Standard Terms & Conditions Of Hire
The following Terms of the company Mission Digital Limited (“MISSION DIGITAL”) form the basis of the Contract between MISSION DIGITAL and the Customer. Where there is any inconsistency between the provisions hereof and the Confirmation (defined below), the provisions of the Confirmation will apply.
1. APPLICATION OF TERMS
1.1. These Terms form part of the Contract and apply to hire of all Equipment and sale of Consumables provided by MISSION DIGITAL to the Customer to the exclusion of all other terms and conditions (including any terms and conditions which the Customer supplies or purports to apply).
1.2. No variation to these Terms shall be binding unless agreed in writing by MISSION DIGITAL and the Customer.
1.3. An Order placed by the Customer constitutes an offer to hire the Equipment and/or purchase the Consumables. MISSION DIGITAL shall not be bound to accept the Order until it issues a Confirmation to the Customer. The Customer may cancel or request amendments to the Confirmation within four working hours of receipt of the Confirmation. Otherwise the Contract shall be deemed to have come into existence on receipt of the Confirmation by the Customer.
1.4. Each Confirmation issued by MISSION DIGITAL in accordance with this paragraph 1 will create a separate Contract governed by these Terms.
2. HIRE OF EQUIPMENT AND SALE OF CONSUMABLES
2.1. MISSION DIGITAL shall hire the Equipment and supply the Consumables to the Customer subject to these Terms.
2.2. The hire of the Equipment shall commence on the Delivery Date and shall continue for the Hire Period set out in the Confirmation unless the Contract is terminated earlier in accordance with its terms.
3. DELIVERY OF EQUIPMENT
3.1. MISSION DIGITAL shall use all reasonable endeavours to deliver the Equipment and the Consumables to the Customer at the Delivery Address on or before the Delivery Date. For the avoidance of doubt the time for delivery shall not be of the essence and MISSION DIGITAL shall have no liability to the Customer if it fails to meet any Delivery Date.
3.2. The Customer shall ensure that a duly authorised representative of the Customer is present when the Equipment is delivered to the Delivery Address. Acceptance of delivery by such representative shall constitute conclusive evidence that the Customer 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 (save as regards any latent defects not reasonably apparent on inspection). If required by MISSION DIGITAL, the Customer’s authorised representative shall sign a receipt confirming such acceptance.
3.3. To facilitate delivery of the Equipment, the Customer shall provide all facilities, access and suitable working conditions to enable delivery to be carried out safely and expeditiously.
4. PAYMENT OF HIRE CHARGE AND PRICE
4.1. MISSION DIGITAL shall invoice the Customer for the Hire Charge and the Price in accordance with the payment schedule set out in the Confirmation. [If no such payment schedule is stipulated, the Hire Charge and Price shall be invoiced as to 25% on issue of the Confirmation followed by three equal instalments of 25% of the Hire Charge and Price payable over the Hire Period, the final payment being due and payable on the last day of the Hire Period]. The timing of payment shall be an important condition of this Contract.
4.2. The Customer shall pay the Hire Charge and the Price within 7 days of the date of MISSION DIGITAL’s invoice for short-form work or on the agreed due date if earlier in full and in cleared funds to a bank account nominated in writing by MISSION DIGITAL. For approved accountholders of MISSION DIGITAL, invoices are payable within 30 days of the invoice date or on the agreed due date if earlier.
4.3. All sums due are exclusive of VAT or other applicable sales tax, which shall be paid by the Customer in addition at the appropriate rate.
4.4. If the Customer fails to make payment within 10 days from the due date then, without prejudice to any other right or remedy available, MISSION DIGITAL shall be entitled to cancel the Contract and/or suspend any delivery of the Equipment and Consumables or where the Equipment and Consumables have already been delivered, enter the Delivery Address and remove the same. Until the outstanding amount has been received and the Customer hereby grants to MISSION DIGITAL an irrevocable license to enter such premises for this purpose. MISSION DIGITAL may also charge the Customer interest on any amount unpaid at the rate of 5% above the base rate of [INSERT NAME OF BANK] from the due date of payment to the date that cleared funds are received, both before and after any judgment.
4.5. All invoices will be considered final and binding by MISSION DIGITAL if no query or dispute is received within the credit terms. MISSION DIGITAL reserves the right to refuse to consider queries or disputes which are raised 30 days or more after the date of MISSION DIGITAL’s invoice.
4.6. All discounts on MISSION DIGITAL’s standard rates for Hire Charges and/or Consumables are subject to payment on the due date by the Customer, failing which MISSION DIGITAL shall be entitled to re-invoice the Customer for the Hire Charges and/or Consumables at its standard rates.
4.7. The Customer shall make all payments due without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
4.8. The Company shall be entitled to charge the Client an additional Hire Charge and/or Price for Equipment and/or Consumables hired or supplied to the Customer which are beyond the scope set out in the Confirmation at its standard rates.
4.9. Any quotations provided to the Customer for the hire of Equipment will only be valid for 30 days unless otherwise agreed.
5. EQUIPMENT: CUSTOMER’S OBLIGATIONS
5.1. The Client shall nominate an authorised representative who shall have all the necessary and appropriate authority to act on behalf of the Customer for the purposes of this Contract.
5.2. The Customer acknowledges that MISSION DIGITAL has made significant investment in its equipment which it hires to customers. Accordingly the Client undertakes during the Hire Period to: (a) be responsible for any loss or damage to the Equipment and the continuing Hire Charge for the Equipment in accordance with these Terms, whether or not the Customer is able to claim on its insurance policy or not for such amounts; (b) ensure that the Equipment is used in a proper manner by competent trained persons only or by persons under their immediate supervision; (c) keep and operate the Equipment in a proper and prudent manner; (d) keep possession or control of the Equipment and keep MISSION DIGITAL informed of its location; (e) ensure that the external surfaces of the Equipment are kept clean and in a good condition; and (f) store or otherwise keep the Equipment in such a way as clearly to indicate at all times that the Equipment is owned by MISSION DIGITAL and shall not remove, obscure or delete any mark placed on the Equipment by MISSION DIGITAL which may enable the Equipment to be so identified.
5.3. The Customer shall not: (a) move or attempt to move any of the Equipment to any location without MISSION DIGITIAL’s written consent; (b) itself, nor permit its employees, agents, sub-contractors or servants to take the Equipment outside of the United Kingdom without the prior written consent of MISSION DIGITAL. Such consent shall not be unreasonably withheld subject always to the Customer arranging and paying for the insurance of the Equipment to the full replacement value for such time as the Equipment is overseas; (c) interfere or permit interference with the Equipment or any part thereof nor alter, erase, deface or overprint any trade mark or any other notice of proprietary rights placed on the Equipment; and (d) attempt to repair the Equipment nor permit any person other than MISSION DIGITAL’s authorised representatives or those approved by MISSION DIGITAL to repair the Equipment.
5.4. The Customer shall forthwith upon the occurrence of any loss or damage however caused to the Equipment notify MISSION DIGITAL in writing. In the case of damage, whether or not caused by the Customer or its agents or contractors, the Customer shall return the Equipment to MISSION DIGITAL and MISSION DIGITAL will arrange for the repair of the Equipment or if lost, or if MISSION DIGITAL in its absolute discretion considers the Equipment to be beyond economic repair, for its replacement.
5.5. If the Equipment requires repair or replacement in accordance with paragraph 5.4 above:
(a) the Customer shall indemnify MISSION DIGITAL in full and pay for the costs of such repair or replacement and all other Mission Digital/Docs/140109 Mission Digital Standard Terms of Hire (DL).doc 2 costs, losses, liabilities and expenses (including the costs of removal and transportation of the Equipment) and any other costs associated therewith;
(b) until the Equipment (or any replacement) is returned to MISSION DIGITAL in good working condition, the Customer shall remain liable to pay the Hire Charge in accordance with paragraph 4.
6. TITLE, RISK AND INSURANCE
6.1. The Equipment shall at all times remain the property of MISSION DIGITAL and the Customer shall have no right, title or interest in or to the Equipment (save for the right to possession and use of the Equipment subject to these Terms).
6.2. The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on delivery at the Delivery Address or collection from MISSION DIGITAL’S premises. The Equipment shall remain at the sole risk of the Customer during the Hire Period and any further term during which the Equipment is in the possession, custody or control of the Customer until such time as the Equipment is redelivered to MISSION DIGITAL’s nominated premises (Risk Period).
6.3. 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 MISSION DIGITAL 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 MISSION DIGITAL 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 MISSION DIGITAL may from time to time consider reasonably necessary and advise to the Customer.
6.4. If requested by MISSION DIGITAL, the Customer shall name MISSION DIGITAL on the insurance policies as a loss payee in relation to any claim relating to the Equipment and shall provide copies of such insurance policies.
6.5. The property in the Consumables shall not pass to the Customer until MISSION DIGITAL has received in cash or cleared funds payment in full of the Price. the Hire Charge and the price of any other goods and/or services agreed to be sold or supplied by MISSION DIGITAL to the Customer for which payment is then due, whether under these Terms or otherwise.
6.6. The Customer hereby grants an irrevocable licence to MISSION DIGITAL, its agents and sub-contractors to enter into its premises and collect the Equipment if the Customer is in breach of its obligations in paragraph 5 or this paragraph 6 or if the Customer has, in any way whatsoever, dealt with or attempted to deal with the Equipment as the owner.
7.1. MISSION DIGITAL warrants that the Equipment shall be of satisfactory quality and reasonably fit for any purpose held out by MISSION DIGITAL. Subject to paragraph 7.3, MISSION DIGITAL shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself provided that: (a) the Customer notifies MISSION DIGITAL of any defect in writing within two business days of the defect occurring or of becoming aware (or ought to have been aware) of the defect; (b) MISSION DIGITAL is permitted to make a full examination of the Equipment and alleged defect and if requested by MISSION DIGITAL, the Customer arranges for the Equipment to be returned to the place of business of MISSION DIGITAL at the Customer’s expense for examination; (c) the defect did not materialise as a result of misuse or use not in accordance with good industry practice, neglect, mishandling or unauthorised manipulation by any person or modification or alteration by any person other than an authorised person acting on behalf of MISSION DIGITAL; (d) the defect did not arise as a result of fluctuations in electrical power, humidity controls or other adverse environmental conditions due to whatever cause or as a result of a force majeure event (as described in paragraph 11); (e) 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 (f) the defect is directly attributable to defective material, workmanship or design.
7.2. If MISSION DIGITAL fails to remedy any material defect in the Equipment in accordance with paragraph 7.1, MISSION DIGITAL shall, at the Customer’s request, accept the return of the defective Equipment and make an appropriate reduction to the Hire Charge payable during the remaining term of the Contract.
7.3. MISSION DIGITAL may at its option arrange for the replacement of any defective Equipment to be delivered at an address in London nominated by the Customer which falls within paragraph 7.1.
8. LIMITATION OF LIABILITY
8.1. Without prejudice to paragraph 8.5, this paragraph 8 sets out the entire liability of MISSION DIGITAL for breach of the Contract including any liability for acts or omissions of its employees, agents and sub-contractors) and whether any liability arises in contract, tort (including negligence) misrepresentation or otherwise.
8.2. Except as specifically stated in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
8.3. Subject to paragraph 8.5, neither MISSION DIGITAL nor any of its agents or sub-contractors shall be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for: (a) loss of profits; or (b) loss of business or revenues; or (c) depletion of goodwill and/or similar losses; or (d) loss of anticipated savings; or (e) loss of contract; or (f) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses, in each case howsoever caused and even if foreseeable.
8.4. The Company’s entire liability under or in connection with this Contract shall not exceed: (a) £10 000 in the case of loss or damage to tangible property caused by MISSION DIGITAL’s negligence; and (b) in all other cases, the higher of (i) the total amount of the Hire Charges and the Price actually paid by the Customer to MISSION DIGITAL in the preceding [six month period] or (ii) [£25,000].
8.5. Nothing in these Terms excludes or limits MISSION DIGITAL’s liability for any matter which it would be unlawful for MISSION DIGITAL to exclude or attempt to exclude or for fraud or fraudulent misrepresentation.
9.1. A party (‘receiving party’) shall keep in strict confidence all technical or commercial know-how, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (‘disclosing party’), its employees, agents or sub-contractors, and any other confidential information concerning the disclosing party’s business or activities, or its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and sub-contractors who need to know it for the purpose of discharging the receiving party’s obligations under this Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this paragraph as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
9.2. This paragraph 9 shall survive termination of the Contract.
10.1. The Contract shall commence on the date that the Order is accepted by MISSION DIGITAL in accordance with paragraph 1 and shall continue in force for the Hire Period. Mission Digital/Docs/140109 Mission Digital Standard Terms of Hire (DL).doc 3
10.2. Without prejudice to any other remedies available, either party shall be entitled to terminate the Contract with immediate effect by giving written notice of termination to the other party if the other party: (a) commits a material breach of the Contract which, in the case of a breach capable of remedy, shall not have been remedied within 14 days of the receipt by the other of a notice identifying the breach and requiring its remedy; or (b) shall have a receiver or administrative receiver appointed over it or any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide reconstruction) or if a court of competent jurisdiction shall make an order to that effect or if the other shall enter into any voluntary arrangement with its creditors or shall be subject to an administration order or shall threaten to cease or cease to carry on business.
10.3. Notwithstanding paragraph 10.2(a), MISSION DIGITAL may terminate the Contract with immediate effect if the Customer fails to pay any sums due by it to MISSION DIGITAL within 10 days after the due date.
10.4. Any termination of the Contract shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law and to any terms of the Contract which expressly or impliedly are to remain in force after termination.
10.5. At the end of the Hire Period or (if earlier) immediately upon termination of the Contract, the Customer shall, at its own expense, forthwith return to MISSION DIGITAL all Equipment supplied to the Customer by MISSION DIGITAL under the Contract. If the Customer fails to do so, MISSION DIGITAL or its agent may retake possession of the Equipment and for this purpose, may enter the premises at which the Equipment is located at the cost of the Customer.] It is the Customer’s responsibility to notify MISSION DIGITAL when the Equipment is ready for collection. MISSION DIGITAL reserves the right to charge a Hire Charge at its standard rates for Equipment not returned at the end of the Hire Period.
10.6. On termination, the Customer shall immediately pay to MISSION DIGITAL all Hire Charges and any other amounts due to MISSION DIGITAL under this Contract.
11. FORCE MAJEURE
MISSION DIGITAL shall not be liable to the Customer for any delay in performing or any failure to perform any of its obligations under the Contract if such delay is caused by events or circumstances beyond the reasonable control of MISSION DIGITAL including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, compliance with any law or governmental order or regulation, accident, fire, flood, storm or default of suppliers or sub-contractors provided that MISSION DIGITAL notifies the Customer of the circumstances in writing as soon as reasonably practicable. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed and if the period of delay or non-performance continues for more than 8 weeks, either party may terminate this Contract by giving 10 business days written notice to the other party.
12.1. Any notice given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office or its principal place of business or such other address as that party may have specified to the other party in the Confirmation or otherwise in writing in accordance with this paragraph, and shall be delivered personally, sent by pre-paid first class post or other next business day delivery service, commercial courier, fax or e-mail.
12.2. A notice shall be deemed to have been received: if delivered personally, when left at the correct address; if sent by pre-paid first class post or other next business day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one business day after transmission.
12.3. The provisions of this paragraph 12 shall not apply to the service of any proceedings or other documents in any legal action.
13.1. These Terms together with any Confirmation constitute the entire agreement between the parties and supersede any previous agreement or understanding. Each party acknowledges that in entering into the Contract, 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 Contract.
13.2. No failure or delay by either party in exercising any of its rights under this Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3. MISSION DIGITAL shall be entitled to sub-contract, transfer or assign any or all of its rights under the Contract. The Contract is personal to the Customer and the Customer may not assign or otherwise transfer its rights under the Contract without MISSION DIGITAL’s written consent.
13.4. Nothing in the Contract shall make either of the parties a partner or agent of the other and neither of them has any authority to bind or act for the other.
13.5. No person who is not a party to the Contract has any right to rely upon or enforce any of the Terms.
13.6. If any provision of the Contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract shall not be affected.
13.7. English law shall apply to the Contract, and the parties both agree to submit to the exclusive jurisdiction of the English courts.
14.1. In these Terms:
Confirmation means any written confirmation sent by MISSION DIGITAL to the Customer confirming the details of the Order (including any subsequent amendments to the Confirmation agreed by both parties);
Consumables means those items (if any) provided by MISSION DIGITAL and sold to the Customer from time to time including hard drives, tapes and batteries;
Contract means the contract between the Customer and MISSION DIGITAL for the hire of the Equipment, and where appropriate, the sale and purchase of the Consumables, incorporating these Terms, the Confirmation and any Special Terms agreed in writing by the parties;
Customer means the person who, in the course of their business, has agreed to hire the Equipment from MISSION DIGITAL;
Delivery Date means the date set out in the Confirmation or such other date agreed in writing by the parties;
Delivery Address means the address for delivery set out in the Confirmation or such other address agreed in writing by the parties.
Equipment means the equipment supplied by way of hire by MISSION DIGITAL as set out in the Confirmation together with such other equipment as may be agreed in writing by the parties or as may be substituted or replaced by MISSION DIGITAL including all related accessories.
Hire Charge means the fee for the hire of the Equipment as set out in the Confirmation payable by the Customer in accordance with paragraph 4.
Hire Period means the period of hire of the Equipment as set out in the Confirmation.
Order means the order placed by the Customer (by telephone or otherwise) for the hire of the Equipment;
MISSION DIGITAL means Mission Digital Limited (company number 7688023) whose registered office is at Sampson West, 34 Ely Place, London, EC1N 6TD;
Price means the price of the Consumables as set out in the Confirmation or as otherwise notified to the Customer by MISSION DIGITAL and payable in accordance with paragraph 4.
Special Terms means any special terms agreed in writing between MISSION DIGITAL and the Customer relating to the hire of Equipment and/or sale of Consumables.
Terms means the terms and conditions set out in this document.
14.2. In these Terms, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body; (b) any phrase introduced by the terms including, include or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; Mission Digital/Docs/140109 Mission Digital Standard Terms of Hire (DL).doc 4 (c) if there is a conflict between these Terms and the Confirmation or any Special Terms, the Confirmation and/or Special Terms shall prevail; and (d) a reference to writing or written includes faxes, e-mails and any other electronic communications.