GENERAL TERMS AND CONDITIONS FOR THE HIRE OF EQUIPMENT AND FOR THE SALE OF GOODS
Read our full Terms & conditions below.
GENERAL TERMS AND CONDITIONS FOR THE HIRE OF EQUIPMENT
1. Interpretation
1.1 Definitions:
Assembly: the construction of the Equipment at the Site (and the terms “Assemble” and “Assembled” shall be construed accordingly).
Assembly Date: the date on which Assembly is completed.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.
Contract: the contract between Lauralu and the Lessee for the hire of Equipment which is made up of these Conditions, the agreed Proposal and any Order Confirmation.
Delivery: the transfer of physical possession of the Equipment (whether in whole or in instalments, as applicable) to the Lessee at the Site.
Delivery Date: the delivery date set out in the agreed Proposal and / or Order Confirmation
Deposit: the sum equivalent to the total of:
- the Rental Payments for 3 months of the Rental Period unless specified otherwise in the agreed Proposal and / or Order Confirmation (as applicable); and
- the cost of the Assembly of the Equipment at the Site as specified in the agreed Proposal and / or Order Confirmation (as applicable).
Equipment: the equipment listed in the agreed Proposal and / or Order Confirmation (as applicable) together with all substitutions, replacements or renewals of such equipment and all related accessories provided for it.
Lauralu: Lauralu UK Limited (registered in England and Wales with company number 09346371).
Lessee: the person or firm who procures the Equipment from Lauralu.
Order Confirmation: the document issued by Lauralu to the Lessee which confirms and incorporates the agreed Proposal. For the avoidance of doubt, the Order Confirmation forms part of the Contract.
Proposal: the document (if any) issued by Lauralu to the Lessee which includes Lauralu’s quotation and sets out the key commercial terms for the hire of Equipment by Lauralu to the Lessee. For the avoidance of doubt, the agreed Proposal forms part of the Contract.
Purchase Order: the Lessee’s order for the hire of the Equipment, as set out in the Lessee’s purchase order form or the Lessee’s written or oral acceptance of Lauralu’s Proposal as the case may be.
Rental Payments: the payments made by or on behalf of Lessee for hire of the Equipment.
Rental Period: the period of hire of the Equipment as set out in the Order Form in the agreed Proposal and / or Order Confirmation (as applicable).
Risk Period: the period during which the Equipment is at the sole of the risk of the Lessee as set out in clause 7.2.
Request for Quotation (RfQ): the Lessee’s request for Lauralu to provide a Proposal, made either in writing, online, over the telephone or however else communicated by the Lessee to Lauralu.
Service Media: all media for the supply or removal of heat, smoke, electricity, gas, water, sewage, energy, telecommunications, data and all other services and utilities and all structures, machinery and equipment ancillary to those media.
Site: the premises at which the Lessee requires Lauralu to Deliver the Equipment, as set out in the agreed Proposal and / or Order Confirmation (as applicable).
Stranded Costs: means:
- any costs (such as costs of Lauralu personnel who cannot readily be redeployed after termination and costs payable for early termination of contracts entered into by Lauralu prior to receipt of the notice of termination) incurred by Lauralu directly as a result of either a delay in payment by the Lessee and / or the termination of the Contract which:
- would not have been incurred had:
- such failure not occurred; and / or
- the Contract continued until its natural expiry;
- are unavoidable, reasonable and not reasonably capable of recovery; and
- would not have been incurred had:
- are incurred under arrangements that are consistent with terms that have been entered into in the ordinary course of business and are reasonable commercial terms; and
- an amount equal to Lauralu’s profits on the Rental Payments that would have been payable had:
- such failure not occurred; and / or
- the Contract not been terminated and assuming the Contract had been completed in full.
Total Loss: the Equipment is, in Lauralu’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 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.
1.3 A reference to writing or written excludes fax but not email.
1.4 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.5 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.6 A reference to a party includes its personal representatives, successors and permitted assigns.
1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Lessee seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Each Contract shall be agreed in the following manner:
2.2.1 from time to time the Lessee may submit an RfQ to Lauralu. The Lessee shall, as part of such RfQ, provide Lauralu with as much information as Lauralu reasonably requests in order for Lauralu to prepare a Proposal for the Equipment requested;
2.2.2 following receipt of the information requested from the Lessee, and any visit to the Site conducted by Lauralu, Lauralu shall, as soon as reasonably practicable, either:
(a) inform the Lessee that it declines to provide the requested Equipment; or
(b) provide the Lessee with a Proposal;
2.2.3 if Lauralu provides the Lessee with a Proposal pursuant to clause 2.2.2(b), Lauralu and the Lessee shall discuss and agree the commercial terms of such Proposal;
2.2.4 any Proposal provided by Lauralu shall not constitute an offer, and is only valid for a period of thirty (30) days from its date of issue;
2.2.5 once the Proposal has been agreed, the Lessee shall either:
(a) issue a Purchase Order for the Equipment to Lauralu; or
(b) sign and return the Proposal to Lauralu;
(which shall in either case constitute an offer by the Lessee to hire the Equipment from Lauralu subject to these Conditions and the agreed terms of the Proposal and in response to which Lauralu may issue an Order Confirmation); and
2.2.6 on receipt by Lauralu of the Lessee’s Purchase Order and / or signed Proposal (as applicable), the Lessee’s offer to buy the Equipment pursuant to clause 2.2.5 shall be deemed to be accepted by Lauralu, at which point and on which date the Contract shall come into existence between the parties (Commencement Date). For the avoidance of doubt, any other terms and conditions which the Lessee may seek to apply to the Lessee’s Purchase Order and / or the Contract shall not be incorporated into these Conditions and shall not apply to any Equipment hired to the Lessee by Lauralu under or in connection with these Conditions and / or any Contract.
2.3 Any samples, drawings, descriptive matter or advertising produced by Lauralu and any descriptions or illustrations contained in Lauralu’s website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.
3. Equipment hire
3.1 Lauralu shall hire the Equipment to the Lessee for use at the Site subject to these Conditions.
3.2 Lauralu shall not, other than in the exercise of its rights under the Contractor applicable law, interfere with the Lessee’s quiet possession of the Equipment.
4. Rental Period
The Rental Period starts on the Assembly Date and shall continue for the Rental Period unless and until the Contract is terminated earlier in accordance with these Conditions. In the event that the Contract is not terminated by the end of the Rental Period, the Contract shall be extended for successive periods of 12 months from each anniversary of the expiry of the Rental Period (Extension Period) and during any Extension Period either party may terminate the Contract on 30 days’ notice to the other party, such notice to expire no earlier than the expiry of the relevant Extension Period.
5. Rental Payments and Deposit
5.1 The Lessee shall pay the Rental Payments to Lauralu in accordance with the agreed Proposal and / or Order Confirmation (as applicable). Unless otherwise specified in the agreed Proposal and / or Order Confirmation the Rental Payments shall be paid:
5.1.1 in advance;
5.1.2 in pounds sterling; and
5.1.3 in full and in cleared funds via to a bank account nominated in writing by Lauralu.
5.2 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.
5.3 Lauralu may increase the Rental Payments on an annual basis, the first such increase to take effect on 1st January immediately following the expiry of the first full calendar year after the Delivery Date (or at such other frequency as is specified in the agreed Proposal and / or Order Confirmation (as applicable)) in line with the higher of 5% (five per cent) and the percentage increase in the Consumer Prices Index in the preceding 12-month period, and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
5.4 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.5 If the Lessee fails to make a payment due to Lauralu under the Contract by the due date, then, without limiting Lauralu’s remedies under clause 11, the Lessee shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.6 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 pay the Deposit to Lauralu immediately on receipt of Lauralu’s invoice for the same. If the Lessee fails to make any Rental Payments in accordance with the agreed Proposal and / or Order Confirmation (as applicable), or causes any loss or damage to the Equipment (in whole or in part) (together, Losses), Lauralu shall be entitled to apply the Deposit against such Losses. The Deposit (or balance of the Deposit following deduction of such sums as relate to Losses) shall be refundable within 20 Business Days of the end of the Rental Period. The Lessee shall pay to Lauralu any sums deducted from the Deposit (together with (if any) any sums in respect of Losses which exceed the Deposit) within ten Business Days of receipt of an invoice for the same.
6. Delivery and assembly
6.1 Prior to Delivery, the Lessee shall ensure (at the Lessee’s cost) that:
6.1.1 the Site shall:
(a) be clean;
(b) be marked out;
(c) be fitted out;
(d) be flattened;
(e) be on a single level;
(f) be completely free of any encumbrance or foreign material;
(g) have the benefit of a suitable utility site scan (obtained by the Lessee or, at the Lessee’s request and cost, by Lauralu);
(h) benefit from a standard access around it of two metres;
(i) be laid down as deemed necessary by Lauralu;
(j) be in such condition as Lauralu shall reasonably require; and
(k) have such facilities as Lauralu shall reasonably request;
6.1.2 the Site shall have such planning permissions and / or permits (including any Construction Design Management (CDM) and F10 notifications if required) as are necessary for the Assembly of the Equipment; and
6.1.3 it has notified Lauralu of the extent and location of any and all Service Media serving the Site.
6.2 Subject always to:
6.2.1 the Lessee complying with its obligations as detailed in clause 6.1; and
6.2.2 payment of the Deposit by the Lessee in accordance with clause 5.6,
Delivery shall be made by Lauralu. Lauralu shall use all reasonable endeavours to effect Delivery by the Delivery Date. The Lessee shall be responsible for the disposal of any packaging and / or waste materials following completion of Delivery.
6.3 Lauralu shall at the Lessee’s expense Deliver the Equipment to the Site. The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the Delivery of the Equipment and such authorised representative shall, with Lauralu’s duly authorised representative, inspect the Equipment upon Delivery. Acceptance by such representative of Delivery 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 and complies with the warranty in clause 9.1. If required by Lauralu, the Lessee’s duly authorised representative shall sign a receipt confirming such acceptance.
6.4 To facilitate Delivery, the Lessee shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
6.5 Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence. Lauralu shall not be liable for any delay in Delivery of the Equipment that is caused by a Force Majeure Event or the Lessee’s failure to provide Lauralu with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. The Lessee acknowledges and agrees that in the event of failure by the Lessee to make payment of the Rental Payments and the Deposit in accordance with clause 5, the Supplier shall be entitled to refuse to Deliver, or delay the Delivery of, the Equipment.
6.6 If Lauralu fails to Deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Lessee in obtaining replacement equipment of similar description and quality in the cheapest market available, less the Price. Lauralu shall have no liability for any failure to Deliver, or delay the Delivery of, the Equipment:
6.6.1 in the event of failure by the Lessee to make payment of the Rental Payments and the Deposit in accordance with clause 5; and / or
6.6.2 to the extent that such failure is caused by a Force Majeure Event or the Lessee ‘s failure to provide Lauralu with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
6.7 If the Lessee fails to accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by Lauralu’s failure to comply with its obligations under the Contract:
6.7.1 the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
6.7.2 Lauralu shall store the Equipment until delivery takes place, and charge the Lessee for all related costs and expenses (including insurance).
6.8 If ten Business Days after the day on which Lauralu attended the Site to Deliver the Equipment the Lessee has not accepted actual Delivery of it, Lauralu may re-hire or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, charge the Lessee for any shortfall below the price of the Equipment.
6.9 Following Delivery, Lauralu shall Assemble the Equipment at the Site. The Lessee shall procure that a duly authorised representative of the Lessee shall be present on completion of such Assembly and such authorised representative shall, with Lauralu’s duly authorised representative, inspect such Assembly. Acceptance by such authorised representative of such Assembly shall constitute conclusive evidence that the Lessee has examined the Equipment following such Assembly and has found it to be correctly Assembled, in good condition, complete and fit in every way for the purpose for which it is intended and complies with the warranty in clause 9.1.
7. Title, risk and insurance
7.1 The Equipment shall at all times remain the property of Lauralu, 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 the Contract).
7.2 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 collected by Lauralu. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:
7.2.1 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 Lauralu may from time to time nominate in writing;
7.2.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Lauralu 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
7.2.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as Lauralu may from time to time consider reasonably necessary and advise to the Lessee in writing.
7.3 The Lessee shall give immediate written notice to Lauralu in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee’s possession or use of the Equipment.
7.4 If the Lessee fails to effect or maintain any of the insurances required under the Contract, Lauralu 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.
7.5 The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to Lauralu and proof of premium payment to Lauralu to confirm the insurance arrangements.
8. Lessee’s responsibilities
8.1 The Lessee shall during the term of the Contract:
8.1.1 ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any instructions provided by Lauralu;
8.1.2 take such steps (including compliance with all safety and usage instructions provided by Lauralu) 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 used, cleaned or maintained by a person at work;
8.1.3 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 Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
8.1.4 make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment unless the component (or components) is (or 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 or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Lauralu immediately on assembly;
8.1.5 keep Lauralu fully informed of all material matters relating to the Equipment;
8.1.6 keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without Lauralu’s prior written consent;
8.1.7 permit Lauralu or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
8.1.8 maintain operating and maintenance records of the Equipment and make copies of such records readily available to Lauralu, together with such additional information as Lauralu may reasonably require;
8.1.9 not, without the prior written consent of Lauralu, 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;
8.1.10 notwithstanding the Assembly of the Equipment by Lauralu, not without the prior written consent of Lauralu, 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 Lauralu against all losses, costs or expenses incurred as a result of such affixation or removal;
8.1.11 not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Lauralu 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 Lauralu may enter such land or building and recover the Equipment both during the term of the Contract 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 Lauralu of any rights such person may have or acquire in the Equipment and a right for Lauralu to enter onto such land or building to remove the Equipment;
8.1.12 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 Lauralu and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Lauralu on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
8.1.13 not use the Equipment for any unlawful purpose;
8.1.14 ensure that at all times the Equipment remains identifiable as being Lauralu’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment; and
8.1.15 not do or permit to be done anything which could invalidate the insurances referred to in clause 7.2.
8.2 At the end of the Rental Period, the Lessee shall:
8.2.1 ensure that the Equipment is empty and appropriate utilities have been disconnected;
8.2.2 allow Lauralu or its representatives access to the Site or any premises where the Equipment is located for the purpose of inspecting, disassembling and removing the Equipment. The Lessee acknowledges and agrees that:
(a) the Lessee shall be responsible for Lauralu’s reasonable costs of so disassembling and removing the Equipment (an estimate of such costs to be provided by Lauralu on request prior to the end of the Rental Period);
(b) the Lessee shall pay to Lauralu such costs within ten Business Days of receipt of an invoice for the same; and
(c) Lauralu accept no liability for the clearance of, or making good, the Site following the disassembling and removal of the Equipment.
8.3 The Lessee acknowledges that Lauralu 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 shall indemnify Lauralu in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Lauralu arising out of, or in connection with any failure by the Lessee to comply with the terms of the Contract.
8.4 The Lessee shall permit Lauralu on request at any time during the Rental Period and / or any Extension Period to have access to the Site for the purposes of taking photographs of the Equipment whilst in situ at the Site, such photographs to be used for any publicity purposes as Lauralu shall reasonably require.
9. Warranty
9.1 Lauralu warrants that the Equipment shall substantially conform to its specification (as made available by Lauralu), be of satisfactory quality and fit for any purpose held out by Lauralu. Lauralu shall use its reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within twelve months from Delivery, provided that:
9.1.1 the Lessee notifies Lauralu of any defect in writing within 20 Business Days of the defect occurring or of becoming aware of the defect;
9.1.2 Lauralu is permitted to make a full examination of the alleged defect;
9.1.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Lauralu’s authorised personnel;
9.1.4 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
9.1.5 the defect is directly attributable to defective material, workmanship or design.
9.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Lauralu, the Lessee shall be entitled only to such warranty or other benefit as Lauralu has received from the manufacturer.
9.3 If Lauralu fails to remedy any material defect in the Equipment in accordance with clause 9.1, Lauralu 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 Contract and, if relevant, return any Deposit (or any part of it).
9.4 Except as provided in this clause 9, Lauralu shall have no liability to the Lessee in respect of the Equipment’s failure to comply with the warranty set out in clause 9.1.
10. Limitation of liability
10.1 The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.2 Nothing in the Contract limits any liability which cannot legally be limited including liability for:
10.2.1 death or personal injury caused by negligence;
10.2.2 fraud or fraudulent misrepresentation;
10.2.3 breach of the terms implied by section 7 of the Supply of Goods and Services Act or section 8 of the Supply of Goods (Implied Terms) Act 1973;
10.2.4 any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
10.3 Subject to clause 10.2, Lauralu’s total liability to the Lessee in any 12 month period of the Contract shall not exceed 50% (fifty per cent) of the total Rental Payments paid or payable by the Client under the Contract in the 12 month period immediately prior to the date such liability arose.
10.4 Subject to clause 10.2, Lauralu shall not be liable under the Contract for any:
10.4.1 loss of profits;
10.4.2 loss of sales or business;
10.4.3 loss of agreements or contracts;
10.4.4 loss of anticipated savings;
10.4.5 loss of use or corruption of software, data or information;
10.4.6 loss of or damage to goodwill; and
10.4.7 indirect or consequential loss.
10.5 Subject to clause 10.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under the Contract are, to the fullest extent permitted by law, excluded from the Contract.
11. Termination
11.1 Without affecting any other right or remedy available to it, Lauralu may terminate the Contract with immediate effect by giving written notice to the Lessee if:
11.1.1 the Lessee fails to pay any amount due under this Contract on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment; or
11.1.2 there is a change of control of the Lessee.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
11.2.1 the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
11.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
11.2.3 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
11.3 The Contract shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11.4 The Lessee may terminate a Contract at any time prior to the Delivery Date subject always to:
11.4.1 prior payment by the Lessee of the Deposit; and
11.4.2 payment by the Lessee of Lauralu’s invoice for any Stranded Costs within 30 days of the date of such invoice.
11.5 The Lessee may terminate a Contract at any time after the Delivery Date subject always to:
11.5.1 payment by the Lessee of any Rental Payment due for the unexpired period of the Rental Period and / or any Extension Period (as applicable); and
11.5.2 payment by the Lessee of Lauralu’s invoice for any Stranded Costs within 30 days of the date of such invoice.
11.6 The Lessee may request postponement of the Delivery Date in writing to Lauralu at any time prior to the date 30 days before the Delivery Date, provided always that the Lessee has paid the Deposit before making such written request and for the avoidance of doubt Lauralu shall be under no obligation to agree to such postponement request unless and until the Deposit has been paid by the Lessee. Any such postponement shall be for a period agreed between the parties and not exceeding 6 months from the Delivery Date (Postponement Period) and in the event that:
11.6.1 the parties fail to reach agreement as to such Postponement Period; and / or
11.6.2 such Postponement Period is agreed, the Lessee fails to accept Delivery by the expiry of such Postponement Period
then without limiting Lauralu’s other rights or remedies:
11.6.3 the Contract shall be deemed to be terminated by Lauralu for the Lessee’s irremediable material breach pursuant to clause 11.2.1; and
11.6.4 the Lessee shall be responsible for payment of Lauralu’s Stranded Costs.
12. Consequences of termination or expiry
12.1 On expiry or termination of the Contract, however caused:
12.1.1 Lauralu’s consent to the Lessee’s possession of the Equipment shall terminate;
12.1.2 Lauralu 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
12.1.3 without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to Lauralu on demand:
(a) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 5.5; and
(b) any costs and expenses incurred by Lauralu in recovering the Equipment or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
12.2 On termination of the Contract pursuant to clause 11.1.1, clause 11.2.1, any other repudiation of the Contract by the Lessee which is accepted by Lauralu or pursuant to clause 11.3, without prejudice to any other rights or remedies of Lauralu, the Lessee shall pay to Lauralu on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Rental Period.
12.3 The sums payable pursuant to clause 12.2 shall be agreed compensation for Lauralu’s loss and shall be payable in addition to the sums payable pursuant to clause 12.1.3. Such sums may be partly or wholly recovered from any Deposit.
12.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving written notice to the affected party.
14. Assignment and other dealings
The Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
15. Entire agreement
15.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
16. Variation
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. No partnership or agency
17.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Third party rights
18.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
19. Notices
19.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
19.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
19.1.2 sent by email to the addresses specified in the Proposal.
19.2 Any notice shall be deemed to have been received:
19.2.1 if delivered by hand, at the time the notice is left at the proper address;
19.2.2 if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
19.2.3 if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. Waiver
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21. Rights and remedies
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
22. Severance
22.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
22.2 If any provision or part-provision of the Contract is deemed deleted under clause 22.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
24. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
1. Interpretation
1.1 Definitions:
Assembly: the construction of the Equipment at the Site (and the terms “Assemble” and “Assembled” shall be construed accordingly).
Balancing Sum: the sum equating to 10% of the Price (unless specified in the agreed Proposal and / or Order Confirmation (as applicable)).
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 10.3.
Contract: the contract between Lauralu and the Customer for the sale and purchase of the Equipment in accordance with these Conditions.
Customer: the person or firm who purchases the Equipment from Lauralu.
Delivery: the transfer of physical possession of the Equipment (whether in whole or in instalments, as applicable) to the Customer at the Site, and Deliver shall be interpreted accordingly.
Delivery Date: the date set out in the agreed Proposal and / or Order Confirmation (as applicable) or such other date as may be agreed between the parties from time to time.
Delivery Location: the Site or such other location as the parties may agree.
Deposit: the sum equating to 50% of the Price (unless specified in the agreed Proposal and / or Order Confirmation (as applicable)).
Equipment: the equipment (or any part thereof) set out in the agreed Proposal and / or Order Confirmation (as applicable) together with all substitutions, replacements or renewals of such equipment and all related accessories provided for it.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Interim Sum: the sum equating to 40% of the Price (unless specified in the agreed Proposal and / or Order Confirmation (as applicable)).
Lauralu: Lauralu UK Limited (registered in England and Wales with company number 09346371).
Order Confirmation: the document (if any) issued by Lauralu to the Customer which confirms and incorporates the agreed Proposal. For the avoidance of doubt, the Order Confirmation forms part of the Contract.
Price: the price payable by the Customer for the Equipment as set out in the agreed Proposal and / or Order Confirmation.
Proposal: the document issued by Lauralu to the Customer which includes Lauralu’s quotation and sets out the key commercial terms for the supply of Equipment from Lauralu to the Customer. For the avoidance of doubt, the agreed Proposal forms part of the Contract.
Purchase Order: the Customer’s order for the Equipment, as set out in the Customer’s purchase order form or the Customer’s written or oral acceptance of Lauralu’s Proposal as the case may be.
Request for Quotation (RfQ): the Customer’s request for Lauralu to provide a Proposal, made either in writing, online, over the telephone or however else communicated by the Customer to Lauralu.
Service Media: all media for the supply or removal of heat, smoke, electricity, gas, water, sewage, energy, telecommunications, data and all other services and utilities and all structures, machinery and equipment ancillary to those media.
Site: the premises at which the Customer requires Lauralu to Deliver the Equipment, as set out in the agreed Proposal and / or Order Confirmation (as applicable).
Specification: any specification for the Equipment, including any related plans and drawings, that is agreed in writing by the Customer and Lauralu.
Stranded Costs: means:
- any costs (such as costs of Lauralu personnel who cannot readily be redeployed after termination and costs payable for early termination of contracts entered into by Lauralu prior to receipt of the notice of termination) incurred by Lauralu directly as a result of either a delay in payment by the Customer and / or the termination of the Contract which:
- would not have been incurred had:
- such failure not occurred; and / or
- the Contract continued until its natural expiry;
- are unavoidable, reasonable and not reasonably capable of recovery; and
- would not have been incurred had:
- are incurred under arrangements that are consistent with terms that have been entered into in the ordinary course of business and are reasonable commercial terms; and
- an amount equal to Lauralu’s profits on the Price that would have been payable had:
- such failure not occurred; and / or
- the Contract not been terminated and assuming the Contract had been completed in full.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written excludes fax but not email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Each Contract shall be agreed in the following manner:
2.2.1 from time to time the Customer may submit an RfQ to Lauralu. The Customer shall, as part of such RfQ, provide Lauralu with as much information as Lauralu reasonably requests in order for Lauralu to prepare a Proposal for the Equipment requested:
2.2.2 following receipt of the information requested from the Customer, and any visit to the Site conducted by Lauralu, Lauralu shall, as soon as reasonably practicable, either:
(a) inform the Customer that it declines to provide the requested Equipment; or
(b) provide the Customer with a Proposal;
2.2.3 if Lauralu provides the Customer with a Proposal pursuant to clause 2.2.2(b), Lauralu and the Customer shall discuss and agree the commercial terms of such Proposal;
2.2.4 any Proposal provided by Lauralu shall not constitute an offer, and is only valid for a period of thirty (30) days from its date of issue;
2.2.5 once the Proposal has been agreed, the Customer shall either:
(a) issue a Purchase Order for the Equipment to Lauralu; or
(b) sign and return the Proposal to Lauralu;
(which shall in either case constitute an offer by the Customer to buy Equipment from Lauralu subject to these Conditions and the agreed terms of the Proposal and in response to which Lauralu may issue an Order Confirmation); and
2.2.6 on receipt by Lauralu of the Customer’s Purchase Order and / or signed Proposal (as applicable), the Customer’s offer to buy the Equipment pursuant to clause 2.2.5 shall be deemed to be accepted by Lauralu, at which point and on which date the Contract shall come into existence between the parties (Commencement Date). For the avoidance of doubt, any other terms and conditions which the Customer may seek to apply to the Customer’s Purchase Order and / or the Contract shall not be incorporated into these Conditions and shall not apply to any Equipment sold to the Customer by Lauralu under or in connection with these Conditions and / or any Contract.
2.3 Any samples, drawings, descriptive matter or advertising produced by Lauralu and any descriptions or illustrations contained in Lauralu’s website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Equipment referred to in them. They shall not form part of the Contract nor have any contractual force.
3. Delivery
3.1 Prior to Delivery, the Customer shall ensure (at the Customer’s cost) that:
3.1.1 the Delivery Location shall:
(a) be clean;
(b) be marked out;
(c) be fitted out;
(d) be flattened;
(e) be on a single level;
(f) be completely free of any encumbrance or foreign material;
(g) have the benefit of a suitable utility site scan (obtained by the Customer or, at the Customer’s request and cost, by Lauralu);
(h) benefit from a standard access around it of two metres;
(i) be laid down as deemed necessary by Lauralu;
(j) be in such condition as Lauralu shall reasonably require; and
(k) have such facilities (including welfare facilities) as Lauralu shall reasonably request;
3.1.2 the Site and / or Delivery Location shall have such planning permissions and / or permits (including any Construction Design Management (CDM) and F10 notifications if required) as are necessary for the Assembly of the Equipment; and
3.1.3 it has notified Lauralu of the extent and location of any and all Service Media serving the Site and / or Delivery Location.
3.2 Subject always to:
3.2.1 the Customer complying with its obligations as detailed in clause 3.1; and
3.2.2 payment of the Deposit and the Interim Sum by the Customer in accordance with clause 6.5,
Lauralu shall Deliver the Equipment to the Delivery Location. Lauralu shall use all reasonable endeavours to effect Delivery by the Delivery Date. The Customer shall be responsible for the disposal of any packaging and / or waste materials following completion of Delivery.
3.3 Lauralu shall at the Customer’s expense Deliver the Equipment to the Site. The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment and such authorised representative shall, with Lauralu’s duly authorised representative, inspect the Equipment upon Delivery. Acceptance by such authorised representative of Delivery shall constitute conclusive evidence that the Customer 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 and complies with the warranty in clause 4.1. If required by Lauralu, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
3.4 To facilitate Delivery the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
3.5 Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence. Lauralu shall not be liable for any delay in Delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide Lauralu with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. The Customer acknowledges and agrees that in the event of failure by the Customer to make payment of the Deposit and the Interim Sum in accordance with clause 6.5, Lauralu shall be entitled to refuse to Deliver, or delay the Delivery of, the Equipment.
3.6 If Lauralu fails to Deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement equipment of similar description and quality in the cheapest market available, less the Price. Lauralu shall have no liability for any failure to Deliver, or delay the Delivery of, the Equipment:
3.6.1 in the event of failure by the Customer to make payment of the Deposit and the Interim Sum in accordance with clause 6.5; and / or
3.6.2 to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Lauralu with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
3.7 If the Customer fails to accept Delivery of the Equipment when Lauralu attends the Site to Deliver the Equipment, then, except where such failure or delay is caused by a Force Majeure Event or Lauralu’s failure to comply with its obligations under the Contract in respect of the Equipment:
3.7.1 Delivery of the Equipment shall be deemed to have been completed at 5.00pm on the Delivery Date; and
3.7.2 Lauralu shall store the Equipment until actual Delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.8 If ten Business Days after the day on which Lauralu attended the Site to Deliver the Equipment the Customer has not accepted actual Delivery of it, Lauralu may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the Price.
4. Quality
4.1 Lauralu warrants that on Delivery, and for a period of 12 months from the date of Delivery, the Equipment shall:
4.1.1 conform in all material respects with its description and any applicable Specification;
4.1.2 be free from material defects in design, material and workmanship;
4.1.3 be of satisfactory quality (within the meaning of the Sale of Equipment Act 1979); and
4.1.4 be fit for any purpose held out by Lauralu.
4.2 Subject to clause 4.3, if:
4.2.1 following the inspection process in clause 3.2, the Customer gives notice in writing to Lauralu on Delivery of the Equipment that some or all of the Equipment do not comply with the warranty set out in clause 4.1;
4.2.2 Lauralu is given a reasonable opportunity of examining such Equipment; and
4.2.3 the Customer (if asked to do so by Lauralu) returns such Equipment to Lauralu’s place of business at Lauralu’s cost,
Lauralu shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full.
4.3 Lauralu shall not be liable for the Equipment’ failure to comply with the warranty set out in clause 4.1 if:
4.3.1 the Customer makes any further use of such Equipment after giving notice in accordance with clause 4.2;
4.3.2 the defect arises because the Customer failed to follow Lauralu’s oral or written instructions as to the storage, commissioning, assembly, use and maintenance of the Equipment or (if there are none) good trade practice regarding the same;
4.3.3 the defect arises as a result of Lauralu following any drawing, design or specification supplied by the Customer;
4.3.4 the Customer alters or repairs such Equipment without the written consent of Lauralu;
4.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
4.3.6 the Equipment differs from its description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 Except as provided in this clause 4, Lauralu shall have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 4.1.
4.5 The terms implied by sections 13 to 15 of the Sale of Equipment Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any repaired or replacement Equipment supplied by Lauralu.
5. Title and risk
5.1 The risk in the Equipment (including but not limited to loss, theft, damage or destruction) shall pass to the Customer on Delivery to the Delivery Location and upon Delivery the Customer shall insure the Equipment for its full replacement and / or reinstatement value.
5.2 Title to the Equipment shall not pass to the Customer until Lauralu receives payment in full (in cash or cleared funds) for the Price.
5.3 Until title to the Equipment has passed to the Customer, the Customer shall:
5.3.1 maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price from the date of Delivery;
5.3.2 notify Lauralu immediately if it becomes subject to any of the events listed in clause 8.1.2 to clause 8.1.4; and
5.3.3 give Lauralu such information as Lauralu may reasonably require from time to time relating to:
(a) the Equipment; and
(b) the ongoing financial position of the Customer.
5.4 At any time before title to the Equipment passes to the Customer, Lauralu may require the Customer to deliver up all Equipment in its possession and if the Customer fails to do so promptly, enter any premises of the Customer where the Equipment is stored in order to recover it.
5.5 Following Delivery Lauralu shall Assemble the Equipment at the Site. The Customer shall procure that a duly authorised representative of the Customer shall be present on completion of such Assembly and such authorised representative shall, with Lauralu’s duly authorised representative, inspect such Assembly. Acceptance by such authorised representative of such Assembly shall constitute conclusive evidence that the Customer has examined the Equipment following such Assembly and has found it to be correctly Assembled, in good condition, complete and fit in every way for the purpose for which it is intended and complies with the warranty in clause 4.1.
6. Price and payment
6.1 The Price shall be the price set out in the Order Confirmation and shall include the cost of Assembly.
6.2 Lauralu may, by giving notice to the Customer at any time before Delivery, increase the Price to reflect:
6.2.1 any factor beyond Lauralu’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
6.2.2 any request by the Customer to change the delivery date(s), the Equipment ordered or the Specification;
6.2.3 additional costs associated with Delivery (or Assembly, if applicable) carried out on a Saturday, Sunday or a public holiday or otherwise outside working hours; or
6.2.4 any delay caused by any instructions of the Customer or failure of the Customer to give Lauralu adequate or accurate information or instructions or allow access to the Site for the purpose of Delivery.
6.3 The Price:
6.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Lauralu at the prevailing rate, subject to the receipt of a valid VAT invoice; and
6.3.2 excludes the costs and charges of packaging, insurance and transport of the Equipment, which shall be invoiced to the Customer.
6.4 Unless specified otherwise in the agreed Proposal or Order Confirmation (as applicable) Lauralu shall invoice the Customer for the Price as follows:
6.4.1 (for the Deposit) upon presentation by Lauralu of the Order Confirmation;
6.4.2 (for the Interim Sum) on or before the date 3 weeks before the Delivery Date;
6.4.3 (for the Balancing Sum) upon completion of the Assembly of the Equipment.
6.5 The Customer shall pay:
6.5.1 the invoice for the Deposit immediately on presentation of the same;
6.5.2 the invoice for the Interim Sum immediately on presentation of the same (and in any event before the Delivery Date); and
6.5.3 the invoice for the Balancing Sum within 30 days of the date of the invoice;
in full and in cleared funds to a bank account nominated in writing by Lauralu, and time for payment shall be of the essence of the Contract. The Customer acknowledges and agrees that the Deposit is non-refundable under any circumstances.
6.6 If the Customer fails to make a payment due to Lauralu under the Contract by the due date, then, without limiting Lauralu’s remedies under clause 8, the Customer acknowledges and agrees that:
6.6.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
6.6.2 such failure to make payment may delay Delivery and / or Assembly and accordingly the Customer shall be responsible for Lauralu’s Stranded Costs arising as a result of such failure.
6.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7. Limitation of liability
7.1 References to liability in this clause 7 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
7.2.1 death or personal injury caused by negligence;
7.2.2 fraud or fraudulent misrepresentation;
7.2.3 breach of the terms implied by section 12 of the Sale of Equipment Act 1979; or
7.2.4 defective products under the Consumer Protection Act 1987.
7.3 Subject to clause 7.2, the following types of loss are wholly excluded:
7.3.1 loss of profits;
7.3.2 loss of sales or business;
7.3.3 loss of agreements or contracts;
7.3.4 loss of anticipated savings;
7.3.5 loss of use or corruption of software, data or information;
7.3.6 loss of or damage to goodwill; and
7.3.7 indirect or consequential loss.
7.4 Subject to clause 7.2 and clause 7.3, Lauralu’s total aggregate liability to the Customer shall not exceed 100% (one hundred per cent) of the Price.
7.5 This clause 7 shall survive termination of the Contract.
8. Termination
8.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
8.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 (fourteen) days of that party being notified in writing to do so;
8.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.1.3 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.1.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
8.2 The Customer may terminate a Contract at any time prior to the Delivery Date subject always to:
8.2.1 prior payment by the Customer of the Deposit; and
8.2.2 payment by the Customer of Lauralu’s invoice for any Stranded Costs within 30 days of the date of such invoice.
8.3 The Customer may request postponement of the Delivery Date in writing to Lauralu at any time prior to the date 30 days before the Delivery Date, provided always that the Customer:
8.3.1 has paid the Deposit before making such written request; and
8.3.2 pays the Interim Sum within 5 Business Days of making such request;
and for the avoidance of doubt Lauralu shall be under no obligation to agree to such postponement request unless and until the Deposit and the Interim Sum has been paid by the Customer. Any such postponement shall be:
8.3.3 for a period agreed between the parties and not exceeding 6 months from the Delivery Date (Postponement Period);
8.3.4 subject to agreement as to the costs of such Postponement Period (including but not limited to storage, transportation, handling, labour, accommodation and administration) which shall be the responsibility of the Customer;
and in the event that:
(a) the parties fail to reach agreement as to such Postponement Period (including for the avoidance of doubt the costs of such Postponement Period); and / or
(b) such Postponement Period and such costs are agreed, the Customer fails to accept Delivery by the expiry of such Postponement Period
then without limiting Lauralu’s other rights or remedies:
(c) the Contract shall be deemed to be terminated by Lauralu for the Customer’s irremediable material breach pursuant to clause 8.1.1; and
(d) the Customer shall be responsible for payment of Lauralu’s Stranded Costs.
8.4 Without limiting its other rights or remedies, Lauralu may suspend provision of the Equipment under the Contract or any other contract between the Customer and Lauralu if the Customer becomes subject to any of the events listed in clause 8.1.2 to clause 8.1.4, or Lauralu reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.5 Without limiting its other rights or remedies, Lauralu may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment.
8.6 On termination of the Contract for any reason the Customer shall immediately pay to Lauralu all of Lauralu’s outstanding unpaid invoices and interest and, in respect of Equipment supplied but for which no invoice has been submitted, Lauralu shall submit an invoice, which shall be payable by the Customer within 10 (ten) days of receipt.
8.7 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
8.8 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
9. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for one month, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
10. General
10.1 Assignment and other dealings. Lauralu may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Lauralu.
10.2 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
10.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
10.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
10.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 10.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.6 Notices.
10.6.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the addresses specified in the Proposal.
10.6.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
10.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
10.7 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
10.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
10.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
