1 INTERPRETATION
In these conditions the following words have the following meanings:
“Contract” means a contract which incorporates these conditions and made between you and us for the hire of Hire Goods;
“Deposit” means any advance payment required by us in relation to the Hire Goods which is to be held by us as security;
“Hire Goods” means any walls, plants, troughs, structures, cladding and signage specified in a Contract which are hired to you;
“Hire Period” means the period commencing when you hold the Hire Goods on hire (including Saturdays Sundays and Bank Holidays) and ending upon the collection of Hire Goods by us;
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
“Rental” means our charging rate for the hire of the Hire Goods which is current from time to time during the Hire Period;
“Services” means the services and/or work (if any) to be performed by us for you in conjunction with the hire of Hire Goods including any delivery, installation, de-installation and/or collection.
“Waiver” means the waiver cover for accidental damage of loss to the Hire Goods supplied by us to you at an additional Rental and subject to the exclusions and full Waiver terms and conditions of the Jungle living Walls Ltd currently in force;
“We” or “us” means any company member of Jungle Living Walls Ltd, as specified in the Contract and will include its employees, team members, agents and/or duly authorised representatives;
“You” means the person, firm, company or other organisation hiring Hire Goods, and “your” shall be construed accordingly;
2 BASIS OF CONTRACT
This Contract is not a consumer hire agreement as defined by Article 60N of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. You will not have the benefit of the protection and remedies that would be available to you under the Financial Services and Markets Act 2000 or under the Consumer Credit Act 1974 if this Contract were a regulated agreement under those Acts. If you are in any doubt as to the consequences of this Contract not being regulated by the Financial Services and Markets Act 2000 or the Consumer Credit Act 1974 then you should seek independent legal advice.
Nothing in this Contract shall exclude or limit any of your statutory rights to the extent they may not be excluded or limited because you are acting as a consumer. Where you are acting as a consumer any provision which is marked with an asterisk (*) may, subject to determination by the Courts or any applicable legislation, have no force or effect and if any provision is under the applicable law of the Contract unenforceable in whole or in part or shall have no force or effect the Contract shall be deemed not to include such provisions but this shall not affect the enforceability of the remainder of the Contract. For further information about your statutory rights contact your local authority Trading Standards Department or Citizens Advice Bureau.
3 PAYMENT
The current amount of any Deposit, Rental and/or charges for any Services shall be as quoted to you and will be valid for 7 days unless otherwise stated. Where a Deposit is required, it must be paid in advance of you hiring the Hire Goods. We may also require a final payment on account of the Rental in advance of you hiring the Hire Goods.
You shall pay to us the Rental, charges for any Services, and/or any other sums payable under the Contract at the time and in the manner agreed, otherwise we reserve the rights to cancel the hire contract.
Our prices are, unless otherwise stated, exclusive of any applicable VAT which you shall also be liable to pay.
Payments by you on time are an essential condition of the Contract. Payment shall not be deemed to be made until we have received either cash or cleared funds in respect of the full amount outstanding.
*If you fail to make any payment in full on the due date we may charge you interest (both before and after judgement) on the amount unpaid at the rate implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4% above the base rate from time to time of the Bank of England whichever is higher. This interest shall be compounded with quarterly rests.
If you fail to make any payment in full on the due date we reserve the right to withhold the Hire Goods until this has cleared in full. If this incurs extra costs you will be liable for this.
*You shall pay all sums due to us without any set-off, deduction, counterclaim and/or any other withholding of monies.
We may set a reasonable credit limit for you. We reserve the right to terminate or suspend the Contract if allowing it to continue would result in you exceeding your credit limit or the credit limit is already exceeded.
If we are unable to deliver (install) the Hire Goods, or the hire contract is terminated for any reason listed in our terms and conditions, we reserve the right to withhold the full upfront deposit to cover costs, unless otherwise agreed. If full payment has been made, the remaining balance will be returned to you.
4 RISK OWNERSHIP AND INSURANCE
Risk in the Hire Goods will pass immediately to you when they leave our physical possession or control.
Risk in the Hire Goods will not pass back to us until they are back in our physical possession. This shall apply even if we have agreed to cease charging the Rental.
Ownership of the Hire Goods remains with us at all times. You have no right, title or interest in the Hire Goods except that they are hired to you.
You must not deal with the ownership or any interest in the Hire Goods. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending.
We may provide our Waiver in respect of the Hire Goods at additional Rental. Alternatively you may arrange your own insurance of the Hire Goods on such reasonable terms and for such reasonable risks as we may specify. The proceeds of any such insurance shall be held by you in trust for us and be paid to us on demand. You must not compromise any claim in respect of the Hire Goods and/or any associated insurance without our written consent. We reserve the right to decline the Hire in the event that neither a Waiver, for the hire goods nor suitable insurance is in place.
We reserve the right to decline the Hire in the event that there is an inappropriate climate for the hire goods, which include: exposure to inappropriate weather conditions: Excessive heat, wind, cold, rain.
We reserve the right to decline the Hire in the event that the Hire Goods are to be positioned in a situation that is deemed to be unstable or dangerous, posing a risk to the public, to you or us.
We reserve the right to decline the Hire in the event that the Hire Goods are left unattended for long periods of time.
5 DELIVERY, COLLECTION AND SERVICES
Where we provide Services the persons performing the Services are deemed to be your servants or agents and they are under your direction and control. You shall be solely responsible for any instruction, guidance and/or advice given by you to any such person and for any damage which occurs as a result of such person following your instructions, guidance and/or advice except to the extent that such person is negligent.
You will allow and/or procure sufficient access to and from the relevant site and sufficient unloading space, facilities, equipment and access to power supplies and utilities for our employees, sub-contractors and/or agents to allow them to carry out the Services. You will ensure that the site where the Services are to be performed is, where necessary, cleared, level and prepared before the Services are due to commence. Where we agree to collect the Hire Goods you will, at the end of the Hire Period, ensure that the Hire Goods are left in a safe and accessible location for collection.
We reserve the right to refuse to deliver or collect Hire Goods if we deem them to be delivered (erected) or collected in an unsafe and/or inaccessible location
If any Services are delayed, postponed and/or cancelled due to you failing to comply with your obligations you will be liable to pay our additional standard charges at a rate of £45/ hour / member of our team. If we have to cancel the delivery or collection or leave site and return this will incur extra charges accordingly.
6 DEFAULT
6.1 If you:-
6.1.1 fail to make any payment to us when due without just cause;
6.1.2 breach the terms of the Contract and, where the breach is capable of remedy, have not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
6.1.3 persistently breach the terms of the Contract;
6.1.4 provide incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
6.1.5 pledge, charge or create any form of security over any Hire Goods, or cease or threaten to cease to carry on business, or propose to compound with your creditors, create a trust deed for your creditors, apply for an interim moratorium in respect of claims and/or proceedings, any distress/diligence, execution or other legal process is levied on any of your property, have a Bankruptcy Petition/Petition for Sequestration presented against you or you take or suffer any similar action in any jurisdiction;
6.1.6 alter, move or adjust any Hire Goods
6.1.7 being a company, cease or threaten to cease to carry on business, enter into voluntary or compulsory liquidation, have a receiver, administrator or administrative receiver or in the Republic of Ireland an examiner appointed over all or any of your assets, any attachment order/arrestment is made against you, any distress, execution or other legal process is levied on any of your property or you take or suffer any similar action in any jurisdiction;
6.1.8 appear reasonably to us due to your credit rating to be financially inadequate to meet your obligations under the Contract; and/or
6.1.9 appear reasonably to us to be about to suffer any of the above events;
then we shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 6.2 below.
6.2 If any of the events set out in clause 6.1 above occurs in relation to you then:-
6.2.1 except where you are acting as a consumer we may enter, without prior notice, any of your premises (or premises of third parties with their consent) where Hire Goods may be and repossess any Hire Goods;
6.2.2 we may withhold the performance of any Services and cease any Services in progress under this and/or any other Contract with you;
6.2.3 we may immediately cancel, terminate and/or suspend without Liability to you the Contract and/or any other contract with you; and/or
6.2.4 *all monies owed by you to us shall immediately become due and payable.
6.3 Any repossession of the Hire Goods shall not affect our right to recover from you any monies due under the Contract and/or any damages in respect of any breach which occurred prior to repossession of the Hire Goods.
6.4 Upon termination of the Contract you shall immediately:
6.4.1 return the Hire Goods to us or make the Hire Goods available for collection by us as requested by us; and
6.4.2 pay to us all arrears for Rentals, charges for any Services, and/or any other sums payable under the Contract.
7 LIMITATIONS OF LIABILITY
*If we are found to be liable in respect of any loss or damage to your property the extent of our Liability will be limited to the retail cost of replacement of the damaged property.
Any defective Hire Goods must be reported to us for inspection if requested by us before we will have any Liability for defective Hire Goods.
*We shall have no Liability to you if, without just cause, any monies due in respect of the Hire Goods and/or the Services has not been paid in full by the due date for payment.
You shall give us a reasonable opportunity to remedy any matter for which we are liable before you incur any costs and/or expenses in remedying the matter. If you do not do so we shall have no Liability to you.
We shall have no Liability to you to the extent that you are covered by any policy of insurance arranged as a result of the Contract and you shall ensure that your insurers waive any and all rights of subrogation they may have against us.
We shall have no Liability to you for any of the following losses (whether direct or indirect):-
*consequential losses (including loss of profits and/or damage to goodwill);
economic and/or other similar losses;
special damages and indirect losses; and/or
business interruption, loss of business, contracts and/or opportunity.
*Our total Liability to you under and/or arising out of any Contract shall not exceed 5 times the amount of the Rental and charges for Services (if any) under that Contract. To the extent that any Liability of us to you would be met by any insurance held by us then our Liability shall be extended to the extent that such Liability is met by such insurance.
Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for:
Liability for breach of contract