TERMS AND CONDITIONS v1.0, March 2019
PLEASE NOTE THAT THESE TERMS ARE USED WITH TRADERS AND WITH CONSUMERS AND IN CERTAIN AREAS DIFFERENT PROVISIONS APPLY TO EACH AS FOLLOWS:
Part A: General Terms applying to Traders and Consumers;
Part B: Terms applying only to Consumers; and
Part C: Terms applying only to Traders.
A "Trader" means a person acting for purposes relating to that person's trade, business, craft or profession, whether acting personally or through another person acting in the trader's name or on the trader's behalf. A "Consumer" means an individual acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession.
Before placing an order, the Hirer should read these Terms carefully as they contain important information about Higher Towers and the Contract.
PART A: GENERAL TERMS APPLYING TO TRADERS AND CONSUMERS
Additional Charges: means charges applicable to the provision of the Equipment which are charged in addition to the Charges including those additional costs and expenses referred to in these Terms.
Charges: means the charges set out in the Contract or if no charges are detailed in the Contract, Higher Towers standard charges for the relevant Equipment in force on the date Higher Towers issues a written acceptance of the Order to the Hirer;
Commencement date: means the date on which the relevant Contract is formed in accordance with clause 3.1.
Contract: means the contract between Higher Towers and the Hirer formed in accordance with clause 3.2
Equipment: means the items of equipment to be hired by the Hirer as listed in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for the equipment
Higher Towers: means Higher Towers Limited (company number 11769809) whose registered office is at 5 Moor Top Road, Kirkheaton, Huddersfield, West Yorkshire, HD5 0PL but whose principal place of business is at Higher Towers of Westminster House, Knutsford Road, Chelford, SK11 9AS;
Hire Period: the period of hire of the Equipment as set out in the Contract, unless the Contract is terminated earlier in accordance with these Terms or extended by agreement between Higher Towers and the Hirer;
Hirer: means the Consumer or Trader set out as such in the Contract;
Order: means the individual orders for the hire of Equipment placed by the Hirer from time to time in accordance with these Terms;
Replacement Cost: means the cost of replacing any item of Equipment or part of it including but not limited to the cost of the item or part of it, any unpaid Charges that would otherwise have been paid by the Hirer were it not for such replacement, and a reasonable administrative charge to be determined by Higher Towers covering the cost to Higher Towers of administering the replacement, the full amount of such cost will be notified to the Hirer prior to formation of the Contract.
Site: means any premises or location at which the Equipment is to be delivered to or collected from or is otherwise located;
Terms: means these terms and conditions.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or 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 shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement; and
1.11 in the event that there is a conflict between Part A, Part B and Part C, Part A shall prevail and then Part B in the case of a Consumer and Part C in the case of a Trader.
2. Information about Higher Towers
2.1 Who is Higher Towers: John Barker, trading as Higher Towers of Westminster House, Knutsford Road, Chelford, SK11 9AS;
2.2 How to contact Higher Towers: If the Hirer has any questions or if the Hirer has any complaints, Higher Towers can be contacted by calling 07411325859, e-mailing Higher Towers at firstname.lastname@example.org, or by post at Westminster House, Knutsford Road, Chelford, SK11 9AS;
2.3 If Higher Towers has to contact the Hirer, Higher Towers will do so by telephone or by writing to the Hirer at the email addresses or postal address the Hirer provides to Higher Towers in the Order.
3. Formation of Contract
3.1 The Hirer’s Order is an offer to hire from Higher Towers. Each Order placed by the Hirer will be an offer by the Hirer to hire the Equipment on these Terms. The Hirer will ensure that each Order is accurate and complete and that the Equipment is suitable for the Hirer’s requirements.
3.2 A Contract will be formed between Higher Towers and the Hirer for the provision of the Equipment set out in the Order, when Higher Towers issues a written acceptance of the Order to the Hirer.
3.3 Higher Towers may not accept your Order. If Higher Towers is unable to accept an Order for any reason, Higher Towers will inform the Hirer of this and will not charge for the Equipment.
3.4 The Contract shall commence on the Commencement Date and shall continue for the Hire Period unless terminated earlier in accordance with these Terms.
3.5 Higher Towers hires Equipment in the UK and Ireland only. Higher Towers website is solely for the promotion of Higher Towers equipment in the UK and Ireland.
4. The Equipment
4.1 The Hirer acknowledges that the Equipment remains at all times the property of Higher Towers (or its supplier as applicable). The Hirer has no right, title or interest in the Equipment except that it is hired to the Hirer in accordance with the terms of the Contract.
4.2 Higher Towers shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Hirer’s quiet possession of the Equipment during any Hire Period.
4.3 The Hirer shall immediately notify Higher Towers of any loss, accident, damage or defect in the Equipment or if the Hirer considers that the Equipment may cause damage to the Hirer’s property.
4.4 The Hirer shall grant (or shall procure that Higher Towers or its authorised representative is granted) access to the Site at all such reasonable times on Higher Towers giving the Hirer reasonable notice to inspect the Equipment and ensure the Hirer’s compliance with its obligations under the Contract; and/or carry out any inspections or repairs of the Equipment.
4.6 The Hirer:
4.6.1 shall keep the Equipment in good repair and condition, (fair wear and tear only excepted) but the Hirer shall not repair or allow any third party to repair the Equipment and shall notify Higher Towers immediately if any repair is necessary;
4.6.2 shall where the Equipment requires fuel, oil and/or electricity, ensure that the proper type of fuel, oil and/or voltage is used;
4.6.3 not sell, licence or create any security interest or type of preferential arrangement on or over the Equipment;
4.6.4 shall use the Equipment in compliance with all laws and applicable regulations including any health and safety legislation which relates to the use of the Equipment and in accordance with any operating and/or safety instructions provided to or supplied to the Hirer by Higher Towers;
4.6.5 shall not make any alteration to the Equipment (including defacing or covering up Higher Towers name plate or mark);
4.6.6 shall not without the prior written consent of Higher Towers, 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;
4.6.7 shall not, without the prior written consent of Higher Towers, part with control of the Equipment;
4.6.8 shall not do or permit to be done anything which could invalidate Higher Towers insurances;
4.6.9 is responsible for the security of the Equipment whilst in the Hirer’s possession; and
4.6.10 will take all appropriate measures to secure the Equipment at the Site, including when not in use.
4.7 Subject to clause 7, the Hirer shall pay Higher Towers:
4.7.1 all costs and expenses in respect of: (i) rectifying any damage to the Equipment (fair wear and tear excepted) which occurred during the period in which the Equipment was at the Hirer’s risk; and (ii) cleaning the Equipment following collection of the Equipment, in each case to return the Equipment to a condition fit for rehire. Such costs and expenses shall be confirmed to the Hirer by Higher Towers, subject to supporting documentation. In addition, the Hirer will continue to pay the Charges until any repairs and or cleaning have been completed; and
4.7.2 the Replacement Cost in respect of lost or stolen Equipment and/or Equipment which is beyond economic repair and the Hirer will continue to pay the Charges, until the Replacement Cost has been received by Higher Towers.
4.8 On expiry or cancellation of the Contract for whatever reason all Equipment at such time in the possession of the Hirer shall immediately become due for return to Higher Towers and unless agreed otherwise in writing, the Hirer will return the Equipment to Higher Towers.
4.9 The Hirer will grant, and will ensure that the owner of any third party premises will grant to Higher Towers, its agents, employees and sub-contractors the right at any time to enter any premises where the Equipment is or may be stored in order to recover the Equipment. The rights granted in this clause 4.9 are without prejudice to any rights and remedies of Higher Towers.
5. Delivery and Collection
5.1 During the order process Higher Towers will let the Hirer know when Higher Towers will provide the Equipment.
5.2 If Higher Towers supply of the Equipment is delayed by an event outside Higher Towers control then Higher Towers will contact the Hirer as soon as possible to let the Hirer know and Higher Towers will take steps to minimise the effect of the delay. Higher Towers will not be liable for delays caused by any event outside Higher Towers control, but if there is a risk of substantial delay the Hirer may contact Higher Towers to end the Contract and receive a refund for any Equipment paid for but not received.
5.3 If the Hirer does not allow or procure Higher Towers access to its property to provide the Equipment as arranged Higher Towers may charge the Hirer additional costs incurred by Higher Towers as a result. If, despite Higher Towers reasonable efforts, Higher Towers is unable to contact the Hirer or re-arrange access to the Hirer’s property Higher Towers may end the contract. It is the Hirer’s responsibility to ensure that the Site has been inspected by the Hirer and that the Site is adequately prepared to allow Higher Towers to access it to effect Delivery in a safe manner without causing damage. The Hirer acknowledges that Higher Towers may effect deliveries or collections in large, heavy commercial vehicles and will hold Higher Towers harmless in the event of any damage caused by lack of Site preparation by the Hirer, to include poor access routes and/or ground conditions. If the Hirer has any concerns around access and safe delivery, this should be raised with Higher Towers staff prior to completing an Order and noted on the Order, failing which Higher Towers shall have no liability for damage to Site or delayed or failed delivery and the Hirer shall be liable for any related charges, including redelivery charges.
5.4 Delivery will occur when the Equipment is made available to the Hirer at the delivery address (whether at Higher Towers premises or a Site). Unless otherwise agreed by the parties in writing, risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on delivery in accordance with this clause and will return to Higher Towers once the Equipment is loaded onto the collection vehicle by the Hirer.
5.5 Higher Towers may need certain information from the Hirer so that Higher Towers can supply the Equipment, for example, delivery details. Higher Towers will contact the Hirer to ask for this information. If the Hirer does not give Higher Towers this information within a reasonable time of Higher Towers asking for it, or if the Hirer gives Higher Towers incomplete or incorrect information, Higher Towers may either end the Contract or make an additional charge of a reasonable sum to compensate Higher Towers for any extra work that is required as a result. Higher Towers will not be responsible for supplying the Equipment late or not supplying any part of it if this is caused by the Hirer not giving Higher Towers the information Higher Towers needs within a reasonable time of Higher Towers asking for it.
5.6 The Hirer shall grant or procure the grant of access to the Site to Higher Towers to allow the collection of the Equipment and make the Equipment available for collection by Higher Towers on the date and time agreed between the parties. If Higher Towers is unable to collect the Equipment as arranged Higher Towers may charge the Hirer any additional costs incurred by Higher Towers as a result.
5.7 When a Hirer wishes to collect or return Equipment from or to Higher Towers place of business, it shall be the Hirer’s responsibility to prepare its vehicle so that the collection/return can be carried out without damage being caused to such vehicle or injuries being sustained by the Hirer or by Higher Towers staff and the Hirer shall hold Higher Towers harmless in the event of contravention of this. Should the Hirer have any doubt as to whether this can be complied with, it should ask Higher Towers to arrange a collection/delivery, subject to Charges (as applicable).
6. Charges and Payment
6.1 The Charges will be the price indicated on the order pages (or otherwise notified to the Hirer) when the Hirer places the Order.
6.2 Higher Towers will be entitled to vary the Charges and any Additional Charges at any time by giving written notice to the Hirer to reflect any variation in the cost of supplying the Equipment which arises as a consequence of:
6.2.1 any variation in the Hirer’s requirements for the Equipment;
6.2.2 any information provided by the Hirer being inaccurate or incomplete; or
6.2.3 any failure or delay by the Hirer in providing information.
6.3 At the time the Equipment is ordered, Higher Towers may require the Hirer to pay a deposit and/or require the Hirer to provide details of a valid credit or debit card and allow Higher Towers to take a deposit (“Deposit”).
6.4 The Deposit shall be a deposit against default by the Hirer of payment of any Charges or any loss of or damage caused to the Equipment.
6.5 Higher Towers may off-set the Deposit against amounts owed by the Hirer to Higher Towers. If the Hirer fails without due cause to make any payment of the Charges or any Replacement Cost or causes any loss or damage to the Equipment (in whole or in part), Higher Towers shall be entitled to apply the Deposit against such default, loss, Replacement Cost or damage.
6.6 Unless Higher Towers is entitled to make a deduction from the Deposit in accordance with clause
6.5, the full amount of the Deposit will be returned to the Hirer at the end of the Hire Period.
6.7 The Hirer must pay the Charges at the time agreed in the Contact. Unless otherwise agreed by the parties in writing or in the Contract, any invoices submitted by Higher Towers shall be paid by the Hirer within a period of thirty (30) days from the end of the month in which the relevant invoice is issued.
6.8 Higher Towers can charge interest if the Hirer pays late.
6.10 Should any portion of an account fall overdue then the total account will become due on demand. The Hirer will be responsible for reasonable legal charges incurred by Higher Towers in the recovery of amounts due or the recovery of the Equipment. In addition Higher Towers is entitled to suspend further services to the Hirer.
7.1 Higher Towers amends these Terms from time to time. Every time a Hirer orders Equipment from us, the terms in force at the time of the Order will apply to the Contract between the Hirer and Higher Towers.
7.2 Higher Towers may revise these Terms as they apply to an Order from time to time to reflect the following circumstances:
8.2.1 changes in relevant laws and regulatory requirement; and
8.2.2 changes to Higher Towers processes and procedures.
7.3 If Higher Towers have to revise these Terms as they apply to an Order, Higher Towers will contact the Hirer to give the Hirer reasonable advance notice of the changes and let the Hirer know how to cancel the Contract if the Hirer is not happy with the changes. The Hirer may cancel either in respect of all the affected Equipment or just any Equipment the Hirer has yet to receive. If the Hirer opts to cancel, Higher Towers will have to return (at Higher Towers cost) any relevant Equipment already received and Higher Towers will arrange a full refund of the price paid by the Hirer.
8. Use of Personal Information
8.1 Higher Towers is the data controller of any personal information a Hirer provides to us. Higher Towers will collect and process such information in order to process and fulfil an Order.
8.3 If the Hirer is providing personal data of another individual to Higher Towers, the Hirer must tell that individual that the Hirer is providing their information to Higher Towers and show them a copy of this notice.
9.1 If Higher Towers fails to insist that the Hirer performs any of its obligations under a Contract or if Higher Towers does not enforce its rights against the Hirer, or if Higher Towers delays doing so, that will not mean that Higher Towers has agreed not to enforce its rights against the Hirer and will not mean that the Hirer does not have to comply with those obligations. If Higher Towers does waive a default by the Hirer, Higher Towers will only do so in writing, and that will not mean that Higher Towers will automatically waive any later default by the Hirer.
9.2 Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any term is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
9.3 The parties do not intend that any term of a Contract shall be enforceable by any person other than the parties.
9.4 The Contract is personal to the Hirer and the Hirer shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of Higher Towers.
10. Governing Law and Jurisdiction
10.1 These Terms and any and all Contracts and any non-contractual obligations arising out of or in connection with them will be governed by English law.
10.2 Higher Towers and the Hirer both agree that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with these Terms and any and all Contracts (including in relation to any non-contractual obligations), except if the Hirer is a Consumer and a resident of Northern Ireland the Hirer may also bring proceedings in Northern Ireland, and if the Hirer is a Consumer and a resident of Scotland, the Hirer may also bring proceedings in Scotland.
PART B: TERMS APPLYING ONLY TO CONSUMERS
11.1 If Higher Towers fails to comply with the Contract, Higher Towers is responsible for loss or damage the Hirer suffers that is a foreseeable result of Higher Towers breaking the Contract or failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both the Hirer and Higher Towers knew it might happen, for example, if Higher Towers and the Hirer discussed it during the sales process.
12.2 Higher Towers does not exclude or limit in any way Higher Towers liability where it would be unlawful to do so. This includes liability for:
12.2.1 death or personal injury caused by Higher Towers negligence or the negligence of Higher Towers employees, agents or subcontractors;
12.2.2 for fraud or fraudulent misrepresentation;
12.2.3 for breach of the Hirer’s legal rights in relation to the Equipment including the right to receive Equipment; and
12.2.4 for any matter for which Higher Towers is not permitted by law to exclude or limit, or to attempt to exclude or limit, liability.
12.3 Higher Towers is not liable for business losses. Higher Towers only supply the Equipment for domestic and private use. If the Hirer uses the Equipment for any commercial, business or re-sale purpose Higher Towers will have no liability to the Hirer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
12.4 AS A CONSUMER, THE HIRER HAS LEGAL RIGHTS AND REMEDIES IN RELATION TO THE PROVISION OF THE EQUIPMENT. ADVICE ABOUT THE HIRER’S LEGAL RIGHTS AND REMEDIES IS AVAILABLE FROM THE CITIZENS' ADVICE BUREAU. NOTHING IN THESE TERMS WILL AFFECT THE HIRER’S LEGAL RIGHTS AND REMEDIES. 13. Hirer’s rights to end the Contract
13.1 Ending the Contract because of something Higher Towers has done or are going to do. If the Hirer is ending a Contract for a reason set out at clause
13.1.1 to 13.1.5 below the Hirer may end the Contract immediately and Higher Towers will refund the Hirer in full for any Equipment which has not been provided. The reasons are:
13.1.1 Higher Towers has told the Hirer about an upcoming change to these Terms which the Hirer does not agree to;
13.1.2 Higher Towers has told the Hirer about an error in the price or description of the Equipment ordered and the Hirer does not wish to proceed;
13.1.3 there is a risk that supply of the Equipment may be significantly delayed because of events outside of Higher Towers control;
13.1.4 Higher Towers has suspended supply of the Equipment for technical reasons, or notify the Hirer that it is going to suspend it for technical reasons; or
13.1.5 the Hirer has a legal right to end the contract because of something Higher Towers has done wrong.
14. How to end the contract with Higher Towers
14.1 To exercise the right to cancel, the Hirer must inform Higher Towers by a clear statement (e.g. a letter sent by post or e-mail), using the information above under “How to contact Higher Towers” in clause 2.2.
14.2 If the Hirer ends the Contract for any reason after Equipment has been dispatched or delivered to the Hirer, the Hirer must return them to Higher Towers or allow Higher Towers to collect them. Please call Higher Towers using the information above under “How to contact Higher Towers” in clause 2.2.
14.3 Higher Towers may pay the costs of return subject to Higher Towers being satisfied, acting reasonably, that
14.3.1 the Equipment is faulty or misdescribed; or
14.3.2 the Hirer is ending the Contract because Higher Towers told the Hirer of an upcoming change to the Equipment or these Terms, an error in pricing or description, a delay in delivery due to events outside Higher Towers control or because the Hirer has a legal right to do so as a result of something Higher Towers has done wrong. In all other circumstances, the Hirer must pay the costs of return.
14.4 If the Hirer is responsible for the costs of return and Higher Towers is collecting the Equipment from the Hirer, Higher Towers will charge the Hirer the direct cost to Higher Towers of collection.
14.5 Higher Towers will refund the Hirer the price the Hirer paid for hiring the Equipment including delivery costs, by the method the Hirer used for payment. Higher Towers will make any refunds due to the Hirer as soon as possible.
15. Higher Towers rights to end the Contract
15.1 Higher Towers may end the Contract at any time by writing to the Hirer if:
15.1.1 the Hirer does not, within a reasonable time of us asking for it, provide Higher Towers with information that is necessary for Higher Towers to provide the Equipment;
15.1.2 the Hirer does not, within a reasonable time, allow Higher Towers to deliver the Equipment to the Hirer or the Hirer does not collect them from Higher Towers; or
15.1.3 the Hirer otherwise breaks these Terms.
15.2 If Higher Towers ends the Contract in the situations set out in clause 15.1, Higher Towers will refund any money the Hirer has paid in advance for the Equipment Higher Towers has not provided but Higher Towers may deduct or charge the Hirer reasonable compensation for the net costs Higher Towers will incur as a result of the Hirer breaking the Contract.
16. Late Payment
16.1 If the Hirer does not make any payment to Higher Towers by the due date, Higher Towers may charge interest to the Hirer on the overdue amount at the rate of 4% per annum above the base lending rate from time to time of Barclays Bank plc. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Hirer must pay Higher Towers interest together with any overdue amount.
17. Equipment problems
17.1 If the Hirer has any questions or complaints about the Equipment, please contact Higher Towers by telephone or email using the relevant information above under “How to contact Higher Towers” at clause 2.2. PART C: TERMS APPLYING ONLY TO TRADERS
18. Formation of Contracts
18.1 Each Contract will be subject to these Terms to the exclusion of all other terms and conditions, including any terms or conditions which the Hirer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
19.1 Higher Towers shall have no liability to the Hirer for damage to the Hirer’s property if the Hirer fails to comply with clause 4.3.
19.2 If the Hirer without the prior written consent of Higher Towers, parts with control of the Equipment, the Hirer shall, immediately upon Higher Towers request procure the return of the Equipment to the Hirer. If the Equipment is not returned to the Hirer within 5 days of Higher Towers request, the Equipment shall be deemed to be lost and the Hirer shall be responsible for the replacement of the Equipment and the Charges and any Additional Charges will continue to apply until settlement is made to the satisfaction of Higher Towers.
19.3 Higher Towers shall:
19.3.1 during each Hire Period, ensure that the Equipment shall be of satisfactory quality, comply with any description provided by the Hirer and shall be fit for its intended purpose; and
19.3.2 on the Commencement Date, ensure that the Equipment shall comply with all applicable laws and statutory regulations and any reasonable instructions and guidelines issued by the Hirer at the time of hire, including health, safety and security standards.
19.4 What to do if the Equipment fails to comply with the Contract. If, at any time during the Hire Period, the Hirer becomes aware of a breach of clause 19.3 the Hirer shall give written notice of the breach to Higher Towers as soon as reasonably possible once the Hirer has become aware of the breach.
19.5 Remedies if the Equipment fails to comply with the Contract. Following receipt of written notice under clause 19.4 Higher Towers will:
19.5.1 repair the Equipment;
19.5.2 replace the Equipment with equipment of an equivalent or similar specification; or
19.5.3 reduce the Charges of the relevant Equipment by a sum which is fair in the circumstance.
These are the Hirer’s only remedy for a breach of clause 19.3.
19.6 Higher Towers shall not be responsible to the Hirer for any breach of clause 19.3 and shall not be required to repair or replace the Equipment in accordance with clause 19.5 if:
19.6.1 the breach arose directly as a result of any act or omission of the Hirer; and/or
19.6.2 the breach was caused by or contributed to as a result of the misuse, neglect, alteration, mishandling or unauthorised manipulation of the Equipment. In such circumstances, and without prejudice to its other rights including those in clause 4.7, Higher Towers shall be entitled to charge the Hirer for attending Site to repair or replace Equipment.
20.1 The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the Site where the Equipment is to be delivered. Acceptance of delivery of the Equipment by such representative shall constitute conclusive evidence that the Hirer has accepted such delivery.
20.2 Time of delivery of the Equipment and/or performance of the Contract will not be of the essence.
20.3 If the Equipment is unavailable for inspection or collection within 5 days of the scheduled date for inspection or collection as agreed between Higher Towers and the Hirer, the Equipment shall be deemed to be lost and the Hirer shall be responsible for the replacement of the Equipment as set out in clause 4.7 and the Charges and any Additional Charges will continue to apply until settlement is made to the satisfaction of Higher Towers.
20.4 If Higher Towers delivers a quantity of the Equipment less than the quantity specified in the Order, the Hirer shall agree the shortages with Higher Towers and note the same on the delivery document. The Hirer may elect to:
20.4.1 refuse to take delivery of or reject the Equipment and the Hirer shall have liability for the cost of delivery only; or
20.4.2 take delivery of and keep the lesser quantity of Equipment or any part thereof and pay for them at the rate specified in the Order
subject to a pro-rata reduction in the relevant Charges.
20.5 If Higher Towers delivers a quantity of Equipment greater than the quantity specified in the Order, the Hirer may elect to:
20.5.1 accept and pay for all the Equipment delivered at the Charges; or
20.5.2 accept and pay for the quantity specified in the Order and reject the excess.
21. Higher Towers liability
21.1 Neither party excludes or limits its liability, if any, to the other party for:
21.1.1 death or personal injury resulting from its negligence or by the negligence of a person for whom it is vicariously liable;
21.1.2 any breach of its obligations implied by section 2 of the Supply of Goods and Services Act 1982;
21.1.3 for its fraud or fraudulent misrepresentation or the fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; or
21.1.4 any matter which it would be illegal for it to exclude or to attempt to exclude its liability.
21.2 Tangible property liability. Subject to clauses 21.1 and 21.4, Higher Towers maximum aggregate liability to the Hirer for loss of or damage to tangible property caused by its negligence or act or omission shall be limited to one million (£1,000,000).
21.3 Higher Towers aggregate liability. Subject to clause 21.1 and 21.4, Higher Towers maximum aggregate liability to the Hirer arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of Higher Towers obligations under the Contract but excluding any liability which falls within clause 21.1, shall be limited in respect of each Contract, to the Charges and other sums paid or payable in respect of that Contract as specified in the Order.
21.4 Subject to clause 21.1, neither party shall have any liability to the other party for any:
21.4.1 loss of profit (direct or indirect);
21.4.2 loss of revenue, loss of production or loss of business (in each case whether direct or indirect);
21.4.3 loss of goodwill, loss of reputation, loss of opportunity and/or loss of operation (in each case whether direct or indirect);
21.4.4 loss of anticipated saving or loss of margin (in each case whether direct or indirect);
21.4.5 liability of the other party to third parties (whether direct or indirect); or
21.4.6 indirect, consequential or special loss, arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of that party’s obligations under the Contract and/or any defect in or breakdown of the Equipment or the Equipment’s unsuitability for the Hirer’s intended purpose.
21.5 Clause 21.4 shall not limit or exclude Higher Towers ability to claim against the Hirer in respect of:
21.5.1 any loss of or damage to Equipment subject to any Damage Waiver or Damage Waiver Plus applying;
21.5.2 the ability to recover the Charges applicable for any remaining Hire Period on early termination of any Contract as set out in these Terms; and/or
21.5.3 costs and expenses in respect of recovery of the Equipment as set out in these Terms.
21.6 The Contract set out the full extent of Higher Towers obligations and liabilities in respect of the Equipment including the hire of Equipment to the Hirer. 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 Hirer except as specifically stated in the Contract. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within the Contract, whether by statute, common law or otherwise, is expressly excluded.
22.1 Either party may, immediately on giving written notice to the other party, terminate the Contract and/or the relevant Contract without payment of compensation if the other party:
22.1.1 commits a material breach of the Contract which is incapable of remedy;
22.1.2 commits a material breach of the Contract which can be remedied but fails to remedy that breach within seven (7) days of a written notice setting out the breach and requiring it to be remedied being given by the other party; and/or
22.1.3 becomes Insolvent and each party shall notify the other party immediately upon becoming Insolvent.
22.2 Either party may terminate the Contract on giving the other party not less than five (5) days’ notice in writing.
22.2 Higher Towers may terminate the Contract immediately on giving written notice to the other party if:
22.2.1 the Equipment is lost, stolen, seized, confiscated or in Higher Towers reasonable opinion or the opinion of its insurer(s), damaged beyond repair;
22.2.2 the Hirer fails to pay any of Higher Towers invoices within thirty (30) days from the due date for payment; or
22.2.3 the Hirer (or its associated persons, agents or subcontractors) is shown not to be running its business in accordance with applicable law and regulations and with high levels of governance and ethical standards or cannot evidence such standards by way of appropriate policies and controls (or otherwise) to Higher Towers reasonable satisfaction, including but not limited to compliance with the Bribery Act 2010, the Modern Slavery Act 2015, the Criminal Finances Act 2017 (anti-facilitation of tax evasion) and the General Data Protection Regulation.
22.2 The termination of the Contract (or any part of it) shall be without prejudice to the rights and remedies of either party which may have accrued up to the date on which the Contract expires or is cancelled for whatever reason.
22.2 Upon the termination or expiry of the Contract, howsoever caused, without prejudice to any other rights or remedies of Higher Towers:
22.2.1 Higher Towers shall be entitled to invoice all Charges and Additional Charges incurred which have not yet been invoiced;
22.2.2 the Hirer shall pay on demand all Charges and Additional Charges which are due but are unpaid at the date of demand, together with any interest accrued; and
22.2.3 the Hirer shall pay on demand all costs and expenses incurred by Higher Towers in recovering the Equipment and/or in collecting any sum due under the Contract (including any storage, transport, insurance, repair, legal and remarketing costs).
22.3 Without prejudice to the remainder of these Terms, on the termination or expiry of any Contract Higher Towers consent to the Hirer’s possession of the Equipment shall terminate and Higher Towers may take possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located.
22.4 “Insolvent” means where a person ceases to trade, is unable to pay its debts as they fall due or where a person becomes, or is likely to become, insolvent or bankrupt including where a person has a receiver, administrative receiver, administrator or provisional liquidator appointed; is subject to a notice of intention to appoint an administrator; passes a resolution for its winding-up has a winding up order made by a court in respect of it; enters into any composition or arrangement with creditors (save in respect of a solvent restructuring) or has any steps or actions taken in connection with any of these procedures in any jurisdiction.
23. Intellectual Property Rights
23.1 No right of licence is granted to the Hirer in respect of any intellectual and industrial property rights whether registered or unregistered (including know how and rights to prevent passing off) in the United Kingdom and all other countries in the world and together with all applications, renewals and extensions of the same of Higher Towers, except the right to use the Equipment in the Hirer’s ordinary course of business for the purpose for which they were supplied.
23. Third party rights
23.1 This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. 24. Confidentiality
24.1 Use of Confidential Information. Each party will keep secret and confidential all confidential information concerning the business, affairs, customers, clients or suppliers of the other party which is disclosed or obtained in connection with the Contract and/or any Contract and shall not use nor disclose the same save for the purposes of the Contract or with the prior written consent of the relevant party. Where disclosure is made to any employee, consultant, sub-contractor or agent, who needs to know the confidential information for the purposes of the Contract and/or any Contract it shall be done subject to the obligations set out in the Contract and each party shall procure that any such employee, consultant, sub-contractor or agent complies with such obligations.
24.2 Exceptions to obligations of confidentiality. The obligations of confidentiality in this clause shall not extend to any matter which:
24.2.1 is in or enters the public domain other than as a result of a breach of the obligations of confidentiality under the Contract; or
24.2.2 is independently disclosed by a third party entitled to disclose the same; or
24.4.3 is required to be disclosed under any applicable law, or by order of a court, governmental body or authority of competent jurisdiction.
25.1 Method and Address for notices. Any notices sent under the Contract must be in writing, delivered by hand or sent by pre-paid first class post or recorded delivery to the parties at their registered addresses. Any notice or communication given in accordance with clause
25.1 shall be deemed to have been served:
25.1.1 if delivered by hand, at the time of delivery; or
25.1.2 if sent by pre-paid first class post or recorded delivery at 9.00 a.m. on the second Business Day after the date of posting.
25.2 This clause 25 shall not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
26.1 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
26.1.1 neither party has entered into the Contract in reliance upon, and it shall have no remedy in respect of, any representation or statement which is not expressly set out in the Contract; and
26.1.2 nothing in this clause
26.1 shall be interpreted or construed as limiting or excluding the liability of either party for fraud or fraudulent misrepresentation.
26.2 Nothing in the Contract and no action taken by the parties in connection with it or them shall create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
26.3 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.