1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to hire the Equipment in accordance with the Contract. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 Thermaright may accept or decline the Order at its absolute discretion.
3. Equipment hire
3.1 Thermaright shall hire the Equipment to the Customer for use at the Site Location subject to the Contract.
3.2 Thermaright shall not, other than in the exercise of its rights under this Contract or applicable law, interfere with the Customer’s quiet possession of the Equipment.
4. Rental Period
The Rental Period starts on the Commencement Date and shall continue for its duration unless the Contract is terminated earlier by Thermaright pursuant to clause 12.
5. Rental Payments
5.1 The Customer shall pay the Rental Payments to Thermaright in accordance with the payment terms set out in the Order.
5.2 The Rental Payments shall be paid in pound sterling and shall be paid to the account nominated in writing by Thermaright.
5.3 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
5.4 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.5 If the Customer fails to make a payment due to Thermaright under the Contract by the due date, then, without limiting Thermaright’s remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
5.6 Thermaright, at any time, can automatically charge the card you have used for a purchase, should you extend your booking by way of telling us via email or telephone, online via the portal, or withholding a return of the item on the originally agreed date. Thermaright also holds the right to automatically charge your card on file for any other reason where you have withheld a payment.
5.7 Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.8 Thermaright may use third-party payment processors who will hold your card information securely, such as Stripe. By entering this agreement you understand even if you do not select the “save card” option on checkout, if you place an order this information will be held. You can opt-out at any time by giving us 28 days notice via our email contact.
5.9 If you wish to cancel your hire within a period of 3 days before the agreed delivery, pickup or start date, Thermaright hold the right to remove £70 + VAT from the total refund amount or debit your card for £70 + VAT.
5.10 You agree to return the Equipment with the same fuel amount (if the Equipment uses fuel to operate) that you received it with, in cases of failure to do so, Thermaright reserves the right to charge you automatically on the original payment card for the difference between the original amount and the returned amount at the current rate fuel in the UK with a maximum 20% surcharge on top such amounts.
6. Delivery and installation
6.1 Delivery of the Equipment shall be made by Thermaright. Thermaright shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 7.
6.2 If the Customer collects the Equipment from Thermaright, the Customer shall collect the Equipment on the Delivery Date and Delivery shall be completed on the completion of loading of the Equipment at the place of collection.
6.3 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by Thermaright, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
6.4 Thermaright shall at the Customer’s expense install the Equipment at the Site Location. The Customer shall procure that a duly authorised representative of the Customer shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by Thermaright, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
6.5 To facilitate Delivery (and installation if requested), the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable area and working conditions (including suitable water and power supplier) to enable Delivery and installation to be carried out safely and expeditiously.
6.6 If the Customer fails to accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by Thermaright’s failure to comply with its obligations under the Contract:
(a) the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
(b) Thermaright shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including the Rental Payments and insurance).
7. Accidental Damage Waiver
7.1 At any time before Delivery, the Customer may purchase an Accidental Damage Waiver (ADW) in respect of accidental damage caused to the Equipment and provided that:
(a) the Customer notifies Thermaright of any such damage upon returning the Equipment to Thermaright;
(b) that any such damage was not caused by wilful or malicious behaviour, negligence, misuse or mishandling of the Equipment; and
(c) the damage caused does not give rise to a Total Loss;
the ADW shall operate to mean that no further sums are due in respect of any such accidentally damaged Equipment that the Customer has purchased an ADW in respect of. The ADW shall not (under any circumstances) operate to cover or apply to loss, theft, non-accidental damage or destruction of the Equipment.
8. Title, risk and insurance
8.1 The Equipment shall at all times remain the property of Thermaright (or where applicable, Thermaright’s supplier), and the Customer shall have no right, title or interest in or to the Equipment (save the right to use of the Equipment subject to the terms and conditions of the Contract).
8.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during any term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to Thermaright. During the Rental Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Thermaright may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner of the Equipment would insure for, or such amount as Thermaright may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Thermaright may from time to time consider reasonably necessary and advise to the Customer.
8.3 All insurance policies procured by the Customer shall, upon Thermaright’s written request, be endorsed to provide Thermaright (or any supplier of Thermaright) with at least 5 Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and name Thermaright on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
8.4 The Customer shall give immediate written notice to Thermaright in the event of any loss, accident or damage to the Equipment.
8.5 If the Customer fails to effect or maintain any of the insurances required under the Contract, Thermaright shall be entitled (but not under any obligation) to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
8.6 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Thermaright and proof of premium payment to Thermaright to confirm the insurance arrangements.
9. Customer’s responsibilities
9.1 The Customer shall during the term of the Contract:
(a) ensure that the Equipment is kept and operated in a suitable environment used only for the purposes for which it is designed, and operated in a proper manner by a competent person in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained;
(c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(d) make no alteration to the Equipment and shall not remove or manipulate any existing component(s) from the Equipment without the prior written consent of Thermaright unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Thermaright immediately on installation;
(e) keep Thermaright fully informed of all material matters relating to the Equipment;
(f) keep the Equipment at all times at the Site Location and shall not move or attempt to move any part of the Equipment to any other location without Thermaright’s prior written consent;
(g) permit Thermaright or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site Location or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(h) maintain operating and maintenance records of the Equipment and make copies of such records readily available to Thermaright, together with such additional information as Thermaright may reasonably require;
(i) not, without the prior written consent of Thermaright, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not without the prior written consent of Thermaright, 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. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify Thermaright against all losses, costs or expenses incurred as a result of such affixation or removal;
(k) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Thermaright in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that Thermaright may enter such land or building and recover the Equipment both during the term of the Contract and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Thermaright of any rights such person may have or acquire in the Equipment and a right for Thermaright to enter onto such land or building to remove the Equipment;
(l) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify Thermaright and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Thermaright on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(m) not use the Equipment for any unlawful purpose;
(n) ensure that at all times the Equipment remains identifiable as being Thermaright’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(o) deliver up the Equipment at the end of the Rental Period or on earlier termination of the Contract at such address as Thermaright requires, or if necessary allow Thermaright or its representatives access to the Site Location or any premises where the Equipment is located for the purpose of removing the Equipment; and
(p) not do or permit to be done anything which could invalidate the insurances referred to in clause 7.
9.2 The Customer acknowledges that Thermaright shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer shall indemnify Thermaright in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Thermaright arising out of, or in connection with any failure by the Customer to comply with the terms of the Contract.
10.1 Thermaright warrants that the Equipment shall substantially conform to its specification (as made available by Thermaright), be of satisfactory quality and fit for any purpose held out by Thermaright. Thermaright shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within 1 month from Delivery, provided that:
(a) the Customer notifies Thermaright of any defect in writing within 5 Business Days of the defect occurring or of becoming aware of the defect;
(b) Thermaright is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Thermaright’s authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
10.2 Insofar as the Equipment is, comprises or contains equipment or components which were not manufactured or produced by Thermaright, the Customer shall be entitled only to such warranty or other benefit as Thermaright has received from the manufacturer or its supplier (as applicable).
10.3 If Thermaright fails to remedy any material defect in the Equipment in accordance with clause 11.1, Thermaright shall, at the Customer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement.
11. Limitation of liability
11.1 The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in the Contract limits any liability which cannot legally be limited including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 7 of the Supply of Goods and Services Act (where the Contract is for equipment hire only); or
(d) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
11.3 Subject to clause 12.2, Thermaright’s total liability to the Customer shall not exceed the aggregate Rental Payments under the Contract.
11.4 Subject to clause 12.2, Thermaright shall not be liable under the Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
11.1 Subject to clause 12.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this agreement are, to the fullest extent permitted by law, excluded from this agreement.
12.1 Without affecting any other right or remedy available to it, Thermaright may terminate the Contract with immediate effect by giving notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer commits a material breach of any other term of the Contract;
(c) the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(d) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 ;
(e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(f) the Customer applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(h) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
(i) the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
(k) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets;
(l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(d) to clause 13.1(k) (inclusive);
(m) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
(n) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.2 For the purposes of clause 13.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which Thermaright would otherwise derive from:
(a) a substantial portion of this agreement; or
(b) any of the obligations set out in clause 8, over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
12.3 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
13. Consequences of termination
13.1 Upon termination of the Contract, however caused:
(a) Thermaright’s consent to the Customer’s possession of the Equipment shall terminate;
(b) the Customer shall (at Thermaright’s request) return the Equipment to Thermaright through a traceable courier service (nominated by Thermaright) that requires a signature on delivery. All costs for shipping the Equipment from the Site Location shall be payable by the Customer and the Customer shall bear the risk of loss and damage to the Equipment while in transit;
(c) the Equipment must be cleaned and disinfected by the Customer to a standard satisfactory to Thermaright. If the certificate is not provided within 5 Business Days of the Equipment being returned, Thermaright may charge the Customer reasonable cleaning costs;
(d) Thermaright may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site Location or any other premises or location at which the Equipment is located; and
(e) without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Thermaright on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5.5; and
(ii) any costs and expenses incurred by Thermaright in recovering the Equipment and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
13.2 On termination of this Contract pursuant to clause 13.1, any other repudiation of this Contract by the Customer which is accepted by Thermaright or pursuant to clause 13.3, without prejudice to any other rights or remedies of Thermaright, the Customer shall pay to Thermaright on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period.
13.3 The sums payable pursuant to clause 13.2 shall be agreed compensation for Thermaright’s loss and shall be payable in addition to the sums payable pursuant to clause 13.1(e).
13.4 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
13.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14. Force majeure
Thermaright shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
15. Assignment and other dealings
15.1 Thermaright may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
15.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Thermaright.
16. Entire agreement
16.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
No variation of the Contract shall be effective unless it is in writing and agreed by the parties (or their authorised representatives).
18. Further assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
This Contract may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
20. Third party rights
20.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
20.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
21.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in writing to the other party.
21.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 22.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
23.2 If any provision or part-provision of the Contract is deemed deleted under clause 24.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.