1.1 In these conditions the following words have the following meanings:
“Consumer” an individual acting for purposes which are
wholly or mainly outside that individual’s trade, business, craft or
profession;
“Contract” means a contract which incorporates these
conditions and made between the Customer and the Supplier for the hire or
sale of Goods;
“Customer” means the person, firm, company or other
organisation hiring Hire Goods or purchasing Sale Goods;
“Deposit” means any advance payment required by the
Supplier in relation to the Hire Goods which is to be held as security by
the Supplier;
“Digital Content”
means data which is produced and supplied in digital form;
“Force Majeure” means any event outside a party’s
reasonable control including but not limited to acts of God, war, flood,
fire, labour disputes, strikes, sub-contractors, lock-outs, riots, civil
commotion, malicious damage, explosion, terrorism, governmental actions and
any other similar events;
“Goods” means any machine, article, tool, and/or device
together with any accessories specified in a Contract which are hired or
sold to the Customer;
“Hire Goods” means any Goods which are hired to the
Customer;
“Hire Period” means the period commencing when the
Customer holds the Hire Goods on hire (including Saturdays Sundays and Bank
Holidays) and ending upon the happening of any of the following events:
(i) the physical return of the Hire Goods by the Customer into the
Supplier’s possession; or
(ii) the physical repossession or collection of Hire Goods by the Supplier;
“Liability” means liability for any and all damages,
claims, proceedings, actions, awards, expenses, costs and any other losses
and/or liabilities;
“Rental” means the Supplier’s charging rate for the hire
of the Hire Goods which is current from time to time during the Hire
Period;
“Sale Goods” means any Goods which are sold to the
Customer;
“Supplier” means Wild Tipi Ltd at the address stated at
the end of these terms and will include its employees, servants, agents
and/or duly authorised representatives;
“Services” means the services and/or work (if any) to be
performed by the Supplier for the Customer in conjunction with the hire or
sale of Goods including any delivery and/or collection service in respect
of the Goods.
2.1 Goods are hired or sold subject to them being available for hire or
sale to the Customer at the time required by the Customer. The Supplier
will not be liable for any loss suffered by the Customer as a result of the
Goods being unavailable for hire or sale where the Goods are unavailable
due to circumstances beyond the Supplier’s control.
2.2 Where hire of the Hire Goods is to a Customer who is an individual,
unincorporated entity or a two (2) or three (3) partner business, and the
hire would be covered by the Consumer Credit Act 1974, the duration of the
Hire Period shall not exceed 3 months, after which time the Contract shall
be deemed to have automatically terminated. Accordingly the hire of any
Hire Goods is not covered by the Consumer Credit Act 1974. In such
circumstances, the Customer shall return the Hire Goods to the Supplier on
the final day of the 3 month Hire Period. If the Customer fails to do this
then it shall be liable for any financial loss which this causes the
Supplier.
2.3 Nothing in this Contract shall exclude or limit any statutory rights of
the Customer which may not be excluded or limited due to the Customer
acting as a Consumer. Where the Customer is 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
effect 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 or if based in the
Republic of Ireland your local office of the Director of Consumer Affairs
or Citizens Information Centre.
3.1 Where the Customer deals as a Consumer, the Supplier is under a legal
duty to supply Goods, Digital Content and Services that are in conformity
with the contract between the parties. In such circumstances, the Customer
has legal rights in relation to Goods and Digital Content that are, for
example, faulty or not as described and in relation to Services that are,
for example, not carried out with reasonable skill and care, or if the
materials used to carry out the Services are faulty or not as described.
3.2 Advice about Customers’ legal rights where they deal as a Consumer is
available from their local Citizens’ Advice Bureau or Trading Standards
office. Nothing in these conditions will affect these legal rights.
4.1 The amount of any Deposit, Rental, monies for Sale Goods and/or charges
for any Services shall be as quoted to the Customer or otherwise as shown
in the Supplier’s current price list from time to time. Where a Deposit is
required for the Hire Goods it must be paid in advance of the Customer
hiring the Hire Goods. The Supplier may also require an initial payment on
account of the Rental in advance of the Customer hiring the Hire Goods.
4.2 T
he Customer shall pay the Deposit, Rental, charges for any Services, monies
for any Sale Goods and/or any other sums payable under the Contract to the
Supplier at the time and in the manner agreed. The Supplier’s prices are,
unless otherwise stated, exclusive of any applicable VAT for which the
Customer shall additionally be liable.
4.3 Payment by the Customer on time under the Contract is an essential
condition of the Contract. Payment shall not be deemed to be made until the
Supplier has received either cash or cleared funds in respect of the full
amount outstanding.
4.4 *
If the Customer fails to make any payment in full on the due date the
Supplier may charge the Customer interest (both before and after
judgment/decree) 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 Supplier’s
bank whichever is higher.
4.5 *
The Customer shall pay all sums due to the Supplier under this Contract
without any set-off, deduction, counterclaim and/or any other withholding
of monies.
4.6 The Supplier may set a reasonable credit limit for the Customer. The
Supplier reserves the right to terminate or suspend the Contract for hire
of the Hire Goods and/or the provision of Services if allowing it to
continue would result in the Customer exceeding its credit limit or the
credit limit is already exceeded.
4.7 The Supplier reserves the right to store the Customer’s credit card
details on its password protected customer account system and further
reserves the right to use such details against future Rentals made by the
Customer.
5.1 Risk in the Goods will pass immediately to the Customer when they leave
the physical possession or control of the Supplier.
5.2 R
isk in the Hire Goods will not pass back to the Supplier from the Customer
until the Hire Goods are back in the physical possession of the Supplier.
This shall apply even if the Supplier has agreed to cease charging the
Rental.
5.3 Ownership of the Hire Goods remains at all times with the Supplier. The
Customer has no right, title or interest in the Hire Goods except that they
are hired to the Customer. Ownership of any Sale Goods remains with the
Supplier until all monies payable to the Supplier by the Customer for the
Sale Goods have been paid in full.
5.4 Until ownership in the Sale Goods passes to the Customer, the Customer
shall:-
5.4.1 hold the Sale Goods on a fiduciary basis as the Supplier’s bailee;
5.4.2 maintain the Sale Goods in satisfactory condition; and
5.4.3 keep the Sale Goods insured against all risks for their full price
from the time they leave the physical possession or control of the
Supplier.
5.5 The Customer 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. However the Customer may
re-hire the Hire Goods to a third party with the prior written consent of
the Supplier.
5.6 The Supplier may provide reasonably priced insurance in respect of the
Hire Goods at an additional cost to the Rental. Alternatively the Supplier
may require the Customer to insure the Hire Goods for such reasonable risks
as the Supplier may specify and any proceeds of any such insurance shall be
paid to the Supplier on demand. The Customer must not compromise any claim
in respect of the Hire Goods and/or any associated insurance without the
Supplier’s written consent.
6.1 It is the responsibility of the Customer to collect the Goods from the
Supplier, and, in the case of Hire Goods, return them to the Supplier at
the end of the Hire Period. If the Supplier agrees to deliver Goods to
and/or collect the Hire Goods from the Customer it will do so at its
standard delivery cost and such delivery and/or collection will form part
of the Services.
6.2 If the Supplier agrees to collect the Hire Goods from the Customer at
the end of the Hire Period the Customer must give the Supplier reasonable
notice which shall include at least three (3) working days’ notice from the
end of the Hire Period. The Customer shall remain responsible and liable
for any loss, damage or theft to the Hire Goods until the Hire Goods are
collected by the Supplier unless the Supplier fails to collect the Hire
Goods within 5 working days of the Customer notifying the Supplier that the
Hire Goods are ready for collection whereupon the Supplier shall be liable
for any loss, damage or theft thereafter.
6.3 Where the Supplier provides Services the persons performing the
Services are servants of the Customer and once the Customer instructs such
person they are under the direction and control of the Customer. The
Customer shall be solely responsible for any instruction, guidance and/or
advice given by the Customer to any such person and for any damage which
occurs as a result of such persons following the Customer’s instructions,
guidance and/or advice except to the extent that the persons performing the
Services are found to be negligent by a court with jurisdiction to make
such finding pursuant to clause 14.8.
6.4 The Customer will allow and/or procure sufficient access to and from
the relevant site and procure sufficient unloading space, facilities,
equipment and access to utilities for the Supplier’s employees, sub-
contractors and/or agents to allow them to carry out the Services. The
Customer will ensure that the site where the Services are to be performed
is, where necessary, cleared and prepared before the Services are due to
commence.
6.5 If any Services are delayed, postponed and/or are cancelled due to the
Customer failing to comply with its obligations the Customer will be liable
to pay the Supplier’s additional standard charges from time to time for
such delay, postponement and/or cancellation except where the Customer is
acting as a Consumer and the delay is due to a Force Majeure event.
7.1 The Customer shall:
7.1.1 not remove any labels from and/or interfere with the Hire Goods,
their working mechanisms or any other parts of them and shall take
reasonable care of the Hire Goods and only use them for their proper
purpose in a safe and correct manner in accordance with any operating
and/or safety instructions provided or supplied to the Customer;
7.1.2 notify the Supplier immediately after any breakdown, loss and/or
damage to the Hire Goods;
7.1.3 take adequate and proper measures to protect the Hire Goods from
theft, damage and/or other risks;
7.1.4 notify the Supplier of any change of its address and upon the
Supplier’s request provide details of the location of the Hire Goods;
7.1.5 permit the Supplier at all reasonable times and upon reasonable
notice to inspect the Hire Goods including procuring access to any property
where the Hire Goods are situated;
7.1.6 keep the Hire Goods at all times in its possession and control and
not to remove the Hire Goods from the country where the Customer is located
and/or the country where the Supplier is located without the prior written
consent of the Supplier;
7.1.7 be responsible for the conduct and cost of any testing, examinations
and/or checks in relation to the Hire Goods required by any legislation,
best practice and/or operating instructions except to the extent that the
Supplier has agreed to provide them as part of any Services;
7.1.8 not do or omit to do anything which the Customer has been notified
will or may be deemed to invalidate any policy of insurance related to the
Hire Goods;
7.1.9 not continue to use Hire Goods where they have been damaged and will
notify the Supplier immediately if the Hire Goods are involved in an
accident resulting in damage to the Hire Goods, other property and/or
injury to any person; and
7.1.10 where the Hire Goods require fuel, oil and/or electricity ensure
that the proper type and/or voltage is used and that, where appropriate,
the Hire Goods are properly installed by a qualified and competent person.
7.1.11 ensure that any employees, agents or contractors that operate the
Hire Goods are, if applicable, adequately and sufficiently qualified and
trained to operate the Hire Goods in accordance with all current and
applicable legislation.
7.2 The Hire Goods must be returned by the Customer in good working order
and condition (fair wear and tear excepted) and in a clean condition
together with all insurance policies, licences, registration and other
documents relating to the Hire Goods.
8.1 Allowance may be made in relation to the Rental to the Customer for any
non-use of the Hire Goods due to breakdown caused by the development of an
inherent fault and/or fair wear and tear on condition that the Customer
informs the Supplier as soon as practicable of the breakdown and the
Supplier is unable to repair or replace the Hire Goods within a reasonable
time.
8.2 The Customer shall be responsible for all expenses, loss (including
loss of Rental) and/or damage suffered by the Supplier arising from any
breakdown of the Hire Goods due to the Customer’s negligence, misdirection
and/or misuse of the Hire Goods.
8.3 The Supplier will at its own cost carry out all routine maintenance and
repairs to the Hire Goods during the Hire Period and all repairs which are
required due to fair wear and tear and/or an inherent fault in the Hire
Goods. The Customer will be responsible for the cost of all repairs
necessary to Hire Goods during the Hire Period which arise otherwise than
as a result of fair wear and tear, an inherent fault and/or the negligence
of the Supplier while carrying out routine maintenance and/or repairs.
8.4 The Customer must not repair or attempt to repair the Hire Goods unless
authorised to do so in writing by the Supplier.
9.1 If the Hire Goods are returned in damaged, unclean and/or defective
state except where due to fair wear and tear and/or an inherent fault
in the Hire Goods, the Customer shall be liable to pay the Supplier for
the cost of any repair and/or cleaning required to return the Hire
Goods to a condition fit for re-hire and to pay the Rental, in
accordance with the provisions of clause 8.3, until such repairs and/or
cleaning have been completed.
9.2 In respect of any Hire Goods which are lost, stolen or damaged
beyond economic repair during the Hire Period the
Customer will:-
9.2.1 pay to the Supplier the new replacement cost for any Hire Goods less
than twelve (12) months old from first registration; and/or
9.2.2 reimburse the Supplier for any loss or costs suffered or incurred by
the Supplier for any Hire Goods more than twelve (12) months old from first
registration, less the amount paid to the Supplier under any policy of
insurance and/or Deposit in respect of the Hire Goods.
9.3 T
he Customer shall remain liable to pay the Rental for the Hire Goods up to
and including the date it notifies the Supplier that the Hire Goods have
been lost, stolen and/or damaged beyond economic repair.
9.4 In addition to the obligation in clause 9.3 to pay the Rental, from the
date the Customer notifies the Supplier that the Hire Goods have been lost,
stolen and/or damaged beyond economic repair until the date the Customer
makes a payment to the Supplier for the replacement of the Hire Goods in
accordance with clause 9.2 (“Lost Rental Period”), the
Customer shall pay, as a genuine pre-estimate of lost rental profit, a sum
as liquidated damages being equal to two thirds of the Rental that would
have applied for such Hire Goods during the Lost Rental Period. The
Supplier shall use its reasonable commercial endeavours to purchase
replacements for such Hire Goods as quickly as possible once it has
received payment from the Customer under clause 9.2 above.
10.1 The provisions of this clause
10 only apply to Customers who are a Consumer for the purpose of any hire
or purchase from the Supplier.
10.2 Subject to clauses 10.4 and 10.5, in the case of all Contracts for
Sale Goods and those Contracts for Hire Goods where the Hire Period does
not have a fixed duration, the Customer shall, in accordance with its
rights under the Consumer Contracts (Information, Cancellation and
Additional Charges) Regulations 2013, have the right to cancel the Contract
by writing to the Supplier at the address stated at the end of these terms,
without incurring any charge or Liability within 14 days of the day
following the date on which the Goods come into the
physical possession of the Customer.
10.3 Where a Customer exercises its right to cancel under clause 10.1 and
has made payments in advance for Goods and/or Services that have not been
provided to it, then the Supplier will refund these amounts to the
Customer:
10.3.1 within 14 days of receipt of the Goods which have been returned by
the Customer; or
10.3.2 (if earlier) within 14 days after the day the Customer provides
evidence that they have returned the Goods; or
10.3.3 if no Goods have been provided by the Supplier, 14 days after the
day on which the Supplier is informed of the Customer’s decision to cancel
the Contract.
10.4 Where the Customer deals as a Consumer and requests in writing
that the Supplier begins provision of the Services within the
cancellation period set out in clause
10.1, then the Customer’s right to cancel the Contract without incurring
any charge or Liability will expire once the Supplier has completed the
provision of the Services. If the Customer cancels the Contract once the
Supplier has begun to provide the Services it shall be liable for all costs
reasonably incurred by the Supplier in providing the Services up to the
point the Supplier is informed of the Customer’s decision to cancel the
Contract.
10.5 Where the Contract is with a Consumer and:
10.5.1 is for the supply of accommodation, transport of goods, vehicle
rental services, catering or services related to leisure activities; and
10.5.2 provides for a specific date or period of performance,
the Consumer will not have a right to cancel the Contract without incurring
any charge or Liability to the Supplier.
10.6 Where a Customer cancels the Contract under this clause 10, it shall
return any Goods which the Supplier has provided to it at its own cost,
unless otherwise expressly agreed in writing.
11.1 I
f the Hire Period has a fixed duration, then subject to the provisions of
clause 12 neither the Customer nor the Supplier shall be entitled to
terminate the Contract before the expiry of that fixed period unless agreed
with the other party.
11.2 If the Hire Period does not have a fixed duration either of the
Customer or the Supplier is entitled to terminate the Contract upon giving
to the other party any agreed period of notice.
11.3 If no period of notice has been agreed or specified the Customer may
terminate the Hire Period by the physical return of the Hire Goods to the
Supplier.
11.4 If no period of notice has been agreed or specified either party shall
be entitled to terminate the hire of the Hire Goods by giving not less than
14 days’ notice to the other.
11.5 The rights set out in this clause 11 are in addition to any rights the
Customer may have under clause 10 (and any other legal rights).
12.1.1 fails to make any payment to the Supplier when due without just
cause;
12.1.2 breaches the terms of the Contract and, where the breach is capable
of remedy, has not remedied the breach within 14 days of receiving notice
requiring the breach to be remedied;
12.1.3 persistently breaches the terms of the Contract;
12.1.4 provides incomplete, materially inaccurate or misleading facts
and/or information in connection with the Contract;
12.1.5 pledges, charges or creates any form of security over any Hire Goods
or proposes to compound with its creditors, creates a trust deed for its
creditors, applies for an interim moratorium in respect of claims and/or
proceedings, any distress/diligence, execution or other legal process is
levied on any property of the Customer, has a bankruptcy petition/petition
for sequestration presented against it or the Customer takes or suffers any
similar action in any jurisdiction;
12.1.6 being a company, ceases or threatens to cease to carry on business,
enters into voluntary or compulsory liquidation, has a receiver,
administrator or administrative receiver or in the Republic of Ireland an
examiner appointed over all or any of its assets, any attachment
order/arrestment is made against the Customer, any distress/diligence,
execution or other legal process is levied on any property of the Customer
or the Customer takes or suffers any similar action in any jurisdiction;
12.1.7 appears to the Supplier (acting reasonably) due to the Customer’s
credit rating to be financially incapable of meeting its obligations under
the Contract; and/or
12.1.8 appears to the Supplier (acting reasonably) to be about to suffer
any of the above events;
then the Supplier shall have the right, without prejudice to any other
remedies, to exercise any or all of the rights set out in clause 12.2below.
12.2 I
f any of the events set out in clause 12.1 above occurs in relation to the
Customer then:-
12.2.1 except where the Customer is acting as a Consumer the Supplier may
enter, without prior notice, any premises of the Customer (or premises of
third parties with their consent) where Goods owned by the Supplier may be
and repossess any Goods;
12.2.2 the Supplier may withhold the performance of any Services and cease
any Services in progress under this and/or any other Contract with the
Customer;
12.2.3 the Supplier may immediately cancel, terminate and/or suspend
without Liability to the Customer the Contract and/or any other contract
with the Customer; and/or
12.2.4 *all monies owed by the Customer to the Supplier
shall immediately become due and payable.
12.3 Any repossession of the Goods shall not affect the Supplier’s right to
recover from the Customer any monies due under the Contract and/or any
damages in respect of any breach which occurred prior to repossession of
the Goods.
12.4 Upon termination of the Contract the Customer shall immediately:-
12.4.1 return the Goods to the Supplier or, as requested by the Supplier,
make the Goods available for collection by the Supplier or its authorised
representatives (the Customer granting or procuring for the Supplier or its
authorised representative the right to enter the site without trespass) ;
and
12.4.2 pay to the Supplier all arrears for Rentals, Charges for any
Services, monies for any Sale Goods and/or any other sums payable under the
Contract including, but not limited to, the cost of returning the Goods.
13.1 *All warranties, representations, terms, conditions
and duties implied by law relating to fitness, quality and/or adequacy are
excluded to the fullest extent permitted by law.
13.2 *If the Supplier is found to be liable in respect of
any loss or damage to the Customer’s property the extent of the Supplier’s
Liability will be limited to the retail cost of replacement of the damaged
property.
13.3 Any defective Goods must be returned to the Supplier for inspection if
requested by the Supplier before the Supplier will have any Liability for
defective Goods.
13.4 *The Supplier shall have no Liability to the Customer
if, without just cause, any monies due in respect of the Goods and/or the
Services have not been paid in full by the due date for payment.
13.5 The Supplier shall have no Liability for additional damage, loss,
liability, claims, costs or expenses caused or contributed to by the
Customer’s continued use of defective Goods and/or Services after a defect
has become apparent or suspected or should reasonably have become apparent
to the Customer.
13.6 The Customer shall give the Supplier a reasonable opportunity to
remedy any matter for which the Supplier is liable before the Customer
incurs any costs and/or expenses in remedying the matter itself. If the
Customer does not do so the Supplier shall have no Liability to the
Customer.
13.7 *The Supplier shall have no Liability to the Customer
to the extent that the Customer is covered by any policy of insurance
arranged as a result of the Contract and the Customer shall ensure that the
Customer’s insurers waive any and all rights of subrogation they may have
against the Supplier.
13.8 The Supplier shall have no Liability to the Customer for any of the
following losses (whether direct or indirect):-
13.8.1 *consequential losses;
13.8.2 economic and/or other similar losses;
13.8.3 business interruption, loss of business, contracts and/or
opportunity including loss of profits and/or damage to goodwill; and/or
13.8.4 special damages and indirect losses however so arising.
13.9 *
The Supplier’s total Liability to the Customer under and/or arising in
relation to any Contract shall not exceed 5 times the amount of the Rental
or monies payable for Sale Goods, in addition to charges for Services (if
any) under that Contract or the sum of £1,000 (or Euro equivalent)
whichever is the higher. To the extent that any Liability of the Supplier
to the Customer would be met by any insurance of the Supplier then the
Liability of the Supplier shall be extended to the extent that such
Liability is met by such insurance.
13.10 Each of the limitations and/or exclusions in this Contract shall be
deemed to be repeated and apply as a separate provision for each of:-
13.10.1 Liability for breach of contract;
13.10.2 *Liability in tort/delict (including negligence);
and
13.10.3 *Liability for breach of statutory and/or common
law duty;
except clause 13.9 above which shall apply once only in respect of all the
said types of Liability.
13.11 Nothing in this Contract shall exclude or limit the Liability of the
Supplier for fraud, death or personal injury due to the Supplier’s
negligence, nor exclude or limit any other type of Liability which it is
not permitted to exclude or limit as a matter of law.
14.1 Upon termination of the Contract the provisions of clauses 4.2, 4.4,
4.5, 7, 8, 9.1, 9.3 and shall continue in full force and effect.
14.2 Each hire of an item of Hire Goods shall form a distinct Contract
which shall be separate to any other Contract relating to other Hire Goods.
14.3 The Customer shall be liable for the acts and/or omissions of its
employees, agents, servants and/or subcontractors as though they were its
own acts and/or omissions under this Contract.
14.4 When dealing as a Consumer, if the Customer has any questions or
complaints it may contact the Supplier by telephoning its customer service
team on 01872519323 or by e-mail it at [email protected]
14.5 *The Customer agrees to indemnify and keep
indemnified the Supplier against any and all losses, lost profits, damages,
claims, costs (including legal costs on a full indemnity basis), actions
and any other losses and/or liabilities suffered by the Supplier and
arising from or due to any breach of contract, any tortious/delictual act
and/or omission and/or any breach of statutory duty by the Customer.
14.6 *No waiver by the Supplier of any breach of this
Contract shall be considered as a waiver of any subsequent breach of the
same provision or any other provision. If any provision is held by any
competent authority to be unenforceable in whole or in part the validity of
the other provisions of this Contract and the remainder of the affected
provision shall be unaffected and shall remain in full force and effect.
14.7 The Supplier shall have no Liability to the Customer for any delay
and/or non-performance of a Contract to the extent that such delay is due
to any Force Majeure events. If the Supplier is affected by any such event
then time for performance shall be extended for a period equal to the
period that such event or events delayed such performance.
14.8 All third party rights are excluded and no third parties shall
have any rights to enforce the Contract by virtue of the Contracts
(Rights of Third Parties) Act 1999. This shall not apply to any finance
company with whom the Supplier has an outstanding finance agreement
relating to the Hire Goods. Such finance company shall, subject to the
Supplier’s consent, have the right to enforce this Contract as if they
were the Supplier.
14.9 This Contract is governed by and interpreted in accordance with the
law of the country where the Supplier is located and that country will have
exclusive jurisdiction in relation to this Contract.
Wild Tipi Ltd
Tel: 01872519323
E-mail: [email protected]