Last updated: October 1st, 2017.
Please read these terms and conditions.
As we can accept your Pre-Order and make a legally enforceable agreement without further reference to you, you must read these terms and conditions to make sure that they contain all that you want and nothing that you are not happy with.
1. These terms and conditions will apply to the purchase of the goods by you (the Customer or you). By pre-ordering any of the Goods, you agree to be bound by these terms and conditions.
2. We intend that these terms and conditions apply only to a Contract entered into by you as a Consumer. If this is not the case, you must tell us, so that we can provide you with a different contract with terms which are more appropriate for you and which might, in some respects, be better for you (e.g. by giving you rights as a business).
Information about us and how to contact us
3. We are Trackener Ltd a company registered in England and Wales under number 09783413 whose registered office is at 41 Teal Star Place, London, E1W1AB with email address email@example.com (the “Supplier” or “us” or “we” or “our”).
5. The following definitions apply to these terms and conditions:
• “Consumer” means an individual acting for purposes which are wholly or mainly outside his or her trade, business, craft or profession;
• “Contract” means the legally-binding agreement between you and us for the supply of the Goods;
• “Delivery Location” means your address or other location where the Goods are to be supplied, as set out in the Pre-Order;
• “Goods” means the goods advertised on the Website that we supply to you of the description, and in the quantity, as set out in the Pre-Order;
• “Pre-Order” means the Customer’s accepted pre-order for Goods to be supplied by us, as submitted following the step by step process set out on the Website;
• “Terms of Service” means the terms which set out how we will deal with confidential and personal information received from you via the Website, as set out at http://www.trackener.com/terms-of-service.html ;
• “Website” means our website, www.trackener.com on which the Goods are advertised.
6. When we use the words “writing” or “written” in these terms, this includes emails.
Our Contract with you
7. The Pre-Order process is set out on the Website. Each step allows you to check and amend any errors before submitting the Pre-Order.
8. A Contract will be formed for the Goods pre-ordered only when you receive an email from us confirming the Pre-Order (the “Pre-Order Confirmation”). You must ensure that the Pre-Order Confirmation is complete and accurate and inform us immediately of any errors. We are not responsible for any inaccuracies in the Pre-Order placed by you.
9. You will receive the Pre-Order Confirmation within a reasonable time after making the Contract, but in any event not later than the delivery of any Goods supplied under the Contract.
10. We will assign you an order number which will be set out in the Pre-Order Confirmation. It will help us deal with your queries if you can state your order number whenever you contact us about a Pre-Order.
11. When an Pre-Order has been submitted on the Website, we may not be able to accept an order due to supply problems, although we will inform you of this rejection in writing and will not charge you for the Goods pre-ordered.
12. You can only submit a Pre-Order for the Goods if you are eligible to enter into a Contract and are at least 18 years old.
13. Please note that your use of the Trackener Life mobile application and the Trackener Life wireless device is subject to our Terms of Service.
13. The description of the Goods is as set out in the Website, catalogues, brochures or other form of advertisement. Any description, including any images of the Goods, is for illustrative purposes only and there may be small discrepancies in the size and colour of the Goods supplied.
14. In the case of any Goods made to your special requirements, it is your responsibility to ensure that any information or specification you provide is accurate.
15. All Goods advertised for sale on the Website are subject to availability.
16. We reserve the right to make any changes to the Goods which are necessary to in pre-order to:
• comply with any applicable law or safety requirement; or
• implement minor technical adjustments and improvements,
If such changes are necessary, we will notify you of these changes in writing.
17. You agree that you shall only use the Goods purchased for personal purposes, and that you shall not purchase the Goods with an intention to resell them in any manner whatsoever. You shall not reverse engineer the Goods or use the Goods to create a competitive product.
Your rights to make changes
18. If you wish to make a change to the Goods you have pre-ordered please contact us. We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the Goods, the timing of supply or anything else which would be necessary as a result of your requested change, and ask you to confirm whether you wish to go ahead with the change. If we cannot make the change or the consequences of making the change are unacceptable to you, you may want to end the Contract (see ‘Your right to cancel’).
Price and Payment
19. The price of the Goods, and any additional delivery or other charges, is that set out on the pre-order pages of the Website at the date of the Pre-Order, or any such other price as we may agree in writing.
20. Prices and charges include VAT at the rate applicable at the time of the Pre-Order.
21. Except in the event of a manifest error (see below, paragraph 23), any price quoted for the Goods is valid for a maximum period of one day from the day on which you see it on the Website, unless we expressly withdraw it at an earlier time.
22. It is always possible that, despite our best efforts, some of the Goods we sell may be incorrectly priced. We will normally check prices before accepting your pre-order so that, where the correct price of the Goods at your pre-order date is less than our stated price at your pre-order date, we will charge the lower amount. If the correct price of the Goods at your pre-order date is higher than the price stated to you, we will contact you for your instructions before we accept your pre-order.
23. If we accept and process your Pre-Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the Contract, refund you any sums you have paid and require the return of any goods provided to you.
24. You must pay by submitting your credit or debit card details with your Pre-Order. We will charge your debit or credit card immediately.
You will be charged the full Price of the Product(s) at the time of placing the Pre-Order. If the Company is unable to commence shipping of the Product(s) on or before the one-year anniversary of placing the Pre-Order, if desired the Company shall process a full refund to you. All Pre-Orders are handled through the Tilt/Open payment gateway. Accepted methods of payment are Visa, Master Card, American Express in addition to other methods as may be made available from time-to-time by the payment gateway provider. Your placing of a Pre-Order constitutes your express agreement to the Company of charging the full Price of the Product(s) at such time.
25. The costs of delivery in relation to any Pre-Order will be displayed to you on our Website at the time you submit a Pre-Order.
26. Although the Company will make every effort to begin shipping Products as soon as reasonably practicable, you understand and agree that there may be delays. An estimated time of delivery (ETD) is therefore subject to change, and the Company does not represent or warrant that it will be able to ship the Product by the ETD. In the event of a delay outside of our control, and after we’ve done everything possible to minimise the delay, the Company is not responsible for any damages that may occur as a result, nor shall it be obligated, except as set forth in these Pre-Order Terms, to provide any discounts, refunds or credits due to any such delays. Products will be shipped in the order in which Pre-Orders are received by the Company. We will provide you updates with respect to such a delivery schedule.
27. If you were entitled to treat the Contract at an end, but do not do so, you are not prevented from cancelling the Pre-Order for any Goods or rejecting Goods that have been delivered and, if you do this, we will (as your sole and exclusive remedy) without delay return all payments made under the Contract for any such cancelled or rejected Goods. If the Goods have been delivered, you must return them to us at your expense before your payments made under the Contract will be returned.
28. We generally deliver to addresses in the European Union. If, however, we accept a Pre-Order for delivery outside these areas, you may need to pay additional import duties or other taxes which will be notified to you at the time you submit your Pre-Order.
29. If you, or your nominee fail, through no fault of our own, to take delivery of the Goods at the Delivery Location, we may charge you the reasonable costs of storing and redelivering the Goods. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the Contract.
30. You agree we may deliver the Goods in instalments if we suffer a shortage of stock or for any other genuine and fair reason, subject to the above delivery provisions, and provided you are not liable for extra charges. 31. We may have to suspend the supply of Goods in order to:
• deal with technical problems or make minor technical changes;
• update the Goods to reflect changes in relevant laws and regulatory requirements; or
• make changes to the Goods as requested by you or notified by us to you.
Risk and Title
32. Risk of damage to, or loss of, any Goods will pass to you when the Goods are delivered to you. You must, if reasonably practicable, examine the Goods before accepting them.
33. You do not own the Goods until we have received payment in full. If full payment is overdue we can choose, by notice to cancel any delivery and end any right to use the Goods still owned by you, in which case you must return the Goods or, if you reside in the United Kingdom only, allow us to collect them.
Conformity and Guarantee
34. We are under a legal duty to supply Goods that are in conformity with this Contract.
35. Upon delivery, the Goods will:
• be of satisfactory quality;
• be reasonably fit for any particular purpose for which you buy the Goods which, before the Contract is made, you made known to us (unless you do not actually rely, or it is unreasonable for you to rely, on our skill and judgment) and be fit for any purpose held out by us or set out in the Contract; and
• conform to their description.
36. The guarantee at paragraph 37 is in addition to your legal rights in relation to Goods that are faulty or not as described.
Your right to cancel
37. Subject as stated in these Terms and Conditions, you can cancel this Contract without giving any reason at any time from the date of the Contract until the day which is 30 days from the day on which you (or your nominee) receive the Pre-Order contract (the “Cancellation Period”), and receive a full refund.
38. If you cancel this Contract within the Cancellation Period, we will reimburse to you all payments received from you, including the costs of delivery, except for:
• supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us; and
• deductions for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by you (i.e. handling beyond the sort that might be reasonably allowed in a shop). This is because you are liable for that loss and, if that deduction is not made, you must pay us the amount of that loss. If we refund you the price paid before we are able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay us an appropriate amount.
To exercise your right to cancel, you must inform us of your decision to cancel this Contract by a either completing the Model Cancellation Form set out at Schedule 1 of these terms and conditions and sending to firstname.lastname@example.org , or by sending a clear statement setting out your decision to cancel your Pre-Order to email@example.com.
Timing of reimbursement
39. If we have not offered to collect the Goods, we will make the reimbursement without undue delay, and not later than the earlier of:
• 14 days after the day we receive back from you any Goods supplied; or
• 14 days after the day you provide evidence that you have sent back the Goods.
40. If we have offered to collect the Goods or if no Goods were supplied, we will make the reimbursement without undue delay, and not later than 14 days after the day on which we are informed about your decision to cancel this Contract.
41. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
42. If you have received Goods in connection with the Contract which you have cancelled, you must send back the Goods without delay and in any event not later than 14 days from the day on which you communicate to us your cancellation of this Contract. The deadline is met if you send back the Goods before the period of 14 days has expired.
43. We will pay the cost of the return for all Goods ordered as part of the Pre-Order sale.
Our right to end the Contract
44. We may end the Contract for Goods at any time by writing to you if you do not, within a reasonable time, allow us to deliver the Goods to you or collect them from us.
45. You must compensate us if we end the Contract in the situation set out in paragraph 47 above. We will refund any money you have paid in advance for Goods we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the Contract.
46. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking the Contract, or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
47. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights in relation to the Goods (including the right to receive Goods which are: as described and match information we provided to you and any sample or model seen or examined by you; of satisfactory quality; fit for any particular purpose made known to us; supplied with reasonable skill and care and, where installed by us, correctly installed); and for defective Goods under UK Consumer Protection Legislation.
48. We are not liable for business losses. We only supply the Goods for domestic and private use. If you use the Goods for any commercial, business or re-sale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
49. To the extent permitted under law, in no event shall Trackener’s liability for damages arising in connection with any goods exceed the purchase price of the goods paid by you. These limitations will apply whether the liability arises in contract, tort (including negligence), strict liability, under statute or otherwise.
50. Trackener Ltd and its licensors own all intellectual property rights in the Goods. You shall acquire no interest or rights in Trackener’s intellectual property by virtue of this Agreement.
Changes to these terms and conditions
51. We have the discretion to changes these terms and conditions at any time. If we make any such changes we will notify you, and you may then contact us to end the Contract before the changes take effect and receive a refund for any Goods paid for but not received.
Other important terms
52. We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the Contract. If you are unhappy with the transfer you may contact us to end the Contract within [30 days] of us telling you about it and we will refund you any payments you have made in advance for Goods not delivered.
53. You need our consent to transfer your rights to someone else (except that you can always transfer our guarantee). You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing. However, you may transfer our guarantee to a person who has acquired the Goods. We may require the person to whom the guarantee is transferred to provide reasonable evidence that they are now the owner of the Goods.
54. Nobody else has any rights under this Contract (except someone you pass your guarantee on to). This Contract is between you and us. No other person shall have any rights to enforce any of its terms.
55. If a court finds part of this Contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
56. Even if we delay in enforcing this Contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this Contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
57. The Contract (including any non-contractual matters) is governed by the law of England and Wales.
58. We try to avoid any dispute, so we deal with complaints in the following way: If a dispute occurs customers should contact us to find a solution. We will aim to respond with an appropriate solution within 5 days. Disputes can be submitted to the jurisdiction of the courts of England and Wales or, where the Customer lives in Scotland or Northern Ireland, in the courts of respectively Scotland or Northern Ireland.
SCHEDULE 1 – MODEL CANCELLATION FORM
To Trackener Ltd
Widegate Studio, 23 Widegate Street
I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods [*]/for the supply of the following service [*],
Pre-Ordered on [*]/received on [*]
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only if this form is notified on paper):
Last updated: June 1st, 2020
1.1 In these conditions the following words have the following meanings:
‘Contract’ means a contract, which incorporates these conditions and is made between the Customer and the Supplier for the hire of Hire Kits and/or the sale of Products and/or the Services;
‘Customer’ means the person, firm, company or other organisation hiring Hire Kits and/or contracting for the Services;
‘Deposit’ means any advance payment required by the Supplier in relation to the Hire Kits which is to be held as security by the Supplier;
‘Hire Kit’ means any device together with any accessories specified in a Contract, which are hired to the Customer;
‘Hire Period’ means the period commencing when the Customer holds the Hire Kits 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 Kits by the Customer into the Supplier’s possession: or
ii) the physical repossession or collection of Hire Kits by the Supplier;
‘Liability’ means any liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
‘Products’ means the products sold to the Customer by the Supplier;
‘Rental’ means the Supplier’s charging rate for the hire of the Hire Kit, which is current from time to time during the Hire Period;
‘Supplier’ means Trackener Ltd Registered in England & Wales No. 09783413, trading as Trackener;
2. BASIS OF CONTRACT
2.1 Hire Kit are hired subject to them being available for hire to the Customer at the time required by the Customer.
2.2 Where hire of the Kit is to a Customer who is an individual and the hire would be covered by the Consumer Credit Act 1974 the duration of the hire shall not exceed 3 months. Accordingly the hire of any Kit is not covered by the Consumer Credit Act 1974.
2.3 Nothing in the Contract shall exclude or limit any statutory rights of the Customer acting as a consumer within the meaning of s12 of the Unfair Contract Terms Act 1977. Any provision which would be void under any consumer protection legislation or other such legislation in force from time to time shall, to that extent have no force or effect.
3.1 The amount of any Deposit, Rental 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 Kit, it must be paid in advance of the Customer hiring the Hire Kit. The Supplier may also require an initial payment on account of the Rental in advance of the Customer hiring the Hire Kit. Deposit will be returned on completion of the hire.
3.2 The Customer shall pay the Rental, monies for any Products 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 exclusive of any applicable VAT for which the Customer shall additionally be liable.
3.3 The time for any payments by the Customer under a Contract shall be of the essence. Payment shall not be deemed to be made until Supplier has received either cash or cleared funds in respect of the full amount outstanding.
3.4 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 judgement) on the amount unpaid at the rate of 8% above the base rate from time to time of the Supplier’s bank. Such interest shall be compounded with quarterly rests.
3.5 The Customer shall pay all sums due to the Supplier under the Contract without any setoff, deduction, counterclaim and/or any other withholding of monies.
3.6 The Supplier may set a reasonable credit limit for the Customer. The Supplier reserves the right to terminate or suspend the Contract for the hire of the Hire Kits 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. RISK TITLE AND INSURANCE
4.1 Risk in the Hire Kit and any Products will pass immediately to the Customer when they leave the physical possession or the control of the Supplier.
4.2 Risk in the Hire Kit will not pass back to the Supplier from the Customer until the Hire Kit are back in the physical possession of the Supplier. This shall apply even if the Supplier has agreed to cease charging the rental.
4.3 Title in the Hire Kit remains at all times with the Supplier. The Customer has no right, title or interest in the Hire Kit except that they are hired to the Customer. Title in any Products remains with the Supplier until all monies payable to the Supplier by the Customer for the Products have been paid in full.
4.4 The Customer must not deal with the title or any interest in the Hire Kit. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, exerting a lien and/or lending. However the Customer may re-hire the Hire Kit to a third party with the prior written consent of the Supplier.
5. DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Kit from the Supplier. If the Supplier agrees to ship the Hire Kit to the Customer it will do so at its standard shipping fee, which will be charged to the Customer.
5.2 The Customer shall return the Hire Kit at the end of the Contract to: Trackener Ltd, Widegate Studio, 23 Widegate Street, London E1 7HX
6. CARE OF HIRE KIT
6.1 The Customer shall;
6.1.1 not interfere with the Hire Kit, their working mechanisms or any other parts of them and take reasonable care of the Hire Kit 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 and notify the Supplier immediately after any breakdown, loss and/or damage to the Hire Kit;
6.1.2 take adequate and proper measures to protect the Hire Kit from theft, damage and/ or other risks;
6.1.3 notify the Supplier of any change of its address and upon the Supplier’s request, provide details of the location of the Hire Kit and permit the Supplier at all reasonable times to inspect the Hire Kit including procuring access to any property where the Hire Kit is situated;
6.1.4 keep the Hire Kit at all times in its possession and control and not remove the Hire Kit from the United Kingdom without the prior written consent of the Supplier;
6.1.5 not do or omit to do anything which will or may be deemed to invalidate any policy of insurance related to the Hire Kit;
6.1.6 not continue to use the Hire Kits where they have been damaged and will notify the Supplier immediately if the Hire Kits are involved in an accident resulting in damage to the Hire Kit, other property and/or injury to any person; and
6.2 The Hire Kits must be returned by the Customer in good working order and condition (fair wear and tear excepted) and in a clean condition (everyday grime excepted).
7.1 Allowance will be made in relation to the Rental to the Customer for any non-use of the Hire Kits due to breakdown caused by the development of an inherent fault and/or fair wear on condition that the Customer informs the Supplier immediately of the breakdown.
7.2 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 Kits due to the Customer’s negligence, misdirection and/or misuse of the Hire Kits.
7.3 The Supplier will at its own cost carry out all routine maintenance and repairs to the Hire Kit during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Hire Kit. The Customer will be responsible for the cost of all repairs necessary to Hire Kits during the Hire Period which arise otherwise than as a result of fair wear and tear and/or an inherent fault.
7.4 The Customer must not repair or attempt to repair the Hire Kits unless authorised to do so in writing by the Supplier.
8. LOSS OR DAMAGE TO THE HIRE GOODS
8.1 If the Hire Kits are returned in damaged, unclean and/or defective state except where due to fair wear and tear the Customer shall be liable to pay the Supplier for the cost of any repair and/or cleaning required to return the Hire Kits to a condition fit for re-hire and the Rental until such repairs and/or cleaning have been completed.
8.2 The Customer will pay to the Supplier the replacement cost (up to £499) on a new for old basis of Hire Kits which are lost, stolen and/or damaged beyond economic repair during the Hire Period.
8.3 The Customer shall also pay to the Supplier the Rental until the Supplier has been paid the amount representing the replacement cost of such Hire Kit.
9. TERMINATION BY NOTICE
9.1 If the Hire Period has a fixed duration 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.
9.2 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.
9.3 If no period of notice has been agreed or specified the Customer may terminate the Hire Period by the physical return of the Hire Kits and the Supplier shall be entitled to terminate the Hire of the Hire Kits by giving not less than 14 days notice to the Customer.
10.1 If the Customer:
10.1.1 fails to make any payment to the Supplier when due;
10.1.2 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;
10.1.3 persistently breaches the terms of the Contract;
10.1.4 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
10.1.5 pledges, charges or creates any form of security over any Hire Goods, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim moratorium in respect of claims and/or proceedings or has a Bankruptcy Petition presented against it, or being a company, enters into voluntary or compulsory liquidation, has a receiver, administrative receiver appointed over all or any of its assets, any attachment order is made against the Customer or any distress, 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;
10.1.6 appears to the Supplier due to the Customer’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or
10.1.7 appears responsibly to the Supplier 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 10.2 below.
10.2 If any of the events set out in clause 10.1 above occurs in relation to the Customer then:
10.2.1 the Supplier may enter, without prior notice any premises of the Customer (or premises of third parties with their consent) where Hire Kits owned by the Supplier may be and repossess any Hire Kits;
10.2.2 the Supplier may cancel, terminate and/or suspend without liability to the Customer the Contract and/or any other contract with the Customer; and/or
10.2.3 all monies owed by the Customer to the Supplier shall immediately become due and payable.
10.3 Any repossession of the Hire Kits 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 antecedent breach. 10.4 Upon termination of a contract the Customer shall immediately:
10.4.1 return the Hire Goods to Supplier or make the Hire Goods available for collection by the Supplier as requested by the Supplier; and
10.4.2 pay to the Supplier all arrears for Rentals, monies for any Products and/or any other sums payable under the Contract.
11. LIMITATIONS OF LIABILITY
11.1 Unless the Customer deals as a consumer within the meaning of s12 of the Unfair Contract Terms Act 1977:
11.1.1 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.
11.1.2 All warranties, representations, terms, conditions and duties implied by law in relation provision of Services and to the use of reasonable care and skill, reasonable time for performance and reasonable consideration shall be excluded from this Contract.
11.2 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 the replacement of the damaged property.
11.3 Any defective Hire Kits must be returned to the Supplier for inspection if requested by the Supplier before the Supplier will have any Liability for defective Hire Kits.
11.4 The Supplier shall have no Liability to the Customer if any monies due in respect of the Hire Kits and/or the Service have not been paid in full by the due date for payments.
11.5 The Supplier shall have no Liability for additional damage, loss, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Hire Kits after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
11.6 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.
11.7 The Supplier shall have no liability to the Customer for any:
11.8.1 consequential losses (including loss of profits and/or damage to goodwill);
11.8.2 economic and/or other similar losses;
11.8.3 special damages and indirect losses; and/or
11.8.4 business interruption, loss of business, contracts and/or business opportunity.
11.9 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 and charges for Services (if any) under that Contract or the sum of £1000 whichever is the higher.
11.10 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:
11.10.1 Liability for breach of contract;
11.10.2 Liability in tort (including negligence); and/or
11.10.3 Liability for breach of statutory duty; except clause 11.9 above which shall apply once only in respect of all the said types of Liability.
11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier for death or personal injury due to its negligence or any other Liability which it is not permitted to exclude or limit as a matter of law.
12.1 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.
12.3 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 tortuous act and/or omission and/or any breach of statutory duty by the Customer.
12.4 No waiver by the Supplier of any breach of the Contract shall be considered as a waiver for 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 the Contract and the remainder of the affected provision shall be unaffected and shall remain in full force and effect.
12.5 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 events outside the Suppliers reasonable control including but not limited to acts of god, war, flood, fire, labour/disputes, strikes, subcontractors, lockouts, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar 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.
12.6 All third party rights are excluded and no third parties shall have any rights to enforce the Contract. This Contract is governed by and interpreted in accordance with English law and the parties agree to submit to exclusive jurisdiction of the English courts.
12.7 The Supplier’s Terms of and Conditions of Sale will apply to all Products sold and in the event of conflict between the Supplier’s Terms of and Conditions of Sale and the Supplier’s Conditions for Hire, the Supplier’s Terms of and Conditions of Sale will prevail. Copies of the Suppliers Terms of and Conditions of Sale are available on request.
12.8 It is the Customers responsibility to ensure that everyone who uses the Hire Kits is properly instructed on how to use them safely and correctly and they have all the instructions the Supplier has supplied and that the Hire Kits are not misused.
13. DATA PROTECTION
13.1 In order to maintain and manage credit accounts the Supplier will undertake searches of credit reference agencies and other organisations who may also keep a record of that search. These enquiries may concern the directors and principals of a Limited Company.
13.2 The Supplier will monitor and record information relating to the Customer’s trade performance and such information may be shared with other organisations such as collection agents and lawyers to enable recovery of sums due to the Supplier and any others who may use the information when managing credit accounts or assessing further credit applications by the Customer.