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HAMILTON RENTALS TERMS AND CONDITIONS FOR ASSET MANAGEMENT SERVICES
(1) In these terms and conditions (“Conditions”) the following expressions shall have the meanings ascribed to them below:
a. "Acceptance" means acceptance by the Company of Equipment for the Services in accordance with these Conditions and the requirements set out in the SOW and "Accept" shall be construed accordingly;
b. "Charges" means the charges specified in the Statement of Works and payable by the Client to the Company for the provision of the Services;
c. "Client" has the meaning set out in the Contract Summary;
d. "Collection Date" means the date that the Equipment is collected by the Company from the Client’s premises or the date of delivery of the Equipment to the Company, whichever is applicable;
e. "Company's Software" means the Company's proprietary Asset Management System software which the Client may be granted access to as part of the Services pursuant to the Statement of Works;
f. "Company" means Hamilton Rentals Limited, whose registered office is Magnum House, Cookham Road, Bracknell, Berkshire, RG12 1RB;
g. "Confidential Information" has the meaning set out in Condition 14;
h. "Contract" means the contract between the Company and the Client for the provision of the Services, comprising the Contract Summary, Statement of Works and these Conditions;
i. "Contract Summary" means the summary of the terms of the Contract in the form which is appended to or accompanies these Conditions;
j. "Equipment" means the hardware, software, manuals, documentation, accessories, or articles or any of them (including any additions thereto and substitutions thereof) described in the Statement of Works;
k. "Excluded Equipment" means equipment other than the Equipment;
l. "Packaging Guidelines" means the Company's guidelines for packaging the Equipment in preparation for transportation as notified to the Client from time to time;
m. "Premises" means the premises to which Equipment is delivered for Services to be carried out or ultimately delivered for storage prior to return, resale, destruction or recycling;
n. "Services" means the services as detailed in the Statement of Works;
o. "Statement of Works" or "SOW" means a schedule to these Conditions issued by the Company to be read in conjunction with these Conditions that details the Services to be provided to the Client by the Company;
p. "Term" means to the extent applicable the term of the Contract as set out in the Contract Summary;
q. "Third Party Software" has the meaning set out in Condition 5(1).
(2) Headings used in these terms and conditions shall not affect their interpretation.
(3) Any reference to a Condition when used in these terms and conditions is to a condition of these terms and conditions.
(4) A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
(5) Any obligation in this agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce to that thing being done.
(6) Words in the singular include the plural and in the plural include the singular.
(7) A reference to one gender includes a reference to the other gender.
(8) Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. STATUS OF TERMS AND CONDITIONS
(1) These Conditions are incorporated into the Contract. In the case of any inconsistency between the Contract Summary, these Conditions and the Statement of Works, the terms of such documents will take precedence in the order specified in the Contract Summary. Variations of the Contract shall be effective only if agreed in writing by a director or a person duly authorised by a director of the Company and these Conditions shall take precedence over any terms and conditions the Client may provide to the Company in respect of the Services whether before or after the Commencement Date.
(2) The Contract constitutes the entire agreement between the Client and the Company for the Services and supersedes all prior or other arrangements relating to the Services and no statement, description, information, warranty, condition, or recommendation contained in any price-list, advertisement, documentation or communication or made verbally by any of the agents or employees of the Company shall be construed so as to extend, vary or override any provisions of the Contract in any way.
(3) No order for the provision of the Services shall be binding on the Company unless and until it has been accepted by the Company. An order for the provision of the Services shall be made by the Client returning to the Company the Contract Summary duly signed by or on behalf of the Client and such order shall only be deemed to be accepted by the Company when the Company delivers to the Client such Contract Summary duly signed by or on behalf of the Company.
(1) Unless otherwise expressly stated in writing to be fixed for a given period, the Charges are subject to variation, upon 14 days’ prior written notice to the Client to take account of any variations in services, wages, materials or other costs incurred by the Company during the Term.
(2) Unless otherwise stated in the Statement of Works, all Charges are exclusive of the costs of carriage, insurance and collection (as appropriate) which shall be charged by the Company at the Company's standard rates as notified to the Client from time to time.
(3) All Charges are exclusive of Value Added Tax which shall be payable by the Client at the then applicable rate.
(4) The Company and the Client will review the Charges from time to time in accordance with the SOW and the Company reserves the right to withdraw the Services or increase the Charges to reflect any change in delivery or collection dates, quantities, specification, model or type which is requested by the Client, or for any act or omission by the Client or its employees, agents or subcontractors or any failure of the Client to perform its obligations under the Contract or in respect of the Equipment or to give the Company adequate information or instructions.
4. PAYMENT TERMS
(1) The Company does not grant credit facilities automatically. Should the Company grant the Client credit facilities, payment of all Charges and other costs payable by the Client pursuant to the Contract shall, save as set out in the SOW, be made strictly within 15 days of the invoice date. If the Client is not granted a credit account then payment is to be made on or before the invoice date.
(2) Payment in full shall be due to the Company on the payment date specified in the SOW and, save as set out in the SOW in connection with offsetting sale proceeds received against Charges, the Client shall not be entitled to exercise any set-off, lien, counter-claim or cross demand or any other similar right or claim whatsoever.
(3) The Company reserves the right to withdraw credit facilities at any time and without notice.
(4) Without prejudice to any other rights it may have the Company is entitled to charge interest on any unpaid invoices at the applicable rate as prescribed in the Late Payment of Commercial Debts (Interest) Act 1998, such interest to run from the due date for payment until the date when payment in full is received, whether before or after judgment has been obtained and the Company may terminate the Contract and/or cease to provide the Services to the Client and return any Equipment in the Company's possession to the Client in the event that the Client does not pay any amount to the Company when due to it under the Contract.
(5) The time of payment shall be of the essence of the Contract.
(1) The title and all rights, including all intellectual property rights, in and to any software supplied with or as part of the Services, including programs and documentation ("Third Party Software") shall be retained by the appropriate proprietor thereof and shall be subject to the terms of any licences provided with such software.
(2) The Client’s receipt of refurbished Equipment indicates acceptance of the terms of any licence for Third Party Software supplied and the Client shall indemnify the Company against any liability, damage, cost or expense which it incurs in relation to any failure by the Client to observe the terms of any such licence.
(3) Product support for any Third Party Software is not provided by the Company unless otherwise agreed in writing by the Company.
(4) To the extent provided for in the Statement of Works, the Company shall provide the Client with access to the Company's Software via the Company's website. Such access is given by the Company to the Client on such terms and conditions for website use as the Company may stipulate from time to time.
6. OBLIGATIONS OF THE CLIENT
(1) The Client will provide all reasonable assistance as the Company may request in relation to the collection of the Equipment. Without prejudice to the foregoing, the Client will:
a. provide the Company with clear and reasonable instructions in a prompt manner in relation to the carrying out of the Services and the collection and/or delivery of the Equipment;
b. respond promptly to al requests made by the Company or its personnel or agents for information or directions in connection with the Equipment;
c. notify the Company immediately if the Client becomes aware of matter or circumstances which may be material to the performance of the Services.
(2) The Client shall ensure that no Excluded Equipment is collected by or delivered to the Company without the Company’s prior written approval and agreement as to the services required and the price to be charged.
(3) Without prejudice to Condition 6(1), before any collection or delivery of Equipment takes place the Client will notify the Company in writing of any harmful or hazardous substances or potentially harmful or hazardous substances contained in or relating to the Equipment and shall keep the Company fully informed of any concerning it becomes aware of concerning any such substances located or to be found in the Equipment.
(4) The Company may at any time request a technical specification for the Equipment to be collected or delivered. If the Client is unable to produce a technical specification satisfactory to the Company for the Equipment, the Company may with the Client's agreement and the Client's cost (at the Company's standard rates as notified to the Client) carry out testing of the Equipment on the Client's behalf to ensure that it is safe. The Company shall not be in breach of its obligations under the Contract and may reject the Equipment and return it to the Client (at the Client's cost) if the Client does not either supply a Specification or allow the Company to test the Equipment in accordance with this Condition 6(4).
7. DELIVERY AND COLLECTION OF THE PRODUCTS
(1) Unless specifically agreed otherwise in writing and save to the extent set out in the SOW:
(i) in the event that the Company collects the Equipment the Client shall by no later than 2 business days before the agreed Collection Date specify each item of Equipment to be collected in such detail as the Company or its nominated carrier shall reasonably require; and
(ii) the Client will be responsible for preparing the Equipment for delivery and transportation and in doing so shall comply with the Packaging Guidelines and all applicable laws and regulations in relation to safe and effective packaging of similar equipment and articles.
(iii) the collection date shall not be of the essence of the contract
(2) Without prejudice to this Condition 7, the Company shall not provide the Services in respect of an item of Equipment unless such item of Equipment is Accepted on the basis set out in the SOW and in accordance with these Conditions.
(3) The Company will carry out an initial visual inspection of the Equipment on or before collection by the Company or delivery to the Premises by the Client (as applicable) and such other checks as the Company may require. If the inspection and/or checks show that the Equipment complies in description with the Equipment listed in the SOW, then the Company will collect or take delivery (as applicable) of the Equipment but this will not constitute Acceptance.
(4) Equipment shall only be deemed to be Accepted for the purposes of the Contract when the Company confirms in writing to the Client (which may be by email) that such Equipment has been so accepted. The Company shall endeavour to notify the Client within five business days of the Collection Date of each item of Equipment as to whether that Equipment has been Accepted but time shall not be of the essence in this regard.
(5) Where Equipment does not comply with the SOW or the Specification in whole or in part, or contains Excluded Equipment or is, in the Company’s reasonable opinion, not packaged safely, the Company will be under no obligation to collect or take delivery of such Equipment or to attempt to separate the Equipment in that consignment or to provide the Services in respect of such Equipment.
(6) Where Equipment collected by or delivered to the Company does not comply with the SOW or the Specification but is capable, in the absolute discretion of the Company, of being processed by the Company, the Company will have the right, in its sole discretion, to Accept such Equipment and to charge the Client such additional charges at the rate of 50 (fifty) GBpounds per pallete or as may be agreed between the parties for providing the Services in respect of such Equipment.
(7) If the Company does not Accept any item of the Equipment for any reason, the Company will upon instruction from the Client either dispose of such Equipment or return it to the Client at the Client's cost.
8. RISK OF LOSS OR DAMAGE
(1) Where Equipment is collected from the Client, risk of loss or damage to such Equipment in transit lies with the Company or any of its agents or sub-contractors.
(2) Where the Client delivers the Equipment to the Company loss or damage in transit of that Equipment is at the Client’s sole risk.
(3) The Company will bear the risk of Equipment whilst in the Premises and in its care or control.
(1) Save where stated in the SOW that Equipment is to be refurbished or assessed and returned to the Client in which case title will not transfer, full legal and beneficial title in Equipment free from any encumbrances shall pass to the Company:
a. in the case of Equipment designated for refurbishment and resale, upon resale of such Equipment; and
b. in the case of Equipment which is initially provided in the SOW to be assessed for refurbishment or audit prior to return to the Client and which is subsequently agreed by the Client should be designated for resale, upon resale of such Equipment .
c. at the point the Company allocates the Equipment for destructive recycling, if the Company determines the Equipment is only suitable for destructive recycling.
(2) The Client hereby represents and warrants to the Company that it has full power and authority to enter into the Contract and to perform its obligations under the Contract and that it has a good and marketable title to the Equipment or that the Client's entering into the Contract breaches any contract, licence, agreement or arrangement that Client may have with any third party.
(3) To the extent that the Equipment is subject to any encumbrance, charge, lien, right, mortgage or any other kind of third party interest the Client hereby represents and warrants that it has disclosed full details of any such interest to the Company in the SOW and that it has obtained all such necessary consents and authorisations from any third party having such an interest in the Equipment that are required for the Client to enter into the Contract and deliver or permit the collection of the Equipment and the application of the Services thereon. Equipment free from encumbrances and that no third party has any interest in the Equipment. The Client undertakes to indemnify, and keep indemnified, the Company from and against all costs, expenses, liabilities, injuries, losses, damages, claims, demands, proceedings and judgements which the Company suffers or incurs in respect of or as a result of any claim or action arising from any assertion by a third party that it has any interest in any item of the Equipment or in any software or data contained in any item of the
(1) The Client expressly acknowledges that the Company is not the original manufacturer or supplier of the Equipment, and that the Equipment has been selected by the Client as being suitable for the provisions of the Services.
(2) The Client agrees and acknowledges that all conditions, warranties or representations whether express or implied or statutory or otherwise in respect of the provision of the Services or the Equipment to the extent it is returned to the Client or resold to the Client's employees are hereby expressly excluded to the fullest extent permitted by law.
(3) The Client further acknowledges that the Company gives no representation or warranty or accepts any responsibility or liability for any data stored or held on, present or otherwise accessible from the Equipment on or prior to the Collection Date and that once Equipment has been collected by or delivered to the Company the Client has no right of action or claim against the Company, whether in contract, tort or otherwise, in respect of any data stored or held on, present or otherwise accessible from the Equipment at or at any time prior to the Collection Date.
(4) The aggregate liability of the Company to the Client in respect of any loss or damage whether arising in contract, tort, for breach of statutory duty or otherwise shall be limited to and shall not in any circumstances exceed the greater of £1,000,000 or the Price for the Services received by Hamilton’s during the course of this Agreement.
(5) The Company shall not in any circumstances be liable whether in contract, tort, for breach of statutory duty or otherwise for any consequential or indirect loss or damage howsoever arising and of whatsoever nature (including, without limitation, any loss or damage to computer programs or data, loss of profit, loss of goodwill, loss of revenue, loss of anticipated benefit, business interruption, management time or third party liability).
(6) Notwithstanding anything contained in the Contract the Company shall not limit its liability for any fraudulent misrepresentation on its part or for any death of or physical injury to any person which is caused by the negligence of the Company or its employees.
(7) The Company shall maintain at its own cost, insurance for normal risks covered by such policies to cover its liabilities under this Agreement including £5,000,000 Professional Indemnity cover against any accidental exposure of explicit data from processed IT media following the execution of the Company’s Data Erasure or Destruction services.
11. HEALTH AND SAFETY
The Client undertakes to take such steps as may be necessary to ensure that the Equipment is stored and accessible and is made available for collection or, to the extent applicable, is delivered to the Company in a manner that is without risk to health and safety of any person. The Client undertakes to indemnify, and keep indemnified, the Company from and against all costs, expenses, liabilities, injuries, losses, damages, claims, demands, proceedings and judgements which the Company suffers or incurs in respect of or as a result of any claim or action arising from any death or personal injury suffered by any person which arises as a consequence of a breach by the Client of the terms of this Condition.
(1) Without prejudice to its other rights, the either party may by notice in writing, immediately terminate the Contract upon the occurrence of any of the following events:
a. if the other party (the Defaulting Party) is in breach of any of its obligations under the Contract;
b. if the Defaulting Party ceases or threatens to cease to carry on business or is subject to any legal proceedings in which its solvency is in question or has any process of distress or execution levied against it or calls a meeting of, or enters into any composition or arrangement with its creditors;
c. if the Defaulting Party being an individual shall die or being a partnership shall be dissolved or if the Defaulting Party (or where the Defaulting Party is a partnership if any partner thereof) shall suffer an interim order (within the meaning of the Insolvency Act 1986 or any statutory modification or re-enactment thereof) to be made against him or suffer the making of a statutory demand or commit any act of bankruptcy or if a bankruptcy petition be presented against him;
d. if, the Defaulting Party being a company, any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator shall be appointed over the whole or any such part of such company's undertaking, property or assets.
(2) Termination of the Contract for any reason shall be without prejudice to any rights of either party which have accrued hereunder up to the effective date of termination and shall be without prejudice to a party's right to be indemnified under any of the indemnities set out in the Contract.
(3) Upon termination of the Contract the Client shall:
a. deliver up any Confidential Information;
b. without prejudice to the Company's rights to claim damages, become immediately liable to pay to the Company all arrears of Charges and other monies accrued due to the Company and which are unpaid under the Contract together with interest thereon at the rates set out in Condition 4(4) and any costs and expenses incurred by the Company in returning to the Client any of the Equipment.
The provisions of this Condition 14 shall survive notwithstanding any termination of the Contract.
Any notice to be given by either party to the other shall be in writing and may be served either by delivering it by hand or sending it by first class post or facsimile transmission in the case of the Company to the Company's registered office from time to time and in the case of the Client to the address appearing in the Contract Summary or the Contact Sheet appended to the SOW as the relevant address for the despatch of invoices or such other address as the Client may from time to time have communicated to the Company in writing for this purpose. Service by delivery by hand shall be deemed to be effected upon delivery to the relevant address, service by first class post 3 days following the date of posting and service by facsimile transmission upon transmission of the relevant communication.
14. CONFIDENTIAL INFORMATION
(1) Each party may disclose to the other or a party may acquire knowledge of information and data belonging to the other or belonging to an entity within the same group of companies as that party (including, but not limited to, information obtained by the Client from using the Software and any corporate, marketing, technical, legal and financial information and documentation, trade secrets, processes, formulae, user’s guides, instruction manuals, accounts data and other materials) which have been developed by the other party at its time, skill and expense and which are acknowledged to be valuable assets of the other party and are confidential and proprietary in nature ("Confidential Information").
(2) Each party shall ensure that each entity within its group of companies with access to Confidential information shall safeguard such Confidential Information obtained from the other party to the same degree that it safeguards Confidential Information pertaining to its own business and operations and shall not disclose this to any third party except consultants or auditors that sign a nondisclosure agreement consistent with this Condition 14.
(3) Notwithstanding the foregoing, Confidential Information shall not include information which:
a. is at the time of disclosure, or after such time becomes, a part of the public domain through no act or omission by the party to whom the information does not belong to the recipient its officers, employees or agents; or
b. was in the receiving part’s lawful possession as shown by written records prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the other party; or
c. is hereafter lawfully disclosed to the recipient by a third party who did not acquire the information either directly or indirectly from the other party; or
d. is independently developed by the recipient.
(1) The Company may assign the Contract or sub-contract the whole or any part thereof to any person firm or company.
(2) Neither party shall be in breach of these terms or otherwise liable to the other through any circumstances beyond their control including but not limited to strikes, lockouts or any other form of industrial action, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant machinery or shortage or unavailability of raw materials or labour from normal sources of supply.
(3) No waiver by the Company of any breach by the Client of its obligations hereunder shall constitute a waiver of any subsequent breach thereof.
(4) If in any particular case any provision of this Contract shall be held to be invalid, unenforceable or shall not apply to the Contract then the remaining provisions shall continue in full force and effect.
(5) Where two or more persons are a party to the Contract as the Client the liability of such persons shall be joint and several.
(6) The parties to the Contract do not intend that any of its terms will be enforceable by any person not a party to it whether by virtue of statute or otherwise howsoever arising.
(7) The Contract and any dispute or claim arising in connection with the Contract and any non-contractual obligation arising in connection with the Contract, its negotiation or subject matter shall be governed by and construed in accordance with English Law and the parties hereby submit to the exclusive jurisdiction of the English Courts in respect of all such matters.