement but
this does not affect any right or remedy of a third party which exists
or is available apart from that Act.
22.
HEADINGS
The headings of these Conditions are for convenience only and shall
in no way form part thereof.
Issue 4 -
Apr 2013
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