Terms & Conditions

STANDARD TERMS AND CONDITIONS

Lowe Rental Inc. - Hire

These conditions apply to all contracts for the hire of equipment by Lowe Rental Inc. and shall apply in place of and prevail over any terms or conditions contained or referred to in any hirer's order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically agreed to in writing by a director of Lowe Rental.

1.

DEFINITIONS

1.1

"the Owner" means Lowe Rental Inc. (registration no. 9001622DP) whose registered address is 7405 Graham Road, Suite B, Fairburn, GA 30213.

1.2

"the Hirer" means the person, firm, company, corporation or authority specified as the hirer of the Equipment and includes his/her, its or their successors or personal representatives.

1.3

"Equipment" means the equipment listed in the Quotation and any other equipment or goods of any nature whatsoever provided by the Owner to the Hirer in accordance with these conditions.

1.4

“Force Majeure Event” means any of the following circumstances or events which are beyond the Owner’s reasonable control including but not limited to: an act of God, war, military or terrorist activity, civil unrest, national strike, lock-out or trade dispute or labour disturbance, government intervention, pandemic, epidemic, fire, flood, storm or adverse weather conditions or difficulty or excessive increase in the expense in obtaining workmen, materials or transport. .

1.5

"Hire Contract" means the contract between the Owner and the Hirer in connection with the hire of the Equipment incorporating these conditions, the Quotation and the Order (where applicable).

1.6

"Hire Period" means the period during which the Equipment is hired by the Owner to the Hirer under the Hire Contract (and, if the Hire Contract subsists for different periods in relation to different items of Equipment, as the context requires or permits the period during which each item of Equipment is hired by the Owner to the Hirer) and includes any period during which the Equipment is in the possession or under the control of the Hirer otherwise than with the consent of the Owner.

1.7

"Minimum Hire Period" means either the minimum fixed term period for which the Equipment is capable of being hired as stated in the Quotation or (in the event that no such period is specified in the Quotation) as agreed between the Hirer and the Owner and stated in the Hire Contract.

1.8

"Minimum Hire Charge" means the minimum amount charged by the Owner for the Minimum Hire Period as stated in the Quotation or (in the event that no such period is specified in the Quotation) as agreed between the Hirer and the Owner and stated in the Hire Contract.

1.9

"the Site" means where the Equipment is or is to be located during the Hire Period.

1.10

"the Order" means the document (including electronic order document) submitted by the Hirer to the Owner confirming the hire of the Equipment.

1.11

"the Quotation" means the document provided by the Owner setting out the Charges, a list of the Equipment and any Minimum Hire Period.

1.12

"the Charges" means the total amount payable by the Hirer for the hire of the Equipment as set out in the Quotation or (in the event that no Quotation is provided by the Owner to the Hirer) as agreed in writing between the Owner and the Hirer.

1.13

“Deposit” means any deposit amount set out in the Hire Contract or the Quotation.

1.14

“Business Day” means a day, other than a Saturday, Sunday or U.S. federal holiday. .

1.15

“Retail Prices Index” means the retail prices index as published by the Office for National Statistics from time to time.

1.16

“Total Loss” means the Equipment is, in the Owner’s reasonable opinion or in the opinion of the insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.

1.17

“Renewal Period” means any extension of the Minimum Hire Period.

1.18

“Sales Taxes” means sales, use, excise, services, consumption, value-added or similar taxes imposed by taxing authority in any jurisdiction. Sales Taxes exclude taxes on the personal property, gross receipts or net income of Lowe.

2.

CONSENTS LICENCES AND PERMISSIONS

2.1

The Hirer shall obtain and maintain in force at all times all permissions, consents and licenses required for the Equipment or for the erection, installation or operation of the Equipment or any part of it under any applicable statute, regulation or bye-law and comply with any conditions imposed therein.

2.2

The Owner shall not, other than in exercise of its rights under the Hire Contract or applicable law, interfere with the Hirer's quiet possession of the Equipment.

2.3

The Owner reserves all intellectual property rights in or relating to the Equipment, including copyright in all drawings, plans, diagrams, operation or installation manuals, specifications, lists of components, illustrations and images of the Equipment or any part of it, all rights in all designs of or relating to the Equipment or any part of it prepared or created by the Owner and all rights in the trade and service marks (registered and unregistered) used by the Owner in connection with the Equipment or any part of it and the Hirer hereby acknowledges that it shall not acquire any such rights and that all such rights are, and shall remain, vested in the Owner.

2.4

If during the Hire Period the Hirer wishes to rent additional equipment from the Owner, the Hirer shall notify the Owner in writing. The Owner shall evaluate such a request and respond to the Hirer with a separate Quotation. Subject to the right of the Owner to notify the Hirer of any errors made by it on the Quotation and to amend it accordingly, such Quotation will remain valid and open to acceptance by the Hirer for a period of 14 days following which it will automatically lapse and no longer be capable of acceptance by the Hirer. The Hirer will promptly notify the Owner in writing whether it accepts or rejects the Quotation and where a Quotation is accepted it will be deemed to form part of the Order from that point onwards for the purpose of these Conditions unless the parties agree to proceed by way of a separate agreement for such additional equipment.

3.

DELIVERY

3.1

The Owner will use its reasonable efforts to deliver the Equipment to the Site on the date specified for delivery in the Order or as otherwise agreed in writing between the Owner and the Hirer.

3.2

Unless otherwise specified in writing, time will not be of the essence in relation to the date for delivery of the Equipment and the Owner accepts no liability for failure to deliver the Equipment on any specified date arising from any cause whatsoever.

3.3

The Hirer will ensure that the Owner, or its affiliate, has a suitable and unrestricted access route for delivery and collection of the Equipment.

3.4

It shall be the responsibility of the Hirer to ensure that the route and site for delivery and collection of the Equipment is suitable and without impediment. Where the ground is soft, potentially unstable or otherwise unsuitable for delivery the Hirer shall notify the Owner, and the Hirer shall provide appropriate temporary foundations in a suitable position for loading, unloading and for the Equipment to rest on. For the avoidance of doubt, the Owner shall not be liable to the Hirer or any third party for any loss or damage incurred as a result of the Hirer failing to perform its responsibilities under this clause 3.4.

3.5

It is the Hirer's responsibility to ensure the suitability of the Site and access for the Equipment. Unless otherwise specified in writing, the Hirer is responsible for ensuring that any area onto which the Owner is installing flat-pack coldrooms is level and free of obstructions. Any costs arising from the unsuitability of the Site, access route and/or any consequential failed or delayed delivery and/or installation work are chargeable to the Hirer.

3.6

In the event the Hire Period exceeds twenty-four (24) months, the Owner shall be entitled to review, and to the extent reasonable, increase the costs of collection of the Equipment from the Site.

4.

LOADING AND UNLOADING

4.1

The Hirer shall be responsible for the loading and unloading of the Equipment at the Site and any personnel supplied by the Owner shall be deemed to be under the Hirer's control.

4.2

The Hirer shall be responsible for any lifting gear or special apparatus required for the installation or removal of the Equipment.

4.3

Should the vehicle driver be delayed in gaining access to the Site or unable to load / unload for a period of 3 hours or more whether the reason for the delay is within the control of the Hirer or not, then extra charges will be incurred at the rate of $70 per 15 minute period for each employee or worker of the Owner thus delayed.

4.4

Any work involving positioning of the Equipment is the responsibility of the Hirer.

4.5

The Hirer shall deliver up the Equipment at the end of the Hire Period or on earlier termination of the Hire Contract at such address as the Owner requires, or if necessary allow the Owner or any of its representatives, access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment.

5.

CONNECTION OF MAINS SERVICES

5.1

Connection and disconnection of services on the Site is the responsibility of the Hirer and must be performed by a competent engineer in accordance with the service requirements outlined by the Owner.

5.2

Unless otherwise agreed in writing by the Owner, it is the responsibility of the Hirer to arrange for a competent engineer to commission the Equipment on the Site.

6.

MAINTENANCE, CARE AND ALTERATIONS

6.1

The Hirer shall use the Equipment in a skillful and proper manner and in accordance with any operating instructions issued with the Equipment and shall ensure that the Equipment is operated and used by properly skilled and trained personnel. The Hirer shall be responsible for maintaining the Equipment in the same condition as on the date of its delivery and for returning the Equipment at the expiry of the Hire Period in a good and clean condition (subject to reasonable wear and tear). If the Owner (in its absolute discretion) considers that the Equipment requires cleaning at any time during the Hire Period to ensure its efficient operation or its continued efficient operation, the Owner shall be entitled to clean the Equipment and charge the cost of so doing to the Hirer.

6.2

If at any time during the Hire Period the Equipment (or any part of it) is lost or damaged the Hirer shall immediately notify the Owner and the Hirer shall be responsible for the full cost of replacement or repair. In the case of damage, the Owner shall (in its absolute discretion) determine whether the damage shall be made good by repair or the Equipment be replaced. The Hirer shall be responsible for the replacement of all consumable items such as dishwasher salts, water softeners, calcium treatment units, slicer blades and light bulbs.

6.3

No alteration or modification may be carried out to the Equipment without the prior written consent of the Owner.

6.4

Nothing may be affixed whether temporarily or permanently to any of the interior or exterior walls of the flatpack coldroom, cabin or portable building housing or forming part of the Equipment and any holes or other damage caused to any interior or exterior walls shall be charged to and payable by the Hirer in accordance with these terms.

6.5

In the event of any item of the Equipment malfunctioning the Hirer will inform the Owner at the earliest possible opportunity. The Owner will procure that an engineer visits the Site to examine the malfunctioning item of the Equipment within one Business Day of notification.

6.6

If in the opinion of the Owner any malfunction of the Equipment is caused by misuse, neglect or malicious vandalism, or impact damage, the cost of repairs (including a call out charge at the Owner's rates ruling at the time), will be charged to and payable by the Hirer in accordance with these terms. If in the opinion of the Owner (i) the malfunction of the Equipment is caused by incorrect usage, insufficient gas or electrical supply, inadequate water treatment or any other problem unrelated to the Equipment, regardless of whether the Owner has conducted maintenance visits, or (ii) the Equipment is not malfunctioning, the Owner will charge the Hirer a full call-out charge at the Owner’s rate ruling at the time, including all transport charges.

6.7

In times of severe weather, precautions should be taken by the Hirer to avoid frost, flood, wind, hail, rain or storm damage. The Owner recommends that the Equipment be drained down or kept heated (as appropriate) overnight at such times. Any damage caused by frost, flood, wind, hail or storm is the responsibility of the Hirer.

6.8

In the event the Owner provides a cabin or portable building with the Equipment, under no circumstances may the Hirer remove any Equipment or part thereof from such cabin or portable building. No cooking equipment connected to a supply of water, electricity or gas, other than equipment supplied by the Owner, may be used within any portable kitchen supplied by the Owner unless prior consent in writing is given by the Owner.

6.9

The Hirer shall be responsible for ensuring compliance with any applicable rules or regulations relating to health or safety at work and shall take such steps (including compliance with all safety and usage instructions provided by the Owner) 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. In particular:

 

6.9.1

the Hirer shall not use the Equipment for any unlawful purposes;

 

6.9.2

the Hirer will not do or permit to be done anything that could invalidate the insurances referred to in Section 18 (Title, Risk and Insurance);

 

6.9.3

if it is necessary or prudent for fire extinguishers to be available at the Site within the cabin or portable building, the Hirer shall be responsible for supplying them;

 

6.9.4

the Hirer shall be responsible for the periodic electrical testing and testing of emergency lights of the Equipment whilst on hire;

 

 

6.9.5

the Hirer shall be responsible for pressure vessel testing of any Equipment whilst on hire; and

 

 

6.9.6

 the Hirer shall be responsible for the chlorination of water supply pipework.

 

6.10

Should any fixed or loose item of Equipment not be returned with the Equipment at the expiry of the Hire Period then rental will be charged on that item until it is either returned to the Owner or payment for the item is received by the Owner. The minimum hire charge for such items will be $30 plus $1.40per item per day.

6.11

The Hirer shall maintain operating records of the Equipment and upon request from the Owner, shall make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require.

7.

INSPECTION

7.1

Regardless of any security or regulatory restrictions relating to access to the Equipment, the Hirer shall at all times allow the Owner, its agents or servants or any person authorized by the Owner, to have reasonable access to the Equipment to inspect, test, adjust, repair, remove or replace the same.

7.2

The Hirer shall procure that all necessary consents from third parties are obtained and kept in force to permit the Owner to have access to the Equipment at all times for the purpose of the Hire Contract.

8.

HIRE PERIOD

8.1

Unless otherwise agreed in writing, the Hire Period will commence on whichever is the earlier of (i) the day the Owner notifies the Hirer that the Equipment has left the Owner's premises or (ii) the day set out in the Quotation (the “Agreed Delivery Date”), and will terminate on the day the Equipment is received by the Owner at its premises. Should the Hirer seek to postpone the delivery date within the four (4) week time period leading up to the Agreed Delivery Date, notwithstanding such postponement, the Hire Period shall be deemed to commence on the Agreed Delivery Date.

8.2

On or after the expiry of the Minimum Period of Hire, the Owner will arrange collection of the Equipment at the expiry of notice given by the Hirer in accordance with Section 8.3.

8.3

Either the Hirer or the Owner may terminate the Hire Contract by giving notice in writing to the other in accordance with the following notice provisions. The Hire Contract will expire on the last day of the Minimum Hire Period or any extended Minimum Hire Period (whichever is the latter). In case of the Hire Period:

 

8.3.1

exceeds twenty four (24) months, the notice period shall be not less than twelve (12) weeks’ notice;

 

8.3.2

exceeds twelve (12) months, the notice period shall be not less than eight (8) weeks’ notice;

 

8.3.3

exceeds six (6) months, the notice period shall be not less than six (6) weeks’ notice;

 

8.3.4

is six (6) months, the notice period shall be not less than five (5) weeks’;

 

8.3.5

is three (3) months, the notice period shall be not less than four (4) weeks’;

 

8.3.6

is one (1) month, the notice period shall be not less than two (2) weeks’.

8.4

Notwithstanding Section 8.3 in the event that the Equipment on hire at any point consists of (i) ten (10) units or more; (ii) any units that require modification or design changes to be made; or (iii) open plan units, the party seeking to terminate the Hire Contract must give not less than ten (10) weeks’ notice.

8.5

The Owner may refuse a request by the Hirer to extend the Hire period beyond the Minimum Hire Period, or any subsequent requests for extension of the Hire Period. The Owner is not obliged to give any reasons for such refusal or to act reasonably.

9.

RENTAL TERMS, PAYMENT TERMS AND DEPOSIT

9.1

The Hirer shall pay to the Owner the Charges in accordance with the timeline set out in the Quotation or (in the event that no Quotation is provided by the Owner to the Hirer) as agreed in writing between the Owner and the Hirer.

9.2

The Charges are exclusive of Sales Taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the manner from time to time prescribed by law.

9.3

In the event that the Parties agree to extend the Minimum Hire Period, the Owner shall notify the Hirer as soon as reasonably practicable (before the expiry of the Minimum Hire Period) the revised Charges payable by the Hirer which shall continue to accrue at the rate agreed by the Owner at the point of extension until the Equipment is returned to or collected by the Owner or a further extension of the Hire Period is agreed.

9.4

If the Hire Period exceeds one (1) month, the Hirer will follow the payment schedule as agreed.

9.5

All Charges shall be paid by the Hirer punctually to the Owner and subject to Section 9.8 below no allowance, deduction, discount or set-off shall be permitted.

9.6

The Owner reserves the right to amend hire rates, reasonably, at any time after the expiry of the Minimum Hire Period, giving seven (7) days' notice in writing to the Hirer.

9.7

Where required under the Hire Contract, the Hirer shall pay a security bond to the Owner upon entering into the Hire Contract. The amount of such security bond shall be held by the Owner until the safe return of the Equipment in accordance with these conditions. The security bond may be set-off by the Owner against the Charges or applied by the Owner in its reasonable discretion to fund costs payable by the Hirer in connection with lost or damaged or inadequately cleaned Equipment.

9.8

If the Quotation includes a Deposit then the Deposit is a deposit against default by the Hirer of payment of any Charges or any loss of or damage caused to the Equipment. The Hirer shall, on the date of the Hire Contract, pay the Deposit in such amount as is detailed on the Quotation. If the Hirer fails without due cause to fulfil any Charges in accordance with the Hire Contract, or causes any loss or damage to the Equipment (in whole or in part), the Owner shall be entitled to apply the Deposit against such default, loss or damage. The Hirer shall pay to the Owner any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Hire Contract.

9.9

If at the time of entering into the Hire Contract the Hirer issued a specific purchase order number for the Hire Contract, the Owner will reference that purchase order number on all invoices issued to the Hirer. If following the issue of the Hirer’s initial purchase order number:

 

9.9.1

the Hirer’s requirements change such that additional Charges are due in excess of those covered by the initial purchase order number; and

 

9.9.2

the Hirer fails for any reason to promptly issue a revised or supplementary purchase order number to cover such additional Charges,

 

9.9.3

then the Hirer hereby authorizes the Owner to raise its invoices for such additional Charges citing the original purchase order number provided. Invoices issued pursuant to this clause 9.9 shall be deemed to have been properly rendered and otherwise paid in accordance with the terms of this Hire Contract.

9.10

Save as provided at clause 9.11.1, the Hire Payments payable for:

 

9.10.1

the first Renewal Period following the Minimum Hire Period, shall be 5% more than the Hire Payment paid for the last month of the Minimum Hire Period;

 

9.10.2

each subsequent Renewal Period, shall be 5% more than the Hire Payment paid for the last month of the previous Renewal Period.

9.11

If the Owner, acting reasonably and in good faith, believes that the prevailing market conditions require it:

 

9.11.1

it may within 30 days of any Renewal Period commencing, notify the Hirer in writing that a higher increase in the Monthly Fee is required than is set out in Section 9.10;

 

9.11.2

the Increase Notice will set out the amount of the proposed increase and the reasons why the Owner considers it appropriate;

 

9.11.3

if the Hirer does not wish to continue with the Hire Contract at the price stated in the Increase Notice, it may serve notice to terminate the Hire Contract at the end of the following month providing that such notice must be served within 10 Business Days of the Hirer receiving the Increase Notice, time being the essence in this regard;

 

9.11.4

the higher Rental Payment notified to the Hirer pursuant to this Section 9.11.1 shall not take effect if a Termination Notice is served.

9.12

The Owner may, without need of prior notice, increase the amount of Rental Payments with effect from 1 January each year by an amount equal to any percentage increase in the Retail Prices Index during the previous year.

10.

FORCE MAJEURE

10.1

If the Owner is prevented, hindered or delayed from or in performing any or all of its obligations under this Agreement by a Force Majeure Event, the Agreement shall be suspended for so long as the Force Majeure Event continues and to the extent that the Owner is so prevented, hindered or delayed.

10.2

The Owner shall not be liable to the Hirer for any loss or damage which may be suffered by the Hirer as a direct or indirect result of the delay of Equipment or the performance by the Owner of any of its obligations under this Agreement being prevented, hindered or delayed.

10.3

As soon as reasonably practicable after the commencement of a Force Majeure Event, the Owner shall notify the Hirer in writing of the nature and extent of the circumstances giving rise to the Force Majeure Event and the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement.

10.4

The Owner shall use all reasonable efforts to mitigate the effects of the Force Majeure Event upon the performance of its obligations under this Agreement; and as soon as reasonably practicable after the cessation of the Force Majeure Event, shall notify the Hirer in writing and shall resume performance of its obligations under this Agreement. 

10.5

In the event the Force Majeure Event lasts longer than [one] month, the Owner shall be entitled (but not required) to cancel the Hire Contract without liability or compensation to the Hirer. 

11

TERMINATION

 

Without prejudice to the Owner's right to arrears of Charges or other sums due under the Hire Contract the Owner may terminate the hire under the Hire Contract by notice to the Hirer upon the occurrence of any of the following events:

11.1

if the Hirer fails to pay the Charges or any other sums agreed to be paid by the Hirer to the Owner under the Hire Contract on the due date; or

11.2

if the Hirer breaches any term of the Hire Contract; or

11.3

if the Hirer does or allows to be done any act or thing which may prejudice or endanger the Owner's property or rights in the Equipment; or

11.4

if the Hirer dies or otherwise becomes incapable of performing its obligations under the Hire Contract; or

11.5

if the Hirer has a bankruptcy order made against him/her; or

11.6

if the Hirer is liquidated or wound up or has a petition for winding up presented against it or it pass a resolution for voluntary winding-up (otherwise than for reconstruction or amalgamation to which the Owner shall have given its written consent); or

11.7

if the Hirer 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 is deemed unable to pay its debts; or

11.8

if the Hirer 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 for the sole purpose of a scheme for a solvent amalgamation of the Hirer with one or more other companies or the solvent reconstruction of the Hirer; or

11.9

if an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Hirer; or

11.10

if the holder of a qualifying floating charge over the assets of the Hirer has become entitled to appoint or has appointed an administrative receiver; or

11.11

if a person becomes entitled to appoint a receiver over the assets of the Hirer or a receiver is appointed over the assets of the Hirer; or

11.12

if a creditor or encumbrancer of the Hirer 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 Hirer's assets and such attachment or process is not discharged within 14 days; or

11.13

if the Hirer shall abandon the Equipment whereupon the Owner's consent to the Hirer's possession of the Equipment shall be terminated immediately and the Owner may take possession of the Equipment wherever it or any part of it may be.

12.

CONSEQUENCES OF TERMINATION

12.1

Immediately upon notification of the termination of the Hire Contract pursuant to Section 11 above there shall become immediately due and payable by the Hirer to the Owner:

 

12.1.1

all and any Charges then due (including all and any arrears);

 

12.1.2

all and any Charges which were agreed to be paid by the Hirer at the end of the Hire Period or any extension thereof (less a discount for accelerated payment at the rate of 5% per annum).

12.2

The Hirer shall indemnify the Owner against, and shall promptly reimburse the Owner upon receipt of any invoice from the Owner in respect of, all expenses and costs incurred by the Owner in retaking possession of the Equipment and/or enforcing its rights under the Hire Contract.

12.3

If the Hirer terminates the Hire Contract during the Minimum Hire Period and the Owner is capable of hiring all such Equipment to another customer for the remaining period of the Minimum Hire Period, the Owner shall offer the Hirer a rebate equal to 50% of the daily rental value under the Hire Contract in respect of each day of the remaining Minimum Hire Period that the Equipment is hired by another hirer (unless the amount representing the discount is applicable under Section 12.1.2 above)._

13.

CANCELLATION

13.1

In the event that the Hirer cancels the Hire Contract (whether by notice to that effect given to the Owner at any time after the Hire Contract has been entered into or by failing to comply with the Hirer's obligations under the Hire Contract and the Owner electing to treat such failure as a repudiation of the Hire Contract by the Hirer) the Owner shall be entitled to either:

 

13.1.1

where the Hire Period has commenced, recover the same payments from the Hirer pursuant to Section 12 as if the Owner had terminated the Hire Contract for a reason falling within Section 11; or

 

13.1.2

where the Hire Period has not yet commenced, any Charges payable as the result of preparatory work on the Equipment and all Charges that would have been payable by the Hirer for the Minimum Hire Period as if the Hire Contract had not been cancelled.

14.

CLEANING

14.1

The Hirer shall fully clean the Equipment each day during the Hire Period.

14.2

At the expiry of the Hire Period and prior to the collection of the Equipment by the Owner the Hirer will deep clean the Equipment so that the Hirer returns the Equipment to the Owner in the same condition (subject to reasonable wear and tear) and standard of cleanliness as it was when it was delivered by the Owner.

15.

CONDITIONS, WARRANTIES AND EXCLUSIONS

15.1

The Equipment shall be deemed to be complete, in good order and condition and to the Hirer's satisfaction unless notification is received by the Owner within forty-eight (48) hours of the Equipment being delivered to the Site.

15.2

The Owner warrants that the Equipment shall substantially conform to its specification (as made available by the Owner to the Hirer), be of satisfactory quality and fit for purpose as determined by the Owner but no warranty or representation is given or made that the Equipment is suitable for the purpose required by the Hirer.

15.3

In the event of malfunction, failure or poor or partial performance of the Equipment or any part of it and subject to the provisions of Section 14.1 and Section 6 above, the liability of the Owner shall be limited to repairing or replacing the Equipment or relevant part.

15.4

Except as expressly stated in this Contract, and to the extent permitted by applicable law, LOWE makes no representation or warranty to the CLIENT or any other person with respect to the Equipment, express or implied, including any express or implied representation as to the quality, condition, state or description of the Equipment, or its fitness or suitability for any purpose, or any other representation or warranty of any nature, all of which are expressly disclaimed.

15.5

Without prejudice to Section 15.5, the Owner's maximum aggregate liability in connection with the Equipment or the Hire Contract (including any liability for the acts or omissions of its employees, agents and subcontractors), whether such liability arises in contract, tort, negligence, misrepresentation, breach of statutory duty or otherwise howsoever shall in no circumstances exceed the amount equal to the aggregate Charges payable by the Hirer during the Minimum Hire Period.

15.6

Nothing in the Hire Contract shall exclude or in any way limit a party’s liability for:

 

15.6.1

death or personal injury caused by its own negligence;

 

15.6.2

for fraud or fraudulent misrepresentation; or

 

15.6.3

any other liability which cannot be excluded by law.

15.7

Except as expressly set forth in the Hire Contract all conditions, warranties and representations expressed or implied by statute, common law or otherwise with respect to the Equipment are excluded to the fullest extent permitted by law and in no event shall the Owner be liable for any negligence or other tortious loss or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Owner is advised of the possibility of loss, liability, damage or expense):

 

15.7.1

loss of revenue;

 

15.7.2

loss of actual or anticipated profits (including for loss of profits on contracts);

 

15.7.3

loss of the use of money;

 

15.7.4

loss of anticipated savings;

 

15.7.5

loss of business;

 

15.7.6

loss of operating time or loss of use;

 

15.7.7

loss of opportunity;

 

15.7.8

loss of goodwill;

 

15.7.9

loss of reputation;

 

15.7.10

loss of, damage to, or corruption or reconstitution of data; or

 

15.7.11

any indirect or consequential loss of damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in Sections 15.7.1 to 15.7.10). Direct financial and other loss not excluded by this clause is accepted by the Owner up to the limit set out in Section 15.4.

15.8

In particular, and without limiting the provisions of Section 15.7, the Owner accepts no liability for loss of or damage to food due to defects in or breakdown of any cold room or refrigeration equipment included in the Equipment.

16.

TRANSPORT

16.1

Unless otherwise stated in the Quotation provided by the Owner to the Hirer, the Hirer shall pay to the Owner the cost of the transport of the Equipment from the Owner's premises to the Site and its return to the Owner's premises.

17.

SUB-LET AND CHANGES OF SITE

17.1

Subject to Section 17.3 below the Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment or purport to do any such things and shall protect the same against distress, execution or seizure and shall indemnify the Owner against all damages, losses, costs, charges and expenses that may be occasioned by failure to observe and perform this condition except in the case of Government requisition.

17.2

The Hire Contract is personal to the Hirer and the Hirer shall not assign his, her or its rights hereunder.

17.3

Subject to the written permission of the Owner and the Hirer having specified any sub-hirer to the Owner in writing the Hirer may sub-let the whole (but not part only) of the Equipment to the specified person, firm or company for use at the Site but:

17.4

any such sub-letting shall not affect in any way the Hirer's liability to the Owner under the terms of the Hire Contract;

 

17.4.1

the Hirer shall make it a condition of the sub-letting that in the event that the Hirer makes any default in the payment of rentals due by the Hirer to the Owner the sub-hirer shall thereupon no longer be in possession of the Equipment sub-hired with the consent of the Owner and accordingly such Equipment may be repossessed by the Owner; and

 

17.4.2

the Hirer shall indemnify and keep indemnified the Owner against any loss, cost, claim, demand, liability or expense which the Owner may suffer, incur or sustain as a result of or in connection with any such sub-letting.

17.5

In particular but without prejudice to the generality of Section 17.3 above the Hirer will remain liable for all damage to the Equipment or any part of it caused by any person, firm or company to which the Hirer gives possession of the Equipment and for any charges raised by the Owner in accordance with these terms and conditions in the event of failure to maintain the Equipment properly.

18.

TITLE, RISK AND INSURANCE

18.1

The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (except the right to possession and use of the Equipment subject to the terms and conditions of the Hire Contract).

18.2

The risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on delivery to the Site. The Equipment shall remain at the sole risk of the Hirer during the Hire Period until such time as the Equipment is collected by or returned to the Owner. During the Hire Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:

 

18.2.1

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, accident and any other cause usually insured against;

 

18.2.2

insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner 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

 

18.2.3

insurance against such other or further risks relating to the Equipment as may be required by law, together which such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Hirer.

18.3

The Hirer shall ensure that the interest of the Owner is noted on such insurance policies effected by the Hirer and that the Owner is named as loss payee so that in the event of loss or damage to the Equipment or any claim being made against the Owner for loss or damage to person or property the Owner will have the benefit of an indemnity from an insurance company to the full value of the loss, damage or claim.

18.4

The Hirer shall, at least 10 Business Days before the Hire Period commences, provide to the Owner evidence that the Hirer has the insurance policies in force as required by these terms and conditions.

18.5

Should the Hirer not provide evidence of the required insurance cover in accordance with Section 18.4, or should the Owner reasonably consider that the insurance obligations under this Section 18 have not been adequately met, the Owner shall be entitled to charge the Hirer a fee (a “Damage Waiver”), which shall be charged to and payable by the Hirer in accordance with these terms/effect and maintain the required insurance cover in accordance with Section 18.2, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Hirer.

18.6

The Hirer shall 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 Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages, and expenses incurred as a result of such confiscation.

19.

OWNER'S MARKS

19.1

The Hirer will not remove, obscure, alter or deface in any way any of the Owner's nameplates, signs, engravings or other indications of ownership on any of the Equipment.

19.2

The Hirer will procure that none of the Equipment becomes affixed to any land and will indemnify the Owner against any loss, cost claim, demand, liability or expense which the Owner may suffer, incur or sustain as a result of any person, firm or company claiming that any Equipment has become affixed to any property.

20.

ENTIRE AGREEMENT AND VARIATION

20.1

The Hire Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.

20.2

Each party acknowledges that, in entering into the Hire Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Hire Contract. Each party agrees that its only liability in respect of those representations and warranties that are set out in the Hire Contract (whether made innocently or negligently) shall be for breach of contract.

20.3

Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.

20.4

No variation of the Hire Contract shall be effective unless it is in writing and agreed by the parties (or their authorized representatives).

21.

RIGHTS OF THIRD PARTIES

21.1

A person who is not a party to the Hire Contract shall not have any rights to enforce its terms.

21.2

The rights of the parties to terminate, rescind or agree any variation, waiver or settlement to or under the Hire Contract are not subject to the consent of any person that is not a party to this agreement.

22.

GENERAL

22.1

Any delay or failure by the Owner to exercise any right or remedy under the terms hereof shall not constitute a waiver of it or them and any of the Owner's rights or remedies may be enforced separately or concurrently with any other right or remedy now or in the future accruing to the Owner to the effect that such rights are cumulative and not exclusive of each other.

22.2

The continuance of the hire under the Hire Contract and of the Hirer's liability for payment of rentals and all other sums due under it shall not be affected in any way by the loss or theft of or any damage to or defect in the Equipment, whether latent or patent.

22.3

Any written communication from the Owner to the Hirer or from the Hirer to the Owner shall be effective for the purposes of the Hire Contract and shall be sufficiently served if sent by letter whether delivered by pre-paid post or as an attachment to email or delivered by hand to the address of the other as referred to in the Quotation, Order or other contract document forming part of the Hire Contract and if sent by post shall be deemed to have been received by the addressee forty-eight (48) hours after the time of posting and at the date of sending or delivery if delivered by hand or sent as an email attachment.

22.4

The Hire Contract shall be governed by and construed in accordance with the laws in the State of Georgia (without regard to the conflicts of law provisions thereof), or if a court finds that Georgia law is not applicable, the laws of the State in which the Equipment under this Contract is located.

22.5

Each party agrees that the courts of Fulton County, Georgia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Hire Contract or its subject matter or formation (including non-contractual disputes or claims).

 

Updated April 2021

           

 

  STANDARD TERMS AND CONDITIONS  

Lowe - Purchase  

Terms and Conditions Of Purchase  

 

Definitions  

  

'the Buyer' means Lowe Rental Inc.  

  

'the Conditions' the terms and conditions set out in this document as amended from time to time.  

  

  

'the Contract' the contract between the Buyer and the Seller for the sale and purchase of the Goods and/or Services in accordance with these Conditions.  

  

'the Delivery Date' means the date specified in the Order.  

  

'the Delivery Location' means the address for delivery of the Goods as set out in the Order.  

  

'the Goods' means the goods (or any part of them) set out in the Order.  

  

  

'the Order' means the Buyer's order for Goods and/or Services as set out in the Buyer's purchase order form including any attached specifications.  

 

'the Seller' means the person(s), firm or company to whom the Order is addressed.  

  

'the Services' mean the services (or any part of them) set out in the Order.  

  

1  

THE CONTRACT  

1.1  

The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.  

1.2  

The Order shall be deemed to be accepted on the earlier of:  

   

1.2.1  

the Seller issuing a written acceptance of the Order; and  

   

1.2.2  

the Seller doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.  

1.3  

These Conditions apply to the Contract to the exclusion of any terms and conditions specified or referred to by the Seller whether in any quotation or correspondence or elsewhere or implied by trade custom, practice or course of dealing.  

1.4  

No variation to the Order or these Conditions shall be binding unless agreed in writing by an officer or director of the Buyer.  

2  

DELIVERY  

2.1  

Unless otherwise stated on the Order, the Goods must be supplied, delivered and off-loaded to the Delivery Address on the Delivery Date. carriage paid.  

2.2  

 

 

 

No deliveries of Goods will be accepted outside the Buyer's normal site working hours or at weekends without the consent of the Buyer. It will be up to the Seller to ascertain the working hours of the particular site.  

2.3  

The Seller shall ensure that:  

   

2.3.1  

the Goods are properly packed, labelled and secured in such manner as to enable them to reach the Delivery

Address in good condition;  

   

2.3.2  

each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; this is to be acknowledged with the clear signature of an authorized person appointed by the Buyer; and  

   

2.3.3  

if the Seller requires the Buyer to return any packaging material to the Seller, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Seller at the cost of the Seller.  

 

2.4  

If the Buyer's contract with its contractor is cancelled, delayed or interrupted or otherwise restricted (whether by force majeure, lock out, strikes by workmen or any other causes whatsoever beyond the Buyer's or the contractor's control) then the Buyer shall be able to defer the Delivery Date or performance of Services; or cancel or vary the Order or any part thereof.  

2.5  

The Buyer reserves the right to cancel the Contract or any part thereof in the event of non-delivery or noncompliance with the specifications set out in the Order. The Seller will be held liable for any direct loss or expense incurred or suffered as a result of such non-delivery or non-compliance, including any extra costs incurred by the Buyer obtaining Goods or Services elsewhere.  

2.6  

If the Seller delivers more than the quantity of Goods ordered, the Buyer will not be liable for any Goods which are supplied in excess of the quantities stated on the Order and payment will only be made for materials and quantities stated on the Order.  

2.7  

The Seller shall supply all operating manuals, safety instructions and warning notices applicable to the Goods, together with all information necessary for the proper use, maintenance and repair of the Goods (including without limitation maintenance instructions, material data sheets, spare parts diagrams, structural calculations and other such information as may reasonably be required for such purposes) at the same time as, or where practicable before, delivery of the Goods (and as requested by the Buyer from time to time).  

3  

QUALITY  

3.1  

The Seller shall ensure that the Goods:  

   

3.1.1  

conform to the quality, description and specification given by the Seller and/or set out in the Order;  

   

3.1.2  

are free from defects in design, material and workmanship and remain so for 12 months after the Delivery  

Date;  

   

3.1.3  

are of satisfactory quality;  

   

3.1.4  

are fit and sufficient for any particular purpose made known to the Seller by the Buyer and/or the purposes for which the Goods are to be used (for which purposes the Buyer relies on the skill and judgement of the

Seller);  

   

3.1.5  

except in so far as may otherwise be indicated by the Seller's specifications of the materials, comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;  

   

3.1.6  

are suitable for use in the environment in which the Buyer intends to use the Goods; and  

   

3.1.7  

are formulated, designed, constructed, finished and packaged so as to be safe and without risk to health.  

   

3.1.8  

are delivered with full installation, operation and maintenance manuals, including spare parts diagrams, recommended spare parts lists and commissioning and testing documentation.  

3.2  

The Seller shall ensure that at all times it, and all of its employees and sub-contractors used in any Services to the Buyer, has and maintains all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract.  

3.3  

The description of any Services supplied by the Seller shall be as stated on the Order. Any Services must be performed wherever and whenever the Buyer may direct at the Seller's risk. No performance of Services will be accepted outside the Buyer's normal site working hours or at weekends without the consent of the Buyer. It will be up to the Seller to ascertain the working hours of the particular site.  

3.4  

All Services supplied shall be performed by appropriately qualified and trained personnel, with due care and diligence in accordance with whatever quality standard is specified on the Order or, if none is specified, to best practice. The Seller is to provide the staff, materials, tools, vehicles, plant machinery, test equipment, relevant documentation for the safe and competent completion of the Services.  

3.5  

If the Goods or Services are to be delivered by installments, the Contract shall be treated as a single contract and not severable.  

4  

PRICES AND PAYMENT  

4.1  

The price, discount or any additional charges shall be as set out in the Order for the Goods and/or Services. No extra  

 

 

charges shall be effective unless agreed in writing with the Buyer.  

4.2  

No charge will be accepted by the Buyer for packaging crates, or other containers or pallets or the like unless specifically agreed and shown on the Order.  

4.3  

If the Seller wishes to vary any price, discount or additional charge then it shall give written notice to the Buyer of its intention to do so prior to confirming acceptance of the Order. The Buyer shall only be liable for the proposed increase if it has given written approval in the form of a revised Order to the Seller incorporating the amended figures. The Buyer may request details of justification for such proposed amendments and in the event such details are not received  shall have the option of cancelling the Order without prejudice to any other rights or remedies it may have against the Seller.

4.4

The price of the Goods includes the cost of packaging, insurance and transportation of the goods.  

4.5  

A separate invoice for each Order must be sent to the Buyer and clearly show the Order number, job number and delivery address and must clearly describe and quantify the relevant Goods and Services supplied pursuant to that Order making them easily identifiable with the description given on the Order.  

4.6  

Payment will be made within agreed terms set out in the Order. In the absence of agreed terms payment terms will be 60 days after date of invoice.  

4.7  

Invoices must be received no later than the 10th day of the month following the month in which Goods or Services to which they relate were supplied. Invoices received after the 10th will be treated as having been received in the following month without loss of trade or cash discount.  

4.8  

If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 1% per annum above the Prime Rate as established by the Federal Reserve Bank. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.  

4.9  

The Buyer may at any time, without limiting any of its other rights or remedies, set off any liability of the Seller to the Buyer against any liability of the Buyer to the Seller.  

5  

TITLE AND RISK  

5.1  

Title and risk in the Goods shall pass to the Buyer on completion of delivery provided that Buyer has had the opportunity to inspect the particulars and condition of the Goods.  

5.2  

The Buyer will be entitled to inspect and test the Goods as appropriate prior to or after delivery, and charge the Seller with the costs of testing any Goods which prove to be inferior.  

5.3  

Where the Buyer's representative has been unable to carry out a close inspection of the Goods delivered, for whatever reason, his signature on the receipt for such goods shall not constitute the Buyer's acceptance of the Goods or prejudice the Buyer's rights to rely on any Conditions contained herein.  

6  

ACCEPTANCE  

6.1  

Before acceptance of the Goods or any part of them, if in the reasonable opinion of the Buyer the Goods or any part of them do not conform to specification or are otherwise not in accordance with the warranties and undertakings given by the Seller under clause 3, the Buyer shall be entitled, without prejudice to any other rights and remedies:  

   

6.1.1  

to accept the Goods and receive a reduction in the price of the Goods reasonably appropriate to the diminution in value attributable to the defect;  

   

6.1.2  

to have the defective Goods repaired or modified by the Seller or (as the Buyer shall elect) replaced with fully conforming Goods (which the Seller undertakes to do as quickly as possible), following which the Buyer shall be entitled to examine the Goods again in accordance with this condition; or  

   

6.1.3  

to reject the defective Goods and, at the option of the Buyer, any other unused Goods delivered at the same time or delivered previously under the Contract (whether or not such Goods have been accepted); and to cancel or vary the description, quantity or Delivery Date of any remaining Goods to be delivered  

 

 

 

under the Contract; and to receive from the Seller reimbursement of any payments made by the Buyer for rejected or cancelled Goods less a reasonable allowance for use and all costs, losses or expenses incurred by the Buyer which are in any way attributable to the defective and/or rejected Goods, including the cost of obtaining substitute Goods from another Seller where applicable, but less any sums reimbursed by the Seller. Any Goods rejected by the Buyer in accordance with this clause shall be returnable to the Seller at the Seller's risk and expense.  

7  

INTELLECTUAL PROPERTY  

7.1  

The Seller warrants that:  

   

7.1.1  

the sale (and use) of the Goods to (and by) the Buyer will not infringe any intellectual property rights of any third party; and  

   

7.1.2  

it has full clear and unencumbered title to the Goods, and that at the date of delivery of such items to the Buyer, it will have full and unrestricted rights to transfer all such Goods to the Buyer.  

7.2  

The Seller assigns to the Buyer (by way of present assignment of future rights), with full title guarantee and free from all third party rights, all intellectual property rights in the products of the Services and/or comprised within the Goods (including without limitation any specifications, plans, drawings and other data produced by the Seller (whether in conjunction with the Buyer or otherwise) together with all copyright, design rights and any other intellectual property rights therein). The Seller shall not use any such intellectual property for any purpose other than fulfilling the Order and the Seller shall not disclose any specification, plans, drawings or other documents or data relating to the Order and/or the Goods and/or the Services to any person except to the extent required by law.  

8  

STORAGE  

  

If for any reason the Buyer is unable to accept delivery of the Goods on or before the Delivery Date, the Seller shall store the Goods, safeguard them and take all reasonable steps to prevent the deterioration until their actual delivery. Any additional costs which may be incurred by the Seller must first be notified to and agreed by the Buyer in writing.  

9  

DOWNTIME  

  

The Buyer shall not be liable for any downtime incurred by the Seller in the delivery of Goods or performing Services.  

10  

INSURANCE  

  

During the term of the Contract, any Seller providing services for which professional malpractice insurance is available shall maintain in force, with a reputable insurer, professional malpractice  insurance with minimum coverage of not less than $1,500,000.00. Any Seller providing goods hereunder shall maintain comprehensive general liability insurance covering bodily injury and death to persons and property damage with minimum per occurrence limits of $5,000,000.00 to cover the liabilities that may arise under or in connection with the Contract. Seller shall, on the Buyer's request, provide Buyer an insurance certificate giving details of coverage and the receipt for the current year's premium in respect of each insurance. The Seller must inform the Buyer in writing in advance of any material alterations to their insurance policies during the term of the Contract..  

11  

COMPLIANCE WITH RELEVANT LAWS AND POLICIES  

11.1  

In performing it obligations under the Contract, the Seller shall comply with all applicable laws, statutes, regulations and codes from time to time in force.  

11.2  

The Buyer may immediately terminate the Contract for any breach of clause 11.1.  

12  

TERMINATION  

12.1  

The Buyer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Seller written notice, whereupon the Seller shall discontinue all work on the Contract. The Buyer shall pay the Seller fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.  

12.2  

Without limiting its other rights or remedies, the Buyer may terminate the Contract with immediate effect by giving written notice to the Seller if:  

 

   

12.2.1  

the Seller commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing by the Buyer to do so;  

   

12.2.2  

the Seller is placed in receivership, involuntary bankruptcy or files a proceeding seeking protection from creditors  in the United States Bankruptcy Court.  

   

12.2.3  

the Seller suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or  

   

12.2.4  

the Seller's financial position deteriorates to such an extent that in the Buyer's opinion the Seller's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.  

12.3  

Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.  

12.4  

Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.  

13  

SAFETY  

13.1  

The Seller shall ensure that all Goods supplied will be free from any hazard to safety or to health in their normal use. Before supply, the Seller must indicate to the Buyer, in writing, any inherent hazard or defect and any health and safety precautions that must be taken when using the Goods.  

13.2  

The Seller shall provide the Buyer at the time of delivery with a Safety Data Sheet  relating to the materials being supplied under the Contract in full compliance with the OSHA Regulations.  

13.3  

The Seller shall comply with all applicable regulations and other legal requirements concerning the manufacture, packaging and delivery of the Goods or the performance of Services which are the subject of the Contract.  

13.4  

Where the Seller is to supply Goods or Services at the premises of any person other than the Buyer (a "third party"), the Seller shall comply with such third party's requirements and procedures regarding health and safety, the environment and other risks relating to such premises (to the extent notified by the Buyer or the third party to the Seller).  

14  

ANTI BRIBERY  

14.1  

The Seller shall:  

   

14.1.1  

comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anticorruption including but not limited to the US Foreign Corrupt Practices Act  

   

14.1.2  

not engage in any activity, practice or conduct which would constitute an offence under US Foreign Corrupt Practices Act..  

   

14.1.3  

have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the US Foreign Corrupt Practices Act. to ensure compliance with the Relevant Requirements, any relevant ethics or bribery policies applicable to the project or the Seller's industry and will enforce them where appropriate;  

   

14.1.4  

promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of the Contract;  

   

14.1.5  

immediately notify the Buyer (in writing) if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of the Contract).  

14.2  

The Seller shall ensure that any person associated with the Seller who is performing Services or providing Goods in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in this clause 14 (Relevant Terms). The Seller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms.  

14.3  

For the purpose of this clause 14 the meaning of adequate procedures and foreign public official and whether a  

 

 

person is associated with another person shall be determined in accordance with the US Foreign Corrupt Practices Act..

For the purposes of this clause  

14.4  

a person associated with the Seller includes but is not limited to any subcontractor of the Seller.  

15  

MODERN SLAVERY  

15.1  

The Seller shall:  

   

15.1.1  

comply with all applicable laws, statues, regulations and codes relating to the Trafficking Victims Protection Act (TVPA) and Trafficking Victims Protection Reauthorization Act (TVPRA),

   

15.1.2  

not engage in any activity, practice or conduct which would constitute an offence Modern Slavery Act  

   

15.1.3  

must assess their business and supply chains and confirm to us that they comply with their legal obligations, in relation to the TVPA and TVPRA, and are committed to ensuring there is no slavery, forced labor or servitude, child labor or human trafficking taking place in their business, or any of their supply chains  

15.2  

if the seller is found to breach this policy, or are found to have slavery or human-trafficking in their business, or knowingly in their supply chain, the Buyer may terminate its contract with them and pursue its legal remedies against them.  

16  

BREACH  

16.1  

Notwithstanding clause 12, the Buyer reserves the right to charge the Seller or deduct monies otherwise due to the Seller in settlement of the price payable under the Contract or any other account for any of the following reasons:  

   

16.1.1  

breach of the Buyer's contract with its client or customer due to any failure or negligence on the part of the

Seller;  

   

16.1.2  

delays and downtime for labor and plant on site that may be directly attributed to the failure of the Seller to comply with instructions on the Order;  

   

16.1.3  

the costs of remedial works or damages where it is established that such costs are attributed to the fault or failure of Goods supplied by the Seller;  

17  

INDEMNITY  

17.1  

The Seller shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with:  

   

17.1.1  

the Seller's breach or negligent performance or non-performance of the Contract;  

   

17.1.2  

any claim made against the Buyer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the Goods and/or Services, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors;  

   

17.1.3  

any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with the supply of the Services or any defects in the Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Seller, its employees, agents or subcontractors; and  

   

17.1.4  

any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Seller, its employees, agents or subcontractors;  

   

17.1.5  

legal and professional costs relating to any claims made against the Buyer arising from any breach of the requirements of clauses 14 or 15.  

17.2  

This clause 16 shall survive termination of the Contract.  

17.3  

This indemnity shall apply whether or not the Seller has been negligent or at fault but not to the extent that a claim under it results from the Buyer's negligence or wilful misconduct.  

 

18  

GENERAL  

18.1  

Assignment and other dealings  

   

18.1.1  

The Buyer may at any time assign, transfer, or, subcontract any or all of its rights or obligations under the Contract.  

   

18.1.2  

The Seller may not assign or transfer,  any or all of its rights or obligations under the Contract without the prior written consent of the Buyer.  

18.2  

Subcontracting. The Seller may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Seller, the Seller shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.  

18.3  

Entire agreement. This 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.  

18.4  

Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Buyer.  

18.5  

Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:  

   

18.5.1  

waive that or any other right or remedy; or  

   

18.5.2  

prevent or restrict the further exercise of that or any other right or remedy.  

18.6  

Severance. 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.  

18.7  

Notices. Any written communication from the Seller to the Buyer or from the Buyer to the Seller shall be effective for the purposes of the Contract and shall be sufficiently served if sent by letter whether delivered by first class mail or as an attachment to email or delivered by hand to the address of the other as referred to in the quotation or contract document forming part of the Contract and if sent by first class mail shall be deemed to have been received by the addressee 48 hours after the time of mailing and at the date of sending or delivery if delivered by hand or sent as an email attachment.  

18.8  

Third party rights. No one other than a party to this shall have any right to enforce any of its terms.  

18.9  

Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the State of Georgia..  

18.10  

Jurisdiction. Each party irrevocably agrees that the courts of Fulton County, Georgia shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).  

 

Updated August 2020