STANDARD TERMS AND CONDITIONS
OF EQUIPMENT HIRE

Last updated: 4th July 2025

Table of Contents

1. Definitions and interpretation

1.1 In these standard terms and conditions of Equipment hire ("Conditions"), unless the context clearly indicates another intention, the expressions detailed below will have the meanings attributed to them. Other less frequently used expressions are defined in the body of the Conditions:

"Affiliate" means, in relation to a Party, any person Controlling, Controlled by or under common Control with that Party;

"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for non-automated general business in London;

"Contract" means the agreement between the Supplier and the Customer for the hire and installation of the Equipment incorporating these Conditions, the Order and the Order Confirmation;

"Control" means the beneficial ownership of more than fifty percent (50%) of the issued share capital or the legal power to direct or cause the direction of the general management and policies of the party in question whether such control be by rights of ownership, voting to nominate directors or officers, or otherwise, and “Controlling" and “Controlled" shall be interpreted accordingly;

"Customer" means the party that has agreed to hire the Equipment from the Supplier as detailed in the Order;

"Delivery" means completion of delivery of the Equipment in accordance with Clause 3.2 and "Deliver", "Delivered" and "Delivering" shall be construed accordingly;

"Equipment" means the equipment (or any part of them) including all related accessories, manuals and instructions to be supplied by the Supplier to the Customer in accordance with the Contract as detailed in the Order Confirmation;

"Excess Hours" means the weekly rate included in the Order Confirmation which is chargeable to the Customer on a pro rata basis, if the Usage Hours is exceeded:

“Force Majeure Event” means any event or circumstance (not in existence on the date of the Contract) beyond the reasonable control of either Party

"Insolvency Event" in relation to either Party means:

1. an application is made for a moratorium under the Insolvency Act 1986; or
2. and step being taken towards winding up, dissolution or striking off, and/or the appointment of a liquidator (otherwise than in furtherance of any scheme for solvent amalgamation or solvent reconstruction) or administrator, receiver, receiver and manager, administrative receiver or, in each case, a similar officer;
3. an administrator, liquidator, receiver, receiver and manager or administrative receiver being appointed;
4. any step being taken towards the making of a bankruptcy order in the case of an individual;
5. if it becomes unable to pay its debts as they fall due, or its liabilities outweigh its assets, taking into account actual, contingent and prospective liabilities;
6. any encumbrance over or affecting any material part of its assets or undertaking being enforced; or
7. any composition in satisfaction of, or moratorium in respect of, its debts or any scheme of arrangement or compromise between it and a creditor or its creditors or any class of its creditors being put in place; or
8. any event or circumstance analogous to any of those listed above in any jurisdiction;

"Legal Requirements" means all laws, regulations, rules, guidelines, codes of conduct, judgements and other measures and decisions of any Relevant Authority from time to time in force (whether or not legally binding);

"Order" means the written instructions from the Customer to purchase/hire the Equipment using the Supplier's current official order form or in any other form agreed by the Parties from time to time;

"Order Confirmation" has the meaning given in Clause 2.8;

"Relevant Authority" means any international, national or local governmental or regulatory body, authority, agency, court or tribunal, in any part of the world;

"Rental Payment" means the payments made by the Customer for hire of the Equipment as set out in an Order Confirmation;

"Rental Period" means the period of hire as set out in the Order Confirmation;

"Site" means the location for delivery of the Equipment as set out in the Order Confirmation;

"Specified Currency" means pounds sterling or such other currency as notified to the Customer by the Supplier from time to time;

"Supplier" means CES Power International Ltd, a company registered in England and Wales with company number 02559412 and whose registered office is at Fieldfisher, Riverbank House, Swan Lane, London, EC4R 3TT

"Tax" means all forms of taxation and statutory, governmental, state, federal, provincial, local, government or municipal charges, duties, imposts, contributions, levies, deductions, withholdings or liabilities wherever chargeable and whether of the UK or any other jurisdiction;

"Third Parties Act" means the Contracts (Rights of Third Parties) Act 1999;

"Total Loss" means due to the Customer's default in the Equipment, is in the Supplier's reasonable opinion damaged, beyond repair, lost, stolen, seized or confiscated;

"Usage Hours" means the usage hours agreed in the Order Confirmation;

"VAT" means value added tax chargeable under the Value Added Tax Act 1994 (and any tax of a similar nature which is introduced in substitution for such value added tax) at the rate in force when the relevant supply is made.

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1.2 In these Conditions, unless the context otherwise requires, any reference to:

1. any legislation is a reference to that legislation and any subordinate legislation made under it as amended, extended or re-enacted from time to time;
2. Clauses are to clauses of these Conditions;
3. the singular includes the plural and vice versa, and any reference to one gender includes the other genders;
4. a "person" includes any individual, any government, state or agency of a state, any legal person and any trust, partnership, association or unincorporated body (whether or not having legal personality);
5. a "Party" means a party to the Contract;
6. any agreement or document is to such agreement or document as varied, supplemented, restated, renewed, novated or replaced from time to time;
7. "written" or "in writing" means the representation of words, in English and capable of being read with the naked eye, on paper or in similar hard copy form or in an electronic form which enables the recipient to retain a copy;
8. a number of days will be reckoned exclusively of the first day and inclusively of the last day unless the last day falls on a day which is not a Business Day in which case the last day will be the next succeeding day which is a Business Day;
9. a time of day is to London time;
10. a "day" is reference to a period of twenty four (24) consecutive hours;
11. a "month" is a reference to a period starting on one day in a calendar month and ending on the day before the numerically corresponding day in the next calendar month or, if there is no such day, on the last day of that month, save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the preceding Business Day;
12. an "encumbrance" includes a mortgage, charge, debenture, pledge, lien, assignment by way of security, hypothecation, security interest, equity, right to acquire, option, right of pre-emption, title retention or any other security agreement or arrangement or other encumbrance of any kind and any agreement or arrangement to create any encumbrance;
13. the words "include", "includes", "including", "in particular" and "such as" are to be construed as if they were immediately followed by the words "without limitation"; and
14. an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing includes, in respect of any jurisdiction other than England, is a reference to what most nearly approximates in that jurisdiction to the English legal term and a reference to any legislation includes, in respect of any jurisdiction other than England, a reference to any legislation of that jurisdiction that most nearly corresponds to the legislation referred to.

The headings in these Conditions are for convenience only and do not affect its interpretation.

1. any legislation is a reference to that legislation and any subordinate legislation made under it as amended, extended or re-enacted from time to time;
2. Clauses are to clauses of these Conditions;
3. the singular includes the plural and vice versa, and any reference to one gender includes the other genders;
4. a "person" includes any individual, any government, state or agency of a state, any legal person and any trust, partnership, association or unincorporated body (whether or not having legal personality);
5. a "Party" means a party to the Contract;
6. any agreement or document is to such agreement or document as varied, supplemented, restated, renewed, novated or replaced from time to time;
7. "written" or "in writing" means the representation of words, in English and capable of being read with the naked eye, on paper or in similar hard copy form or in an electronic form which enables the recipient to retain a copy;
8. a number of days will be reckoned exclusively of the first day and inclusively of the last day unless the last day falls on a day which is not a Business Day in which case the last day will be the next succeeding day which is a Business Day;
9. a time of day is to London time;
10. a "day" is reference to a period of twenty four (24) consecutive hours;
11. a "month" is a reference to a period starting on one day in a calendar month and ending on the day before the numerically corresponding day in the next calendar month or, if there is no such day, on the last day of that month, save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the preceding Business Day;
12. an "encumbrance" includes a mortgage, charge, debenture, pledge, lien, assignment by way of security, hypothecation, security interest, equity, right to acquire, option, right of pre-emption, title retention or any other security agreement or arrangement or other encumbrance of any kind and any agreement or arrangement to create any encumbrance;
13. the words "include", "includes", "including", "in particular" and "such as" are to be construed as if they were immediately followed by the words "without limitation"; and
14. an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing includes, in respect of any jurisdiction other than England, is a reference to what most nearly approximates in that jurisdiction to the English legal term and a reference to any legislation includes, in respect of any jurisdiction other than England, a reference to any legislation of that jurisdiction that most nearly corresponds to the legislation referred to.

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2. Basics of contract

2.1 These Conditions apply to and form part of the Contract and supersede any previously issued terms and conditions of hire. No other terms or conditions that the Customer may seek to impose or incorporate by any means, or which are implied by law, trade custom, practice or course of dealing, shall form part of the Contract. For the avoidance of doubt, any terms and conditions of the Customer diverging from the Conditions shall not be valid even if the Supplier effected Delivery without reservation.

2.2 If there is an inconsistency between any of the provisions of these Conditions and the Order Confirmation, the provisions of the Order Confirmation shall prevail.

2.3 By placing an Order with the Supplier, the Customer is deemed to accept these Conditions.

2.4 Subject to Clause 2.5, no variation of these Conditions or the Contract shall be effective unless expressly agreed in writing and duly executed by each Party by an authorised representative and the Supplier shall not be deemed to waive any of these Conditions by failing to object to provisions contained in any notification or other communication from the Customer.

2.5 The Supplier may vary these Conditions, as a result of new applicable Legal Requirements or a change in the Supplier's operational conduct, provided that the Customer is notified in advance of any such variation.

2.6 Each Order constitutes an offer by the Customer to hire the Equipment in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.

2.7 The Supplier shall not, other than in the exercise of its rights under these Conditions or applicable Legal Requirements, interfere with the Customer's quiet possession of the Equipment.

2.8 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted or deemed accepted, and no binding obligation to supply any Equipment shall arise, until the Supplier issues a written acceptance of the Order (an "Order Confirmation"), at which point the Contract shall come into existence and the Order cannot be cancelled without the prior written consent of the Supplier.

2.9 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

2.10 The quantity, Rental Price, Rental Period and description of the Equipment (including the code or product numbers of the Equipment, where applicable) shall be as set out in the Order Confirmation. The Order Confirmation shall also set out the estimated date of delivery or collection, the date and number of the relevant Order, all relevant Customer and/or Supplier reference numbers, any special storage instructions.

2.11 Any drawings, designs, specifications or descriptions (other than as set out in the Order Confirmation), samples or marketing or other promotional materials relating to the Equipment are illustrative only and do not form part of the Contract and the Supplier has the right to vary all or any of them at its discretion.

2.12 Any quotation for the hire of the Equipment given by the Supplier shall not constitute an offer and shall only be valid for a period of thirty (30) days from its date of issue, unless otherwise stipulated.

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3. Delivery and installation

3.1 Delivery shall be made by the Supplier. The Supplier shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk in the Equipment shall transfer in accordance with Clause 5 of these Conditions.

3.2 Delivery of the Equipment is completed when the Equipment is either (i) unloaded by the Supplier; or its nominated carrier (as the case may be) at the Site or (ii) collected by the Customer from a location nominated by the Supplier and set out in the Order Confirmation ("Delivery").

3.3 The Supplier may Deliver the Equipment in instalments. References in these Conditions to Orders shall, where applicable, be read as references to instalments and any delay in Delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

3.4 The Supplier shall at the Customer's expense install the Equipment at the Site. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Equipment. Acceptance by such representative of installation 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 Supplier, the Customer's duly authorised representative shall sign a receipt confirming such acceptance.

3.5 Unless agreed in writing by both Parties, all packaging materials shall remain the Supplier's property and the Customer shall make them available for collection at the end of the Rental Period.

3.6 Any date set out in the Order Confirmation or elsewhere is approximate only, and the time of delivery is not of the essence. Any delay in Delivery shall not entitle the Customer to refuse to accept or otherwise reject the Equipment. Further, no such delay in Delivery or failure to Deliver shall entitle the Customer to withhold any payment due to the Supplier in respect of the Equipment or any goods that the Supplier has supplied or agreed to supply to the Customer.

3.7 The Supplier shall have no liability for any failure to Deliver, or delay in Delivery of, the Equipment to the extent that such failure or delay is caused by a Force Majeure Event or by the Customer’s failure to make the Site available or to prepare the Site as required for delivery of the Equipment, or by the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.

If the Customer fails to accept delivery of the Equipment, then, except where such failure is caused by Clause 3.7;

1. the Equipment shall be deemed to have been delivered at 9.00 am on the date the Supplier tendered Delivery; and
2. the Supplier shall store the Equipment until the Customer takes possession of the Equipment and charge the Customer for all related costs and expenses (including insurance).

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4. Warranty

4.1 The Supplier warrants that the Equipment shall at the time of Delivery:

1. correspond in all material respects with the description and any specification set out in the Order Confirmation;
2. be fit for any purpose held out by the Supplier; and
3. be free from material defects in design, material and workmanship.

4.2 Subject to Clause 4.5, if:

1. the Customer gives notice to the Supplier:
   1. in the case of a defect that is apparent on normal visual inspection, within one (1) Business Day of Delivery; and
   2. in the case of a latent defect, within a reasonable time of the latent defect having become apparent that some or all of the Equipment do not comply with the warranty set out in Clause 4.1;
2. the Supplier is given a reasonable opportunity after receiving such notice of examining such Equipment;
3. the Customer (if asked to do so by the Supplier) promptly returns such Equipment to the Supplier's place of business at the Supplier's cost,

The Supplier shall, at its option, repair or replace the defective Equipment. If the Supplier fails to remedy any material defect in the Equipment, the Supplier shall, at the Customer's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payment payable for the remainder of the Rental Period.

4.3 A claim by the Customer in respect of alleged faulty Equipment shall not be a ground for withholding any Rental Payment due to the Supplier.

4.4 If the Customer fails to give notice in accordance with Clause 4.2, it shall be deemed to have accepted the relevant Equipment.

4.5 The Customer shall have no right to return any Equipment to the Supplier except as set out in Clause 4.2 or with the prior written consent of, and upon terms agreed by, the Supplier. The Supplier will not be liable for any carriage charges in respect of the return of Equipment unless the Supplier has given its prior written consent for their return and confirmed in writing that it accepts liability for those carriage charges.

4.6 The Supplier shall not be liable for failure of the Equipment to comply with the warranty set out in Clause 4.1 in any of the following events:

1. the Customer makes any further use of such Equipment after giving notice in accordance with Clause 4.2(a);
2. the failure arises because the Customer failed to follow the Supplier's oral or written instructions for the storage, handling or preparation, commissioning, installation, use and/or maintenance of the Equipment or (if there are none) good trade practice regarding the same;
3. the Customer alters or repairs such Equipment without the written consent of the Supplier, or, having received such consent, not in accordance with the Supplier’s instructions;
4. the failure arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5. the Equipment differ from the description and any specification set out in the Order Confirmation as a result of changes made to ensure they comply with applicable Legal Requirements.

4.7 The Supplier's reasonable decision as to whether Equipment comply with the description and any specification set out in the Order Confirmation shall be final.

5. Title and risk

5.1 The Equipment shall at all times remain the property of the Supplier, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Conditions.

5.2 Risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer immediately on Delivery. The Equipment shall remain the sole responsibility of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer until such time as the Supplier retakes possession of the Equipment.

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6. Price and terms of payment

6.1 Subject to Clause 6.2, the price of the Equipment shall be the Rental Payment and the Supplier shall invoice the Customer for the Rental Payment on or after the issue of the Order Confirmation. Each invoice shall quote the reference on the relevant Order Confirmation.

6.2 In the event that the Customer exceeds the Usage Hours, the Supplier shall charge the Customer the Excess Hours incurred during the Rental Period. The Supplier shall invoice the Customer the Excess Hours (if applicable) on either a daily, weekly or monthly basis.

6.3 The price of the Equipment is exclusive of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, on receipt of a valid VAT invoice.

6.4 The Customer shall pay invoices in the Specified Currency, in full and in cleared funds within thirty (30) days of receipt or, where applicable, in accordance with any credit terms agreed in the Order Confirmation. The time for payment shall be of the essence and all payments shall be made by direct debit or bank transfer, or by such other payment method as shall be stipulated by the Supplier from time to time, to such bank account as Supplier may from time to time notify to the Customer.

6.5 All amounts due under the Contract from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of Tax as required by any applicable Legal Requirements).

6.6 If the Customer fails to make payment due to the Supplier by the due date, then, without limiting the Supplier's remedies under Clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause will accrue each day at four percent (4%) a year above the Bank of England's base rate from time to time, but at four percent (4%) a year for any period when that base rate is below zero percent (0%).

6.7 The Supplier may attribute any monies received by it from the Customer to any debt owed by the Customer to the Supplier whether under these Conditions or otherwise, regardless of what the Customer purports to designate the payment to be on account of. Further, the Supplier shall be entitled but not obliged at any time or times to set-off any liability of the Customer to it against any liability it has to the Customer (in either case however arising and whether any such liability is present or future, liquidated or unliquidated, and irrespective of the currency of its denomination) and may for such purpose convert either liability at a market rate of exchange for the purpose of set off. If any liability is unliquidated or unascertained, the Supplier may set off an amount estimated by it in good faith to be the amount of that liability.

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7. Insurance

7.1 During the Rental Period, the Customer shall, at its own expense, obtain and maintain the following insurances:

1. insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Supplier may from time to time nominate in writing;
2. insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Supplier 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
3. insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Supplier may from time to time consider reasonably necessary and advise to the Customer in writing.

7.2 All insurance policies procured by the Customer shall be endorsed to provide the Supplier with at least three (3) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall on the Supplier's request name the Supplier on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.

7.3 If the Customer fails to effect or maintain any of the insurances required under these Conditions, the Supplier shall be entitled to recover and collect the Equipment from the Customer and recover the cost of collecting the Equipment from the Customer

7.4 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Supplier and proof of premium payment to the Supplier to confirm the insurance arrangements.

7.5 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer's possession or use of the Equipment.

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8. The Customer's responsibilities

8.1 The Customer shall during the Contract:

1. ensure that the terms of the Order Confirmation are complete and accurate in respect of the description of the Equipment;
2. co-operate with the Supplier in all matters relating to the Equipment;
3. ensure that the Site has adequate security which is satisfactory to the Supplier;
4. 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 Supplier;
5. be provided with an earth rod, if applicable to the Equipment hired, and the Customer will be responsible for the placement, connection and testing of the earth rod at the Site. The earth rod will be provided on a sale or hire basis;
6. take such steps (including compliance with all safety and usage instructions provided by the Supplier) 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;
7. make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment;.
8. keep the Supplier fully informed of all material matters relating to the Equipment;
9. keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without the Supplier's prior written consent;
10. permit the Supplier or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
11. not, without the prior written consent of the Supplier, 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;
12. not without the prior written consent of the Supplier, 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 injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Supplier against all losses, costs or expenses incurred as a result of such affixation or removal;
13. not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Supplier in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that the Supplier may enter such land or building and recover the Equipment both during the Rental Period and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Supplier of any rights such person may have or acquire in the Equipment and a right for the Supplier to enter onto such land or building to remove the Equipment;
14. not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Supplier and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Supplier on demand against all losses, costs, charges, damages and expenses reasonably incurred as a result of such confiscation;
15. not use the Equipment for any unlawful purpose;
16. ensure that at all times the Equipment remains identifiable as being the Supplier's property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
17. allow the Supplier or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment;
18. ensure that any consumables (including but not limited to fuel, oil, lubricants) supplied to/used by the Customer meet the Supplier's required standard. If the Customer is unsure if the consumables meet the Supplier's standard, the Customer will notify the Supplier as soon as possible, in writing. for the Supplier to approve;. and
19. not do or permit to be done anything which could invalidate the insurances referred to in Clause 7.3.

8.2 The Customer acknowledges that the Supplier 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 Customer or its officers, employees, agents and contractors, and the Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of, or in connection with any failure by the Customer to comply with its obligations in this Clause 7.

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9. Compliance with laws and policies

The Customer shall comply with all applicable Legal Requirements, and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract and in relation to the use and hire of the Equipment.

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10. Data Protection

10.1 The Supplier will comply with applicable data protection laws in respect of any personal data it receives from the Customer in accordance with its data protection policy which is available upon request.

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11. Liability and Limitation of Liability

11.1 References to liability in this Clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), breach of statutory duty or otherwise.

11.2 Nothing in the Contract shall limit or exclude the liability of either Party for:

1. death or personal injury caused by its negligence, or the negligence of its representatives, agents or subcontractors (as applicable);
2. fraud or fraudulent misrepresentation or wilful default;
3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
4. any matter in respect of which it would be unlawful to exclude or restrict liability.

11.3 Nothing in this Clause 11 shall limit the Customer's payment obligations under the Contract.

11.4 Subject to Clause 11.2, neither Party shall under any circumstances whatever be liable to the other for:

1. any loss of profit, revenue, or anticipated savings; or
2. loss of or damage to goodwill, reputation or opportunity; or
3. any loss that is an indirect or secondary consequence of any act or omission of the Party in question

arising out of or in connection with the Contract or any breach or non-performance of it no matter how fundamental (including by reason of negligence) and even if that Party is advised in advance of the possibility of any such losses or damages.

11.5 Without prejudice to Clauses 11.2 and 11.4, the total liability of the Supplier to the Customer shall not exceed the Rental Payment for the Equipment under Contract which the relevant claim relates.

11.6 The Customer acknowledges and agrees that the allocation of risk contained in these Conditions is reflected in the price of the Equipment payable by the Customer under the Contract and is reasonable in all the circumstances, having regard to all relevant factors including the ability of the Supplier to rely on its own insurance arrangements and other resources to bear or recover any loss or damage incurred for which Supplier is not liable.

11.7 No amounts awarded or agreed to be paid under Clause 4 shall count towards the cap on the Supplier's liability under this Clause 11.

11.8 Subject to Clause 11.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under the Contract are, to the fullest extent permitted by law, excluded from the Contract.

11.9 This Clause shall survive termination of the Contract.

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12. Termination

12.1 Unless terminated earlier in accordance with the termination provisions, the Contract will continue in full force and effect until the latest of:

1. the conclusion of the Rental Period in accordance with any Confirmation Order; or
2. the conclusion of payment of all sums due under the Contract.

12.2 The Supplier may terminate the Contract with immediate effect by giving notice to the Customer in accordance with Clause 15 at any time on or after the occurrence of any of the following events:

1. the Customer fails to pay the Rental Payment any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) Business Days after the Supplier has given notice requiring it to make such payment; or
2. the Customer fails to comply in any respect with Clause 8 or otherwise commits a material breach (or multiple breaches which are material in aggregate) of the Contract (other than an obligation to pay) and, if such breach is capable of remedy, fails to remedy it within fourteen (14) Business Days of the Supplier giving a notice to it specifying the breach and requiring it to be remedied or, having so remedied the breach, commits a similar breach within the next seven (7) Business Days; or
3. the Customer challenges or disputes the validity or ownership of any of the Supplier' Intellectual Property Rights; or
4. the Customer undergoes an Insolvency Event or ceases, or threatens to cease, to carry on all or a substantial part of its business; or
5. the Customer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
6. there is a change of Control of the Customer.

12.3 For the purposes of Clause 12.1, a breach shall be considered capable of remedy if the Customer can comply with the provision in question in all respects other than as to the time of performance, provided that time of performance is not of the essence.

12.4 Subject to Clause 12.5, the Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.

12.5 Notwithstanding Clause 12.4, in the event that the Equipment is stolen, the Contract shall remain in effect, and the Supplier shall continue to charge the Customer the Rental Payment. The Customer shall remain liable for these payments until a resolution satisfactory to the Supplier is reached, including any insurance claims.

12.6 The Supplier may, immediately and without notice, stop delivery of the Equipment under the Contract at any time on or after:

1. the Supplier reasonably believes that the Customer is about to undergo an Insolvency Event or cease to carry on all or a substantial part of its business; or
2. the Customer fails to pay any amount due on any Equipment Delivered under these Conditions on the due date for payment.

12.7 On the occurrence of any event entitling the Supplier to terminate the Contract (notwithstanding that termination for such an event is ineffective under any applicable Legal Requirement), the Supplier shall have the right to terminate immediately on notice in accordance with Clause 15 (a "Termination Notice").

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13. Consequences of Termination

13.1 The termination of the Contract shall be without prejudice to any rights or liabilities of either Party accrued at the date of termination, or which may accrue after termination in respect of any act or omission prior to termination (including any act or omission giving rise to termination).

13.2 On termination of the Contract, any provision of the Contract that expressly intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

13.3 On termination of the Contract:

1. the Supplier's consent to the Customer's possession of the Equipment shall terminate;
2. the Supplier may, by its authorised representatives, without notice and at the Customer's expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located;
3. the Customer shall ensure the safe and proper storage of the Equipment until it has been collected by the Supplier; and
4. without prejudice to any other rights or remedies of the Customer, the Customer shall pay to the Supplier on demand:
5. all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Clause 6.6; and
6. if the earth rod(s) is/are supplied on a hire basis, return the earth rod(s) provided by the Supplier to the Supplier. In the event an earth rod is not returned to the Supplier, the Customer will be charged by the Supplier for a replacement earth rod;
7. any costs and expenses incurred by the Supplier in recovering the Equipment or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

13.4 On termination of the Contract pursuant to Clause 13.3 or following any repudiatory breach of the Contract by the Customer which is accepted by the Supplier without prejudice to any other rights or remedies of the Supplier, the Customer shall pay to the Supplier on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.

13.5 The provisions of this Clause shall survive the termination of the Contract.

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14. Force Majeure

14.1 Neither Party shall liable be to the other Party for any delay or failure in the performance of any of its obligations under the Contract, to the extent that its performance is prevented, hindered or delayed by a Force Majeure Event, provided that it gives notice to the other Party as soon as reasonably practicable of the Force Majeure Event and the effect on its ability to perform its obligations under the Contract.

14.2 Where Clause 14.1 applies, the time for performance of the obligations affected shall be extended for as long as is made necessary by the Force Majeure Event. The time for performance of the corresponding obligations of the other Party shall be extended to the same extent.

14.3 If a Force Majeure Event continues for a period in excess of seven (7) days, either Party shall have the right (without prejudice to Clause 14) to terminate the Contract immediately on giving notice to the other Party in accordance with Clause 15.

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15. Notices

15.1 Except as otherwise specifically provided, notice under or other communication pursuant to these Conditions must be in writing and will only be effective if:

1. sent by hand or courier of international repute, to the address (and marked for the attention) of the relevant recipient set out in the Order Confirmation; or
2. sent by email to the email address of the relevant recipient set out in the Order Confirmation; or
3. sent as described in paragraphs (a) or (b) above or to such other address as may be notified from time to time (in accordance with this Clause), any such change taking effect on the later of the date, if any, specified in such notice as its effective date or the date five (5) Business Days after receipt of such notice.

15.2 Subject to Clause 15.3, a notice under or other communication pursuant to the Contract shall be treated for the purposes of the Contract as having been received by the recipient:

1. if sent by hand or courier of international repute, when left at the recipient's address or an attempt has been made to leave the notice at the recipient's address but delivery has been refused by the recipient or one of their representatives; and
2. if sent by email, one hour after it was sent provided the sender proves that it was sent to the correct address and no notice of delivery failure or bounce back has been received.

15.3 Any notice under or other communication pursuant to the Contract which is received on a day which is not a Local Business Day, or after 5pm (local time at the place of receipt) on any day, will be treated as having been given at 9am on the next Local Business Day (and for this purpose "Local Business Day" means a day (other than a Saturday or Sunday) on which banks are open for non-automated general business at the place of receipt).

15.4 This Clause does not apply to the service of any document in any legal action or proceedings or, where applicable, any arbitration or other method of dispute resolution arising out of or in connection with the Contract.

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16. Entire Agreement

16.1 The Contract constitutes the entire agreement between the Parties relating to its subject matter and supersedes any and all previous agreements (whether written or oral) between the Parties relating to that subject matter.

16.2 Each Party agrees that no representation has been made (innocently or negligently) by or on behalf of any other Party (or relied on by it) in relation to the subject matter of the Contract.

16.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement expressly set out in the Contract.

16.4 Nothing in this Clause 16, however, shall limit or reduce any liability of any person except to the extent permitted by law.

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17. Severance

17.1 If any provision of the Contract is or becomes void or unenforceable, this shall not affect the validity or enforceability of any other provision of the Contract.

17.2 If any such provision would be valid and enforceable if some part of such provision were deleted, such provision shall apply with such deletion as may be necessary to make it valid and enforceable.

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18. Assignment

18.1 The Customer may not without the prior written consent of the Supplier assign, novate, transfer, charge, hold on trust or deal in any other manner with all or any of its rights under the Contract nor sub-contract or delegate in any other manner the performance of all or any of its obligations under the Contract.

18.2 The Supplier may at any time, without the Customer's approval, assign all or any of its rights under the Contract and or sub-contract the performance of all or any of its obligations under the Contract and shall notify the Customer thereof within a reasonable time thereafter.

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19. Waiver and Remedies

19.1 Subject as otherwise expressly provided in the Contract, the rights and remedies of the Parties under the Contract are cumulative and not exclusive of any rights and remedies provided by law, and all such rights and remedies may be enforced separately or concurrently with any other right or remedy.

19.2 No failure to exercise or delay in exercising any right or remedy shall constitute a waiver of that right or remedy. No single or partial exercise of any right or remedy, and no waiver of any right or remedy, shall prevent or restrict the further exercise of that or any other right or remedy. Any waiver shall apply only in favour of the person to whom it is expressly addressed and for the specific circumstances for which it is given. Any waiver of any right or remedy shall be effective only if it is made in writing, expressly states that it is a waiver of the relevant right or remedy and is duly executed by or on behalf of the relevant Party by an authorised representative.

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20. Further assurance

Each Party shall at its own expense (and shall use all reasonable endeavours to procure that any necessary third party shall) promptly take such action, and execute and deliver such documents, as the other Party may reasonably require to give full effect Contract.

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21. No Partnership or Joint Venture.

Nothing in the Contract shall give rise to any partnership or agency between the Parties and neither Party shall have, nor shall represent that it has, any authority to make any commitments on behalf of the other Party.

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22. Third party rights

22.1 Save as expressly provided in Clause 22.2 below a person who is not a Party has no right under the Third Parties Act to enforce or avail itself of any term of the Contract.

22.2 Any Affiliate of the Supplier shall be entitled under Third Parties Rights Act to enforce and/or avail itself of any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

22.3 No Affiliate of the Supplier may (i) assign, transfer, charge, hold on trust or deal in any other manner with its right to enforce any term of the Contract under the Third Parties Act, or (ii) bring proceedings to enforce any term the Contract under the Third Parties Act without the prior consent of the Supplier and without having given notice to both Parties that it agrees to be bound by Clause 23.

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23. Confidential Information

23.1 Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, 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 as permitted by Clause 23.2.

23.2 Each Party may disclose the other Party's confidential information:

1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Party's rights or carrying out its obligations under or in connection with the Contract. Each Party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other Party's confidential information comply with Clause 23; and
2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

23.3 Neither Party may use the other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

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24. Governing law and jurisdiction

24.1 The Contract and any non-contractual obligation arising out of or in connection with it are governed by the law of England and Wales.

24.2 Each Party irrevocably agrees that the courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with the Contract or any non-contractual obligation arising out of or in connection with it.

24.3 Nothing in this Clause shall limit the right of either Party to seek injunctive or other interlocutory relief in any jurisdiction at any time.

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