Cross Rental Services Terms and Conditions of Business
1. Definitions and Interpretation
1.1. “Agreement” means Cross Terms & Conditions of Business and any other provisions and documents set out in the Order Form.
1.2. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
1.3. “Delivery” means the delivery of the Equipment to the Site in accordance with this Agreement.
1.4. “Due Date” means the date for the Rental Payments and Maintenance Payments set out in the Order Form.
1.5. “Equipment” means the equipment listed in the Order Form, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions.
1.6. “Maintenance Payments” means the payments made by you or on your behalf for the maintenance of the Equipment as set out in the Order Form.
1.7. “Maintenance Service” means the maintenance services set out in the Order Form.
1.8. “Order Form” means the order form which sets out the details of this Agreement.
1.9. “Party” refers to you or us, as the context dictates and “Parties” shall mean both you and us.
1.10. “Rental Payments” means the payments made by you or on your behalf for hire of the Equipment as set out in the Order Form.
1.11. “Site” means your premises as set out in the Order Form.
1.12. “Term” means the term set out in the Order Form.
1.13. “We”, “us” and “our” refers to Fridge Rentals Ltd (trading as Cross Rental Services) whose registered office is at Unit 3 Bishop’s Court, Winwick Quay, Warrington, Cheshire, WA2 8QY.
1.14. “You” and “your” refers to the business named in the Order Form.
1.15. Other capitalised words have the meanings set out in the Order Form.
1.16. In this Agreement, unless context otherwise requires: (i) the clause headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement and (ii) the words “include”, “including”, “includes” and “such as” are to be construed as illustrative and shall not limit the sense of the words preceding those words.
2. Delivery and installation
2.1. We shall use all reasonable endeavors to effect Delivery by the date and time set out in the Order form or as otherwise agreed between the you and us.
2.2. We shall at your expense install the Equipment at the Site. You shall procure that your duly authorised representative is present at the installation of the Equipment. Acceptance by your representative of installation shall constitute conclusive evidence that you have examined the Equipment and have found it to be in good condition, complete and fit in every way for the purpose for which it is intended.
2.3. You shall provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously.
3. Maintenance Service
3.1. In consideration of the Maintenance Payments under Clause 5.1, we shall provide the Maintenance Service to you.
4. Title and risk
4.1. The Equipment shall at all times remain our property, and you shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment in accordance with the terms and conditions of this Agreement).
4.2. Without prejudice to Clause 4.1, the Equipment shall remain at your sole risk during the Term, including, the risk of loss, theft, damage or destruction of the Equipment
4.3. You shall provide us with immediate written notice in the event of any loss, accident or damage to the Equipment while the Equipment is in your possession.
5. Rental and Maintenance Payments
5.1. You shall pay the Rental Payments and Maintenance Payment by Direct Debit on the Due Date, unless agreed otherwise by you and us.
5.2. The Rental Payments and the Maintenance Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by you at the rate and in the manner from time to time prescribed by law.
5.3. We may increase the annual Maintenance Payment or the Rental Payment at any time after the end of the first 12 month period by notice to you, provided the increase is no greater than 10%. If you do not agree to the increase then you may terminate this Agreement in accordance with Clause 10 and Clause 11.
5.4. You shall continue to pay the Rental Payments even if the Equipment cannot be used for any reason whatsoever.
5.5. All amounts due under this 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).
5.6. If you fail to make any payment due under this Agreement by the Due Date, then, without limiting our remedies under Clause 10, you shall pay interest on the overdue amount at the rate then specified in the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.
6.1. You shall insure the Equipment to a value not less than its full replacement value, covering the Equipment comprehensively against all usual risks and such other risks as we may from time to time nominate in writing.
6.2. The insurance policy procured by you shall be endorsed to provide us with at least 20 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall name us on the policies as a loss payee in relation to any claim relating to the Equipment. You shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.3. If you fail to effect or maintain the insurance policy required under this Agreement then we may effect and maintain the same and recover the cost of the insurance as a debt due from you.
6.4. You shall, on demand, provide us with sufficient evidence that the insurance is valid and in force, including a summary of the key terms.
7. Lessee’s responsibilities
7.1. You shall during the term of this Agreement:
7.1.1. 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;
7.1.2. take such steps (including compliance with all safety and usage instructions provided by us) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe;
7.1.3. make no alteration to the Equipment or remove any existing components from the Equipment without our prior written consent;
7.1.4. keep us fully informed of all material matters relating to the Equipment;
7.1.5. keep the Equipment at all times at the Site;
7.1.6. allow us or our duly authorised representative to inspect the Equipment at all reasonable times and grant reasonable access and facilities for such inspection;
7.1.7. not without our prior written consent, 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;
7.1.8. not without our prior written consent, 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 then the Equipment must be capable of being removed without material damage to such land or building and you shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify us against all losses, costs or expenses incurred as a result of such affixation or removal;
7.1.9. not permit the Equipment to be confiscated, seized or taken out of your possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, you shall notify us and you shall at your sole expense use best endeavours to procure an immediate release of the Equipment and shall indemnify us on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
7.1.10. not use the Equipment for any unlawful purpose;
7.1.11. ensure that at all times the Equipment remains identifiable as our property and that a visible sign to that effect is attached to the Equipment;
7.1.12. not use any of our trademarks without our prior written consent;
7.1.13. return the Equipment to us at the end of the Term, except where you exercise the Purchase Option, or on earlier termination of this Agreement at address specified by us, or if necessary allow us or our representatives access to the Site for the purpose of removing the Equipment; and
7.1.14. comply with all the terms of the insurance policy referred to in Clause 6.
7.2. You acknowledge that we 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 you or your officers, employees, agents and contractors, and you undertake to indemnify us 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 you to comply with the terms of this Agreement.
7.3. The Company offers all customers the opportunity to sign up to optional Damage Waiver cover, which reduces their liability to zero for repairable damage and accidental damage, however caused, to hire equipment up to a maximum value of £3000. The charge for this cover is an additional 7.5% of the gross hire contract, whether weekly, monthly or fixed value and is applicable to all hire invoices for the duration of the contract. The damage waiver does not cover loss, theft, gross negligence and abuse of the rental equipment or damage caused as a result of fire, flood, or other natural disasters.
8.1. Nothing in this Agreement shall exclude or in any way limit:
8.1.1. either Party’s liability for death or personal injury caused by its own negligence;
8.1.2. either Party’s liability for fraud or fraudulent misrepresentation;
8.1.3. any indemnity given by you; or
8.1.4. any other liability which cannot be excluded by law.
8.2. Our total liability in respect of the Equipment shall be limited at our discretion to: (i) re-supplying the Equipment, (ii) paying the cost of having the Equipment re-supplied, or (iii) repaying any Rental Payments in respect of the part in dispute.
8.3. Without prejudice to Clause 9.1 and Clause 9.2 our maximum aggregate liability for breach of this Agreement (including any liability for the acts or omissions of our employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the Rental Payments in the preceding 12 month period.
8.4. Without prejudice to Clause 9.1, we shall not be liable under this Agreement for any loss of profit, loss of revenue, loss of goodwill, loss of business or indirect or consequential loss or damage.
9. Term and Termination
9.1. This Agreement shall commence on the date of this Agreement and shall continue, unless terminated earlier in accordance with its terms, for the Term.
9.2. Either Party may terminate this Agreement subject to 30 days’ written notice to the other Party.
9.3. We may terminate this Agreement with immediate effect by giving notice to you if:
9.3.1. you fail to pay any amount due under this Agreement on the Due Date for payment and remain in default 10 Business Days after being notified by us to make such payment;
9.3.2. you commit a material breach of any other term of this Agreement or, if such breach is remediable, fail to remedy that breach within a period of 10 Business Days after being notified in writing to do so;
9.3.3. you: (i) suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business, (ii) are unable to pay your debts as they fall due, (iii) have a receiver, administrative receiver, administrator or manager appointed of the whole or any part of your assets or business, (iv) make any composition or arrangement with your creditors, or (v) an order or resolution is made for your dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction); or
9.3.4. any event occurs, or proceeding is taken, against you in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 10.3.3.
9.4. This Agreement shall automatically terminate if, due to your default, the Equipment is, in our reasonable opinion damaged beyond repair, lost, stolen, seized or confiscated.
10. Consequences of termination
10.1. Upon termination of this Agreement, however caused:
10.1.1. your right to use the Equipment shall end and we may without notice, at your expense, retake possession of the Equipment from the Site; and
10.1.2. without prejudice to any other rights or remedies you may have, you shall pay to us on demand:
10.1.2.1. all Rental Payments, Maintenance Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Clause 5.6; and
10.1.2.2. any costs and expenses incurred by us in recovering the Equipment and in collecting any sums due under this Agreement (including any storage, insurance, repair, transport and legal costs).
10.2. Upon termination of this Agreement pursuant to Clause 10.2, Clause 10.3 or any other repudiation of this Agreement by you which is accepted by us and without prejudice to any other rights or remedies we may have, you shall pay to us on demand a sum equal to the whole of the Rental Payments that would have been payable if the Agreement had continued from the date of such demand to the end of the Term.
10.3. Termination or expiry of this 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.
11. General Provisions
11.1. Entire agreement. This Agreement sets out the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Nothing in this Agreement shall limit or exclude any liability for fraud or fraudulent misrepresentation.
11.2. Force majeure. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. 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. If the period of delay or non-performance continues for 60 days, the Party not affected may terminate this Agreement by giving 10 days’ written notice to the affected party.
11.3. Variation. This Agreement may not be amended, modified, varied or supplemented except in writing and signed by the Parties (or their authorised representatives).
11.4. Assignment and other dealings. You shall not assign the benefit of, transfer, mortgage, charge, subcontract or deal in any other manner with your rights and obligations under this Agreement, either in whole or in part, without our express prior written consent.
11.5. Relationship. Nothing in this Agreement shall make either Party the agent or partner of the other, or give either Party the power to bind the other.
11.6. Third party rights. The Parties acknowledge and agree that nothing in this Agreement shall confer on any third party any benefit, nor the right to enforce any of its provisions.
11.7. Notices. Notices under this Agreement shall be in writing and delivered to the other Party by hand, by first class post or by email. A notice shall be deemed served: if delivered by hand at the time of delivery; if posted, two (2) Business Days after posting; and if sent by email, at the time of transmission if sent during a Business Day and otherwise the next Business Day.
11.8. Survival. The provisions of Clauses 5 & 9 shall survive the termination of this Agreement for any reason, together with any clauses whose survival is necessary for interpretation of enforcement of this Agreement.
11.9. Waiver. Failure by either Party to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, will not be construed as a waiver of its rights under this Agreement or otherwise.
11.10. Dispute resolution. If any dispute arises out of this Agreement, the dispute shall be referred to the Financial Controller of each Party who will attempt to settle it by negotiation. If the Parties are unable to settle such dispute within 14 days of such referral (or such longer period as they shall agree), then the Parties may elect (but shall not be obliged) to refer the dispute to mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation. Nothing in this clause shall limit either Party’s right to bring court proceedings against the other Party at any time.
11.11. Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
11.12. Jurisdiction. This Agreement shall be governed by and construed in accordance with the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.