WIRTGEN HIRE / LOAN AGREEMENT TERMS AND CONDITIONS
Terms and conditions of the Hire / Loan Agreement made between the Hirer and the Owner (“Conditions”)
1.1 The definitions and rules of interpretation in this condition 1.1 apply to the Agreement.
Agreement: means, together, the Hire / Loan Agreement and these Conditions.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: Commencement Date: the date that the Hirer takes Delivery of the Equipment
Delivery: the transfer of physical possession of the Equipment to the Hirer at the Site.
Deposit: the deposit amount, if any, set out in the Hire / Loan Agreement.
Equipment: has the meaning given to it in the Agreement.
Hire / Loan Agreement: means the Hire / Loan Agreement made between the Hirer and the Owner which refers to and incorporates these Conditions.
Hirer: the hirer of the Equipment, whose details are set out in the Hire / Loan Agreement.
Owner: Wirtgen Limited (Company Number 03026300) of Reinhard House, Paving Way, Whisby Road, Lincoln, Lincolnshire, LN6 3QW.
Payment Terms: The terms set out in the Hire / Loan Agreement which set out the sums payable under the Agreement.
Rental Payments: Rental Payments: the payments made by or on behalf of Hirer for hire of the Equipment.
Rental Payments: Rental Period: the period of hire as set out in the Agreement.
Total Loss: due to the Hirer's default the Equipment is, in the Owner's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
1.2 Condition, schedule and paragraph 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).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes but not e-mail.
1.7 References to conditions are to the conditions of these Conditions.
1.8 Any words following the terms including, include, in particular 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. EQUIPMENT HIRE
2.1 The Owner shall hire the Equipment to the Hirer subject to the terms and conditions of the Agreement.
2.2 The Owner shall not, other than in the exercise of its rights under the Agreement or applicable law, interfere with the Hirer's quiet possession of the Equipment.
3. RENTAL PERIOD
The Rental Period starts on the Commencement Date and shall continue for such period as is set out in the Agreement unless the Agreement is terminated earlier in accordance with its terms.
4. RENTAL PAYMENTS AND DEPOSIT
4.1 The Hirer shall pay the Rental Payments to the Owner in accordance with the Payment Terms.
4.2 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.
4.3 All payments to be made by either party under the Agreement shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.
4.4 If the Hirer fails to pay any Rental Payments or any other sums payable under the Agreement by the due date for payment under the Agreement then, without limiting the Owner's rights under condition 10.1, the Hirer shall pay interest on such sums for the period from and including the due date of payment up to the actual date of payment, whether before or after judgment. The interest shall be paid at the rate of 4% per annum above the base rate from time to time of HSBC Bank plc.
4.5 The Deposit is a deposit against default by the Hirer of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Hirer shall, on the date of the Agreement, pay to the Owner such deposit of as is set out in the Hire / Loan Agreement. If the Hirer fails to make any Rental Payments in accordance with the Payment Terms, or causes any loss or damage to the Equipment (in whole or in part), the Owner shall be entitled to apply the Deposit against such default, loss or damage. The Hirer shall pay to the Owner any sums deducted from the Deposit within ten Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five Business Days of the end of the Rental Period.
5.1 Delivery of the Equipment shall either be made by the Owner, or by collection by the Hirer. The Owner shall use reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with condition 6 of these Conditions.
5.2 The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Hirer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Owner, the Hirer's duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery, the Hirer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
6. TITLE, RISK AND INSURANCE
6.1The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of the Agreement).
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on Delivery. The Equipment shall remain at the sole risk of the Hirer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Hirer (Risk Period) until such time as the Equipment is redelivered to the Owner. During the Rental Period and the Risk Period, the Hirer 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 the Owner 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 the Owner 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 the Owner may from time to time consider reasonably necessary and advise to the Hirer.
6.3 All insurance policies procured by the Hirer shall be endorsed to provide the Owner with at least twenty Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Owner's request name the Owner on the policies as a loss payee in relation to any claim relating to the Equipment. The Hirer shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.4 The Hirer shall give immediate written notice to the Owner in the event of any loss, accident or damage to the Equipment or arising out of or in connection with the Hirer's possession or use of the Equipment.
6.5 If the Hirer fails to effect or maintain any of the insurances required under the Agreement, the Owner 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.
6.6 The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Owner and proof of premium payment to the Owner to confirm the insurance arrangements.
7. HIRER'S RESPONSIBILITIES
7.1 The Hirer 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 any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by the Owner) 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) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement with manufacturer’s genuine spare parts of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(d) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Owner immediately upon installation;
(e) keep the Owner fully informed of all material matters relating to the Equipment;
(f) permit the Owner or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(g) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require;
(h) not, without the prior written consent of the Owner, part with control of (including for the purposes of repair or maintenance), 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;
(i) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Owner in the Equipment;
(j) 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 Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(k) not use the Equipment for any unlawful purpose;
(l) ensure that at all times the Equipment remains identifiable as being the Owner's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(m) deliver up the Equipment at the end of the Rental Period or on earlier termination of the Agreement at such address as the Owner requires, or if necessary allow the Owner or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
(n) not do or permit to be done anything which could invalidate the insurances referred to in this condition 6.
7.2 The Hirer acknowledges that the Owner shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Hirer or its officers, employees, agents and contractors, and the Hirer undertakes to indemnify the Owner on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Hirer to comply with the terms of the Agreement.
8.1 The Owner warrants that the Equipment shall conform substantially to its specification (as made available by the Owner), be of satisfactory quality and fit for any purpose held out by the Owner. The Owner shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within one month from Delivery, provided that:
(a) the Hirer notifies the Owner of any defect in writing within ten Business Days of the defect occurring or of becoming aware of the defect;
(b) the Owner 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 the Owner's authorised personnel;
(d) 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
(e) the defect is directly attributable to defective material, workmanship or design.
8.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Owner, the Hirer shall be entitled only to such warranty or other benefit as the Owner has received from the manufacturer.
8.3 If the Owner fails to remedy any material defect in the Equipment in accordance with condition 8.1, the Owner shall, at the Hirer's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement and, if relevant, return any Deposit (or any part of it).
9.1 Without prejudice to condition 9.2, the Owner's maximum aggregate liability for breach of the Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the total Rental Payments payable under the Agreement.
9.2 Nothing in the Agreement shall exclude or in any way limit:
(a) either party's liability for death or personal injury caused by its own negligence;
(b) either party's liability for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded by law.
9.3 The Agreement sets forth the full extent of the Owner's obligations and liabilities in respect of the Equipment 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 Owner except as specifically stated in the Agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Agreement, whether by statute, common law or otherwise, is expressly excluded.
9.4 Without prejudice to condition 9.2, neither party shall be liable under the Agreement for any:
(a) loss of profit;
(b) loss of revenue;
(c) loss of business; or
(d) indirect or consequential loss or damage;
in each case, however caused, even if foreseeable.
10.1 The Owner may, without prejudice to any other right or remedy which may be available to it, terminate the Agreement immediately by written notice to the Hirer if:
(a) the Hirer defaults in any of its payment obligations;
(b) the Hirer commits a material breach of the Agreement which breach is irremediable, or which breach (if remediable) is not remedied within ten Business Days after the service of written notice from the Owner requiring it to do so;
(c) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(d) 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; or
(e) 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; or
(f) 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; or
(g) the holder of a qualifying floating charge over the assets of the Hirer has become entitled to appoint or has appointed an administrative receiver;
(h) 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; or
(i) 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; or
(j) 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 condition 10.1(c) to condition 10.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.2 The Agreement shall terminate automatically if a Total Loss occurs in relation to the Equipment.
10.3 Upon termination of the Agreement, however caused:
(a) the Owner's consent to the Hirer's possession of the Equipment shall terminate and the Owner may, by its authorised representatives, without notice and at the Hirer'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
(b) without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to the Owner on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to condition 4.4;
(ii) any costs and expenses incurred by the Owner in recovering the Equipment and/or in collecting any sums due under the Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
10.4 Upon termination of the Agreement pursuant to condition 10.1, any other repudiation of the Agreement by the Hirer which is accepted by the Owner or pursuant to condition 10.2, without prejudice to any other rights or remedies of the Owner, the Hirer shall pay to the Owner 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.
10.5 The sums payable pursuant to condition 10.4 shall be agreed compensation for the Owner's loss and shall be payable in addition to the sums payable pursuant to condition 10.3(b). Such sums may be partly or wholly recovered from any Deposit.
10.6 Termination of the Agreement shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.
11. FORCE MAJEURE
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 result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, the party not affected may terminate the Agreement by giving ten Business Days' written notice to other party.
12. CONFIDENTIAL INFORMATION
12.1 Neither party shall, during and after termination of the Agreement, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature.
12.2 Each party shall on demand and on termination of the Agreement surrender to the other party all materials relating to such confidential information in its or its personnel's, agents' or representatives' possession.
13. ASSIGNMENT AND SUBCONTRACTING
13.1 The Hirer shall not, without the prior written consent of the Owner, assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with the Agreement or any of its rights and obligations under the Agreement, or purport to do any of the same.
13.2 The Hirer shall not subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent without the prior written consent of the Owner.
13.3 Each party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
14. ENTIRE AGREEMENT AND VARIATION
14.1 The Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
14.2 Each party acknowledges that, in entering into the Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) shall be for breach of contract.
14.3 Nothing in this condition shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
14.4 No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
15.1 A person who is not a party to the Agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
15.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Agreement is not subject to the consent of any person that is not a party to the Agreement.
16.1 Any notice or other communication required to be given under the Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid post or recorded delivery or by commercial courier, to each party required to receive the notice or communication to the addresses as stated at the commencement of the Agreement or as otherwise specified by the relevant party by notice in writing to each other party.
16.2 Any notice or other communication shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this condition;
(b) if sent by commercial courier, on the date and at the time of signature of the courier's delivery receipt; or
(c) if sent by pre-paid post or recorded delivery, 9.00 am on the second Business Day after posting.
16.3 A notice or other communication required to be given under the Agreement shall not be validly given if sent by e-mail.
16.4 The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.
17. NO 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
18.1 If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
18.2 If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19. GOVERNING LAW AND JURISDICTION
19.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law.
19.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter.
The Agreement has been entered into on the date stated at the beginning of it.