HIRE ASSOCIATION EUROPE LIMITED - CONDITIONS OF BUSINESS
1 DEFINITIONS
In these conditions the following words shall have the following meanings:-
“Contract” means any contract between You and Us incorporating these conditions for the sale of Products and/or the provisions of Services;
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/ or liabilities;
“Products” means any products and/or goods ordered from Us by You or to be supplied by Us to You; “Services” means the services and/or work to be performed by Us for You;
“We, Us, Our, Ourselves” means the Hire Association Europe Limited;
“You, Your, Yourselves” means the person whose order for Products and/or Services is accepted by Us.
2 BASIS OF CONTRACT
2.1 These conditions shall govern the agreement between You and Us to the exclusion of any other terms or conditions and these conditions shall supersede any terms and conditions previously notified to You.
2.2 No variation to these conditions shall be binding on Us unless contained in Our quotation or agreed in writing between You and one of Our authorised representatives.
2.3 Our employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Products unless confirmed by Us in writing. You acknowledge that You do not rely on any representation and/or warranty that has not been made in accordance with these conditions.
2.4 Quotations are not binding or capable or acceptance and are estimates only. We shall have the right to refuse to accept any order placed for Products and/or Services. The Contract between You and Us shall come into effect on Our acceptance of Your order.
3 ORDERS AND DELIVERY
3.1 Each Order shall be deemed to be a separate offer by the Customer to purchase Printed Products or Related Services on the terms of this Agreement.
3.2 The Customer shall be responsible for the accuracy of all Orders and if accompanying services are required, the Customer shall give clear instructions and shall not rely on the knowledge, skill and judgement of Cubiquity in respect of such accompanying services except to the extent that it is reasonable to rely on such knowledge, skill and judgement (taking into account the nature of the accompanying services).
3.3 Cancellations or deferments of Orders are at the discretion of Cubiquity. Cubiquity reserves the right to charge any reasonable additional costs incurred as a result of the cancellation provided that in all events Cubiquity takes reasonable steps to mitigate such costs.
3.4 An extra charge may be made by Cubiquity to cover additional delivery costs on prior agreement with the Customer for some direct delivery items, and for compliance with any special delivery requirements of the Customer.
3.5Delivery of an Order for Printed Products shall be completed when Cubiquity delivers the Printed Products to the Customer's agreed Delivery Location.
3.6 Delivery shall be made on the Scheduled Delivery Days unless otherwise agreed between the parties (e.g. in the event that the Customer places an urgent Order for Printed Products or Services).
3.7 References in this Agreement to Orders shall, where applicable, be read as references to instalments.
3.8 The Customer shall inspect the Printed Products immediately on delivery and no claim for shortages or errors in delivery which would be evident on inspection will be considered unless Cubiquity is notified in writing quoting the delivery note or invoice number within five (5) Business Days after date of delivery. In the absence of any such notification Cubiquity shall be deemed to have delivered the Printed Products and payment in full shall become due in accordance with this Agreement.
3.9 Cubiquity shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer's failure to comply with its obligations under this Agreement.
3.10 Risk in Printed Products shall pass to the Customer on Delivery.
3.11 Title to Printed Products shall pass to the Customer on full payment of the associated invoice.
4 PRICE AND PAYMENT
4.1 The price of the Products and/or the Services shall be as shown in Our price list current at the date of the acceptance of the order. Except as otherwise stated, prices are ex-works, and You shall be liable to pay Our charges (if any) for transport, packaging and insurance.
4.2 Our terms of payment are net cash within 30 days of invoice. Time for payment shall be of the essence. Our prices are exclusive of any applicable VAT (unless stated otherwise) for which You shall additionally be liable.
4.3 If You fail to make any payment in full on the due date We may charge You interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of HSBC Bank Plc. Such interest shall be compounded with monthly rests.
4.4 We shall be entitled to invoice each delivery of Products and/or stage of the Services separately. We shall be entitled to render an invoice to You any time after the Products and/or Services have been ordered.
4.5 You shall pay all sums due to Us under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
4.6 Payment shall not be deemed to be made until We have received either cash or cleared funds in respect of the full amount outstanding. If payment in full is not made to Us when due then We may withhold or suspend future or current deliveries of the Products and/or performance of the Services and delivery and/or performance under any other agreement with You.
4.7 Our members price list current at the date of the acceptance of the order only applies to You if Your subscription to Ourselves is paid up to date. Products and/or Services ordered by You when Your subscription to Ourselves is not paid up to date will be charged at the non-discounted non members prices and/or rates.
5 CREDIT LIMIT
5.1 We may set a credit limit for You. We reserve the right to refuse to accept orders for Products and/or Services and/or to suspend or withhold delivery of Products and/or the performance of the Services if such Products and/or Services would result in You exceeding Your credit limit or the credit limit is already exceeded.
6 CANCELLATION
6.1 You may cancel orders for Services if we receive Your notice of cancellation at any time up to 21 days before the due date for performance and You will receive a full refund of any fees paid by You subject to the deduction of Our standard administration charge from time to time in force.
6.2 If You cancel an order for Services 21 days or less before the due date for performance You will not receive a refund but after the deduction of our standard administration charge from time to time in force the fees paid by You will be held by Us as a credit on account of any future orders for Products and/or Services placed by You.
7 SPECIFICATION
7.1 Any details and/or specifications supplied by Us to You in Our brochures and/or price lists are intended as a guide only give a general approximation of the Products and/or Services unless stated on Our quotation or agreed in writing.
7.2 We reserve the right to make changes to the specification of the Products and/or Services as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Products and/or the Services.
8 INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
8.1 All intellectual property rights (including without limitation all patents, copyright, design rights (whether registered or unregistered), trade marks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same) in the Products and/or arising from the Services shall be owned by Us absolutely.
8.2 You agree that, at Your cost, You will do all acts and execute all documents which are necessary or desirable to give effect to clause
8.1 above and/or to assist Us in the registration and/or protection of any such intellectual property rights.
9 PROPERTY AND RISK
9.1 Risk in the Products shall pass to You at the time of delivery. Delivery shall be deemed to occur:-
9.1.1 at the time when the Products arrive at the place of delivery if We deliver the Product by Our own transport or We arrange transport in accordance with a specific contractual obligation; or
9.1.2 when the Products leaves Our premises.
9.2 We shall retain title and ownership of the Products until We have received payment in full in cash or cleared funds of all sums due for all Products and/or Services applied to You by Us under this Contract and any other agreement between Us and You.
9.3 Until payment in full of the price for all Products supplied to You the Products shall be stored separately from any products or goods
belonging to You or any third party and must be clearly marked and identified as being Our property. You agree that Our employees and/or agents shall be entitled to enter Your premises to check compliance with this clause.
10 DEFAULT
10.1 If You:-
10.1.1 fail to make any payment to Us when due;
10.1.2 breach the terms of this Contract and, where the breach is capable of remedy, have not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
10.1.3 persistently breach the terms of this Contract;
10.1.4 pledge or charge any Products which remain Our property, or cease or threaten to cease to carry on business, or propose to compound with Your creditors, apply for an interim order under Section 252
Insolvency Act 1986 or have a Bankruptcy Petition presented against You, or being a company, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver appointed over all or any of Your assets, or take or suffer any similar any action in any jurisdiction;
10.1.5 appear to Us due to Your credit rating to be financially inadequate to meet Your obligations under the
Contract; and/or
10.1.6 appear reasonably to Us to be about to suffer any of the above events;
then We shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below.
10.2 If any of the events set out in clause 10.1 above occurs in relation to You then:-
10.2.1 We may enter, without prior notice, any of Your premises (or premises of third parties with their consent) where Products owned by Us may be and repossess and dispose of or sell any Products found which are owned by Us so as to discharge any sums due to Us under this Contract or any other agreement with You;
10.2.2 We may require You no to re-sell or part with the possession of any Products owned by Us until You have paid in full all sums due to Us under this Contract or any other agreement with You;
10.2.3 We may withhold delivery of any undelivered Products and stop any Products in transit;
10.2.4 We may withhold the performance of any Services and cease any Services in progress;
10.2.5 We may cancel, terminate and/or suspend without Liability to You any agreement with You; and/or
10.2.6 all monies owed by You to Us shall forthwith become due and payable.
11 GUARANTEE
11.1 We guarantee that the Products will be free from defects in materials and/or workmanship for a period for 6 months from the date of delivery of the Products to You (“the Guarantee”).
11.2 The Guarantee does not apply in respect of any:-
11.2.1 faults arising after risk in the Products has passed which is caused by any subsequent mechanical, chemical, electrolytic or other damage not due to a defect in the Products, and/or
11.2.2 faults, defects caused by wilful damage, abnormal working conditions, failure to follow Our instructions, misuse, alteration or repair of Products without Our approval, improper maintenance or negligence on Your part or a third party.
11.3 If any Products prove to be defective and are covered by the Guarantee then We shall at Our sole option either repair or replace such Products or refund the price of such Products. Provided We comply with this clause the repair, replacement shall be Your sole remedy in respect of claims under the Guarantee.
11.4 We shall have no Liability to You under the Guarantee in clause 11.1 above unless any defect is notified to Us within 14 working days of the defect becoming apparent or suspected or when it should reasonably have become apparent to or suspected by You.
11.5 The Guarantee will not apply if You have not paid for the Product in full on the due date.
11.6 All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
12 REPAIRS AND REPLACEMENTS
12.1 We will at Our option either refund the price, repair, replace free of charge or re-perform any defective Products and/or Services where the defect is apparent on inspection or performance as appropriate provided that the defect is notified to Us within 14 working days of delivery of such Products or performance of the Services.
12.2 Any defective Products must be returned to Us for inspection if requested by Us before We will have any Liability for defective Products. If the Products prove to be defective then We may at our sole discretion reimburse You for the cost of returning the defective Products.
12.3 We may at Our sole discretion replace, repair free of charge, re-perform or refund the price of defective Products and/or Services which are not notified to Us within the specified time limit where in Our opinion the defect would not have been ascertainable on inspection and has been notified to Us as soon as reasonably practicable.
12.4 We will at Our option either refund the price of or replace free of charge any Products missing from a delivery of Products provided that the missing items are notified to Us within 5 working days or delivery or, in the event of total non-delivery, this fact is notified to Us within 5 working days of receipt of the invoice by You.
13 LIMITATIONS ON LIABILITY
13.1 We shall have no Liability for any defect in the Products caused or contributed to as a result of the Products being used for display or demonstration purposes or being handled by Your customers.
13.2 We shall have no Liability for defective Products and/or Services where the defect has been caused or contributed to by You.
13.3 We shall have no Liability to You if the price for the Products and/or the Services has not been paid in full by the due date for payment.
13.4 We shall have no Liability to You for defective Products and/or Services, Products not despatched or Products damaged or lost in transit unless the event is notified to Us within the appropriate time limit set out in this Contract.
13.5 We shall have no Liability for damage, loss, liability, claims, costs or expenses caused or contributed to by Your continued use of defective Products and/or Services after a defect has become apparent or suspected or should reasonably have become apparent to You.
13.6 We shall have no Liability to You to the extent that You are covered by any policy of insurance. You shall ensure that Your insurers waive any and all rights of subrogation they may have against Us.
13.7 We shall have no Liability for any matters which are outside Our reasonable control.
13.8 We shall have no Liability to You for any:-
13.8.1 consequential losses (including loss of profits and/or damage to goodwill);
13.8.2 economic and/or other similar losses;
13.8.3 special damages and indirect losses; and/or
13.8.4 business interruption, loss of business, contracts and/or opportunity.
13.9 You shall give Us a reasonable opportunity to remedy any matter for which We are liable before You incur any costs and/or expenses in remedying the matter Yourself. If You do not do so We shall have no Liability to You. Our total Liability to You in relation to any one claim shall not exceed £5,000.
13.10 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:-
13.10.1 Liability for breach of contract;
13.10.2 Liability in tort (including negligence); and
13.10.3 Liability for breach of statutory duty; except clause 13.10 above which shall apply once only in respect of all the said types of Liability.
13.11 Nothing in this Contract shall exclude or limit Our Liability for death or personal injury due to Our negligence or any Liability which is due to Our fraud or any other Liability which it is not permitted to exclude or limit as a matter of law or any of Your statutory rights which may not be excluded or limited due to You acting as a consumer.
14 GENERAL
14.1 No waiver by Us of any breach of this Contract shall be considered as a waiver of any of any subsequent breach of the same provision or any other provision.
14.2 If any provision of this Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
14.3 We shall not be liable to You for any delay in performance of this Contract to the extent that that such delay is due to any events outside Our reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events. If We are affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
14.4 This Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.
14.5 All third party rights are excluded and no third parties shall have any rights to enforce a Contract. This shall not apply to members of Our group who shall maintain their third party rights.