In construing this Contract the terms and conditions contained shall be interpreted according to the meaning given herein unless otherwise agreed in writing.
“The Supplier” means ATI Tank Hire Limited registered in England under Company Number 1766265 and having its registered office at Thamesfield Way, off Pasteur Road, Gt Yarmouth, Norfolk, NR31 0DN. Phone number: +44 1493441747. Facsimile number: +44 149 344 2717.
“ATI’s Premises” means the premises of ATI Tank Hire Ltd at Thamesfield Way, Off Pasteur Rd, Great Yarmouth, Norfolk, NR31 0DN
“The Client” means persons or firms or companies purchasing or hiring of Goods from the Supplier or requesting the supplier to render services in respect of the Goods.
“Goods” means goods or materials supplied by the supplier to the client or in respect of which the supplier renders services.
“Services” means any work carried out at the client’s request by the supplier.
“Satisfactory Condition” means in good repair, condition and working order (fair wear and tear excepted) and with valid certification as determined at ATI’s sole discretion and cleanliness certification.
“Contract” means the quotation hereinafter referred to and these Terms and Conditions plus any variation thereof agreed by the Supplier in writing.
“Mobilisation / Demobilisation” means all matters of actions connected to the collection, delivery and haulage of the goods and all situations associated therewith.
“The Commencement Date” means the date of commencement of the hire as stated, in the Supplier’s Quotation being the date the Goods leave the Supplier’s premises, whether collected by the Client or removed from the Supplier’s premises for onward transmission by the Supplier or any third party.
“The Rental Period” means the period commencing on the Commencement Date and ending on the return Date.
“The Return Date” means the date on which the Goods are returned in a condition satisfactory to the suppliers to their premises in terms of Clause 6.
These conditions, which the client hereby agrees to, apply to all hiring and sales of Goods by the Supplier and shall prevail over any other terms and conditions contained or referred to in the Client’s order or in correspondence elsewhere or implied by trade custom, practice or course of dealing unless other terms or conditions are specifically agreed to in writing by the Supplier. The Supplier’s agents shall not have authority to enlarge, vary or exclude any of these conditions. Any purported enlargement, variation or exclusion shall be without effect unless specifically agreed to in writing by the Supplier who reserves the right to amend these Terms and Conditions from time to time.
No terms or conditions of any main contract or sub-contract shall affect these conditions whether or not the Supplier has notice thereof.
The headings appearing above each condition are included for reference purposes only and shall not affect or limit the interpretation and effect of these conditions.
In all matters English Law applies.
A quotation by the Supplier shall constitute an invitation to treat and not an offer. The Supplier may withdraw or amend any quotation at any time prior to the Supplier’s acceptance in writing of the Client’s order.
All quotations shall be exclusive of VAT which will be charged at the rate prevailing at the tax point.
Any variation to the use of the Goods as specified in the quotation will require the Suppliers prior written authorisation and a revised quotation.
All quotations are issued subject to availability of the Goods and/or Services and the Supplier will accept no responsibility if at the point of order Goods and/or Services required by the Client are not available for whatever reason.
4. ESTIMATES OF QUANTITIES AND ADVICE AS TO FITNESS FOR PURPOSE
Any estimates in respect of quantities needed or advice as to the suitability or fitness of any Goods for any particular purpose given by the Supplier or its servants or agents will be treated as without obligation or responsibility on the part of the Supplier and the Client will be entirely responsible for ascertaining the quantities required and the suitability and fitness of the Goods for their purpose.
The Supplier requires detailed information of any materials used in conjunction with the Goods under Control of Substances Hazardous to Health legislation prior to the return of Goods in the event that they are hired to the Client.
No work shall be carried out on Goods which may affect the original condition or construction of the unit or which may alter the fittings without prior written consent of the Supplier.
a) Subject to sub-clause b) hereof, the price payable for the Goods sold/hired shall be that specified in the Suppliers quotation, provided that the order has been accepted within the period specified in the quotation.
b) The said quotation is valid for acceptance for 30 days from the date of quotation, after which the Supplier reserves the right to vary the pricing should this be necessary, however should the Contract be for a longer period than one calendar month in duration, the haulage only could be varied due to possible changes in charges due to fuel increases etc. any return haulage price changes would be notified to the Client prior to the Supplier booking the same. The Client is within its rights to procure its own transport.
c) Payment will be required from and including the Commencement Date until and including the Return Date.
6. DELIVERY INCLUDING MOBILISATION/DEMOBILISATION
a) Any time or date specified by the Supplier regarding delivery and/or collection is given and intended as an estimate only and not of any contractual effect. The Supplier shall use its best endeavours to meet such dates but shall not be liable for any direct or indirect loss damage (unless such loss is proved to have occurred whilst the goods are in the Supplier’s actual possession) and/or expense howsoever arising from delay in delivery or completion of Services nor shall time be of the essence of any contract.
b) The quotation will include all cranage handling and transport costs which the Client will become responsible for in addition to the rental for the Goods.
c) Where delivery to site is undertaken by the Supplier it is on the understanding that there is a suitable road to the point on the site where delivery is requested. If no such road exists delivery will be made to the nearest point to which in the opinion of the Supplier’s driver or haulier motor lorries can safely proceed and unload.
d) Haulage rates quoted are applicable Monday to Thursday 08:00 to 17:00 and allow a maximum of two hours waiting time for unloading/loading, unless otherwise specifically agreed in writing by the Supplier. Any additional costs incurred will be charged accordingly.
e) Where loading/unloading is undertaken by the Supplier rates quoted are applicable Monday to Thursday 08:00 to 16:30 and Friday 08:00 to 15.30. Any additional costs incurred will be charged accordingly.
f) All necessary labour and equipment required to unload/load materials promptly shall be supplied by the Client and the Supplier’s driver/haulier shall not be responsible for unloading/loading unless contracted to do so.
g) The Client undertakes and hereby agrees to inspect or instruct their agents to inspect the Goods at ATI’s premises or another location (by prior agreement in writing) on or before the Commencement Date and to notify the Supplier within 24 hours of the Commencement Date if the Goods are either defective or otherwise not in accordance with the Contract. If no such notification is received by the Supplier, the Goods shall be deemed to be complete and in good order and fit for the purpose for which it is required and the Client shall waive all claims in respect or the Goods and be bound to accept and pay for the same accordingly.
h) If the Client refuses or fails to take delivery of Goods/Services tendered in accordance with the Contract (for any reason whatsoever) the Supplier shall be entitled to payment in full for any loading and haulage used.
i) Where multiple units of Goods on rental are mobilised / demobilised separately or contrary to contract the Client is advised to seek adjusted costs prior to movement.
j) Export/Import formalities documentation taxes, duties and the like are the responsibility of the Client unless otherwise agreed in writing by the Supplier.
k)The Client will keep the Goods in fit and proper repair and be responsible for any damage howsoever occasioned to them except in the case of fair wear and tear. The Goods should be returned to the Supplier in the same working condition as they were supplied, fair wear and tear being excepted from this requirement
l) The Supplier requires twenty-four hours notice of intention of the Client to return the Goods.
m) The Client shall ensure that all Goods that are returned to ATI’s Premises are in Satisfactory Condition and are accompanied by a written cleaning certificate guaranteeing that the Goods and its fittings are gas free, clean from any oil, rust, dirt and particles (residue) from the product that had been stored therein.
n) Should the Goods not be returned in a Satisfactory Condition, all invoices for repairs, cleaning and / or certification shall include all costs associated with the repairs and certification including, without limitation, transportation costs to and from any cleaning station or depot at which the repairs shall be conducted, parts and labour associated with the repairs and cleaning and the cost of certification by an independent surveyor if required. Such invoices will be sent to the Client and shall be paid by the Client in accordance with the payment terms set out in the invoice.
o) If the Goods are not returned in a Satisfactory Condition and in accordance with the Contract, the Return Date shall be the date on which any repairs, cleaning or recertification is completed. For avoidance of doubt all obligations in this Contract including without limitation the accrual of the charges, shall continue until the Return Date.
p) Should damage to the Goods be noted upon The Return Date, the Client will be informed immediately and a specified period of not less than 48 hours will be advised to enable the Client to identify the relevant problem.
The Supplier may deliver by instalments and each delivery shall be deemed to be treated as a separate contract and any default or delay in respect of any instalment shall not entitle the Client to reject other deliveries.
Failure by the Client to pay for any instalment or delivery when payment is due shall entitle the Supplier to withhold further deliveries.
a) Unless otherwise agreed in writing payment shall be made by the Client within thirty days from the date of invoice.
b) If payment is not made on the due date interest shall be charged on any amount outstanding at the rate of 3% above NATWEST BANK PLC minimum lending rate for the time being in force until the date of actual payment. Any additional charges associated with the recovery of monies owed to The Supplier shall be added to the Clients account at a charge of 15% the debt recovery company is Daniels Silverman.
c) If the Client fails to accept delivery of any Goods when tendered or in the event of any delivery being delayed at the Client’s request or in the event of the Client failing to make payment for Goods/Services when it is due the Client shall be liable to the Supplier for all additional handling storage or other direct charges thereby reasonably and properly incurred by the Supplier in relation to any such Goods/Services or to any other Goods delivery of which the Supplier is entitled to withhold or by notice in writing to the Client to terminate the contract in its entirety whether or not the same is severable but without prejudice to the Supplier’s rights under such Contract.
d) The Client shall not be entitled to withhold or set off payment of any amount due to the Supplier under the terms of the Contract in respect of any claim by the Client in respect of Goods/Services supplied by the Supplier or for any other reason which is contested or for which liability is not admitted by the Supplier.
e) If at any time the Client (being an existing credit customer) being a company shall alter its constitution or being a sole trader or partnership shall become incorporated or amalgamated with others it shall be the duty of the Client to give prior written notice to the Supplier of the intended change (should the Client wish to continue credit account facilities following any intended change). Continuance of trading with the amalgamated entity or commencement of trading with a new entity shall be at the sole discretion and only deemed undertaken by the Supplier if a written acknowledgement and acceptance is issued by the Supplier.
The risk in the Goods shall pass to the Client upon delivery and shall not revert to the Supplier until completion of demobilisation and subject to internal service report at designated point of receipt upon completion of contract. Where Services are rendered by the Supplier the Goods shall be prepared worked on moved stored or otherwise managed and kept at the sole risk of the Client and the Supplier shall be not be liable for any loss damage or delay arising from any cause whatsoever.
10. TITLE AND MAINTENANCE
Where Goods are SOLD by the Supplier to the Client property in the Goods shall not pass to the Client until the Client has paid for such Goods in full and until then the Client shall hold the Goods as bailee for the Supplier.
Whilst acting as such bailee the Client shall not pledge or allow any lien or charge to be created over the Goods and will not deal with them except in the ordinary course of business. Nothing shall constitute the Client the agent of the
Supplier for the purpose of such sub-sale. If the Client sells the Goods the Client shall hold on trust for the Supplier the proceeds of such sale and assign to the Supplier all rights and claims which the Client may have against its customers arising from such sales until full payment is made as aforesaid.
Where Goods are HIRED
a) Title and Property in the Goods shall remain with the Supplier throughout the Rental Period and the Client’s interest in the same shall be limited to that of a Lessee
b) The Client shall not cause or permit the removal or concealment of any marks identifying ownership and shall not attempt to or in fact sell or transfer the Goods or any part thereof to another, use for security or otherwise encumber them.
c) The Client will be responsible at its own expense for the cleaning, maintaining and ongoing certification of the Goods whilst the Goods are in its possession save where this is separately agreed in writing and agreed by the duly authorized representative of The Supplier and the Client.
d) The Client must keep the Goods under its control, in good condition and repair and is responsible for any loss or depreciation of or damage to the Goods save for fair wear and tear.
e) The Supplier shall not be responsible for any direct, indirect, consequential or incidental loss or damage whether in contract or tort based upon any other legal theory (including without limitation to the foregoing, damages for loss of business or profits).
Where Goods are HIRED
a) During the Rental Period the Client shall, at its own expense, obtain and maintain insurances as follows:
b) Insurance of the Goods to a value not less than its FULL REINSTATEMENT VALUE (available on request) comprehensively against all usual risk 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;
c) Insurance for such amounts as a prudent owner or operator of the Goods would insure for, or such amount as the Supplier may from time to time reasonably require, to cover any third party or public liability risk of whatever nature and however arising in connection with the Goods; and
d) Insurance against such other or further risks relating to the Goods as may be required by law, together with such insurance as the Supplier may from time to time consider reasonably necessary and advise to the Client.
e) All insurance policies procured by the Client shall be endorsed to provide the Supplier with at least twenty (20) days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall name the Supplier on the policies as a loss payee in relation to any claim relating to the Goods. The Client shall be responsible for paying any deductibles due on any claims under such insurance policies.
f) The Client shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Goods arising out of or in connection with the Client’s possession or use of the Goods.
g) If the Client fails to effect or maintain any of the insurances required hereunder, the Supplier shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Client.
h) If the insurance monies the Supplier receives are less than the total value of the Goods or the total cost of repairing the goods (whichever is less), the Supplier reserves the right to require the Client pay the Supplier the difference.
i) The Client 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.
12. IMPLIED TERMS
Subject as hereinafter mentioned if the Client enters into this Contract in the course of a business or holds itself out as doing so:-
a) There is no express or implied term or condition of this Contract that the Goods are of satisfactory quality or fit for any particular purpose or comply with any description which has been given of them and;
b) Any dealer, broker or manufacturer who has been involved in this transaction is not the agent of the Supplier is not responsible for anything said, done or not done unless the Supplier has specifically authorised it in writing or unless the law otherwise makes that person the Supplier’s Agent.
Nothing in this clause shall affect the Clients statutory rights or any liability that the Supplier would otherwise have for death or personal injury caused by the Supplier’s provable negligence. Provided always that strictly subject to the Client informing the Supplier in writing at the time of requesting the quotation of the full circumstances concerning the purpose application and/or condition it intends the Goods to fulfil be applied to or be used for plus any associated purposes application or use or otherwise the Supplier will use its best endeavour to ensure that the Goods comply with all prevailing industry standard certifications including quality and fitness for the purpose application and/or conditions for which the Client requires the Goods.
In default of payment of any sum due to the Supplier in respect of Goods which remain the Property of the Supplier the
Supplier may after notice to the Client and during normal working hours enter on the Client’s premises and remove such Goods.
So long as the Goods remain the property of the Supplier the Client shall keep them separate and identifiable.
The Client shall notify the Supplier immediately upon demand by the Supplier of the place or places where the Goods are situated.
The Client shall afford the Supplier access to the Goods during all normal working hours whether they are upon land occupied or owned by the Client or its customers and the Client shall deliver the Goods up to the Supplier at its request and allow the Supplier to remove the same. For this purpose the Client hereby grants an irrevocable right and licence to the Supplier’s servants or agents to enter upon the said land with or without vehicles during normal business hours.
The Goods may not be let sub-let, cross hired, moved to a different location or be used in a manner other than specified without the prior written consent of the Supplier.
13. LIMITATION OF LIABILITY – IN THE CASE OF SALES
Where the Client buys in the course of a business and where the Goods are not manufactured by the Supplier there shall be no warranty or condition express or implied as to quality or fitness for any particular purpose required by the Client.
The Supplier will at the request of the Client use all reasonable efforts to ensure that the benefit of any guarantee or warranty given by any manufacturer or third party to the Supplier benefits the Client.
In any case the Supplier’s liability for any and all direct loss or damage resulting to the Client from defects in the Goods or from any other cause shall be limited to the invoice price of the Goods and the Supplier may in its absolute discretion repair replace the Goods or refund the price.
14. IN THE CASE OF BOTH SALES AND SUPPLY OF SERVICES
The Supplier shall in no circumstances be liable for any special indirect or consequential damages or loss including loss of use or profits. Any provisions set out herein shall not apply in the case of a sale to a person dealing as a consumer insofar as such provision would by virtue of the Unfair Contract Terms Act 1977 be of no effect as against such a person.
All liability (direct or indirect) for any representations whether oral or in writing and all guarantees conditions or warranties whether expressed or implied by statute common law or otherwise is hereby excluded and the Supplier shall not be liable for any loss (including consequential loss) damage or delay or expense of any kind whatsoever and howsoever caused (including by the negligence of the Supplier or its servants or agents) (to the extent allowed by Law) save for any liability pursuant to clause 11 aforesaid.
The Client shall indemnify the Supplier against any liability which the latter may incur (whether as a result of or in connection with court proceedings or under the terms of a bona fide out of court settlement) as a result of a claim against the Supplier in respect of an alleged defect in the Goods and/or Services.
The Client agrees to indemnify the Supplier against all claims relating to the Goods sold/hired to the Client by the Supplier or worked on by the Supplier in respect of any loss damage or expense sustained by any third party.
15. CANCELLATION OF ORDERS
If the Client cancels the Goods/Services tendered in accordance with the Contract the Supplier shall be entitled to payment in full for any loading and haulage used.
If the Contract is cancelled following preparation of the Goods for which the Supplier has a purchase order from the Client, the Supplier would charge 10% of the Contract value.
Should the cancelled Goods have been purchased in, for which a valid purchase order is in place and the Supplier has notified the Client of the need to purchase the Goods to fulfill the Client’s Contract, the Supplier will charge and the Client will pay 100% of the Contract value provided that, the Supplier shall use its best endeavors to limit the Clients losses by finding an alternative third party to hire the Goods that were cancelled.
16. RETURN OF GOODS
The Supplier may at its sole discretion accept or reject the return of any Goods which have been incorrectly ordered. In the event that the Supplier decides to accept the return of such Goods such acceptance is subject to the Supplier reserving the right to charge The Client for the carriage and handling of such Goods.
17. FORCE MAJEURE
The Supplier shall be under no liability (direct or indirect) for any loss (including consequential loss) damage or delay or expenses of any kind whatsoever caused wholly or in part by Act of God outbreak of war civil commotion governmental policies or restrictions or control including restrictions of export or import or other licences trade or industrial disputes of whatever nature whether or not such dispute involves the Supplier its servants or agents or by any other contingency whatsoever which is beyond the control of the Supplier. The Supplier reserves the right to cancel or suspend the whole or any part of the contract where it is prevented from delivering the Goods or completing the Services through any circumstances beyond its reasonable control and the Supplier shall not be liable in any way for any loss or damage arising therefrom whether directly or indirectly.
18. CLIENT’S BANKRUPTCY OR INSOLVENCY (ETC)
If the Client makes a proposal for or enters into a scheme of arrangement or a composition with his or its creditors or fails to comply with a statutory demand for the repayment of a debt within the time therein allowed or if (where the Client is an individual or where the Client is a partnership in the case of any individual partner) an application is made to the court for an interim order for the purpose of a voluntary arrangement or an order is made for the administration of his estate or a bankruptcy petition relating to him is presented to the court or he is adjudged bankrupt or if (where the Client is a company) a petition for an administrative order is presented to the court or the Client passes a resolution or the court makes an order that it shall be wound up (otherwise than for the amalgamation or reconstruction) or a receiver or administrative receiver is appointed over any of the assets or undertaking of the Client or circumstances arise which entitle the court or a creditor to appoint a receiver or administrative receiver or (where the Client is either a company or a partnership) which entitle the court to make a winding-up order or (where the Client is either a company, a partnership or an individual) the Client takes or suffers any similar action in consequence of debt, the Supplier may stop any Goods in transit and suspend further deliveries and may forthwith determine the Contract without prejudice to the continuation of all the Supplier’s rights hereunder and to any existing claims.
19. NON WAIVER OF RIGHTS
The failure by either party to the contract to exercise or enforce any rights conferred by the contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Any notices hereunder shall be in permanent readable form and shall be deemed properly delivered if addressed to the party concerned at its principal place of business or last known address.
Any dispute or difference between the parties in connection with this Contract and in particular with these Terms and Conditions shall be refereed to a single arbitrator (the “Arbitrator”)
a) The Arbitration shall be held in Great Yarmouth
b) The Arbitrator shall be appointed by the parties or, failing agreement, by the Chairman for the time being of the local Chamber of Commerce.
c) The procedure shall be agreed by the parties or, failing agreement, determined by the Arbitrator.
d) If either party fails to comply with any procedural order made by the Arbitrator, the Arbitrator shall have power to proceed in the absence of that party and deliver the award.
e) The Arbitrator shall have regard to the provisions of the Arbitration Act 1996.
22. TERMINATION BY NOTICE
a) If the Hire period has a fixed duration subject to the provisions of the Contract neither the Client nor the supplier shall be entitled to terminate the contract before the expiry of that fixed period unless agreed with the other party
b) If the Hire period does not have a fixed duration either the Client or the Supplier is entitled to terminate the Contract upon giving notice to the other party any agreed period of notice.
c) If no period of notice has been agreed or specified the Client may terminate the Hire period by the physical return of the Goods to the Supplier and the Supplier shall be entitled to terminate the hire of the Goods by giving not less than 14 days notice to the Client.
23. THIRD PARTY RIGHTS
All third party rights are excluded and no third parties shall have any rights to enforce the Contract. This shall not apply to any finance company with whom the Supplier has an outstanding financial agreement relating to the Goods. Such finance company shall, subject to the Supplier’s consent, have the right to enforce this Contract as if they were the Supplier.