1.1

Layher Limited is a company incorporated in England and Wales with company number 02142812 with its registered office address at Unit 1b Focus 4, Fourth Avenue, Letchworth Garden City, Hertfordshire, SG6 2TU.

1.2

Unless otherwise agreed in writing, these terms and conditions (the Conditions) shall apply to all equipment supplied for hire by Layher Limited (the Supplier) to any party wanting to hire such equipment (the Customer).

1.3

No terms or conditions endorsed on, delivered with, or contained in the Customer’s conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.

1.4

The Supplier shall not be bound to provide any equipment until an order placed by the Customer is accepted by the Supplier in writing (the Order) and on which date a contract shall come into existence. Each contract between the Supplier and the Customer is made up of the Conditions and the Order (the Contract).

1.5

Each Order by the Customer to the Supplier shall be an offer to hire the equipment as set out in the Order and shall be subject to these Conditions and equipment availability.

1.6

An Order may be withdrawn or amended by the Customer at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.

1.7

The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any equipment shall arise, until the earlier of:

1.7.1

the Supplier’s written acceptance of the Order; or

1.7.2

the Supplier dispatching the equipment or notifying the Customer that it is available for collection (as the case may be).

1.8

Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

1.9

The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply the equipment and are incapable of being accepted by the Customer.

1.10

Unless otherwise stated, a quotation or estimate issued by the Supplier will be available for 14 days. However, the Supplier reserves the right to withdraw or revise the same at any time before our acceptance of the Order. Any written statements regarding prices and technical or other data are by way of general information only and shall not be binding unless explicitly stated in the Contract.

2.1

The Customer shall hire the equipment (as referred to in the Order) (the Equipment) and purchase any consumables required (including, but not limited to roof seals, roof sheets, and bespoke materials) (the Consumables) from the Supplier for use at the address as set out in the Order or at such other address as agreed by the Supplier in writing.

2.2

The term of hire shall commence upon the earlier of delivery of the Equipment or expiry of fourteen (14) days from the date that the Customer is notified that the Equipment is ready for collection (the Hire Period), subject to the terms and conditions of the Contract.

3.1

The hire price for the Equipment shall be set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier’s scale of charges in force from time to time (Hire Price(s)).

3.2

The Hire Prices are exclusive of:

3.2.1

packaging, delivery and insurance which shall be charged in addition at the Supplier’s standard rates; and

3.2.2

VAT (or equivalent sales tax).

3.3

The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

3.4

The Supplier may increase the Hire Prices at any time by giving the Customer not less than 15 working days’ notice in writing.

4.1

Unless otherwise set out in the Order or agreed by the Supplier in writing, invoices shall be raised by the Supplier for the Equipment on the first day of the shipment and every 28 days during the Hire Period. The Supplier may require the Customer to pay a deposit or payment in advance prior to delivery or collection of the Equipment.

4.2

The Customer shall pay all invoices:

4.2.1

in full without deduction or set-off, in cleared funds within 28 days of the date of such invoice; and

4.2.2

to the bank account nominated by the Supplier.

4.3

Time of payment is of the essence. Where sums due under the Contract are not paid in full by the due date:

4.3.1

the Supplier may, without limiting its other rights, charge interest on such sums at a rate of 1.5% per annum above the base rate of the Bank of England from time to time in force; and

4.3.2

interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

5.1

An Order shall specify whether the Equipment is to be:

5.1.1

delivered by the Supplier, or by a carrier appointed by the Supplier, to the location on the approximate date(s) specified in the Order; or

5.1.2

made available for collection by the Customer at the Supplier’s, or carrier’s premises set out in the Order (as the case may be). The Customer shall collect the Equipment within the period specified in the Order.

5.2

The Equipment shall be deemed delivered:

5.2.1

if delivered by the Supplier under clause 5.1.1, on arrival of the Equipment at the location specified in the Order (the Location);

5.2.2

if delivered by a carrier under clause 5.1.1, on delivery of the Equipment by the Supplier to the carrier; or

5.2.3

if collected by the Customer under clause 5.1.2, when the Supplier makes the Equipment available for collection at the Supplier’s, or carrier’s premises (as the case may be).

5.3

The Equipment may be delivered by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment. The Supplier may raise an invoice if the Equipment is delivered in instalments.

5.4

The Customer shall unload and inspect all Equipment and Consumables delivered to it, and the quantity of any consignment of the Equipment and/or Consumables as recorded by the Supplier on dispatch from its premises shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary within 5 working days of transportation to the Location.

5.5

Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates, but such dates are approximate only.

5.6

The Supplier shall not be liable for any delay or failure of delivery caused by:

5.6.1

the Customer’s failure to: a) make the Location available; b) prepare the Location as required for delivery; or c) provide the Supplier with adequate instructions for delivery or otherwise relating to the Equipment;

5.6.2

the Customer’s failure to collect the Equipment from the Supplier’s premises; or

5.6.3

Force Majeure (as defined in clause 15.1).

5.7

If the Customer fails to accept delivery of the Equipment the Supplier shall store and insure the Equipment pending delivery, and the Customer shall pay all reasonable costs and expenses incurred by the Supplier in doing so.

6.1

The Customer shall return and deliver the Equipment to the Supplier at the end of the Hire Period, to such a location as requested in writing by the Supplier, at the Customer’s cost.

6.2

The Customer must ensure that the Equipment is clean, fully usable and loaded in such a manner that unloading can be carried out safely.

6.3

The Supplier shall inspect the Equipment on its return to the Supplier and notify the Customer in writing within 5 working days of any costs associated with the repair or replacement parts of the Equipment. Payment of any costs of any damaged Equipment (including any painted Equipment), or any repairs or replacement parts required is payable by the Customer to the Supplier on demand.

6.4

Any Equipment that is not returned to the Supplier at the end of the Hire Period shall be charged to the Customer at the Supplier’s scale of charges in force from time to time.

6.5

Any third party items returned to the Supplier by the Customer shall be returned to the Customer if not collected within 7 days at the Customer’s expense.

7.1

Risk in the Equipment shall pass to the Customer on delivery or collection of the Equipment in accordance with clause 5 and remain with the Customer until the Equipment is returned to the Supplier on or after the end of the Hire Period.

7.2

No right or title in the Equipment shall pass to the Customer at any time. The Customer shall not do or allow to occur anything which might adversely affect the Supplier‘s right, title or interest in the Equipment.

7.3

Upon termination of this Agreement, or if the Customer breaches any of its obligations in the Contract, the Supplier shall have the right to take immediate possession of the Equipment without further notice or demand to the Customer.

8.1

In relation to the Equipment, the Customer shall:

8.1.1

take all reasonable care of the Equipment and return it to the Supplier in the condition in which it was delivered and in accordance with clause 6;

8.1.2

not, without the Supplier’s prior written consent, use the Equipment at any other location save for the Location or, if the Equipment was collected by the Customer, the location specified by the Customer in the Order,;

8.1.3

on reasonable notice permit the Supplier to inspect and or repair the Equipment and provide the Supplier with such information concerning the Equipment as the Supplier may request from time to time;

8.1.4

insure the Equipment from the date of delivery:

8.1.5

provide the Supplier with a copy of the insurance policy on demand prior to the delivery of the Equipment;

8.1.6

ensure that the Equipment is clearly identifiable as belonging to the Supplier;

8.1.7

not remove or alter any mark on or packaging of the Equipment nor place any mark on the Equipment which may indicate or suggest that the Equipment does not belong to the Supplier;

8.1.8

use or permit the use of the Equipment only in accordance with relevant operating and safety instructions, including, without limitation, any instructions supplied with the Equipment;

8.1.9

ensure that the Equipment is erected and dismantled properly and safely with due care and skill at all times by suitable competent, qualified, experienced and instructed personnel;

8.1.10

ensure that the Equipment is only used within its designed load limits and requirements, which the Customer warrants that they are aware of such limits and requirements;

8.1.11

not permit the Equipment to be used by any party other than the Customer and its employees or other authorised representatives;

8.1.12

not make any alterations or modifications to the Equipment;

8.1.13

immediately notify the Supplier of any malfunctioning or unsatisfactory working of the Equipment;

8.1.14

not carry out any repairs to the Equipment without the Supplier’s prior written consent;

8.1.15

immediately notify the Supplier if the Equipment is involved in any incident or accident and immediately cease using the Equipment if there is any possibility that the Equipment or a defect with it caused such incident or accident;

8.1.16

not sell, mortgage, charge, pledge, lien (or any other encumbrance of the same or having similar effect), sub-let or part with possession of the Equipment without the prior written consent of the Supplier; and

8.1.17

protect the Equipment at all times from distress or seizure.

8.2

The Customer acknowledges that the Supplier shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractor and the Customer shall indemnify the Supplier in full against any costs associated with the repair or replacement of the Equipment.

8.3

The Customer is required to treat all employees, subcontractors and representatives of the Supplier with professionalism and respect at all times. Any form of harassment, discrimination, abusive language, threats, intimidation, unsafe instructions or interference with the Supplier’s employees’ duties will not be tolerated. The Supplier reserves the right to terminate the Contract and/or refuse future contracts which such behaviour occurs. The Customer will be liable for any costs, delays or damages arising from such termination.

9.1

The Customer shall, subject to clause 9.2, have the option, exercisable by providing not less than 20 working days’ written notice to the Supplier (the Option Notice), to purchase the Equipment on the last working day of the Hire Period (the Purchase Option) at an agreed price with the Supplier (the Option Purchase Price).

9.2

The Purchase Option may be exercised only if:

9.2.1

all amounts due and payable to the Supplier by the Customer are paid in full on the date of the Option Notice; and

9.2.2

the Hire Period has not ended by reason of the Supplier terminating the Contract in accordance with clause 14.

9.3

The price of the Equipment is calculated as follows:

9.3.1

the Option Purchase Price;

9.3.2

less the Hire Price;

9.3.3

plus an administrative fee of6% of the Hire Price, (the Price)

9.4

If the Price has not been paid within 14 days of the Option Notice, the Hire Period shall automatically be extended, and the Customer shall be liable to pay the Hire Price.

9.5

Completion of the purchase of the Equipment shall be governed by and be in accordance with the Supplier‘s Terms and Conditions of Sale as update from time to time and published on the Supplier’s website: www.layher.co.uk/terms-and-conditions/

9.6

On completion of the purchase of the Equipment, the Equipment shall transfer to the Customer in the condition and at the location in which it is found on the date of the purchase.

10.1

The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract, including clause 8.

10.2

The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply (so far as is reasonable) evidence of the maintenance of the insurance and all of its terms from time to time applicable.

11.1

The Supplier warrants that the Equipment will match the specification for such Equipment as stated in the Contract.

11.2

Except as set out in this clause 11:

11.2.1

the Supplier gives no warranties and makes no representations in relation to the Equipment; and

11.2.2

all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

12.1

Subject to clause 12.4, the Supplier’s total liability shall not exceed the Hire Price paid by the Customer to the Supplier for the Equipment.

12.2

Subject to clause 12.4, the Supplier shall not be liable for consequential, indirect or special losses.

12.3

Subject to clause 12.4, the Supplier shall not be liable for any of the following (whether direct or indirect):

12.3.1

loss of profit;

12.3.2

loss of use;

12.3.3

loss of production;

12.3.4

loss of contract;

12.3.5

loss of opportunity;

12.3.6

harm to reputation or loss of goodwill; and/or

12.3.7

loss or damage to equipment.

12.4

Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

12.4.1

death or personal injury caused by negligence;

12.4.2

fraud or fraudulent misrepresentation; or

12.4.3

any other losses which cannot be excluded or limited by applicable law.

13.1

Each party undertakes that it shall keep any information that is confidential in nature concerning the other party including any details of its business, affairs, customers, clients, suppliers, plans or strategies, including the terms of this Contract (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 13.2.

13.2

A party may:

13.2.1

disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 13 as if it were a party;

13.2.2

disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and

13.2.3

use Confidential Information only to perform any obligations under this Agreement.

13.3

The provisions of this clause shall not apply to:

13.3.1

any information which was in the public domain at the date of the Contract; and

13.3.2

any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement.

13.4

This clause shall remain in force for a period of two years from the date of the Contract.

13.5

The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

14.1

The Supplier may terminate the Contract, at any time by giving notice in writing to the Customer if:

14.1.1

the Customer commits a material breach of the Contract and such breach is not remediable;

14.1.2

the Customer commits a material breach of the Contract which is not remedied within 14 working days of receiving written notice of such breach;

14.1.3

the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 30 days after the date that the Supplier has given notification to the Customer that the payment is overdue; or

14.1.4

any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

14.2

The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:

14.2.1

stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

14.2.2

is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;

14.2.3

becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

14.2.4

has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

14.2.5

has a resolution passed for its winding up;

14.2.6

has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

14.2.7

has a freezing order made against it; or

14.2.8

is subject to any events or circumstances analogous to those in clauses 14.2.1 to 14.2.7 in any jurisdiction.

14.3

The right of the Supplier to terminate the Contract pursuant to clause 14.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) of the Customer where the amalgamated, reconstructed or merged entity agrees to adhere to the Contract.

14.4

If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 14, it shall immediately notify the Supplier in writing.

14.5

On termination of this Contract for any reason:

14.5.1

the Customer shall immediately pay all outstanding invoices of the Supplier;

14.5.2

the Customer shall immediately return all Equipment to the Supplier, at the Customer’s cost;

14.5.3

the Supplier shall promptly invoice the Customer for any proportion of the Hire Period that has elapsed but has not yet been invoiced and payment for such invoices shall be due immediately on receipt by the Customer; and

14.5.4

the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.

14.6

If the Supplier is required to enter the Customer’s premises or location at which the Equipment is located, the Customer grants an irrevocable licence to the Supplier enter such premises to re-possess the Equipment (the Customer being responsible for any damage caused thereby) but without prejudice to any pre-existing right of the Supplier against the Customer for recovery of monies due or any other breach of the Contract or these Conditions.

15.1

In this clause the following definitions shall apply: Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract.

15.2

The Supplier shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

15.2.1

promptly notifies the Customer of the Force Majeure event and its expected duration; and

15.2.2

uses its reasonable endeavours to minimise the effects of that event.

15.3

If, due to Force Majeure, a party:

15.3.1

is or shall be unable to perform a material obligation or;

15.3.2

is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days, the other party may, within 30 days, terminate the Contract on immediate notice.

16.1

Any notice given by a party under these Conditions shall:

16.1.1

be in writing and in English;

16.1.2

be signed by, or on behalf of, the party giving it (except for notices sent by email); and

16.1.3

be sent to the relevant party at the address set out in the Order.

16.2

Notices may be given and are deemed received:

16.2.1

by hand: on receipt;

16.2.2

by post: at 9:00 am on the second working day after posting; and

16.2.3

by email: on receipt of a delivery receipt from the correct address.

16.3

Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 16.1 and shall be effective:

16.3.1

on the date specified in the notice as being the date of such change; or

16.3.2

if no date is so specified, five working days after the notice is deemed to be received.

16.4

This clause does not apply to notices given in legal proceedings or arbitration.

17.1

Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.

18.1

The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

19.1

The parties agree that the Contract constitutes the entire agreement between them in respect of the Equipment set out in the Order and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral.

19.2

The Customer acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract.

19.3

Nothing in these Conditions purports to limit or exclude any liability for fraud.

20.1

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and is duly signed or executed by, or on behalf of, the Supplier.

21.1

The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the prior written consent of the Supplier.

22.1

The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it may owe to the Customer under the Contract.

22.2

The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

23.1

The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorizes as are required from time to time to perform its obligations under, or in connection with, the Contract.

24.1

The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it)

25.1

A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

26.1

No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

26.2

No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by it.

27.1

If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

27.2

If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part- provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

28.1

In these Conditions, unless the context otherwise requires:

28.1.1

any clause or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of the Conditions;

28.1.2

a reference to a party includes that party’s personal representatives, successors and permitted assigns;

28.1.3

a reference to a person includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

28.1.4

a reference to a company includes any company, corporation or other body corporate wherever and however incorporated or established;

28.1.5

words in the singular include the plural and vice versa;

28.1.6

any words that follow include, including and in particular, or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

28.1.7

a reference to writing or written includes any method of reproducing words in a legible and non- transitory form; and

28.1.8

a reference to legislation is a reference to that legislation as in force at the date of the Contract.

29.1

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

29.2

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).