Sales And Service
1. About us
1.1 Company details. Finepoint Broadcast Limited (company number 01786138) (we and us), is a company registered in England and Wales and our registered office is at Nightingale House, 46/48 East Street, Epsom, Surrey, KT17 1HQ. Our main trading address is Hill House, Furze Hill, Kingswood, Surrey KT20 6EZ, UK. We operate the website www.finepoint.co.uk.
1.2 Contacting us. To contact us telephone our customer service team at +44(0)1737 370033 or email@example.com. How to give us formal notice of any matter under the Contract is set out in clause 15.2.
2. Our contract with you
2.1 Our contract. These terms and conditions (Terms) apply to the order by you and supply of goods and services by us to you (Contract). No other terms are implied by trade, custom, practice or course of dealing.
2.2 Entire agreement. The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
2.3 Language. These Terms and the Contract are made only in the English language.
3. Placing an order and its acceptance
3.1 Placing your order. Please follow the onscreen prompts to place an order. Each order is an offer by you to buy the goods specified in the order (Goods) subject to these Terms.
3.2 Correcting input errors. Our order process allows you to check and amend any errors before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order and any specification submitted by you is complete and accurate.
3.3 Acknowledging receipt of your order. After you place an order, you will receive an email from us acknowledging that we have received it, but please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 3.4.
3.4 Accepting your order. Our acceptance of your order takes place when we send the email to you to accept it, at which point the Contract between you and us will come into existence.
4. Our goods
4.1 The images of the Goods on our site are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Goods. The colour of your Goods may vary slightly from those images.
4.2 The packaging of your Goods may vary from that shown on images on our site.
4.3 We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
4.4 We supply both new and used goods. New goods are supplied by us to you where you will be the first legal owner of the goods who is not either the manufacturer of the goods or us (New Goods).
4.5 Used Goods are used and/or pre-owned goods supplied by us to you where you will not be the first legal owner of the goods who is not either the manufacturer of the goods or us (Used Goods).
5. Sale or Return Agreements
5.1 We may, at its sole discretion, permit you to sell the Goods on a sale or return basis (a "Sale and Return Agreement"). The terms of the Sale and Return Agreement shall be agreed in writing separately to this Contract.
6. Delivery, transfer of risk and title
6.1 We have our own fully insured vans and staff drivers which can deliver to anywhere within mainland UK between the hours 8am-6pm Monday to Friday except bank holidays. This enables us to provide the best possible delivery service throughout the UK including an optional same-day service and pickup/drop-off of equipment for service/repair.
6.2 We will contact you with an estimated delivery date, which will be within 30 days after the date on which we confirm our acceptance of your order. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 14 (Events outside our control) for our responsibilities when this happens.
6.3 Delivery is complete once the Goods have been unloaded at the address for delivery set out in your order, or collected by you or a carrier organised by you to collect them from us and the Goods will be at your risk from that time.
6.4 You own the Goods once we have received payment in full, including of all applicable delivery charges.
6.5 If we fail to deliver the Goods, our liability is limited to the cost of obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the Goods. However, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control, or because you failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of goods.
6.6 If you fail to take delivery within 10 days after the day on which we notified you that the Goods were ready for delivery, we may resell part of, or all the Goods and after deducting any reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
7. International delivery
7.1 For companies outside the UK, we have a number of accounts with freight forwarders such as Executive Freight Services and also delivery companies such as DHL and UPS, so your package can be delivered anywhere in the world when you want.
7.2 You can rely on us to determine the most cost-effective carriage method available that can meet your preferred delivery timescale. We will arrange full insurance cover against loss or damage during international transit.
7.3 Once you place your order with us we will confirm the delivery costs to you.
7.4 VAT is not charged to EU business customers who provide a valid VAT registration number. All shipments to customers based outside the EU are exempt from UK VAT and will include a full commercial invoice to aid customs clearance in the destination country.
7.5 Your order may be subject to import duties and taxes which are applied when the delivery reaches an international destination. Please note that we have no control over these charges and we cannot predict their amount.
7.6 You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order.
7.7 You must comply with all applicable laws and regulations of the country for which the Goods are destined. We will not be liable or responsible if you break any such law.
8. Price of goods and delivery charges
8.1 The prices of the Goods will be as quoted on our site at the time you submit your order. We use our best efforts to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, please see clause 8.5 for what happens if we discover an error in the price of Goods you ordered.
8.2 Prices for our Goods may change from time to time, but changes will not affect any order you have already placed.
8.3 The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being. However, if the rate of VAT changes between the date of your order and the date of delivery, we will adjust the VAT you pay, unless you have already paid for the Goods in full before the change in VAT takes effect.
8.4 The price of the Goods does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order. To check relevant delivery charges, please call +44 (0)1737 370 033.
8.5 We sell a large number of Goods through our site. It is always possible that, despite our reasonable efforts, some of the Goods on our site may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that:
(a) where the Goods' correct price is less than the price stated on our site, we will charge the lower amount when dispatching the Goods to you and
(b) if the Goods' correct price is higher than the price stated on our site, we will contact you in writing as soon as possible to inform you of this error and we will give you the option of continuing to purchase the Goods at the correct price or cancelling your order. We will not process your order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. However, if we mistakenly accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Goods and refund you any sums you have paid.
9. How to pay
9.1 Bank transfer is preferred, however we also accept the following online payment methods:
9.2 Payment for the Goods and all applicable delivery charges is in advance. We will not charge your debit card or credit card until we dispatch your Goods.
10. Manufacturer's guarantee
10.1 Some New Goods we sell to you come with a manufacturer's guarantee. For details of the applicable terms and conditions, please refer to the manufacturer's guarantee provided with the New Goods.
10.2 We shall have no liability to you in respect of the New Goods' failure to comply with the warranty set out in clause 10.1.
10.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
10.4 We are not liable for the cost of delivery and expedition of New Goods repaired under the terms of any manufacturer's warranty or for any loss of income due to the occurrence of the fault, including damage to master tapes, loss of footage or any type of damage to film, video or sound recording or for the cost of replacement goods during the length of the repair. You are responsible for obtaining at his full expense his own insurance to cover the possibility of such risks.
11. Our warranty for the goods
11.1 The Used Goods are intended for use only in the UK. We do not warrant that the Used Goods comply with the laws, regulations or standards outside the UK.
11.2 We warrant that on delivery of the Used Goods to you, and for a period of 3 months from the date of delivery (the 'Used Goods Warranty Period'), the Used Goods shall be free from material defects in the manufacturer's design, material and workmanship (the 'Used Goods Warranty').
11.3 Subject to clause 11.3.1
11.3.1 You gives us notice in writing during the Used Goods Warranty Period within a 2 Business Days of discovery that some or all of the Used Goods do not comply with the warranty set out in clause 11.2:
11.3.2 We are given a reasonable opportunity of examining such Used Goods; and
11.3.3 you (if asked to do so by us) return such Used Goods to our place of business and arrange for their collection after inspection or repair at your full cost we shall, at its sole option, either:
(a) repair the Used Goods using our approved engineer;
(b) replace the defective Used Goods with replacement goods of similar description of quality in the cheapest market available; or
(c) refund to you the price of the defective Used Goods in full.
11.4 We shall not be liable for the Used Goods' failure to comply with the Used Goods Warranty set out in clause 11.2 in any of the following events:
a) you make any further use of such Used Goods after giving notice in accordance with clause 11.3:
b) the defect arises in any of the video heads, tubes, CCD blocks and/or CMOS and/or associated circuitry parts, optical pick up devices and/or magnetic pick up devices of any Used Goods;
c) the defect arises in any external aspect of the Used Goods as receipt of the Used Goods by you constitutes your full and final acceptance of any external aspect of the Used Goods;
d) the defect arises as a result of any damage or fault due to mishandling, abuse or amateur use or installation by you;
e) the defect arises because you failed to follow our or the manufacturer's of the Used Goods' oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Used Goods or (if there are none) good trade practice regarding the same;
f) the defect arises as a result of our following any drawing, design or Specification supplied by you;
g) you alter in any way or repair in full or in part such Used Goods without our prior written consent;
h) any third party is involved in the Used Goods without our prior authorisation and written approval;
i) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
j) the Used Goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
11.5 Except as provided in this clause 11, we shall have no liability to you in respect of the Used Goods' failure to comply with the warranty set out in clause 11.2.
11.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
11.7 The Used Goods Warranty is explicitly limited to you and no warranty is made to any other persons whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee agent or otherwise.
11.8 If you make any wrongful or invalid claim under the Used Goods Warranty, we may charge you for fees and costs incurred in examining, storing, repairing and replacing the Used Goods and dealing with the claim and removing and delivering the Used Goods.
11.9 Any Used Goods Warranty provided in this clause is not intended for Used Goods purchased by you with the view that the Used Goods are to be retailed by you. If you do retail any Used Goods during the Used Goods Warranty Period, you must immediately notify us to avoid nullification of the warranty and we reserve the full right and discretion to refuse to transfer any such warranty.
11.10 These Conditions shall apply to any repaired or replacement Used Goods supplied by us.
11.11 We are not liable for the cost of delivery and expedition of Used Goods repaired under the terms of the Used Goods Warranty or for any loss of income due to the occurrence of the fault, including but not limited to any damage to master tapes, loss of footage or any type of damage to film, video or sound recording or for the cost of replacement goods during the length of the repair. You are responsible for obtaining at his full expense his own insurance to cover the possibility of such risks.
12. Our liability: your attention is particularly drawn to this clause
12.1 We only supply the Goods for internal use by your business, and you agree not to use the Goods for any resale purposes.
12.2 Nothing in these Terms limits or excludes our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(d) any other liability that cannot be limited or excluded by law.
12.3 Subject to clause 12.2, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) any loss of profits, sales, business, or revenue; or
(b) loss or corruption of data, information or software; or
(c) loss of business opportunity; or
(d) any indirect or consequential loss.
12.4 Subject to clause 12.2, our total liability to you for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed 50% of the price of the Goods.
12.5 Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Goods are suitable for your purposes.
13.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 14 days of you being notified in writing to do so;
(b) you fail to pay any amount due under the Contract on the due date for payment;
(c) you take any step or action in connection with you entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) you suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
(e) your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
13.2 Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
14. Events outside our control
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
14.2 If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
14.3 You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will have to return (at our cost) any relevant Goods you have already received and we will refund the price you have paid, including any delivery charges.
15. Communications between us
15.1 When we refer to 'in writing' in these Terms, this includes email.
15.2 Any notice or other communication given under or in connection with the Contract must be in writing and be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email.
15.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at 9.00 am the next working day after transmission.
15.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
15.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.1 Assignment and transfer.
(a) We may assign or transfer our rights and obligations under the Contract to another entity.
(b) You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
16.2 Variation. Any variation of the Contract only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
16.3 Waiver. If we do not insist that you perform any of your obligations under the Contract, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you or that you do not have to comply with those obligations. If we do waive any rights, we will only do so in writing, and that will not mean that we will automatically waive any right related to any later default by you.
16.4 Severance. Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
16.5 Third party rights. The Contract is between you and us. No other person has any rights to enforce any of its terms.
16.6 Governing law and jurisdiction. This Contract is governed by English law and each party irrevocably agrees to submit all disputes arising out of or in connection with this Contract to the exclusive jurisdiction of the English courts.
Standard Terms of Hire
1.1 The following definitions and rules of interpretation apply in this Agreement.
Agreement: the agreement between the Owner and the Hirer, comprising the Particulars and these Conditions.
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 that the Hirer takes Delivery of the Equipment, as specified in the Particulars.
Delivery: the transfer of physical possession of the Equipment to the Hirer at the Owner's premises.
Deposit: the deposit amount specified in the Particulars.
Equipment: the items of equipment listed in the Particulars, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Hire Charges: the payments made by or on behalf of Hirer for hire of the Equipment, as specified in the Particulars.
Hire Period: the period of hire as set out in the Particulars or, where no fixed Hire Period is specified in the Particulars, the period of commencing on the Commencement Date and continuing unless and until terminated by either party giving to the other 7 days’ written notice of termination.
Risk Period: the Hire Period and any further term during which the Equipment is in the possession, custody or control of the Hirer.
Site: the Hirer's premises specified in the Particulars.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause paragraph headings shall not affect the interpretation of this 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 includes the plural and vice versa, and a reference to one gender includes a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and includes all subordinate legislation made from time to time under that statute or statutory provision.
1.7 A reference to writing or written includes e-mail.
1.8 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.9 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.
2. Equipment hire
2.1 The Owner shall hire the Equipment to the Hirer during the Hire Period for use at the Site subject to the terms and conditions of this Agreement.
2.2 If the Hirer cancels, or purports to cancel, this Agreement before the end of the Hire Periodire PeriodH, or fails or refuses to accept Delivery of the Equipment on the Commencement Date, the Hirer will pay to the Owner the following percentages of the Hire Charges which would have been payable for the full Hire Period by way of liquidated damages for the losses thereby caused to the Owner:
Period between cancellation or non-acceptance and the end of the Hire Period
4 weeks or more
More than 2 weeks but less than 4 weeks
More than 48 hours but less than 2 weeks
48 hours or less
Percentage of the full Hire Charges payable
2.3 The Owner shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Hirer's quiet possession of the Equipment.
3. Hire Charges and Deposit
3.1 The Hirer shall pay the Hire Charges to the Owner in sterling in cleared funds on the date or dates specified in the Particulars, and shall pay any other amount due to the Owner under this Agreement within 30 days of the date of the Owner's invoice.
3.2 The Hire Charges 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.
3.3 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).
3.4 If the Hirer fails to make any payment due to the Owner under this Agreement by the due date for payment, then, without limiting the Owner's remedies under clause 10, the Hirer shall pay interest on the overdue amount at the rate of 5% per annum above Bank of Scotland's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Hirer shall pay the interest together with the overdue amount.
3.5 The Hirer shall, on the date of this Agreement, pay the Deposit to the Owner. The Deposit is a deposit against default by the Hirer in payment of any Hire Charges and against any loss of or damage caused to the Equipment. If the Hirer fails without due cause to pay any Hire Charges in accordance with the Particulars, 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 (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Risk Period.
4.1 Unless otherwise specified in the Particulars, Delivery of the Equipment will be deemed to take place when the Equipment is collected, or made available for collection, by or on behalf of the Hirer at the Owner's premises, and the Hirer shall be responsible at its own expense for collecting, loading, transporting and unloading the Equipment from such premises and for returning, loading, transporting and unloading the Equipment to the Owner to such premises.
4.2 Where the Particulars provide for the Equipment to be Delivered otherwise than at the Owner's premises, the Equipment shall be deemed to have been Delivered when the Owner notifies the Hirer that the Equipment is ready for dispatch and such dispatch shall be at the sole risk and expense of the Hirer.
4.3 If the Hirer requests the Owner to arrange delivery or collection on the Hirer's behalf, the Hirer shall pay the Owner's delivery and collection charges on demand at the Owner's standard rates from time to time. If the Owner attempts to deliver or collect the Equipment but is unable to do so due to the fault of the Hirer, the Hirer shall pay the Owner's delivery or collection charges at such standard rates applicable at the date of such attempted delivery or collection. Any driver or operator supplied by the Owner shall be deemed to be under the Hirer's control and shall comply with the directions of the Hirer.
4.4 The Owner shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties, but time shall not be of the essence of this Agreement and, save for reimbursing or giving credit for an appropriate part of the Hire Charges in respect of any period of late delivery or non-delivery during the Hire Period, the Owner shall not be liable for any loss, damage, actions, proceedings, costs, claims, expenses and demands whatsoever (whether direct or indirect) incurred or suffered by the Hirer or any other person as a result of the late delivery or non-delivery of the Equipment.
4.5 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 (save as regards any latent defects not reasonably apparent on inspection). If required by the Owner, the Hirer's duly authorised representative shall sign a receipt confirming such acceptance. If no such receipt is signed on Delivery, the Equipment shall be deemed to be in good condition, complete and fit in every way for the purpose for which it is intended at the time of Delivery unless the Hirer gives written notice of any defects to the Owner within 24 hours of Delivery.
4.6 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.
5. Title, risk and insurance
5.1 The 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 this Agreement).
5.2 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 Risk Period, and the Hirer shall be liable for all loss and damage to the Equipment during the Risk Period, whether or not the Equipment has been dispatched by the Owner or collected by the Hirer. The Hirer will reimburse the Owner in full for the cost of repairing or replacing any Equipment which is lost or damaged during the Risk Period and the Hire Charges shall remain payable in full.
5.3 During the Risk Period, the Hirer shall, at its own expense, obtain and maintain insurance:
(a) of the Equipment to a value not less than its full replacement value (which shall be deemed to be the manufacturer's current published list price) 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 specify in writing;
(b) against any third party or public liability risks of whatever nature and however arising in connection with the Equipment, in such amounts as a prudent owner or operator of the Equipment would insure for, at least for a minimum of £500,000 or such amount as the Owner may from time to time reasonably require; and
(c) 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.
5.4 If the Particulars indicate that the Owner has agreed to arrange any insurance for the Equipment at the Hirer's expense, the Hirer undertakes to observe and fulfil any and all terms and conditions applicable to such insurance, whether implied or expressed, and accepts that it is subject in all respects to any deductible, exclusions (such as unattended vehicle clause) and other restrictions, limitations or provisions of such insurance.
5.5 All insurance policies procured by the Hirer shall be endorsed to provide the Owner with at least twenty (20) 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.
5.6 The Hirer shall give immediate written notice to the Owner in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Hirer's possession or use of the Equipment.
5.7 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.
5.8 If the Hirer fails to effect or maintain any of the insurances required under this Agreement, the Owner shall, without prejudice to any other claim it may have against the Hirer for any loss or damage to the Equipment, be entitled (but not obliged) to effect and maintain such insurances, and pay such premiums as may be necessary for that purpose, in which event the Owner shall be entitled to recover the cost of the premiums as a debt due from the Hirer.
6. Hirer's responsibilities
6.1 The Hirer shall during the Risk Period:
(a) keep the Equipment at all times at the Site, in the possession or control of the Hirer, and not move or attempt to move any part of the Equipment to any other location without the Owner's prior written consent;
(b) 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 provided by the Owner;
(c) 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;
(d) maintain the Equipment at its own expense in good and substantial repair, including replacement of worn, damaged and lost parts, in order to keep the Equipment in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted), and make good any damage;
(e) use and maintain the Equipment strictly in accordance with the manufacturer's instructions and with any directions given by the Owner, and comply with all safety instructions and regulations relating thereto;
(f) make no alteration to the Equipment and not remove any existing component(s) from the Equipment without the prior written consent of the Owner unless such alteration or removal is required to comply with any mandatory modifications required by law or any regulatory authority or 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;
(g) keep the Owner fully informed of all material matters relating to the Equipment;
(h) 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;
(i) 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;
(j) not, without the prior written consent of the Owner, part with possession or control of the Equipment (including for the purposes of repair or maintenance), sell or offer for sale, underlet, rent, hire or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(k) not without the prior written consent of the Owner, 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, the Hirer shall ensure that it is capable of being removed without material injury to such land or building and the Hirer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Owner against all losses, costs or expenses incurred as a result of such affixation or removal;
(l) not do or permit to be done any act or thing which will or may jeopardise the Owner's right, title and/or interest in the Equipment and, where the Equipment has become affixed to any land or building, the Hirer shall take all necessary steps to ensure that the Owner may enter such land or building and recover the Equipment at any time during the Risk Period, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Owner of any rights such person may have or acquire in the Equipment and a right for the Owner to enter on to such land or building to remove the Equipment;
(m) 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. 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 indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(n) not use the Equipment for any unlawful purpose;
(o) 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;
(p) deliver up the Equipment at the end of the Hire Period or on earlier termination of this 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;
(q) erase all recorded content (whether audio, data, video or other) from the Equipment prior to the return of the Equipment to the Owner; and
(r) not do or permit to be done anything which could invalidate any of the insurances referred to in clause 5.2.
6.2 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 all losses, liabilities, claims, damages, costs or expenses of whatever nature brought against the Owner by any person whatsoever for injury to person or property caused by or in connection with or arising out of the storage, transit, transport, unloading, loading or use of the Equipment during the Risk Period, or otherwise arising out of or in connection with any failure by the Hirer to comply with the terms of this Agreement.
6.3 The Hirer shall indemnify and hold the Owner harmless from against any and all loss, damage, actions, proceedings, costs, claims, expenses and demands whatsoever, whether under statute or common law or otherwise howsoever, including but not limited to any claims with respect to the death or injury of any person or damage to property, arising from the Hirer's possession, use or operation of the Equipment in any manner whatsoever, or from any misuse, neglect, alteration, mishandling or unauthorised manipulation of the Equipment by any person other than the Owner's authorised personnel, or which arises out of any information, design or any other assistance supplied or furnished by the Hirer or on its behalf, and for the avoidance of doubt the Hire Charges shall remain payable in full notwithstanding the Hirer's inability to use the Equipment as a result of any of the foregoing matters.
7. JFMG Licence
7.1 Unless agreed otherwise in writing between the parties, the Owner shall not apply for any licences, on the Hirer's behalf, including JFMG licences. Hirers can contact JFMG at firstname.lastname@example.org or by applying online at www.jfmg.co.uk.
8.1 Whilst the Owner endeavours to provide the latest released version of any software in relation to the Equipment, it is the Hirer's entire responsibility to ensure any Equipment, system and/or network compatibility.
9.1 Nothing in this Agreement shall exclude or in any way limit either party's liability for:
(a) death or personal injury caused by its own negligence; or
(b) fraud or fraudulent misrepresentation.
9.2 Without prejudice to clause 9.1:
(a) the Owner shall not be liable under this Agreement for any loss of profit, loss of revenue, loss of business or indirect or consequential loss or damage, in each case, however caused, even if foreseeable;
(b) the Owner's liability under this Agreement shall be limited to replacement of the Equipment with similar equipment or (at the Owner's option) termination of this Agreement and repayment to the Hirer of the amount of any Hire Charges paid with respect to any period for which the Equipment was inoperable; and
(c) the Owner's maximum aggregate liability for breach of this 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 amount of any Hire Charges paid by the Hirer.
9.3 This Agreement supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties relating to its subject matter, whether written or oral and constitutes the entire agreement between the parties relating to its subject matter. 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 expressly set out in this Agreement, and any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this Agreement, whether by statute, common law or otherwise, is expressly excluded to the fullest extent permitted by law. Nothing in this clause 9.3 shall limit or exclude any liability for fraud.
10.1 Without affecting any other right or remedy available to it, the Owner may terminate this Agreement with immediate effect by giving written notice to the Hirer if:
(a) the Hirer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
(b) the Hirer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified in writing to do so;
(c) the Hirer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(e) 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;
(f) 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 (being a company);
(g) an application is made to court, or an order is made, for the appointment of an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed, over the Hirer (being a company);
(h) the holder of a qualifying floating charge over the assets of the Hirer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) 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;
(j) 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;
(k) the Hirer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(l) the Hirer (being an individual) is the subject of a bankruptcy petition or order;
(m) the Hirer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
(n) 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 clause 10.1(d) to clause 10.1 (j) (inclusive).
10.2 For the purposes of clause 10.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Owner would otherwise derive from a substantial portion of this Agreement, or from any of the Hirer's obligations set out in clause 6, over the term of this Agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.3 This Agreement shall automatically terminate if the Equipment is, in the Owner's reasonable opinion or in the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
11. Consequences of termination
11.1 Upon termination or expiry of this Agreement, however caused:
(a) the Owner's consent to the Hirer's possession of the Equipment shall terminate and the Hirer shall return the Equipment to the Owner in the same good order and condition as it was on the Commencement Date (fair wear and tear only excepted). Any return note for the Equipment issued by the Owner shall not be evidence of the condition of the Equipment described in it.
(b) if the Hirer does not return the Equipment to the Owner at the end of the Hire Period, the Owner may, by its authorised representatives, without notice and at the Hirer's expense, enter the Site or any premises at which the Equipment is located and retake possession of the Equipment; and
(c) without prejudice to any other rights or remedies of the Hirer, the Hirer shall pay to the Owner on demand:
(i) all Hire Charges due but unpaid at the date of such demand in respect of any part of the Risk Period before the Equipment is returned or repossessed in accordance with the provisions of this clause, and all other sums due under this Agreement but unpaid at the date of such demand, together with any interest accrued pursuant to clause 3.4; and
(ii) any costs and expenses incurred by the Owner in recovering the Equipment and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 Upon termination of this Agreement pursuant to clause 10.1, any other repudiation of this Agreement by the Hirer which is accepted by the Owner or pursuant to clause 10.3, 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 Hire Charges 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 Hire Period.
11.3 The sums payable pursuant to clause 11.2 shall be agreed compensation for the Owner's loss and shall be payable in addition to the sums payable pursuant to clause 11.1(c). Such sums may be partly or wholly recovered from any Deposit.
11.4 The Hirer’s obligations under this Agreement shall continue until the end of the Risk Period.
11.5 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.
12. Confidential information
12.1 Each party undertakes that it shall not at any time during the Hire Period, and for a period of five years after its termination or expiry, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except that each party may disclose the other party's confidential information:
(a) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(b) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under this Agreement, provided that it ensures that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12.1.
12.2 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
13.1 Any notice or other communication given to a party under or in connection with this contract 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) sent by email, in the case of the Owner to email@example.com and in the case of the Hirer to the last known email address provided by the Hirer to the Owner.
13.2 Any such notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or 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 second Business Day after posting or at the time recorded by the delivery service;
(c) if sent by email, at time of transmission.
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. Miscellaneous and general
14.1 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 affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 12 consecutive weeks, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.
14.2 This Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
14.3 Each party acknowledges that in entering into this Agreement it does not rely on, shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement, and shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement, but nothing in this clause shall limit or exclude any liability for fraud.
14.4 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.5 Nothing in this 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.
14.6 At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
14.7 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
14.8 No failure or delay by a party to exercise any right or remedy provided under this 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.
14.9 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
14.10 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 ofthe rest of this Agreement.
14.11 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales, and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.