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Buccaneer Limited - Equipment Rental Terms and Conditions for Hire or Sale of Equipment

Definitions

In these terms and conditions the following words and expressions shall have the following meanings:-

"the Company"

means Buccaneer Limited a company registered in Scotland number 237481 whose registered office is at Unit 26 Murcar Commercial Park, Aberdeen AB23 8JW

"the Customer"

means the customer of the Company who is hiring or purchasing the equipment pursuant to the Contract:

"the Contract"

means the Contract between the parties for the hire or sale of the Equipment, evidenced by an Order and where relevant a Quotation which has been accepted in writing by the Company and is subject to these terms and conditions:

"the Equipment"

means the equipment hired or sold by the Company to the Customer under the Contract as set out in any relevant Quotation or Order which has been accepted by the Company:

"a Quotation"

means a quotation of the Company: and

"an Order"

means an Order of the Customer.

General

The Company agrees to hire or sell the Equipment as the case may be in accordance with the Contract and these terms and conditions.

• All Quotations and the acceptance by the Company of any Order are on the understanding that the Customer accepts these terms and conditions. These terms and conditions shall form the basis of the Contract notwithstanding anything to the contrary in any other terms and conditions of or referred to by the Customer and unless expressly varied in writing by an authorised representative of the company, provided that nothing in this Clause shall have effect to exclude the liability of either party for fraud or fraudulent misrepresentation.
• Subject to sub-clause 2.2 hereof no employee, agent or other representative of the Company shall be empowered to waive the rights of the Company hereunder or vary these terms and conditions orally or otherwise.
• Orders whether received as a result of a Quotation or otherwise are subject to acceptance by the Company in writing.
• Where an accepted Order or Quotation specifies that the Contract is to be for hire of the Equipment then Clause 4 of these terms and conditions shall not apply. Where an accepted Order or Quotation specifies that the Contract is to be for sale of the Equipment then Clause 3 of these terms and conditions shall not apply. All other Clauses shall apply to both Contracts of sale and Contracts for hire of Equipment.

Hire of Equipment

• The period of hire shall commence from the time and date when the Equipment is delivered in accordance with clause 5 and shall terminate at the end of the hire period set out in the applicable Order or Quotation, or when the Equipment is returned to the Company's premises if sooner.

Hire Charges

• Hire charges shall be at the rates shown in the Company's Equipment hire list published from time to time. The Company reserves the right to alter the hire charge for Equipment already on hire by written notice to the Customer.
• There is a minimum charge of forty (40) pounds sterling for any Order.
• Quotations are subject to confirmation upon receipt of an Order and the Company reserves the right to amend any accidental errors and/or omissions in Quotations or invoices.
• The Company will not, subject to (e) below, alter the hire charge quoted on a Quotation provided that an Order is received within thirty (30) days from the date of Quotation unless the Company has specified in writing to the contrary.
• The Company reserves the right to revise hire charges where conditions change between the date of Quotation and the date of delivery.
• Hire charges shall not include, clearance charges, Value Added Tax or any other taxes or duties or delivery which shall be FCA in accordance with INCOTERMS 2000 unless otherwise agreed in writing.
• The Customer waives any and all existing and future claims and rights of set off against hire charges or other payment (including interest) due hereunder and agrees to pay the hire charges and any other amounts payable hereunder regardless of any set off or cross claim on the part of the Customer against the Company.

Ownership

• The Equipment shall remain the property of the Company and is provided to the Customer solely on a rental basis.

Customer's Obligations

During the continuance of the Contract the Customer shall:

• Keep the Equipment at the delivery address or upon premises or vessels as specified in the Contract and in its own possession and not remove the same from such address without first giving written notice to the Company of its destination and in any event, not allow the equipment to be transferred to any country prohibited by the Department of Trade and Industry.
• Not assign the benefit of the Contract or any of its rights or obligations under the Contract without the prior written consent of the Company.
• Permit an authorised representative of the Company at all reasonable times to enter upon premises or vessel where the Equipment may be inspected, maintained, repaired or tested.
• Indemnify the Company on demand all costs, charges and expenses incurred in any way by reason of its breach of any of these terms and conditions including but not limited to all costs, charges and expenses incurred in ascertaining the location of the Equipment.
• Take all reasonable and proper care of the Equipment, keep the Equipment in good condition and not subject the same to any misuse (normal wear and tear excepted) and indemnify the Company against any loss or damage to the Equipment.
• Ensure that any instructions or manuals supplied by the Company for use of the Equipment will be fully observed.
• Take all necessary steps to ensure that the Equipment will be maintained in a safe condition without risks to health and safety when properly used.
• Ensure that the Equipment is operated in a skilful and proper manner and by persons who are competent to operate the same.
• Preserve on the Equipment the Company's and any manufacturer's identification number or mark or any nameplate that is or should be upon the Equipment together with any safety labels or information.
• Arrange and maintain at its expense adequate insurance for the Equipment satisfactory to the Company. Such insurance shall cover all loss and damage to the Equipment and also all risks to third parties in connection therewith. Such insurance shall commence from the time and date of delivery for the period of hire up to and including the date when the Equipment is delivered back to and received by the Company and acknowledged as received by it in writing. The Customer shall provide a brokers certificate as evidence of such insurance to the Company on request.
• Notify the Company in writing of any loss, damage or claim relating to the Equipment and, reimburse the Company in respect thereof within thirty (30) days of the occurrence. The Company shall continue to charge the Customer the full hire charge for the Equipment until such payment is received. The Customer shall be liable under this clause for the full cost of replacing the Equipment.
• Not sell, assign, sub rent, transfer or charge the Equipment or any part thereof or purport to do so or part with possession of the Equipment or any part thereof at any time prior to returning the Equipment to the Company.
• Not make any alterations, modifications or technical adjustments or do or, subject to sub-clause 3.6 attempt any repairs to the Equipment without the prior written consent of the Company and the Customer acknowledges that any items of non-expendable material not returned to the Company will be charged the Customer at full replacement cost.
• Not by any act or default allow the Equipment to become the subject of diligence, landlord's hypothec or other comparable legal process; or allow the Company to enter into a Company Voluntary Arrangement under the provisions of Part I of the Insolvency Act 1986 or suffer the appointment or presentation of a petition for the appointment of an Administrator under the provisions of Part II of the Insolvency Act 1986.
• Punctually pay all duties and taxes concerning the Equipment.
• Procure that by the terms of any mortgage, charge or debenture of or in respect of its assets or any premises or vessel in which the Equipment may be installed or stored no rights whether present, future or contingent are created or become exercisable in respect of the Equipment notwithstanding that the Equipment may be or have become a fixture thereof. The Customer acknowledges the right on the part of the Company to notify any mortgagee or chargee from time to time of the Equipment and of such of these terms and conditions as the Company shall consider appropriate.
• Upon expiry of the period of hire, return the Equipment at the Customer's expense to the Company, unencumbered and in good repair and condition.

Cancellation

• The Customer shall not cancel the Contract or any part thereof prior to commencement of the hire of the Equipment unless the Company gives written consent including terms which fully indemnify it against any loss, damage or claim in respect thereof.

Maintenance

• The Customer shall notify the Company if any maintenance of the Equipment is required. The Customer shall undertake routine maintenance but shall first obtain the Company's written consent in respect thereof. Other maintenance and repairs shall be undertaken by the Company Provided That the Customer at its expense returns the Equipment to the Company.

Sale of Equipment

General

• Subject to Clause 8, the Company gives no warranty in respect of the Equipment.

Retention of Title

• Ownership of and title to the Equipment shall remain with the Company and shall not pass to the Customer until the whole sale price as set out in the relevant Quotation or accepted Order has been paid to the Company notwithstanding (1) delivery of the Equipment to the Customer or to any independent carrier or any other third party or (2) any other person hereof.
• Until such times as payment is made and title passes under clause 4.2 the Customer shall keep the Equipment separately from other similar equipment and ensure it is labelled or otherwise identified as the property of the Company.

Delivery and Risk

• Delivery shall be deemed to take place when the Equipment leaves the Company's premises and is placed in transit to the Customer when the whole risk shall pass to the Customer. The Company shall endeavour to adhere to delivery dates but time shall not be deemed to be of the essence and the Company shall not be liable for any loss, damage or claim occasioned by or consequential on the non-delivery on the expected date or for delayed delivery. Deliveries offered ex-stock are subject to the Equipment being available at the date of receipt of the Order. In case of unforeseen delay in delivery, the Company will notify the Customer as soon as reasonably practicable.

Carriage

• In addition to hire charge or sale prices, the Company may make a separate charge for outward delivery and/or collection as the case may be. The Company's packaging materials are chargeable in full if not returned upon completion of hire. All carriage and packing charges will be invoiced at cost plus ten (10) per cent unless agreed in writing to the contrary.

Payment

• All invoices for hire charges or sale prices are payable within thirty (30) days of the invoice date. Hire charges and sale prices are net and exclusive of VAT and no deduction or settlement discounts are allowed. The Company may charge and the Customer shall pay interest on any overdue payment at a rate of 4 per cent above the base rate published from time to time by the Lloyds TSB Scotland Plc bank.

Defects and Liability

• Whether the Customer is hiring or purchasing the Equipment, it shall notify the Company of any defects in the Equipment within twenty-four (24) hours of receipt by it. Failing such notification, it shall be conclusively presumed as between the Company and the Customer that the Equipment has been received in good condition and in every way satisfactory for the Customer's purposes. The Company does not give any warranty as to the quality of the Equipment nor as its fitness for the purposes of the Customer. The Company does not warrant that the Equipment corresponds with any description or specifications either contained in catalogues or given verbally.
• Neither party excludes or limits liability to the other party for death or personal injury arising from the breach of duty of such party or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979.
• Subject always to Clause 8.2, the liability of the Company for any breach of the terms of this Contract or otherwise in relation to the subject matter of this Contract (including that arising from negligence, dilect, tort or otherwise) shall be limited to repairing or replacing the Equipment or any part thereof (excluding installation). For the avoidance of doubt, the Company shall only repair or replace the Equipment if the Equipment is returned by the Customer at the Customer's expense to the Company premises for inspection and if on inspection, the Company accepts that the Equipment has been defective since the time of delivery.
• Subject always to Clause 8.2 the Company shall not be liable in contract, delict (including negligence) or otherwise arising out of or in connection with this Contract including by way of indemnity for:
• any economic loss (including loss or revenues, profits, contracts, business or anticipated savings; or
• any loss of goodwill or reputation; or
• any special, indirect or consequential losses or damage, in any case, whether or not such losses were within the contemplation of the parties at the date of this Contract, suffered or incurred by that party arising out of or in connection with the provisions of any matter under this Contract.
• The parties expressly agree that should any limitation or provision contained in this Clause be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.

Force Majeure

• The Company shall not be liable to the Customer for any loss, damage or claim suffered by the Customer directly or indirectly as a result of the Company's failure or delay in performing any of its obligations under these terms and conditions where such failure or delay is caused by an occurrence beyond the reasonable control of the Company. In the event that the Company is unable to fulfil its obligations because of such force majeure it shall give written notice to that effect to the Customer stating the particulars and the period of time that it is likely to be unable to perform its obligations.

Severance

• If any provision is or becomes illegal, invalid or unenforceable in any respect, the remaining provisions hereof shall in no way be affected or impaired thereby.

Waiver

• No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provisions.

Termination of Contract

In addition to, but without prejudice to the whole other rights and remedies of the Company under and in terms of this Contract in the event that:-

• the Customer fails to pay by the due date any amount properly due or owing by it pursuant to the terms of this Contract, and such non-payment continues unremedied and not disputed in good faith and upon reasonable grounds at the expiry of a period of thirty (30) days immediately following notification to the Customer of such non-payment by the Company;or
• the Customer fails in any material respect to perform or comply with any of its obligations under this Contract and such failure not remedied to the reasonable satisfaction of the Company within twenty (20) days of notification to the Customer by the Company of the occurrence thereof, and requiring the same to be remedied; or
• an administration order is made in respect of the Customer or a voluntary arrangement is proposed in respect of the Customer or a resolution is passed or an order made for the winding up of the Customer (other than a resolution or a members' voluntary winding up for the purpose of reconstruction in terms approved by the Company or a receiver or administrative receiver shall be appointed over the whole or any part of the Customer's undertaking or assets or the Customer is unable to pay its debts (within the meaning of Section 123(1) or (2) of the Insolvency Act 1986) or shall cease or threaten to cease to pay its debts as they fall due or shall make or seek to make any composition or arrangement with its creditors, or shall suffer any analogous event under any jurisdiction to which it is subject, then, the Company may terminate this Contract by written notice to that effect served upon the Customer, such termination having effect from the date specified in that notice (which date may, for the avoidance of doubt, be the date of service of that notice, or any later date, but not an earlier date).
• Termination of this Contract in accordance with the terms of this Clause 8 shall be without prejudice to any rights of either party under the provisions of this Contract existing at the date the Agreement is terminated (including the right of either party to recover all sums due to that party up to such date of termination).
• Notwithstanding the provisions of this Clause 12, the provisions of Clauses 8, 12.3, 13, 14, and 17 shall survive termination of this Contract for any cause.

Consequences of Termination

On termination of the Contract for any reason the Customer shall:-

pay all sums due and to become due either in respect of hire charges for the full term of the rental period or the full sale price of the Equipment; return all hired Equipment to the Company in the same condition as delivered, ordinary fair wear and tear excepted, at the Customer's risk and expense to such location as the Company may designate, failing which the Company may enter upon any premises or vessel where the Equipment is located and take immediate possession of and remove the Equipment at the Customer's expense.

Intellectual Property

• Notwithstanding the provisions of this Contract all Intellectual Property Rights (as defined below) in the Equipment are and shall remain the sole property of the Company and its suppliers and the Customer shall not obtain any rights to these Intellectual Property Rights.
• For the purposes of this Clause 'Intellectual Property Rights' means any patents, trade marks, registered designs or applications therefore, copyright, unregistered design right, database right or semi-conductor topography right, rights in and to trade or business names, know-how or confidential information, and any similar or analogous rights or forms of protection in any part of the world.

Headings

• Any notice required to be given hereunder shall be in writing and shall be delivered by hand or recorded delivery to the other party at its Registered Office or principal place of business or such other address as may have from time to time been notified by the other party in writing for this purpose.

Notices

• Any notice required to be given hereunder shall be in writing and shall be delivered by hand or recorded delivery to the other party at its Registered Office or principal place of business or such other address as may have from time to time been notified by the other party in writing for this purpose.

Arbitration

• Any dispute or difference arising out of or relating to the Contract, its interpretation or the breach thereof, shall be settled by arbitration before an arbiter selected and appointed by the President or Vice-President for the time being of the Law Society of Scotland from the panel or arbiters maintained by the Law Society of Scotland and conducted in accordance with the Arbitration Rules of the Law Society of Scotland current at the date of the appointment of the arbiter.

Law

• These terms and conditions and the Contract shall be governed by the Law of Scotland the parties hereby prorogate the exclusive jurisdiction of the Courts in Scotland.