1. Definitions and interpretation
1.1 In the Agreement, the following terms shall have the following meanings unless the context otherwise requires:
Adlib: Adlib Limited incorporated and registered in England and Wales with company number 03555097.
Adlib Personnel: the employees, consultants and/or subcontractor who, on behalf of Adlib, provide Services to the Customer under the Agreement
Agreement: these Hire Terms and Conditions together with the Quotation and any document referred to in these Hire Terms and Conditions or the Quotation.
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 of Adlib’s acceptance (given in accordance with clause 2.5) of the Customer’s offer to enter into the Agreement (made in accordance with clause 2.4).
Customer: the business or organisation who hires the equipment, and if applicable receives Services, from Adlib, the details of which are set out in the Quotation.
Customer Default: any act or omission by the Customer or anyone acting on its behalf or failure by the Customer (or anyone acting on its behalf) to perform any relevant obligation under the Agreement including those set out in clause 9.
Delivery: the transfer of physical possession of the Equipment to the Customer at the Delivery Location following the completion of the unloading of the Equipment.
Delivery Date: the date the parties agree that Delivery shall take place, as set out in the Quotation or as otherwise agreed by the parties in writing.
Delivery Location: the premises at which the Customer shall take possession of the Equipment, as set out in the Quotation or as otherwise agreed by the parties in writing.
Deposit: has the meaning set out in clause 6.8.
Equipment: the items of equipment listed in the Quotation that Adlib agrees to hire to the Customer under the Agreement including all substitutions, replacements or renewals of such equipment and all related accessories, manuals and operating instructions.
Fees: the Hire Fees and, if applicable, the Services Fees.
Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a skilled and experienced person engaged in services similar to the Services.
Hire Fees: the fees to be paid by the Customer to Adlib for the hire of the Equipment, as set out in the Quotation or as otherwise agreed by the parties in writing.
Hire Period: has the meaning set out in clause 4.1.
Quotation: the written document which Adlib provides to the Customer containing specific information relating to the particular equipment to be hired by Adlib to the Customer.
Risk Period: has the meaning set out in clause 8.2.
Service Dates: the dates upon which the Services (or a particular element of the Services) are to be performed, as set out in the Quotation or as otherwise agreed by the parties in writing.
Service Hours: the hours during which the Services (or a particular element of the Services) are to be performed, as set out in the Quotation or as otherwise agreed by the parties in writing.
Services: services provided to the Customer by Adlib as further particularised in the Services Description.
Services Description: an itemised breakdown of the services, set out in the Quotation or as otherwise agreed by the parties in writing, that Adlib shall provide to the Customer.
Services Fees: the fees to be paid by the Customer to Adlib for the Services, as agreed by the parties in writing or as set out in, or calculated in accordance with the rates outlined in, the Quotation.
Site(s): the premises at which the parties agree that the Equipment shall be used, and if applicable where the Services shall be provided, as set out in the Quotation or as otherwise agreed by the parties in writing.
Total Loss: where the Equipment is, in Adlib’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
Unsuitable Individual: has the meaning set out in clause 5.4.
VAT: value added tax or any equivalent tax chargeable in the UK.
1.2 Clause headings shall not affect the interpretation of the Agreement.
1.3 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.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to any other gender.
1.7 Unless expressly provided otherwise in the Agreement, reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 Unless expressly provided otherwise in the Agreement, reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
1.9 A reference to writing or written includes email.
1.10 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.11 A reference to the Agreement or to any other agreement or document is a reference to the Agreement or such other agreement or document, in each case as varied from time to time.
1.12 References to clauses are to the clauses of these Hire Terms and Conditions.
1.13 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.
1.14 In the event of conflict between any provision set out in these Hire Terms and Conditions and any provision set out in the Quotation, then the provision set out in the Quotation shall take precedence of any provision set out in these Hire Terms and Conditions.
2. Agreement
2.1 The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by the Customer in whatever form and at whatever time. These Hire Terms and Conditions apply to the hiring of Equipment, and if applicable the provision of Services, by Adlib to the Customer under the Agreement.
2.2 Save as expressly provided in the Agreement, the Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the parties preceding the Commencement Date and in any way relating to the subject matter of the Agreement and to the exclusion of any representations not expressly stated in the Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each party acknowledges that it has not entered into the Agreement based on any representation that is not expressly incorporated into the Agreement.
2.3 The Agreement constitutes the whole agreement and understanding of the parties as to the subject matter of the Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in the Agreement.
2.4 The Customer providing Adlib with the Customer’s written confirmation of the details set out in the Quotation (previously submitted to it by Adlib) shall be deemed to be an offer by the Customer to hire the Equipment, and if applicable receive the Services, from Adlib, subject to the provisions of the Agreement.
2.5 The Agreement shall be legally formed and the parties shall be legally bound when Adlib, following its receipt of the Customer’s written confirmation pursuant to clause 2.4, either confirms its acceptance of the Quotation (and the Customer’s written confirmation) in writing to the Customer, or performs some form of affirmative action which indicates its intention to accept the Customer’s offer and enter into the Agreement, such as making the Equipment available to the Customer or, where applicable, providing the Services to the Customer. Such action by Adlib shall be considered to be its acceptance of the offer made by the Customer pursuant to clause 2.4.
2.6 Any purchase order provided by the Customer to Adlib (and any terms and conditions attached or referred to in it) for the Customer’s hire of the Equipment, and if applicable Adlib’s provision of the Services, shall be purely for the Customer’s administrative purposes and shall not, under any circumstances and no matter on how many occasions they are provided by the Customer, form part of the Agreement whatsoever.
3. Equipment Hire
3.1 Adlib shall hire the Equipment to the Customer for use at the Site(s) subject to the terms and conditions of the Agreement.
3.2 Adlib warrants that the Equipment shall substantially conform to its specification (as made available by Adlib upon written request of the Customer) and be free from any material defects. Adlib shall use reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself during the Hire Period, by either repairing the Equipment or replacing the Equipment with a like for like or similar replacement, provided that:
(a) the Customer notifies Adlib of any defect in writing immediately (and in any event within 24 (twenty-four) hours) after the defect occurs or the Customer becomes aware of the defect;
(b) Adlib is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Adlib Personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
3.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Adlib, the Customer shall be entitled only to such warranty or other benefit as Adlib has received from the manufacturer.
3.4 If Adlib fails to remedy any material defect in the Equipment in accordance with clause 3.3, Adlib shall, at the Customer's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Fees payable during the remaining term of the Agreement and, if relevant, return any Deposit (or any part of it).
3.5 The Customer shall indemnify Adlib in relation to all costs, expenses and losses (including loss of future business) and/or damage suffered or incurred by Adlib arising from any malfunction of the Equipment caused by any act or omission of the Customer, its officers, employees, agents and contractors, including any such act or omission that is not in compliance with:
(a) these Hire Terms and Conditions;
(b) any operating instructions provided by Adlib or any relevant manufacturer of the Equipment; and
(c) any instructions given by Adlib (or Adlib Personnel) from time to time or that relates to the improper storage, distribution, and/or misuse of the Equipment.
4. Hire Period
4.1 The period of time for which the Customer shall hire the Equipment from Adlib shall start on the Delivery Date and shall continue for the period of time specified in the Quotation (the Hire Period). The Customer acknowledges and agrees that, notwithstanding the agreed Hire Period, Adlib shall be entitled to continue to charge Fees to the Customer beyond the end of the Hire Period (and the Customer shall continue to carry the risk for the Equipment in accordance with clause 8.3), until the Equipment is returned to Adlib by the Customer or Adlib otherwise re-takes possession of the Equipment from the Customer.
4.2 The Customer acknowledges that even if the Equipment is returned to Adlib by the Customer or Adlib otherwise re-takes possession of the Equipment from the Customer before the end of the Hire Period, the Fees for the entire Hire Period shall be payable by the Customer to Adlib, unless Adlib determines, at its absolute discretion, to a pro-rata reduction of the payable Fees to account for the shortened period of hire.
5. Services
If the Quotation stipulates that Adlib shall provide Services to the Customer, the following terms shall apply:
5.1 Adlib, through its provision of Adlib Personnel, shall provide the Services to the Customer at the Site(s) on the Service Dates during the applicable Service Hours. The Customer acknowledges and agrees that Adlib may amend the Service Description if necessary to comply with any applicable law or regulatory requirement and/or where such amendment will not result in the nature or quality of the Services being negatively impacted.
5.2 Adlib shall, and (where appropriate/applicable) shall procure that each member of Adlib Personnel shall:
(a) ensure that the Adlib Personnel are appropriately qualified and/or have the necessary experience to provide the Services;
(b) provide the Services (from the applicable Site(s), on the Service Dates and during the applicable Service Hours) in accordance with Good Industry Practice;
(c) provide reasonable assistance and cooperate with the Customer and any other third parties engaged by the Customer in relation to the Services or the subject matter to which the Services relate; and
(d) comply with all applicable laws and regulations in relation to the performance of its obligations under the Agreement.
5.3 The Customer acknowledges and agrees that the Adlib Personnel who provide Services to the Customer under the Agreement shall be subject to change and whilst Adlib will seek to accommodate any request made by the Customer from time to time under the Agreement for a particular member of Adlib Personnel to carry out the Services (in whole or in part), no guarantee is made by Adlib that such individual shall be utilised by Adlib to provide such Services (in whole or in part).
5.4 In the event that, during the provision of the Services, the Customer has reasonable grounds to suspect that a member of Adlib Personnel has failed to carry out their duties in accordance with Good Industry Practice (an Unsuitable Individual), then the Customer shall notify Adlib in writing of that fact giving the grounds for such failure.
5.5 If the Customer notifies Adlib of an Unsuitable Individual in accordance with this clause 5.4 and Adlib agrees that the grounds raised by the Customer clearly identify a failure by a member of Adib Personnel to carry out their duties in accordance with Good Industry Practice, then Adlib shall put in a place a remediation plan in order to ensure that such member of Adlib Personnel future performance of their duties are carried out in accordance with Good Industry Practice. Adlib shall provide the Customer with a copy of such remediation plan upon the Customer written request.
5.6 Unless it or they have been specifically authorised to do so by the Customer:
(a) neither Adlib nor any member of Adlib Personnel shall have any authority to incur any expenditure in the name of or for the account of the Customer For the avoidance of doubt, this shall not prevent Adlib Personnel from incurring expenses pursuant to clause 6.2; and
(b) Adlib shall not, and shall procure that Adlib Personnel shall not, hold themselves out as having authority to bind the Customer.
5.7 Adlib shall procure that all Adlib Personnel comply with the Customer’s, or any applicable third party’s, reasonable health and safety procedures from time to time in force at any Site(s) (to the extent that such procedures are made available to Adlib by the Customer), or if no such health and safety procedures are in place Adlib’s standard procedures in relation to the same.
5.8 Adlib may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that the Customer will not be liable to bear the cost of such functions.
5.9 Adlib shall be solely and absolutely responsible for:
(a) paying Adlib Personnel the fees or remuneration (including holiday pay and sick pay if applicable) and reimbursement of disbursements to which they are entitled by reason of performing the Services on behalf of Adlib; and
(b) making deductions and accounting to relevant authorities for any income tax on employment income and any necessary National Insurance contributions in respect of each Adlib’s remuneration.
5.10 If the description of the Services set out in Quotation stipulates that the Equipment shall be installed by Adlib Personnel at the Site, or if applicable at multiple Sites during the Hire Period, Adlib Personnel shall ensure the timely installation of the relevant Equipment at the Site(s), save for where any such installation is prevented or delayed due to a Customer Default. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the installation of such Equipment and has found that, as a result of such installation, the Equipment is able to operate in the way it is intended. If required by Adlib, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.
5.11 Any services or other work performed by Adlib and/or Adlib Personnel for the Customer which has not been agreed and set out in the Quotation shall be charged to Adlib in accordance with (i) the rates set out in the Quotation or, if there are no such rates, (ii) the standard rates that Adlib has in force from at such time for the Adlib Personnel.
6. Fees
6.1 In consideration of the Equipment being hired by Adlib to the Customer and, if applicable, the Services provided by Adlib to the Customer, the Customer shall pay the Fees.
6.2 Adlib may, where applicable, charge the Customer for each member of Adlib Personnel’s reasonable expenses incurred in the course of performing the Services, including for the reasonable accommodation, travel, telephone, food, subsistence, out-of-pocket, any other expenses incurred in the course of performing the Services.
6.3 The Fees are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
6.4 Adlib shall be entitled to invoice the Customer at such time or at such intervals as Adlib, acting reasonably, considers appropriate. The Customer shall pay the Fees set out in each invoice in accordance with any credit terms agreed by the parties in writing and/or as set out in the Quotation. Where no such credit terms have been agreed or are not set out, or referenced to, in the Quotation, the Fees shall be payable immediately upon the Customer’s receipt of Adlib’s invoice.
6.5 No payment shall be considered paid until Adlib has received it in cleared funds in full. The Customer acknowledges and agrees that additional charges may also be payable if the Customer wishes to pay via credit or debit-card.
6.6 All amounts due under the Agreement 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).
6.7 Payment shall be in the currency in force in England from time to time or such other currency as Adlib may stipulate from time to time for the Fees.
6.8 If any invoiced sums are not paid by the Customer in accordance with clause 6.3, Adlib may (without prejudice to any other right or remedy available to Adlib whether under the Agreement or by any statute, regulation or bye-law) do any or all of the following;
(a) charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
(b) recover all its costs, expenses and charges (including any legal and debt collection fees and costs) incurred by Adlib as a result of seeking to collect such late or non-payment;
(c) if applicable, suspend its provision of the Services to the Customer; and
(d) immediately recover possession of the Equipment from the Site(s).
6.9 Adlib shall be entitled to hold the amount set out in the Quotation to safeguard against any failure by the Customer to pay the Fees or any loss or damage caused to the Equipment whilst in the Customer’s possession (the Deposit). The Customer shall, when requested to do so by Adlib, pay the Deposit to Adlib. If the Customer fails to pay any Fees due to Adlib under the Agreement or causes any loss or damage to the Equipment (in whole or in part), Adlib shall (without prejudice to any other right or remedy available to Adlib whether under the Agreement or by any statute, regulation or bye-law) be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to Adlib any sums deducted from the Deposit within 7 (seven) of a demand for the same in order to ensure that amount held by Adlib as the Deposit is equal to the sum set out in the Quotation.
6.10 The Deposit (or the balance of any remaining Deposit in the event that the Customer has failed to rebalance the Deposit in accordance with clause 6.8) shall be refundable within 30 (thirty) days of the later of the events listed in clause 11.1, save for where the Customer informs Adlib that the Deposit may be used (along with a payment of the remaining Hire Fees less the Deposit) to clear any outstanding Hire Fees due to Adlib from the Customer.
6.11 Allowance shall only be made for any non-usage of the Equipment during the Hire Period (including for any time taken to assemble or install the Equipment as part of the Services) where such non-usage is caused by the Equipment failing to comply with clause 3.2. Any such allowance given shall be calculated on a pro-rata basis for the number of hours that the Equipment is not capable of being used. For the avoidance of doubt, the Customer acknowledges and agrees that no such allowance shall be made for non-usage under this clause 6.10 where the failure of the Equipment to comply with clause 3.2 arises from a Customer Default or an event outside Adlib’s reasonable control.
6.12 If at the end of the Hire Period, the parties agree that Adlib shall collect the Equipment rather than it be delivered up by the Customer, the Customer agree to:
(a) make the Equipment available for collection at the time, on the date, and at the location agreed between the parties, or stipulated by Adlib in the absence of any such agreement; and
(b) be responsible for all the costs associated with the collection of the Equipment by Adlib, such as a vehicle hire or courier/delivery costs.
The Customer shall indemnify Adlib in relation to all costs, expenses and losses (including loss of future business) and/or damage suffered or incurred by Adlib arising from the Customer’s failure to comply with this clause 6.11.
7. Delivery
7.1 Adlib shall use its reasonable endeavours to ensure Delivery of the Equipment to the Delivery Location by the Delivery Date.
7.2 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery Location for the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found all such Equipment to be accounted for, in good condition, and free from material defects. If required by Adlib, the Customer's duly authorised representative shall sign a receipt confirming such acceptance and the quality and quantity of the Equipment delivered to the Delivery Location by Adlib.
7.3 Where applicable and relevant, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and, where applicable, the Services, to be carried out safely and expeditiously.
7.4 If the Customer fails to accept Delivery of the Equipment on the Delivery Date, then:
(a) the Equipment shall be deemed to have been delivered and the Hire Period shall be deemed to have begun at 9.00 am on the Delivery Date and the Customer shall become liable for payment of the Fees; and
(b) Adlib shall store the Equipment until actual Delivery takes place and charge the Customer for all related costs and expenses (including insurance).
7.5 If a further 14 (fourteen) day period has elapsed after the Customer has failed to accept Delivery of the Equipment on the Delivery Date, and Delivery has still not taken place, Adlib may, without notice to the Customer, terminate the Agreement with immediate effect with the Customer remaining liable for payment of the Hire Fees (less any Deposit set off against such Hire Fees by Adlib in accordance with clause 6.8 or clause 6.9).
8. Title, risk and insurance
8.1 The Equipment shall at all times remain the property of Adlib, and the Customer shall have no right, title or interest in or to the Equipment.
8.2 During the Hire Period and Risk Period, the Customer shall:
(a) store the Equipment separately from all other goods/equipment held by the Customer so that they remain readily identifiable as Adlib’s property;
(b) not remove, deface or obscure any identifying mark or packaging on, or relating to, the Equipment;
(c) maintain the Equipment in satisfactory condition and comply with clause 8.6 in respect of insuring the Equipment;
(d) notify Adlib immediately if it becomes subject to any of the events listed in clause 11.2(b); and
(e) give Adlib such information as Adlib may reasonably require from time to time relating to:
(i) the Equipment; and
(ii) the ongoing financial position of the Customer.
8.3 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer until such time as the Equipment is returned to Adlib, or Adlib takes repossession of the Equipment, and Adlib has inspected and accepted the re-delivered or re-possessed Equipment (Risk Period).
8.4 The Customer acknowledges and agrees that the Equipment shall only be considered to have been returned upon the completion of Adlib’s inventory reconciliation process. If, during such process, Adlib notices that any Equipment has not been returned at the agreed time, Adlib shall notify the Customer in writing. Unless the Customer, within 7 (seven) days of being notified by Adlib, disputes any such discrepancy in the inventory reconciliation process and provides documentary evidence supporting its position, then the missing Equipment shall be considered as not return and Adlib shall be entitled to charge the Customer at the applicable day rate until the missing Equipment is returned to Adlib. In the event that that the missing Equipment is not returned within 14 (fourteen) days of the end of the Hire Period or any other agreed timeframe, Adlib shall be entitled to invoice the Customer an amount equal to the market rate of the missing Equipment and the Customer shall pay such invoice within 30 (thirty) days of the invoice’s date and set off the Deposit against the amount invoiced to the Customer under this clause 8.4.
8.5 During the Hire Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment 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 Adlib may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Adlib 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 Equipment; and
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Adlib may from time to time consider reasonably necessary and advise to the Customer in writing.
8.6 All insurance policies procured by the Customer shall be endorsed to provide Adlib with at least 10 (ten) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on Adlib's request name Adlib on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
8.7 The Customer shall give immediate written notice to Adlib in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer's possession or use of the Equipment.
8.8 If the Customer fails to effect or maintain any of the insurances required under the Agreement, Adlib 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 Customer.
8.9 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Adlib and proof of premium payment to Adlib to confirm the insurance arrangements.
8.10 The Customer shall indemnify Adlib in connection with the replacement cost of any Equipment that is lost, stolen and/or damaged beyond economic repair during the Risk Period, less any amount paid to Adlib under any policy of insurance taken out in accordance with this clause 8, whether by the insurer directly or indirectly via the Customer.
9. The Customer's responsibilities
9.1 The Customer shall during the term of the Agreement:
(a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with:
(i) any operating instructions provided by the relevant manufacturer of any items of the Equipment and/or Adlib; and
(ii) any other instructions provided by Adlib from time to time;
(b) take such steps (including compliance with all safety and usage instructions provided by Adlib) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) in relation to the Equipment, only use power supply as instructed or specified by Adlib;
(d) immediately notify the Customer in the event of any breakdown of, unsatisfactory working of, or damage to, the Equipment (in whole or in part);
(e) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of Adlib (save for any consumables used by the Equipment);
(f) not repair the Equipment without the prior written consent of Adlib. In the event that such consent is granted by Adlib, the Customer shall be responsible for all costs associated with such repair and any replacement components or parts;
(g) keep Adlib fully informed of all material matters relating to the Equipment;
(h) unless the Quotation stipulates that the Equipment may be used at, and/or moved between, multiple Sites, keep the Equipment at all times at the Site(s) and shall not move or attempt to move any part of the Equipment to any other location without Adlib's prior written consent;
(i) if the Quotation stipulates that the Equipment may be used at, and/or moved between, multiple Sites, the Customer acknowledges and agrees that, unless the Service Description otherwise stipulates that Adlib shall assist with transporting the Equipment, it shall:
(i) inform Adlib in writing on each occasion that any item of Equipment is moved from one Site to another; and
(ii) be responsible for transporting the Equipment between the Sites and ensuring that the insurance procured for such Equipment includes the risk associated with transporting it between the Sites;
(j) permit Adlib or its duly authorised representatives to inspect the Equipment at all reasonable times and to enter the Site or any premises at which the Equipment may be located to enable Adlib or its duly authorised representatives, to test, adjust, repair or replace the Equipment;
(k) maintain operating and maintenance records of the Equipment and make copies of such records readily available to Adlib, together with such additional information as Adlib may reasonably require;
(l) not, without the prior written consent of Adlib, part with control of, sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(m) not without the prior written consent of Adlib, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building and the Customer fails to make payment of any amounts due to Adlib under the Agreement then, dependent on whether the Equipment is capable of being removed without material injury to such land or building, the Customer shall either:
(i) repair and make good any damage caused by the affixation or removal of the Equipment from any land or building if Adlib exercises its right to reclaim such Equipment pursuant to clause 6.7(c) and indemnify Adlib against all losses, costs or expenses incurred as a result of such affixation or removal; or
(ii) be responsible (pursuant to clause 6.7(b)) for the costs incurred by Adlib in purchasing the same equipment as the affixed or installed Equipment (which is not capable of being removed without material injury to such land or building) so as to allow Adlib to be able to still make equipment the same as the Equipment available to its other customers to hire.
(n) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Adlib in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that pursuant to clause 6.7(c) and/or clause 9.1(n)(i) Adlib may enter such land or building and recover the Equipment both during Risk Period, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Adlib of any rights such person may have or acquire in the Equipment and a right for Adlib to enter onto such land or building to remove the Equipment;
(o) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify Adlib and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Adlib on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(p) not use the Equipment for any unlawful purpose;
(q) ensure that at all times the Equipment remains identifiable as being Adlib's property and wherever possible shall not remove any visible sign to that effect that is attached to the Equipment;
(r) deliver up the Equipment at the end of the Hire Period at such address as Adlib requires, or if necessary, allow Adlib or its representatives access to the applicable Site or any premises where the Equipment is located for the purpose of removing the Equipment;
(s) not do or permit to be done anything which could invalidate the insurances referred to in clause 8;
(t) be responsible for compliance with all relevant applicable legislation, instructions, or guidance issued by any government, government agencies, local authorities, statutory regulators, public/corporate bodies established by parliament/government including regulations under the Bribery Act, the Civil Aviation Act, the Construction (Design and Management) Regulations, the Environmental Acts, Factories Acts, the Data Protection Act, the Health and Safety at Work, For the avoidance of doubt, the Customer shall indemnify Adlib against any and all charges, fines, or losses that Adlib may become liable for as a result of the Customer using the Equipment during the Hire Period;
(u) obtain and maintain all necessary licences, permissions and consents which may be required for the hire of the Equipment and the receipt of the Services; and
(v) comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of its rights and performance of its obligations under the Agreement.
9.2 The Customer acknowledges that Adlib shall not be responsible for any:
(a) loss of or damage to the Equipment; or
(b) losses, costs, liabilities or expenses incurred by the Customer;
arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer shall indemnify Adlib in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Adlib arising out of, or in connection with any failure by the Customer to comply with the terms of the Agreement.
9.3 In respect of any Services provided by Adlib under the Agreement, the Customer shall provide or procure for Adlib and, where applicable, Adlib Personnel:
(a) access to the Site(s) and any facilities and equipment necessary to carry out the Services (where required); and
(b) relevant information, instructions, and assistance, including reasonable access to and cooperation from the Customer’s personnel;
in each case as is reasonably necessary for Adlib to perform its obligations under the Agreement.
9.4 If Adlib’s performance of any of its obligations under the Agreement is prevented or delayed by any Customer Default:
(a) without limiting or affecting any other right or remedy available to it, Adlib shall have the right to suspend, delay or withhold performance of the Services until the Customer remedies the Customer Default to Adlib’s satisfaction, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent that the Customer Default prevents or delays Adlib’s performance of any of its obligations;
(b) Adlib shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Adlib’s failure or delay to perform any of its obligations as set out in this clause 9.4; and
(c) the Customer shall reimburse Adlib on written demand for any costs or losses sustained or incurred by Adlib arising directly or indirectly from the Customer Default.
10. Limitation of liability
10.1 This clause 10.2 prevails over all of the Agreement and sets forth Adlib’s entire liability, and the sole and exclusive remedies of the Customer, in respect of:
(a) performance, non-performance, purported performance, delay in performance or mis-performance of the Agreement or any services in connection with the Agreement; or
(b) otherwise in relation to the Agreement or entering into the Agreement.
10.2 Neither party excludes or limits its liability for:
(a) its fraud;
(b) death or personal injury caused by its negligence;
(c) any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which cannot be excluded or limited by applicable law.
10.3 Subject to clause 10.2, clause 10.4, and clause 10.5, Adlib's total liability to the Customer shall not exceed 100% of the total Fees payable by the Customer to Adlib under the Agreement.
10.4 Subject to clause 10.2, where the Customer suffers a loss as a result of the Equipment failing to comply with clause 3.2, Adlib’s total aggregate liability shall not exceed the proportion of the Fees paid by the Customer to Adlib for the period of time during which the Equipment (or any replacement Equipment) is not capable of being used by the Customer.
10.5 Subject to clause 10.2, where the Customer suffers a loss as a result of the Services being performed by Adlib Personnel on a particular Service Date not complying with clause 5, Adlib’s total aggregate liability shall not exceed the proportion of the Services Fees paid by the Customer to Adlib in relation to Service Date to which such Services relate.
10.6 Subject to clause 10.2, Adlib shall not have any liable under the Agreement for any:
(a) loss of profits;
(b) loss of wasted expenditure;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) indirect or consequential loss;
whether or not such losses were reasonably foreseeable or that party or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, clauses 10.4(a) to 10.4(h) (inclusive) apply whether such losses are direct, indirect, consequential or otherwise.
10.7 Subject to clause 10.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under the Agreement are, to the fullest extent permitted by law, excluded from the Agreement including any terms and conditions implied by section 13 of the Sale of Goods Act 1979.
11. Term and Termination
11.1 The Agreement shall commence on the Commencement Date and shall continue until the latest of:
(a) the end of the Hire Period;
(b) all the Equipment being returned to Adlib by the Customer;
(c) Adlib re-taking possession of the Equipment from the Customer; or
(d) the payment of all outstanding Fees by the Customer to Adlib;
when it shall automatically terminate without notice.
11.2 Without affecting any other right or remedy available to it, Adlib may terminate the Agreement with immediate effect by giving notice to the Customer if:
(a) the Customer is in material breach of any of its obligations under the Agreement, and, where such material breach is capable of remedy, the Customer fails to remedy such breach within a period of 7 (seven) days of being notified of such breach by Adlib;
(b) the Customer gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the Customer or an administration order is made or an administrator is appointed to manage the affairs, business and property of the Customer or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the Customer’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the Customer takes or suffers any similar or analogous action in consequence of debt in any jurisdiction;
(c) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; and/or
(d) where multiple items of Equipment are hired, a Total Loss occurs in respect of any single item of Equipment.
11.3 The Agreement shall automatically terminate if a Total Loss occurs in relation to all of the Equipment hired by Adlib to the Customer.
11.4 On termination of the Agreement, however caused:
(a) Adlib's consent to the Customer's possession of the Equipment shall terminate;
(b) Adlib may, by its authorised representatives, without notice and at the Customer's expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
(c) without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Adlib on demand any outstanding Fees and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 6.6.
11.5 In the event that the Agreement is terminated prior to the end of the Hire Period, save for where the parties mutually agree in writing, the Customer shall pay to Adlib on demand a sum equal to the whole of the Fees that would (but for the termination) have been payable if the Agreement had continued until the end of the Hire Period, unless Adlib determines, at its absolute discretion, to a pro-rata reduction of the payable Fees to account for the shortened period of hire.
11.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
11.7 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12. Force majeure
12.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances and subject to clause 12.2, the time for performance of a party’s obligations shall be extended by a period equivalent to the period during which performance of such obligations have been delayed or failed to be performed.
12.2 If the delayed or non-performed obligations outlined in clause 12.1 relate to Adlib’s hire of Equipment and/or the provision of Services, the time for performance of such obligations may be extended beyond a period equivalent to the period of such non-performance and until the end of a revised Hire Period and/or any revised Service Dates (such Hire Period and revised Service Dates to be agreed in writing by the parties). Where Adlib is unable to hire the Equipment for any revised Hire Period reasonably requested by the Customer and/or perform the Services on any revised Service Dates reasonably requested by the Customer, the Customer may terminate this Agreement provided that Adlib shall have no liability to the Customer in the event of such termination.
13. Notices
13.1 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) if sent by email to the address specified in the Quotation.
13.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the 2nd (second) Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause 13.2(c), business hours means 9.00am to 5.00pm on any Business Day.
13.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14. General
14.1 Assignment and other dealings. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without Adlib’s prior written consent.
14.2 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.3 No partnership or agency.
(a) Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
(b) Each party confirms it is acting on its own behalf and not for the benefit of any other person.
(c) The relationship of Adlib to the Customer will be that of a third party service provider and nothing in the Agreement shall render it (nor any member of Adlib Personnel) an employee, worker, agent or partner of the Customer and Adlib shall not hold itself out as such and shall procure that each member of Adlib Personnel shall not hold themselves out as such.
14.4 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
14.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement 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.
14.6 Rights and remedies. Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.7 Severance
(a) If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement.
(b) If any provision or part-provision of the Agreement is deemed deleted under clause 14.7(a), the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.8 Governing law and jurisdiction
(a) The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England.
(b) Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
