Terms and Conditions - OS CommsOS Comms Terms and Conditions - OS Comms

 

TERMS AND CONDITIONS

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The term ‘OS Comms Limited’ or ‘us’ or ‘we’ refers to the owner of the website whose registered office is Unit 5 Menta Business Centre, 21-27 Hollands Road, Haverhill, Suffolk, CB9 8PU. Our company registration number is 06596040 in England and Wales. The term ‘you’ refers to the user or viewer of our website.

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OS Comms Limited – Terms & Conditions of Business

1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: the date that the Lessee takes Delivery of the Equipment.
Delivery: the transfer of physical possession of the Equipment to the Lessee at the Site.
Deposit: the deposit amount set out in the Payment Schedule.
Equipment: the items of equipment listed on the front page, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Payment Schedule: as set out on the front page the sums payable under this agreement.
Site: the Lessee’s premises as detailed on the front page.
Rental Payments: the payments made by or on behalf of the Lessee for hire of the Equipment.
Rental Period: the period of hire as set out on the front page.
Total Loss: the Equipment is, in the Lessor’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension or re-enactment, and includes any subordinate legislation for the time being in force made under it.
1.9 A reference to writing or written includes faxes but not e-mail.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement. References to paragraphs are to paragraphs of the relevant schedule.
1.11 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. EQUIPMENT HIRE
2.1. The Lessor shall hire the Equipment to the Lessee for use at the Site subject to the terms and conditions of this agreement.
2.2 The Lessor shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Lessee’s quiet possession of the Equipment.

3. RENTAL PERIOD
The Rental Period starts on the Commencement Date and shall continue for the period detailed on the front page unless this agreement is terminated earlier in accordance with its terms.

4. RENTAL PAYMENTS AND DEPOSIT
4.1 The Lessee shall pay the Rental Payments to the Lessor in accordance with the Payment Schedule. The Rental Payments shall be paid in Sterling and shall be made by a method to be agreed by the parties.
4.2 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.
4.3 All payments to be made by either party under this agreement shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.
4.4 If the Lessee fails to pay any Rental Payments or any other sums payable under this agreement by the due date for payment under this agreement then, without limiting the Lessor’s rights under clause 10.1, the Lessee shall pay interest on such sums for the period from and including the due date of payment up to the actual date of payment, whether before or after judgment. The interest shall be paid at the rate of five per cent (5%) per annum above the base rate from time to time of Barclays Bank.
4.5 The Deposit is a deposit against default by the Lessee of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Lessee shall, on the date of this agreement, pay a deposit of the amount detailed on the front page to the Lessor. If the Lessee fails to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), the Lessor shall be entitled to apply the Deposit against such default, loss or damage. The Lessee shall pay to the Lessor any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall
be refundable within five (5) Business Days of the end of the Rental Period.

5. DELIVERY AND INSTALLATION
5.1 Delivery of the Equipment shall be made by the Lessor. The Lessor shall use all reasonable endeavours to affect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 of this agreement.
5.2 The Lessor shall at the Lessee’s expense install the Equipment at the Site. The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Lessor, the Lessee’s duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery and installation, the Lessee shall provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously including the materials, facilities, access and working conditions requested by the Lessor.

6. TITLE, RISK AND INSURANCE
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:

(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Lessor may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.

6.3 All insurance policies procured by the Lessee shall be endorsed to provide the Lessor with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Lessor’s request name the Lessor on the policies as a loss payee in relation to any claim relating to the Equipment. The Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.4 The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment or arising out of or in connection with the Lessee’s possession or use of the Equipment.
6.5 If the Lessee fails to effect or maintain any of the insurances required under this agreement, the Lessor shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee.
6.6 The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.

7. LESSEE’S RESPONSIBILITIES
7.1The Lessee shall during the term of this agreement:
(a) ensure that the Equipment is kept and operated in a suitable environment, which shall as a minimum meet the requirements as notified by the Lessor from time to time, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
(b) take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of damaged and lost parts, and shall make good any damage to the Equipment;
(d) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Lessor immediately upon installation;
(e) keep the Lessor fully informed of all material matters relating to the Equipment;
(f) at all times keep the Equipment in the possession or control of the Lessee and keep the Lessor informed of its location;
(g) permit the Lessor or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(h) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Lessor, together with such additional information as the Lessor may reasonably require;
(i) not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not without the prior written consent of the Lessor, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Lessor against all losses, costs or expenses incurred as a result of such affixation or removal;
(k) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor may enter such land or building and recover the Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment;
(l) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(m) not use the Equipment for any unlawful purpose;
(n) ensure that at all times the Equipment remains identifiable as being the Lessor’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(o) deliver up the Equipment at the end of the Rental Period or on earlier termination of this agreement at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
(p) not do or permit to be done anything which could invalidate the insurances referred to in clause 6.

7.2 The Lessee acknowledges that the Lessor 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 Lessee or its officers, employees, agents and contractors, and the Lessee undertakes to indemnify the Lessor on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Lessee to comply with the terms of this agreement.

8. WARRANTY
8.1 The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor. The Lessor shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself during the term of this agreement, provided that:
(a) the Lessee notifies the Lessor of any defect in writing within ten (10) Business Days of the defect occurring or of becoming aware of the defect;
(b) the Lessor is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor’s authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Lessee or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.

8.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Lessor, the Lessee shall be entitled only to such warranty or other benefit as the Lessor has received from the manufacturer.
8.3 If the Lessor fails to remedy any material defect in the Equipment in accordance with clause 8.1, the Lessor shall, at the Lessee’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement and, if relevant, return any Deposit (or any part of it).

9. LIABILITY
9.1 Without prejudice to clause 9.2, the Lessor’s maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the amount of the contract price.
9.2 Nothing in this agreement shall exclude or in any way limit:
(a) either party’s liability for death or personal injury caused by its own negligence;
(b) either party’s liability for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded by law.

9.3 This agreement sets forth the full extent of the Lessor’s obligations and liabilities in respect of the Equipment and its hiring to the Lessee. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Lessor except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
9.4 Without prejudice to clause 9.2, neither party shall be liable under this agreement for any loss of profit, loss of revenue, loss of business; or indirect or consequential loss or damage in each case, however caused, even if foreseeable.

10. TERMINATION
10.1 The Lessor may, without prejudice to any other right or remedy which may be available to it, terminate this agreement immediately by written notice to the Lessee if:
(a) the Lessee defaults in any of its payment obligations;
(b) the Lessee commits a material breach of this agreement which breach is irremediable, or which breach (if remediable) is not remedied within ten (10) Business Days after the service of written notice from the Lessor requiring it to do so;
(c) the Lessee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(d) the Lessee 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 or
(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 Lessee; or
(f) 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 Lessee; or
(g) the holder of a qualifying floating charge over the assets of the Lessee has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Lessee or a receiver is appointed over the assets of the Lessee; or
(i) a creditor or encumbrancer of the Lessee attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Lessee’s assets and such attachment or process is not discharged within 14
days; or
(j) any event occurs, or proceeding is taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1 to clause 10.1 (inclusive); or the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

10.2 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
10.3 Upon termination of this agreement, however caused:
(a) the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
(b) without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4;
(ii) any costs and expenses incurred by the Lessor in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

10.4 Upon termination of this agreement pursuant to clause 10.1, any other repudiation of this agreement by the Lessee which is accepted by the Lessor or pursuant to clause 10.2, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less:
(a) a discount for accelerated payment at the percentage rate set out in the Payment Schedule; and
(b) the Lessor’s reasonable assessment of the market value of the Equipment on sale.

10.5 The sums payable pursuant to clause 10.4 shall be agreed compensation for the Lessor’s loss and shall be payable in addition to the sums payable pursuant to clause10.3(b). Such sums may be partly or wholly recovered from any Deposit.
10.6 Termination of this agreement shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.

11. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 4 weeks , the party not affected may terminate this agreement by giving 10 (ten) Business Days’ written notice to other party.

12. CONFIDENTIAL INFORMATION
12.1 Neither party shall, during and after termination of this agreement, without the prior written consent of the other party, use or disclose to any other person any information of the other party which is identified as confidential or which is confidential by its nature.
12.2 Each party shall on demand and on termination of this agreement surrender to the other party all materials relating to such confidential information in its or its personnel’s, agents’ or representatives’ possession.

13. ASSIGNMENT AND SUBCONTRACTING
13.1 Neither party shall, without the prior written consent of the other party, assign, transfer, mortgage, charge, or deal in any manner with this agreement or any of its rights and obligations under or arising out of this agreement (or any document referred to in it), or purport to do any of the same.
13.2 Neither party shall subcontract or delegate in any manner any or all of its obligations under this agreement to any third party or agent without the prior written consent of the other party. Each party shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this agreement, regardless of the use of authorised subcontractors.
13.3 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.

14. ENTIRE AGREEMENT AND VARIATION
14.1 This agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
14.2 Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Each party agrees that its only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) shall be for breach of contract.
14.3 Nothing in this clause shall limit or exclude any liability for fraud or for fraudulent misrepresentation.
14.4 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
15.1 A person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
15.2 The rights of the parties to terminate rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement.

16. NOTICES
16.1 Any notice or other communication required to be given under this agreement, shall be in writing and shall be delivered personally, or sent by pre-paid post or recorded delivery or by commercial courier, to each party required to receive the notice or communication as set out on the front page or as otherwise specified by the relevant party by notice in writing to each other party.
16.2 Any notice or other communication shall be deemed to have been duly received:
(a) if delivered personally, when left at the address and for the contact referred to in this clause;
(b) if sent by commercial courier, on the date and at the time of signature of the courier’s delivery receipt; or
(c) if sent by pre-paid post or recorded delivery, 9.00 am on the second Business Day after posting.

16.3 A notice or other communication required to be given under this agreement shall not be validly given if sent by e-mail. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

17. NO WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

18. SEVERANCE
18.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
18.2 If any invalid, unenforceable or illegal provision of this agreement 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.

19. GOVERNING LAW AND JURISDICTION
19.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with English law.
19.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter.

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