Terms & Conditions
Below are our Terms & Conditions. Please click on one of the headings below to see the content for each section.
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1.1
In these Terms the following definitions apply:
“Eclipse” means Eclipse Broadcast Ltd (Company Registration 5556670) whose registered address is Unit 10 Rosevale Road, Parkhouse Industrial Estate West, Newcastle Under Lyme, Staffordshire, ST5 7EF.
“Contract” means any contract between Eclipse and the Hirer which incorporates the Terms.
“Delivery Location” means the delivery address specified by the Hirer or by the Hirer collecting the Equipment from the Eclipse premises on a date agreed with Eclipse.
“Equipment” means the equipment set out in the Quote including all replacements, renewals, parts, accessories and additions thereto which Eclipse is to supply in accordance with these Terms.
“Hirer” means the company, firm or person(s), specified in the Quote, hiring the Equipment.
“Hire Period” shall commence on the date that the delivery is completed pursuant to clause 6.1 and shall end on the date which the Equipment is returned to Eclipse.
“Order” means the order placed by the Hirer for the Equipment set out in the Quote.
“Price” means the price of the Contract.
“Quote” means the quotation provided by Eclipse for the hire of the Equipment.
“Terms” means the terms and conditions set out in this in this document and includes any special terms agreed in writing between the Hirer and Eclipse.1.2
In these Terms:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
(b) a reference to a party includes its personal representatives, successors or permitted assigns.
(c) a reference to a statute or statutory provision includes any amendment or re-enactment and subordinate legislation as amended or re-enacted.
(d) any phrase introduced by the terms such as including, include, in particular or any other similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) a reference to writing includes faxes and emails.
In these Terms the following definitions apply:
“Eclipse” means Eclipse Broadcast Ltd (Company Registration 5556670) whose registered address is Unit 10 Rosevale Road, Parkhouse Industrial Estate West, Newcastle Under Lyme, Staffordshire, ST5 7EF.
“Contract” means any contract between Eclipse and the Hirer which incorporates the Terms.
“Delivery Location” means the delivery address specified by the Hirer or by the Hirer collecting the Equipment from the Eclipse premises on a date agreed with Eclipse.
“Equipment” means the equipment set out in the Quote including all replacements, renewals, parts, accessories and additions thereto which Eclipse is to supply in accordance with these Terms.
“Hirer” means the company, firm or person(s), specified in the Quote, hiring the Equipment.
“Hire Period” shall commence on the date that the delivery is completed pursuant to clause 6.1 and shall end on the date which the Equipment is returned to Eclipse.
“Order” means the order placed by the Hirer for the Equipment set out in the Quote.
“Price” means the price of the Contract.
“Quote” means the quotation provided by Eclipse for the hire of the Equipment.
“Terms” means the terms and conditions set out in this in this document and includes any special terms agreed in writing between the Hirer and Eclipse.1.2
In these Terms:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
(b) a reference to a party includes its personal representatives, successors or permitted assigns.
(c) a reference to a statute or statutory provision includes any amendment or re-enactment and subordinate legislation as amended or re-enacted.
(d) any phrase introduced by the terms such as including, include, in particular or any other similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) a reference to writing includes faxes and emails.
2.1
The Order constitutes an offer by the Hirer to hire the Equipment in accordance with the Terms.2.2
The Order shall only be deemed to be accepted on the earlier of either:
(a) Eclipse issues a written acceptance; or
(b) Eclipse doing any act consistent with fulfilling the Order at which point and on which date the Contract shall come into existence.2.3
Eclipse shall hire the Equipment set out in the Quote subject to these Terms which shall govern the hire agreement between the parties to the exclusion of any other terms except any variation agreed in writing and signed by the authorised representatives of Eclipse and the Hirer.2.4
The Contract constitutes the entire agreement between the parties and the Hirer acknowledges that they have not relied on any statement, promise, advice, recommendation or representation made by Eclipse or its employees regarding the storage, application or use of the Equipment which is not set out in the Contract save for any variation agreed pursuant to clause 2.3.2.5
Any Quote shall not constitute an offer and shall be construed in any way as binding upon Eclipse.2.6
The description of the Equipment and any specification for it shall be set out in the Quote and in the absence of the Equipment or any part of it Eclipse shall be free to provide any alternative they deem suitable or cancel the Order.2.7
Eclipse will use reasonable efforts to ensure Equipment is in good working order on delivery and of satisfactory quality and that any onsite technical services supplied by Eclipse will be provided using reasonable care and skill by persons of appropriate competence and training and in accordance with these Terms.
The Order constitutes an offer by the Hirer to hire the Equipment in accordance with the Terms.2.2
The Order shall only be deemed to be accepted on the earlier of either:
(a) Eclipse issues a written acceptance; or
(b) Eclipse doing any act consistent with fulfilling the Order at which point and on which date the Contract shall come into existence.2.3
Eclipse shall hire the Equipment set out in the Quote subject to these Terms which shall govern the hire agreement between the parties to the exclusion of any other terms except any variation agreed in writing and signed by the authorised representatives of Eclipse and the Hirer.2.4
The Contract constitutes the entire agreement between the parties and the Hirer acknowledges that they have not relied on any statement, promise, advice, recommendation or representation made by Eclipse or its employees regarding the storage, application or use of the Equipment which is not set out in the Contract save for any variation agreed pursuant to clause 2.3.2.5
Any Quote shall not constitute an offer and shall be construed in any way as binding upon Eclipse.2.6
The description of the Equipment and any specification for it shall be set out in the Quote and in the absence of the Equipment or any part of it Eclipse shall be free to provide any alternative they deem suitable or cancel the Order.2.7
Eclipse will use reasonable efforts to ensure Equipment is in good working order on delivery and of satisfactory quality and that any onsite technical services supplied by Eclipse will be provided using reasonable care and skill by persons of appropriate competence and training and in accordance with these Terms.
3.1
The Hirer shall be responsible to Eclipse for ensuring the accuracy of any Order (including any applicable specification) submitted by the Hirer.3.2
No Contract can be cancelled by the Hirer without the signed and written agreement of an authorised representative of Eclipse and provided that the Hirer shall indemnify Eclipse in full against all loss (including loss of profit), costs (including the cost of all labour and materials), damages, charges and expenses incurred by Eclipse as a result of cancellation.
The Hirer shall be responsible to Eclipse for ensuring the accuracy of any Order (including any applicable specification) submitted by the Hirer.3.2
No Contract can be cancelled by the Hirer without the signed and written agreement of an authorised representative of Eclipse and provided that the Hirer shall indemnify Eclipse in full against all loss (including loss of profit), costs (including the cost of all labour and materials), damages, charges and expenses incurred by Eclipse as a result of cancellation.
4.1
The Price for the Equipment shall be set out in the Quote or where no Price has been given or such quoted rate is no longer valid the Price shall be determined in accordance with the rate listed in Eclipse’s published rate card, available on its website, current at the date of the Contract.4.2
The Price contained in the Quote shall be valid for a maximum of 28 days from the date of the Quote and upon expiry Eclipse reserves the right to issue a new Quote.4.3
Eclipse reserves the right by giving written notice to the Hirer at any time before delivery of the Equipment at the Delivery Location, to increase the Price of the Equipment to reflect any increase in costs to Eclipse which is due to any factor beyond the control of Eclipse (such as, without limitation, alteration of duties, significant increase in the cost of labour, materials or other costs), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Hirer or any delay caused by any instructions of the Hirer or failure of the Hirer to give Eclipse adequate information or instructions.4.4
The Price contained in the Quote is exclusive of any applicable value added tax (“VAT”) and where any taxable supply for VAT purposes is made the Hirer shall upon production of a VAT invoice be liable to pay to Eclipse such additional amounts in respect of VAT.4.5
The Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) incurred in delivering the Equipment to the Delivery Location which is deemed by Eclipse or it employees or agents to be inaccessible for the purposes of completing the delivery or unsuitable for the use of the Equipment.
The Price for the Equipment shall be set out in the Quote or where no Price has been given or such quoted rate is no longer valid the Price shall be determined in accordance with the rate listed in Eclipse’s published rate card, available on its website, current at the date of the Contract.4.2
The Price contained in the Quote shall be valid for a maximum of 28 days from the date of the Quote and upon expiry Eclipse reserves the right to issue a new Quote.4.3
Eclipse reserves the right by giving written notice to the Hirer at any time before delivery of the Equipment at the Delivery Location, to increase the Price of the Equipment to reflect any increase in costs to Eclipse which is due to any factor beyond the control of Eclipse (such as, without limitation, alteration of duties, significant increase in the cost of labour, materials or other costs), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Hirer or any delay caused by any instructions of the Hirer or failure of the Hirer to give Eclipse adequate information or instructions.4.4
The Price contained in the Quote is exclusive of any applicable value added tax (“VAT”) and where any taxable supply for VAT purposes is made the Hirer shall upon production of a VAT invoice be liable to pay to Eclipse such additional amounts in respect of VAT.4.5
The Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) incurred in delivering the Equipment to the Delivery Location which is deemed by Eclipse or it employees or agents to be inaccessible for the purposes of completing the delivery or unsuitable for the use of the Equipment.
5.1
If the Hirer has a credit account the Hirer shall pay each invoice submitted by Eclipse:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Eclipse; and
(c) time shall be of the essence for payment of each invoice.5.2
If the Hirer does not have a credit account then payment of Price contained in the Quote must be made in full and in cleared funds to a bank account nominated in writing by Eclipse prior to delivery of the Equipment at the Delivery Location.5.3
The Hirer shall pay all amounts due under the Contract in full without any deduction or set off or counterclaim. Eclipse, without limiting its other rights or remedies, set off any amount owing to it by the Hirer against any amount payable by Eclipse to the Hirer.5.4
If the Hirer fails to make any payment due to Eclipse then without limiting any other rights or remedies, Eclipse may:
(a) terminate the Contract pursuant to clause 15
(b) suspend any further deliveries to the Hirer due under any other Contract
(c) may authorise its employees or agents to enter the Hirer’s premises or location of the Equipment without the Hirer’s express consent to take possession of the Equipment and the Hirer shall indemnify Eclipse in full for any costs, expenses and/or charges incurred in recovering the Equipment.5.5
Without limiting any other right or remedy of Eclipse, if the Hirer fails to make any payment due under the Contract Eclipse shall have the right to charge interest on the overdue amount at the rate of 8% per annum above the then base rate of Lloyds Bank Plc or such other clearing bank nominated by Eclipse accruing on a daily basis from the date the payment fell due until the actual payment of the overdue amount, whether before or after judgment together with statutory compensation pursuant to the Late Payment of Commercial Debts (Interests) Act 1998.
If the Hirer has a credit account the Hirer shall pay each invoice submitted by Eclipse:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Eclipse; and
(c) time shall be of the essence for payment of each invoice.5.2
If the Hirer does not have a credit account then payment of Price contained in the Quote must be made in full and in cleared funds to a bank account nominated in writing by Eclipse prior to delivery of the Equipment at the Delivery Location.5.3
The Hirer shall pay all amounts due under the Contract in full without any deduction or set off or counterclaim. Eclipse, without limiting its other rights or remedies, set off any amount owing to it by the Hirer against any amount payable by Eclipse to the Hirer.5.4
If the Hirer fails to make any payment due to Eclipse then without limiting any other rights or remedies, Eclipse may:
(a) terminate the Contract pursuant to clause 15
(b) suspend any further deliveries to the Hirer due under any other Contract
(c) may authorise its employees or agents to enter the Hirer’s premises or location of the Equipment without the Hirer’s express consent to take possession of the Equipment and the Hirer shall indemnify Eclipse in full for any costs, expenses and/or charges incurred in recovering the Equipment.5.5
Without limiting any other right or remedy of Eclipse, if the Hirer fails to make any payment due under the Contract Eclipse shall have the right to charge interest on the overdue amount at the rate of 8% per annum above the then base rate of Lloyds Bank Plc or such other clearing bank nominated by Eclipse accruing on a daily basis from the date the payment fell due until the actual payment of the overdue amount, whether before or after judgment together with statutory compensation pursuant to the Late Payment of Commercial Debts (Interests) Act 1998.
6.1
Eclipse shall deliver the Equipment to the Delivery Location and upon arrival at the Delivery Location the delivery shall be deemed completed.6.2
Eclipse shall ensure that each delivery of the Equipment shall include a delivery note setting out the date of the Order and the details of the Equipment provided by Eclipse which must be signed by the Hirer or its authorised representatives to acknowledge receipt.6.3
The Hirer is responsible for inspecting the Equipment upon delivery and by signing the delivery note the Hirer or its authorised representative accepts that the Equipment is of satisfactory quality and fit for purpose.6.4
Any failure or refusal by the Hirer to sign the delivery note shall be deemed as acceptance by the Hirer that they have inspected the Equipment and it is of satisfactory quality and fit for purpose.6.5
Any damage to the Equipment on delivery must be noted by the Hirer or its authorised representative on the delivery note. If the Hirer does not provide such notice, the Hirer shall not be entitled to reject the Equipment and Eclipse shall have no liability for any defect or failure of the Equipment and the Hirer shall be bound to pay the full amount due under the Contract.6.6
Any dates quoted for delivery of the Equipment are approximate only, and the time of the delivery is not of the essence and cannot be made so. Eclipse shall not be liable for any failure or delay in delivery is caused by the Hirer’s failure to provide adequate delivery instructions or any other instructions that are relevant for the delivery of the Equipment or any of the events set out in clause 17.7.
Eclipse shall deliver the Equipment to the Delivery Location and upon arrival at the Delivery Location the delivery shall be deemed completed.6.2
Eclipse shall ensure that each delivery of the Equipment shall include a delivery note setting out the date of the Order and the details of the Equipment provided by Eclipse which must be signed by the Hirer or its authorised representatives to acknowledge receipt.6.3
The Hirer is responsible for inspecting the Equipment upon delivery and by signing the delivery note the Hirer or its authorised representative accepts that the Equipment is of satisfactory quality and fit for purpose.6.4
Any failure or refusal by the Hirer to sign the delivery note shall be deemed as acceptance by the Hirer that they have inspected the Equipment and it is of satisfactory quality and fit for purpose.6.5
Any damage to the Equipment on delivery must be noted by the Hirer or its authorised representative on the delivery note. If the Hirer does not provide such notice, the Hirer shall not be entitled to reject the Equipment and Eclipse shall have no liability for any defect or failure of the Equipment and the Hirer shall be bound to pay the full amount due under the Contract.6.6
Any dates quoted for delivery of the Equipment are approximate only, and the time of the delivery is not of the essence and cannot be made so. Eclipse shall not be liable for any failure or delay in delivery is caused by the Hirer’s failure to provide adequate delivery instructions or any other instructions that are relevant for the delivery of the Equipment or any of the events set out in clause 17.7.
7.1
The risk in the Equipment shall pass to the Hirer on delivery.7.2
Title to the Equipment shall not pass to the Hirer and the Hirer must not sell, sub-let, dispose of and the Hirer must keep the Equipment in its possession and control and free from any lien, charge or encumbrance so that Equipment shall at all times remain the property of Eclipse or its legal owner.
The risk in the Equipment shall pass to the Hirer on delivery.7.2
Title to the Equipment shall not pass to the Hirer and the Hirer must not sell, sub-let, dispose of and the Hirer must keep the Equipment in its possession and control and free from any lien, charge or encumbrance so that Equipment shall at all times remain the property of Eclipse or its legal owner.
8.1
It is the Hirer’s responsibility to ensure the Equipment is in full working order before taking into use and to notify Eclipse immediately of any repair or maintenance required to Equipment and not to permit such repair or maintenance other than by Eclipse or with its authority.8.2
The Hirer must notify Eclipse immediately of any inherent defect in the Equipment and return it to Eclipse in order to repair or replace the same in accordance with any warranty or guarantee provided by the manufacturer of the Equipment.8.3
The Hirer must immediately but in any event within 48 hours inform Eclipse of any failure of, damage to or loss of the Equipment.8.4
The Hirer shall not make any modifications to the Equipment, dismantle the Equipment nor remove from the Equipment any notice, bar code or serial number without the prior written consent of Eclipse.8.5
The Hirer shall ensure that the Equipment is used by a competent person or persons for its proper purpose and in accordance with any operating safety or manufacturer’s instructions supplied with the Equipment and the Hirer shall not permit the Equipment to be used in any hazardous or dangerous manner and shall take all reasonable care of Equipment to ensure its safety and security.8.6
The Hirer shall ensure that all PAT and any other form of electrical testing of the Equipment is carried out prior to its use.8.7
The Hirer shall ensure that whilst the Equipment is in the Hirer’s possession the Equipment is stored in accordance with any operating safety or manufacturer’s instructions supplied with the Equipment.8.8
The Hirer must permit or procure access for Eclipse its employees or agents to any location where the Equipment is being stored or used in order to inspect remove or repair the Equipment and immediately upon request inform Eclipse of the location of the Equipment if the same is not the Delivery Location.8.9
The Hirer shall take all reasonable steps to safeguard the health, safety and welfare of Eclipse’s employees or agents while onsite with or without the Equipment and to induct and provide Eclipse with copies of all relevant risk assessments and other health and safety documentation.8.10
The Hirer must obtain and maintain all necessary frequency licences, permits, permissions and consents required for the possession and use of the Equipment in any jurisdiction. On request Eclipse may apply for frequency licences within the UK on behalf of the Hirer. This will be subject to an additional cost and administration fee. (Please see Appendix A for more information on Frequency Licences). Eclipse reserve the right to check any licences before the equipment is delivered.8.11
The Hirer must provide Eclipse with prior written notice of its intention to take the Equipment outside the United Kingdom and the Hirer must arrange any necessary customs clearances and comply with all applicable import/export regulations in addition to a frequency licence.8.12
If the Hirer takes the Equipment outside the United Kingdom, pursuant to clause 8.9, the Hirer shall be solely responsible for any tax liability (whether such liability occurs as a result of either direct tax or indirect tax) that is incurred and the Hirer agrees to indemnify Eclipse in full against such liability and shall pay Eclipse on demand a sum equal to any payment made by Eclipse to the relevant tax authority and any cost or expense incurred in payment of such levy.8.13
The Hirer shall indemnify Eclipse for the full cost of any repair to any damaged Equipment or the full replacement value for any Equipment which is lost or in the view of Eclipse is uneconomical to repair and for any consequential loss to Eclipse arising out of such loss or damage.8.14
During any period in respect of which the Hirer has not already paid to Eclipse any hire charges for Equipment which is lost or damaged, until such lost or damaged Equipment is replaced or repaired the Hirer shall pay Eclipse in full for the loss of use of the lost or damaged Equipment at a rate equivalent to the current hire charges charged by Eclipse for such equipment.
It is the Hirer’s responsibility to ensure the Equipment is in full working order before taking into use and to notify Eclipse immediately of any repair or maintenance required to Equipment and not to permit such repair or maintenance other than by Eclipse or with its authority.8.2
The Hirer must notify Eclipse immediately of any inherent defect in the Equipment and return it to Eclipse in order to repair or replace the same in accordance with any warranty or guarantee provided by the manufacturer of the Equipment.8.3
The Hirer must immediately but in any event within 48 hours inform Eclipse of any failure of, damage to or loss of the Equipment.8.4
The Hirer shall not make any modifications to the Equipment, dismantle the Equipment nor remove from the Equipment any notice, bar code or serial number without the prior written consent of Eclipse.8.5
The Hirer shall ensure that the Equipment is used by a competent person or persons for its proper purpose and in accordance with any operating safety or manufacturer’s instructions supplied with the Equipment and the Hirer shall not permit the Equipment to be used in any hazardous or dangerous manner and shall take all reasonable care of Equipment to ensure its safety and security.8.6
The Hirer shall ensure that all PAT and any other form of electrical testing of the Equipment is carried out prior to its use.8.7
The Hirer shall ensure that whilst the Equipment is in the Hirer’s possession the Equipment is stored in accordance with any operating safety or manufacturer’s instructions supplied with the Equipment.8.8
The Hirer must permit or procure access for Eclipse its employees or agents to any location where the Equipment is being stored or used in order to inspect remove or repair the Equipment and immediately upon request inform Eclipse of the location of the Equipment if the same is not the Delivery Location.8.9
The Hirer shall take all reasonable steps to safeguard the health, safety and welfare of Eclipse’s employees or agents while onsite with or without the Equipment and to induct and provide Eclipse with copies of all relevant risk assessments and other health and safety documentation.8.10
The Hirer must obtain and maintain all necessary frequency licences, permits, permissions and consents required for the possession and use of the Equipment in any jurisdiction. On request Eclipse may apply for frequency licences within the UK on behalf of the Hirer. This will be subject to an additional cost and administration fee. (Please see Appendix A for more information on Frequency Licences). Eclipse reserve the right to check any licences before the equipment is delivered.8.11
The Hirer must provide Eclipse with prior written notice of its intention to take the Equipment outside the United Kingdom and the Hirer must arrange any necessary customs clearances and comply with all applicable import/export regulations in addition to a frequency licence.8.12
If the Hirer takes the Equipment outside the United Kingdom, pursuant to clause 8.9, the Hirer shall be solely responsible for any tax liability (whether such liability occurs as a result of either direct tax or indirect tax) that is incurred and the Hirer agrees to indemnify Eclipse in full against such liability and shall pay Eclipse on demand a sum equal to any payment made by Eclipse to the relevant tax authority and any cost or expense incurred in payment of such levy.8.13
The Hirer shall indemnify Eclipse for the full cost of any repair to any damaged Equipment or the full replacement value for any Equipment which is lost or in the view of Eclipse is uneconomical to repair and for any consequential loss to Eclipse arising out of such loss or damage.8.14
During any period in respect of which the Hirer has not already paid to Eclipse any hire charges for Equipment which is lost or damaged, until such lost or damaged Equipment is replaced or repaired the Hirer shall pay Eclipse in full for the loss of use of the lost or damaged Equipment at a rate equivalent to the current hire charges charged by Eclipse for such equipment.
9.1
If the Hirer has requested and Eclipse have agreed to the same, Eclipse shall repair and maintain the Equipment at its current location subject to clauses 8.6 and 8.7 and where necessary shall provide a replacement which is of similar specification as set out in the Quote and any such replacement shall be subject to these Terms.9.2
Eclipse’s obligation under clause 9.1 shall cease immediately if any repair, maintenance or replacement is required by or as a result of any act omission or negligence of the Hirer or any third party and the Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) as a result of such act omission or negligence.9.3
Any onsite support provided may be subject to an additional charge to be advised at the time such support is requested.
If the Hirer has requested and Eclipse have agreed to the same, Eclipse shall repair and maintain the Equipment at its current location subject to clauses 8.6 and 8.7 and where necessary shall provide a replacement which is of similar specification as set out in the Quote and any such replacement shall be subject to these Terms.9.2
Eclipse’s obligation under clause 9.1 shall cease immediately if any repair, maintenance or replacement is required by or as a result of any act omission or negligence of the Hirer or any third party and the Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) as a result of such act omission or negligence.9.3
Any onsite support provided may be subject to an additional charge to be advised at the time such support is requested.
10.1
At the end of the Hire Period the Equipment must be returned to Eclipse in full working repair and condition either by:
(a) Eclipse collecting the Equipment from the Delivery Location; or
(b) the Hirer arranging at their own cost for the Equipment to be delivered via a prepaid courier service to Eclipse’s premises ensuring that the Equipment has been adequately packaged to prevent any damage to Equipment and until the Equipment has been returned the Hirer shall be solely responsible for its safekeeping and will not use the Equipment for any purpose.10.2
If the Equipment is not returned at the end of the Hire Period then Eclipse or its agents may enter the Hirer’s premises or location of the Equipment and take possession of the same without their express consent and to indemnify them for any costs or expenses incurred in recovering the Equipment and/or charge the additional days the Equipment is in possession of the Hirer at the rate in Eclipse’s published rate card at the date of the Contract.
At the end of the Hire Period the Equipment must be returned to Eclipse in full working repair and condition either by:
(a) Eclipse collecting the Equipment from the Delivery Location; or
(b) the Hirer arranging at their own cost for the Equipment to be delivered via a prepaid courier service to Eclipse’s premises ensuring that the Equipment has been adequately packaged to prevent any damage to Equipment and until the Equipment has been returned the Hirer shall be solely responsible for its safekeeping and will not use the Equipment for any purpose.10.2
If the Equipment is not returned at the end of the Hire Period then Eclipse or its agents may enter the Hirer’s premises or location of the Equipment and take possession of the same without their express consent and to indemnify them for any costs or expenses incurred in recovering the Equipment and/or charge the additional days the Equipment is in possession of the Hirer at the rate in Eclipse’s published rate card at the date of the Contract.
11.1
Nothing in this clause shall limit or exclude Eclipse’s liability for
(a) death or personal injury caused by its negligence, or the negligence of its employees or agents; or
(b) fraud or fraudulent misrepresentation.11.2
Subject to clause 11.1:
(a) Eclipse shall under no circumstances be liable to the Hirer, whether in contract tort, breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Eclipse’s total liability to the Hirer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Quote.11.3
Subject to clause 11.1:
(a) Eclipse shall have no liability in respect of any defect arising from fair wear and tear, any act omission or negligence by the Hirer or any third party, abnormal working conditions, operating safety or manufacturer’s instructions, misuse or alteration or repair of the Equipment carried out without Eclipse’s prior written approval; and
(b) Eclipse shall have no liability arising out of the Hirer’s inability to operate the Equipment in accordance with manufacturer’s instructions and for its proposed use; and
(c) Eclipse shall have no liability in respect of any damage caused by the Equipment to the Hirer’s or any third party’s property.11.4
Subject as expressly provided in these Terms all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.11.5
This clause 11 shall survive termination of the Contract.
Nothing in this clause shall limit or exclude Eclipse’s liability for
(a) death or personal injury caused by its negligence, or the negligence of its employees or agents; or
(b) fraud or fraudulent misrepresentation.11.2
Subject to clause 11.1:
(a) Eclipse shall under no circumstances be liable to the Hirer, whether in contract tort, breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Eclipse’s total liability to the Hirer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Quote.11.3
Subject to clause 11.1:
(a) Eclipse shall have no liability in respect of any defect arising from fair wear and tear, any act omission or negligence by the Hirer or any third party, abnormal working conditions, operating safety or manufacturer’s instructions, misuse or alteration or repair of the Equipment carried out without Eclipse’s prior written approval; and
(b) Eclipse shall have no liability arising out of the Hirer’s inability to operate the Equipment in accordance with manufacturer’s instructions and for its proposed use; and
(c) Eclipse shall have no liability in respect of any damage caused by the Equipment to the Hirer’s or any third party’s property.11.4
Subject as expressly provided in these Terms all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.11.5
This clause 11 shall survive termination of the Contract.
12.1
Eclipse shall where possible provide the latest stable released version of any software/firmware for use with the Equipment, it is the Hirer’s sole responsibility to ensure such software/firmware is compatible with any software, system and/or network of the Hirer or any third party which is intended to be used in conjunction with the Equipment.12.2
Any update or change to the software/firmware version supplied with the Equipment made by the Hirer is permitted provided that the Hirer gives Eclipse prior notice of any changes made.12.3
The Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) as a result of any damage fault or failure of either the Equipment or the software/firmware following any unauthorised update or change to the software/firmware version originally supplied with the Equipment.
Eclipse shall where possible provide the latest stable released version of any software/firmware for use with the Equipment, it is the Hirer’s sole responsibility to ensure such software/firmware is compatible with any software, system and/or network of the Hirer or any third party which is intended to be used in conjunction with the Equipment.12.2
Any update or change to the software/firmware version supplied with the Equipment made by the Hirer is permitted provided that the Hirer gives Eclipse prior notice of any changes made.12.3
The Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) as a result of any damage fault or failure of either the Equipment or the software/firmware following any unauthorised update or change to the software/firmware version originally supplied with the Equipment.
13.1
In the first instance the Hirer shall keep insured for the Hire Period all Equipment to its full replacement value under the Contract with a reputable insurer previously approved by Eclipse for:
13.1.1
All loss and damage to the Equipment to its full replacement value; and
13.1.2
Suitable public liability insurance.13.2
The Hirer shall on demand provide Eclipse with the insurance certificate and details of the policy.13.3
All new account customers must forward their ‘hired in’ insurance certificate before a hire commences.13.4
Failure to procure or keep appropriate insurance will result in Eclipse insuring the Equipment at a rate of 15% of the Price on behalf of the Hirer.13.5
By taking out insurance through Eclipse, the Hirer agrees to the following:
13.5.1
Full compliance with the Eclipse insurance policy terms and conditions available on request.
13.5.2
Where Equipment is to be contained in an unattended road vehicle;
(a) the doors, windows and other openings are fully closed and locked whenever the vehicle is left unattended and that any property is concealed from view wherever possible;
(b) between the hours of 21:00 and 06:00 unless the vehicle is on location it shall be fully alarmed and the alarm placed in full and effective operation or kept in a locked garage or building or security compound.
13.5.3
Where Equipment is to be stored at the Hirer’s or any other premises, any security measures in place are in full and effective operation.
13.5.4
In the event of a claim the Hirer shall be liable to pay the amount of the insurance policy excess, currently £1,000.00, or in the case of theft, loss or damage to small ancillary items including but not limited to cables, mounts, brackets and power supplies shall reimburse Eclipse for the cost of replacing of these items.
13.5.5
Provide Eclipse with full details of the event on which the Equipment shall be used.
In the first instance the Hirer shall keep insured for the Hire Period all Equipment to its full replacement value under the Contract with a reputable insurer previously approved by Eclipse for:
13.1.1
All loss and damage to the Equipment to its full replacement value; and
13.1.2
Suitable public liability insurance.13.2
The Hirer shall on demand provide Eclipse with the insurance certificate and details of the policy.13.3
All new account customers must forward their ‘hired in’ insurance certificate before a hire commences.13.4
Failure to procure or keep appropriate insurance will result in Eclipse insuring the Equipment at a rate of 15% of the Price on behalf of the Hirer.13.5
By taking out insurance through Eclipse, the Hirer agrees to the following:
13.5.1
Full compliance with the Eclipse insurance policy terms and conditions available on request.
13.5.2
Where Equipment is to be contained in an unattended road vehicle;
(a) the doors, windows and other openings are fully closed and locked whenever the vehicle is left unattended and that any property is concealed from view wherever possible;
(b) between the hours of 21:00 and 06:00 unless the vehicle is on location it shall be fully alarmed and the alarm placed in full and effective operation or kept in a locked garage or building or security compound.
13.5.3
Where Equipment is to be stored at the Hirer’s or any other premises, any security measures in place are in full and effective operation.
13.5.4
In the event of a claim the Hirer shall be liable to pay the amount of the insurance policy excess, currently £1,000.00, or in the case of theft, loss or damage to small ancillary items including but not limited to cables, mounts, brackets and power supplies shall reimburse Eclipse for the cost of replacing of these items.
13.5.5
Provide Eclipse with full details of the event on which the Equipment shall be used.
14.1 The Hirer shall indemnify Eclipse in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal costs (calculated on a full indemnity basis) and all other reasonable costs and expenses suffered or incurred by Eclipse arising out of or in connection with (but not limited to):
(a) the Hirer’s breach or negligent performance or non-performance of the Contract;
(b) the enforcement of the Contract;
(c) any claim made against Eclipse for actual or alleged infringement of the Data Protection Act 1998 or of any third party’s intellectual property rights
(d) any claim made against Eclipse for actual or alleged breaches of any licences, permits, permissions and consents obtained or should have been obtained for the use of the Equipment in any jurisdiction and shall include but is not limited to any frequency licence or software/firmware licence
(e) any claim made against Eclipse by a third party for the death, personal injury or damage to property arising out of or in connection with the Equipment to the extent that it is attributable to the acts or omissions of the Hirer, its employees or agents.
(a) the Hirer’s breach or negligent performance or non-performance of the Contract;
(b) the enforcement of the Contract;
(c) any claim made against Eclipse for actual or alleged infringement of the Data Protection Act 1998 or of any third party’s intellectual property rights
(d) any claim made against Eclipse for actual or alleged breaches of any licences, permits, permissions and consents obtained or should have been obtained for the use of the Equipment in any jurisdiction and shall include but is not limited to any frequency licence or software/firmware licence
(e) any claim made against Eclipse by a third party for the death, personal injury or damage to property arising out of or in connection with the Equipment to the extent that it is attributable to the acts or omissions of the Hirer, its employees or agents.
15.1
Without limiting its other rights or remedies Eclipse may terminate the Contract and any other Contract with the Hirer with immediate effect by giving written notice to the Hirer if:
(a) if the Hirer fails to pay any sum payable under the Contract as and when such sum falls due;
(b) the Hirer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 working days after receipt of notice in writing of the breach;
(c) 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(d) 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 (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(f) the other party (being an individual) is the subject of a bankruptcy petition or order;
(g) 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 its assets and such attachment or process is not discharged within 14 days;
(h) 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 other party (being a company);
(i) a floating charge holder over the assets of the Hirer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(b) to clause 15.1(i) (inclusive);
(l) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.15.2Without limiting its other rights or remedies, Eclipse may terminate the Contract:
(a) by giving the Customer one weeks’ written notice; or
(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.15.3Without limiting its other rights or remedies, Eclipse shall have the right to suspend the supply of Equipment and/or Employees or Agents under the Contract or any other Contract between Eclipse and the Hirer:
(a) the Hirer fails to make payment any amount due under this Contract on the due date for payment; or
(b) the Hirer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or Eclipse reasonably believes that the Customer is about to become subject to any of them.
Without limiting its other rights or remedies Eclipse may terminate the Contract and any other Contract with the Hirer with immediate effect by giving written notice to the Hirer if:
(a) if the Hirer fails to pay any sum payable under the Contract as and when such sum falls due;
(b) the Hirer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 working days after receipt of notice in writing of the breach;
(c) 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(d) 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 (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(f) the other party (being an individual) is the subject of a bankruptcy petition or order;
(g) 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 its assets and such attachment or process is not discharged within 14 days;
(h) 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 other party (being a company);
(i) a floating charge holder over the assets of the Hirer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(b) to clause 15.1(i) (inclusive);
(l) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.15.2Without limiting its other rights or remedies, Eclipse may terminate the Contract:
(a) by giving the Customer one weeks’ written notice; or
(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.15.3Without limiting its other rights or remedies, Eclipse shall have the right to suspend the supply of Equipment and/or Employees or Agents under the Contract or any other Contract between Eclipse and the Hirer:
(a) the Hirer fails to make payment any amount due under this Contract on the due date for payment; or
(b) the Hirer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or Eclipse reasonably believes that the Customer is about to become subject to any of them.
On termination of the Contract for any reason:
(a) The Hirer shall immediately pay to the Eclipse all outstanding unpaid invoices and interest;
(b) The Hirer shall return all Equipment under the Contract pursuant to clause 10 and if the Hirer fails to do so, then Eclipse may enter the Hirer’s premises, without the Hirer’s express consent, and take possession of the Equipment and the Hirer shall indemnify Eclipse against all costs and expenses incurred in recovering the Equipment. Until the Equipment has been returned, the Hirer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) The accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
(a) The Hirer shall immediately pay to the Eclipse all outstanding unpaid invoices and interest;
(b) The Hirer shall return all Equipment under the Contract pursuant to clause 10 and if the Hirer fails to do so, then Eclipse may enter the Hirer’s premises, without the Hirer’s express consent, and take possession of the Equipment and the Hirer shall indemnify Eclipse against all costs and expenses incurred in recovering the Equipment. Until the Equipment has been returned, the Hirer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) The accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17.1
All notices under these terms shall be in writing addressed to the other party at their registered office or principal place of business or in case of an individual the invoice address provided for on the offer.17.2
(a) The Hirer shall not assign subcontract or otherwise transfer any of its rights or obligations under these Terms;
(b) Eclipse may assign delegate or subcontract or otherwise transfer all or any of its obligations.17.3
No waiver by Eclipse of any of its remedies for any breach of the contract by the Hirer shall be effective unless it is in writing and shall not be deemed a waiver of any subsequent breach. No failure or delay by Eclipse in exercising any right or remedy shall constitute a waiver of that or any other right or remedy under Contract or by law.17.4
The Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment and shall protect the same against distress, execution or seizure and shall indemnify Eclipse against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) arising out of the same.17.5
(a) If a court or any other competent authority finds that any provision of the Contract or these Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract and these Terms shall not be affected.
(b) If any invalid, illegal or unenforceable provision of the Contract or these Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal valid and enforceable.17.6
A person who is not a party to the Contract shall not have any rights under or in connection with it.17.7
Eclipse shall not be liable for any loss or damage of any kind whether direct or indirect consequential or otherwise resulting from any circumstances beyond the control of Eclipse including but not limited to war, riot, civil commotion, strikes, lock outs, fire, flood, storm, snow, explosions, malicious damage, acts of God, accident or vehicle breakdown, soft or unsuitable ground or hazardous environment.17.8
The Contract and these Terms shall be governed by the laws of the England and the Hirer agrees to submit o the exclusive jurisdiction of the English courts.
All notices under these terms shall be in writing addressed to the other party at their registered office or principal place of business or in case of an individual the invoice address provided for on the offer.17.2
(a) The Hirer shall not assign subcontract or otherwise transfer any of its rights or obligations under these Terms;
(b) Eclipse may assign delegate or subcontract or otherwise transfer all or any of its obligations.17.3
No waiver by Eclipse of any of its remedies for any breach of the contract by the Hirer shall be effective unless it is in writing and shall not be deemed a waiver of any subsequent breach. No failure or delay by Eclipse in exercising any right or remedy shall constitute a waiver of that or any other right or remedy under Contract or by law.17.4
The Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment and shall protect the same against distress, execution or seizure and shall indemnify Eclipse against all liabilities, costs, expenses, damages and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties, and legal and other reasonable costs and expenses) arising out of the same.17.5
(a) If a court or any other competent authority finds that any provision of the Contract or these Terms (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract and these Terms shall not be affected.
(b) If any invalid, illegal or unenforceable provision of the Contract or these Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal valid and enforceable.17.6
A person who is not a party to the Contract shall not have any rights under or in connection with it.17.7
Eclipse shall not be liable for any loss or damage of any kind whether direct or indirect consequential or otherwise resulting from any circumstances beyond the control of Eclipse including but not limited to war, riot, civil commotion, strikes, lock outs, fire, flood, storm, snow, explosions, malicious damage, acts of God, accident or vehicle breakdown, soft or unsuitable ground or hazardous environment.17.8
The Contract and these Terms shall be governed by the laws of the England and the Hirer agrees to submit o the exclusive jurisdiction of the English courts.
