3. Obligations of the Customer
3.1: The Customer shall:
(a) be responsible for preparing and maintaining any relevant part of the Site for the performance of the Services and for reinstating any such part of the Site and undertaking any required making good and clean-up work once performance of the Services has been completed;
(b) ensure that conditions at the Site are suitable for the performance of the Services and that any relevant thing required to perform the Services thereon is available and in good working order (for the avoidance of doubt, the Company shall not be required to undertake any survey of the Site although the Company may opt to do so);
(c) if requested to do so by the Company and without charge, provide facilities at the Site for the off-loading and storage of the Goods and the Company’s tools and equipment in a readily accessible and secure storage area protected from theft and damage and shall be solely responsible for the safekeeping of the Goods and the Company’s tools and equipment whilst the same are stored at the Site;
(d) take all steps to ensure the health and safety of the personnel of the Company whilst they are in attendance at the Site in connection with the performance of the Services and be solely responsible for ensuring the safety of any and all persons who are or may be present at the Site during the performance of the Services, including but not limited to restricting access to those areas of the Site where the Services are or are to be performed to those individuals engaged in performing the Services, or providing assistance to those so engaged;
(e) Provide prompt and unobstructed access to and egress from the Site;
(f) Inform the Company of any unusual layout, composition or construction of the Site or its parts and for reporting any unusual conditions or obstacles to the performance of the Services at the Site to the Company;
(g) notify the Company of any special properties of, or requirements of the Customer in relation to, any surfaces, fixtures or fittings at the Site, as the Company shall not be liable for any damage resulting directly or indirectly from the installation of any Goods to the Customer’s property, fixtures or fittings, including but not limited to damage caused by the drilling of walls, tiles, glass or other surfaces, the removal of fixtures and fittings whether obsolete or not, or for damage to porous or any other materials;
(h) ensure that any materials and/or surfaces upon which the Services are to be performed comply with any tolerances required by the Company and are of adequate strength to withstand any work undertaken on them by the Company and to support the Goods and the maximum loads to be imposed on the Goods;
(i) at all times during the performance of the Services ensure, insofar as it is reasonably practicable to do so, that other trades or operations are not undertaken on that part of the Site where the performance of the Services is to take place, so as to ensure that the Services can be performed in one continuous, uninterrupted operation during Working Hours;
(j) unless otherwise agreed by the Company in writing, ensure that the Goods are connected to isolated power supplies no further than 1.5m from the Goods (information regarding the amount of available power and its rating must be provided to the Company prior to installation, failing which the Company may not install the Goods on the agreed date for installation and a further charge will be made for re-installation or re-commissioning);
(k) be responsible at its own cost (other than for statutory obligations placed solely on the Company) for obtaining all consents, permissions, easements and licenses necessary for the performance of the Services in accordance with these Conditions and for conforming with all Statutes and Orders, Regulations and Bye-Laws which are applicable at any time to the Services and shall indemnify and keep indemnified the Company against any actions, proceedings, costs, charges, claims or demands arising out of or in connection with any breach of this clause;
(l) Provide the Company with all information, co-operation and support that may be required to enable the Company to carry out its obligations to the Customer;
(m) Effect and maintain appropriate insurance at the Site on an all risks basis and in an adequate amount.
3.2: The Customer shall not, without the prior written consent of the Company, whether acting on the Customer’s own account, on behalf of, or with any other person (including any person which the Customer directs to act on its behalf), at any time from the date of first provision of the Services to the expiry of 6 months after the last date of supply of the Services, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
3.3: Any consent given by the Company in accordance with clause 3.2 shall be subject to the Customer paying to the Company a sum equivalent to 50% of the then current annual remuneration of the Company’s employee, consultant or subcontractor.
3.4: The Customer hereby agrees that with respect to any Hire Goods, it shall:
(a) Take reasonable care of the Hire Goods and use them only for their intended and proper purpose in a safe and correct manner;
(b) comply with all directions given by the Company or in any accompanying instructions as to the use and where applicable, operation, installation, and/or removal of the Hire Goods and the Customer shall be liable for any damage or deterioration (fair wear and tear excepted) resulting from any failure so to comply;
(c) Take adequate and proper measures to protect the Hire Goods from damage and other risks;
(d) Insure the Hire Goods on such terms as the Company may require, the proceeds of such insurance to be held by the Customer in trust for the Company and to be paid to the Company on demand;
(e) Permit the Company at all reasonable times and upon reasonable notice to inspect, repair or replace the Hire Goods;
(f) Notify the Company immediately, following any loss of, damage or deterioration to, and/or breakdown of, the Hire Goods;
(g) Protect the Hire Goods against distress, execution or seizure and keep the Hire Goods at all times under its control;
(h) where the Hire Goods are to be operated, installed and/or removed by the Customer, ensure that any employees, agents or contractors that operate, install, and/or remove the Hire Goods are adequately and sufficiently qualified and trained to do so;
(i) be responsible for and shall fully reimburse the Company for any and all expenses, costs, losses (including loss of Hire Charges) and/or damage incurred by or against the Company arising from any loss of, damage or deterioration to, and/or breakdown of the Hire Goods attributable to any act or omission of the Customer;
(j) Indemnify and keep indemnified the Company against any and all losses, lost profits, damages, claims, costs, actions and any other losses and/or liabilities suffered by the Company and arising from or due to any breach of contract, tortious act and/or omission and/or any breach of statutory duty by the Customer.
3.5: The Customer hereby agrees that with respect to any Hire Goods, it shall not:
(a) Attempt to repair, maintain, alter or interfere with the Hire Goods without the prior written consent of the Company;
(b) use, nor continue to use any Hire Goods in an unsafe or unsatisfactory state or environment, or where they have been damaged and will notify the Company immediately if the Hire Goods are involved in an accident resulting in damage to the Hire Goods, other property and/or injury to any person;
(c) Remove from, nor cover up, alter or deface any labels, names or proprietary marks on the Hire Goods;
(d) Affix any marking, or labelling on the Hire Goods without the Company’s written consent;
(e) Attempt to sell, hire, assign, charge, pledge, or otherwise lend or dispose of the Hire Goods or any interest therein;
(f) Remove the Hire Goods from the Site, or from any subsequently authorised site, without the authority of the Company;
(g) Without limitation, do or omit to do anything which the Customer has been notified may invalidate any policy of insurance related to the Hire Goods.
3.6: The Customer shall submit the Hire Goods to the Company at the Termination Date by making the Hire Goods available for collection by the Company or by returning the Hire Goods to the Company, pursuant to the provisions of clause 5.10. The Customer must notify the Company prior to the Termination Date if the Customer wishes to purchase the Hire Goods.
3.7: The Hire Goods must be submitted to the Company in good order and condition (fair wear and tear excepted) and in a clean condition.
3.8: If the Hire Goods are found by the Company to be in a damaged, unclean and/or defective state except where due to fair wear and tear, the Customer shall be liable to pay the Company for the cost of any repair and/or cleaning required to return the Hire Goods to a condition fit for re-hire and to continue to pay the Hire Charge until such repairs and/or cleaning have been completed.
3.9: The Customer will incur additional costs and charges for any Hire Goods which are damaged beyond economic repair, up to and including the replacement cost of new Hire Goods at current market rates.
3.10: Without limiting any of the provisions of clause 3.9, the Customer shall pay the Hire Charge for the Hire Goods up to and including the date it notifies the Company that the Hire Goods have been damaged beyond economic repair. From that date until the Company has replaced such Hire Goods the Customer shall pay, as a genuine pre-estimate of lost profit, a sum as liquidated damages being equal to two thirds of the Hire Charge that would have applied for such Hire Goods for that period. The Company shall use its reasonable commercial endeavours to purchase replacements for such Hire Goods as quickly as possible.
3.11: Where the Company has agreed to undertake maintenance services for the Customer, the following clauses 3.12 to 3.23 shall govern the supply of maintenance services, without prejudice to the provisions of any other clause of these Conditions.
3.12: Preventative maintenance service visits to the Site shall be undertaken over such period of time and at such intervals as are indicated in the Company’s written acceptance of order issued pursuant to clause 2.3.
3.13: Dates for performance of the preventative maintenance services shall be suggested by the Company to the Customer and mutually agreed in advance. The Company reserves the right to levy a re-scheduling charge should the Customer wish to change any agreed dates for performance of the preventative maintenance services less than 7 days prior to any date so agreed.
3.14: During the preventative maintenance visit, (or otherwise thereafter, where deemed appropriate by the Company), the Company shall check various aspects of the Equipment and replace or repair faulty Equipment (or faulty components of the Equipment).
3.15: The Company will provide reactive (call-out) maintenance cover in order to fix faults which may arise in relation to the Equipment. Reactive (call-out) maintenance cover will be provided at the times indicated in the Company’s written acceptance of order issued pursuant to clause 2.3. Any response time indicated in the Company’s written acceptance of order is an estimate only and time shall not be of the essence for performance of the maintenance services.
3.16: The charges payable for the maintenance services shall cover either (i) all labour costs, together with (ii) the cost of any parts required for replacement or repair, or (i), but not (ii), which shall be separately chargeable. The extent of coverage will be indicated in the Company’s written acceptance of order issued pursuant to clause 2.3, which will also describe which particular maintenance services will be undertaken and whether the cost of consumables will be included.
3.17: The maintenance services shall be provided within Working Hours. If the Company has confirmed in the written acceptance of order issued pursuant to clause 2.3 that the maintenance services will also be provided outside Working Hours, the maintenance services will be provided during the hours stated in the written acceptance of order. The Customer may request the Company to provide the maintenance services outside Working Hours at any time, provided that the Company reserves the right in its sole discretion not to accede to the Customer’s request. Where the Company agrees to the Customer’s request, the Customer will be charged for the maintenance services provided pursuant to the Customer’s request on a time and materials basis. All waiting time shall be chargeable.
3.18: The Customer warrants and undertakes to the Company that it is the owner or authorised user of the Equipment, that it has full power and authority to permit the Company to perform the maintenance services and the Customer undertakes to fully and promptly indemnify and hold the Company harmless against any loss or damage that the Company may suffer as a result of any breach by the Customer of this clause 3.18.
3.19: In order to be eligible for maintenance under the Contract, the Equipment must at all times be in a condition suitable for regular planned maintenance and if the Company, in its sole discretion, at any time deems the Equipment not to be in such a condition, the Company may, without liability to the Customer, refuse to undertake maintenance services in relation to the Equipment.
3.20: All defective parts removed from the Equipment by the Company shall become the property of the Company and their replacements shall become the property of the Customer once paid for in full.
3.21: The maintenance services shall not include:
(a) Any work, including but not limited to electrical work, in relation to anything which does not form a part of the Equipment; and
(b) Any maintenance or repair work with respect to any modification of, or addition to, the Equipment, if any such modification or addition has been undertaken without the Company’s prior consent; and
(c) The repair of any damage to the Equipment caused by fire, water, frost, lightning, wind, damage in transit, burglary, vandalism, or explosion; and
(d) The remedy of any defect resulting from any misuse of, neglect of, tampering with, or wilful or accidental damage to the Equipment, or from the utilisation of incorrect mains voltage with the Equipment where relevant, the attachment of the Equipment to any unsuitable or inappropriate devices or the use of defective or inappropriate supplies with the Equipment, or from any failure to follow any instructions contained in any operation or maintenance manual published for, or otherwise specified to be appropriate for use in conjunction with, the Equipment, or from any failure to follow any written or oral instructions of the Company, or from any failure to maintain a suitable environment for the Equipment at the Site where relevant, including but not limited to any failure to maintain a continuous power supply where required.
3.22: The Customer acknowledges that any variation in voltage +/- 230 volts by 10% will detrimentally affect the operation of the Equipment and all that power surges must be reported to the Company for investigation within 48 hours of their occurrence. The Customer shall be liable for the full cost of any repairs and/or call out charges which are directly or indirectly attributable to any failure to timely notify the Company regarding any power surge or change in supply voltage.