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Terms & Conditions For Customer Services & Sales

Terms and Conditions for Customer Services and Sales – Davro Site Services Limited T/A Davlav

 

These terms and conditions (“Conditions”) apply to the Services provided by Davro Site Services Limited, a limited company registered in England and Wales (company number 1689131) whose registered office is at Charles Lake House Claire Causeway, Crossways Business Park, Dartford, Kent, DA2 6QA  (referred to as “Davlav” or “we” or “us”) to the Customer.

These Conditions apply to all Services we provide. If there is any conflict between these Conditions and any specific terms included in your Order Confirmation, then the Order Confirmation shall apply.

If you do not agree to these Conditions you must cease to continue to order any Services from us. Ordering any of our Services, will be deemed as conclusive acceptance of these Conditions. You shall be referred to these Conditions during the Order process and if you request our Services by Telephone Order, you shall be directly referred to these Conditions.

By instructing us to proceed with the Services you will be deemed to have accepted these Conditions.

 

1.1 Definitions

“Brexit”: the United Kingdom ceasing to be a member of the European Union, regardless of which countries comprise the United Kingdom at such date;

“Brexit Event”: any of the following events if caused by Brexit or any discussions, proposals, negotiations or any other steps taken by the UK government or a body in any other jurisdiction in anticipation of or related to preparation for Brexit:

  1. a change in the Law or a new requirement to comply with any existing Law or existing Law ceasing to apply to a party. For these purposes, “Law” means any legal provision a party must comply with including any law, stature, subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, enforceable EU right within the meaning of section 2 of the European Communities Act 1972, bye-law, regulation, order, mandatory guidance or code of practice, judgment of a court of law, or requirement of any regulatory body, whether in the UK or elsewhere;
  2. in any jurisdiction, the imposition of, or a change to, a duty, tax or levy imposed on imports or exports; or
  3. in any jurisdiction, the loss of, a change to or the imposition of a new requirement for any licence or consent required by a party;

Business Day:  means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: means the charges payable by the Customer for the Services provided by Davlav which shall be charged on a 7 days per week and 365 days per year basis.

Conditions:  means the terms and conditions set out here as amended from time to time in accordance with clause 20.

Contract:  means the contract between Davlav and the Customer for the supply of the Services in accordance with the Order Confirmation, the HAE Conditions and these Conditions.

Credit Account: means a credit account held by the Customer with Davlav.

Customer:  means any person, company, firm, partnership or public authority who orders the Services from Davlav.

Customer Equipment: means any equipment, systems, or facilities provided by the Customer and used directly or indirectly in the supply of the Services.

Customer Site: means the Customer’s premises or such other location notified in writing by the Customer to Davlav for the delivery or use of the Hire Goods or Davlav Products.

Davlav Equipment: means any equipment, including tools, systems, or facilities, provided by Davlav or its subcontractors and used directly or indirectly in the supply of the Services.

Davlav Products: means any Davlav products or equipment which Davlav has agreed to sell to the Customer under these Conditions and the provisions of clause 14.

Delivery Location:  the Customer Site or any such other location as the parties may agree verbally or in writing.

Deposit: means any advance payment paid or to be paid by the Customer in relation to the Hire Goods which is to be held as security by Davlav.

Effective Time: means the time at which the employment of any person (or liabilities relating to that person) are transferred to Davlav under TUPE.

Employee: means a person employed or previously employed by the Transferor and who is, or whose rights are, affected by the TUPE Transfer.

Force Majeure Event:  means any circumstance not within a party’s reasonable control including, without limitation:

  1. acts of God, flood, drought, earthquake or other natural disaster;
  2. epidemic or pandemic;
  3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
  4. nuclear, chemical or biological contamination or sonic boom;
    any law or any action taken by a government or public authority, including without limitation a lockdown, imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
  5. collapse of buildings, fire, explosion or accident;
  6. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
  7. non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and interruption or failure of utility service.

Goods: means any hire or sale goods to which the Contract relates.

HAE Conditions:  means the Hire Association Europe model terms for the hiring of plant, as amended or supplemented by these Conditions

Hire Goods: means any plant, tools, machinery, welfare units, toilets, tanks, accommodation, vehicles, equipment or part which is/are hired by Davlav to the Customer in accordance with these Conditions.

Hire Vehicle: means any vehicle which is hired to the Customer by Davlav and includes all parts, machines, articles, tools and accessories fitted to it at the commencement of the Hire Period.

Hire Period: means the period commencing on the agreed start date specified by the Contract or the date when the Hire Goods leave Davlav’s premises or the place where the Hire Goods were last use and are free for the Customer’s use  (including Saturdays Sundays Bank Holidays and any periods of closure for festive occasions) and ending upon the agreed end date specified by the Contract or the happening of any of the following events (whichever is the later): (i) the physical return of the Hire Goods by the Customer into Davlav’s possession; or (ii) the physical repossession or collection of Hire Goods by Davlav.

Inward TUPE Transfer: means a situation where Davlav is (or is expected to be) a transferee for the purposes of TUPE as a result of providing services to or for the benefit of the Customer (or intending to do so)

Liability: means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities.

Losses: means any losses, claims, judgements, costs (including costs of enforcement and reasonable and properly incurred legal costs), damages, awards, charges, demands, customs duties taxes, proceedings, penalties, fines, expenses and/or any other liabilities incurred or sustained (including, in the case of Davlav, loss of or any detrimental variation to its Operator’s Licence).

Operator’s Licence: means Davlav’s goods vehicle operator’s licence with licence number OF0232374

Order:  means a request for specific Services by the Customer in writing.

Outward TUPE Transfer: means a situation where Davlav is (or is expected to be) a transferor for the purposes of TUPE as a result of the transfer of operations carried out for the Customer to a new supplier.

Prices: means the prices for Davlav Products sold to the Customer by Davlav in accordance with clause 14.

Quotation Form: means the form issued by Davlav setting out the Services to be provided.

Services: means all services which Davlav has agreed to provide under the Contract as set out in the Order Confirmation, including but not limited to the hiring of Hire Goods to the Customer, the sale of Davlav Products to the Customer, together with any other services which Davlav provides or agrees to provide to the Customer, which will be subject to these Conditions.

Service Day: means the day upon which the Hire Goods are scheduled for cleaning.

Tariff: means the set Charges for all Services made known to a particular Customer.

Telephone Order: means a verbal request for specific Services by the Customer by telephone or through Davlav’s automated booking system.

Transferee: means a transferee as defined by TUPE

Transferor: means a transferor as defined by TUPE

Transport Unit:  means, in the case of transport services, any device used for the carriage or transportation of Customer Equipment or Hire Goods, or the transportation of any other goods as agreed between the parties.

TUPE: means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (and any successor legislation) and also includes any other legislation under which employment or liabilities arising from employment transfer by operation of law

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

VAT: means value added tax chargeable under English law for the time being and any similar additional tax.

 

1.2 Interpretation

  1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  2. A reference to a party includes its personal representatives, successors and permitted assigns.
  3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
  4. Headings in these Conditions shall not affect their interpretation.
  5. Any obligation in these Conditions on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
  6. In the event of any conflict between these Conditions and the HAE Conditions, the terms of these Conditions shall prevail.

 

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 If there is any conflict between these Conditions and any specific terms included in the Order Confirmation, then the Order Confirmation shall apply.

2.3 An Order or Telephone Order in response to a Quotation Form constitutes an offer by the Customer to purchase the Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order, or any Telephone Order are complete and accurate and acknowledges that they have been referred to these Conditions by Davlav prior to placing an Order or Telephone Order.

2.4 The Order shall only be deemed to be accepted when Davlav issues a written acceptance of the Order or Telephone Order (“Order Confirmation”), or (if earlier) if Davlav starts to provide the Services requested by the Customer in the Order or Telephone Order, at which point the Contract shall come into existence.

2.5 Any samples, drawings or advertising produced by Davlav and any descriptions or illustrations contained in Davlav’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Davlav Equipment or Hire Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Services set out in a Quotation Form shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.

 

3. Duration and Maximum Period of Hire

3.1  The Services supplied under the Contract shall be provided by Davlav to the Customer from the date of Davlav’s acceptance of the Customer’s offer to purchase the Services, in accordance with clause 2.4. Davlav reserves the right to specify a date of return of the Hire Goods and a drop off point on the Order Confirmation.

3.2  Subject to clause 12, the Services supplied under the Contract shall continue to be supplied by Davlav for the period of time specified in the Order Confirmation, or in the absence of a specified time period in the Order Confirmation, until the Contract is terminated by one of the parties in accordance with clause 12.

3.3 In accordance with the Consumer Credit Act 1974, if the Customer is a partnership, sole trader or other unincorporated body, then the contract of hire will not be more than 3 (three) consecutive calendar months and the Customer shall return the Hire Goods to Davlav on or before the last day of that three calendar month period. Accordingly, the hire of any Hire Goods is not covered by the Consumer Credit Act 1974. The Customer warrants that it is hiring the Hire Goods in the ordinary course of its business.

3.4 Should the Customer wish to keep the Hire Goods for a period longer than that originally determined in the Order Confirmation, then this must be agreed by Davlav in writing and the Customer will pay the relevant additional Charges for the extended period.

3.5 If the Customer fails to return the Hire Goods or make the Hire Goods available for collection by Davlav at an agreed time at the end of the Hire Period, Davlav shall be entitled to charge the Customer additional Charges up to and including the date on which the Hire Goods are back in the possession of Davlav and the Customer shall indemnify Davlav for reasonable costs incurred by Davlav resulting from the unavailability of the Hire Goods, including but not limited to having to obtain Hire Goods to comply with other hire contracts to supply other Davlav customers.

 

4. Supply of Services

4. 1 Davlav shall use reasonable endeavors to meet any performance dates specified in the Order Confirmation,but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.2 Davlav reserves the right to amend the Order Confirmation if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Davlav shall notify the Customer in any such event.

4.3 Davlav shall provide advice and information for the Customer only under the Contract and the Customer shall indemnify Davlav against all Losses incurred by Davlav as a result of the Customer passing such advice or information on to any third party.

4.4 The Customer shall be solely responsible for any instruction, guidance and/or advice given by the Customer to any Davlav employee, subcontractor or agent providing the Services and for any damage which occurs as a result of such persons following the Customer’s instructions, guidance and/or advice. The persons performing the Services are not authorised to make any representations concerning the Hire Goods unless confirmed in writing by Davlav.

4.5 Davlav’s responsibility for any transport services provided under the Contract starts when loading on the Transport Unit is complete and ends when the Goods are tendered for unloading at the Delivery Location.

4.6 The Customer shall allow and/or procure free, unrestricted, appropriate and safe access to and from the relevant Customer Site and procure sufficient unloading space, facilities, equipment and access to power supplies and utilities for Davlav’s employees, subcontractors and/or agents to allow them to carry out the Services. The Customer shall ensure that the Customer Site where the Services are to be performed is, where necessary, cleared and prepared before the Services are due to commence. The Customer shall be responsible for ensuring that the Customer Site is firm and level. Where Davlav has agreed to position the Hire Goods in a specific location, the Customer must have an authorised representative available at the time of delivery to provide instructions regarding that position.

4.7 If any Services are delayed, postponed and/or are cancelled due to the Customer failing to comply with its obligations, the Customer shall be liable to pay Davlav’s additional standard Tariff charges from time to time for such delay, postponement and/or cancellation except where the Customer is acting as a consumer and the delay is due to a Force Majeure Event.

4.8 The Hire Goods are offered for hire subject to availability at the time of the Customer’s Order or Telephone Order. Davlav will not be liable for any loss as a result of the Hire Goods being unavailable for hire.

4.9 Davlav reserves the right to change Service Days without prior notice to the Customer.

4.10 The Customer understands and accepts that Davlav employees, agents, consultants and subcontractors are not permitted to lift toilets or welfare units, or to climb any structure to access toilets or welfare units and may refuse to provide service or maintenance services for Hire Goods provided for under the Contract if those Hire Goods are in an unsafe location.

4.11 The Customer understand and accepts that Davlav employees, agents, consultants and subcontractors are not permitted to provide service or maintenance of any Hire Goods that are taken outside of the servicing area by the Customer.

4.12 Davlav shall have no liability to the Customer for any incidents resulting from the Customer’s use of Davlav Equipment to service Hire Goods.

 

5. Delivery and Collection

5. 1 It is the responsibility of the Customer to collect the Hire Goods from Davlav and return them to Davlav at the end of the Hire Period as indicated in the Contract. If Davlav agrees to deliver or collect the Hire Goods or Goods to and/or from the Customer it will do so at its standard delivery cost for Service Days/non-Service Days and such delivery and/or collection will form part of the Services.

5.2 A description of the condition of the Hire Goods shall be given to the Customer on collection of the Hire Goods by the Customer or on delivery of the Hire Goods to the Customer by Davlav.

5.3 Before taking possession, the Customer shall check the condition of the Hire Goods. Where an apparent defect is found which is not already listed in the description on the delivery note, the Customer must immediately inform Davlav in order to proceed with a joint-examination of the Hire Goods. In such a case, amendments must be made to the description on the delivery note and duly countersigned by both Davlav and the Customer. If the amended delivery note is not countersigned by both parties, the condition of the Hire Goods will be as set out in the description on the delivery note given to the Customer and the Customer shall be deemed to have received the Hire Goods in proper working condition.

5.4 If Davlav agrees to deliver or collect the Hire Goods or Goods, any dates quoted for delivery/collection are approximate only, and the time of delivery/collection is not of the essence. Davlav shall not be liable for any delay in delivery or collection of the Hire Goods or Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Davlav with adequate delivery instructions or any other instructions that are relevant to the supply of the Hire Goods or Goods.

5.5 Delivery is completed on the completion of unloading of the Hire Goods or Goods at the Delivery Location, and in relation to the loading and unloading of Hire Goods or Goods:

5.6 Davlav accepts no responsibility for the loading to and unloading of the Hire Goods or Goods from a Transport Unit at the place of collection and the Delivery Location respectively, and no liability shall attach to Davlav in respect of any loss or damage to the Hire Goods or Goods during such operations;

  1. the Customer shall at all times remain liable for the actions or omissions of its employees, servants or agents who are engaged in loading and unloading operations and will indemnify Davlav in respect of any Losses suffered by Davlav resulting from such operations;
  2. the Customer warrants that any plant, power or labour required for loading or unloading the Hire Goods or Goods shall be provided by the Customer or on the Customer’s behalf;
  3. (d) for the avoidance of doubt, if Davlav is instructed to load or unload the Hire Goods or Goods, the Customer shall remain liable for any breach of any regulations and shall indemnify Davlav in accordance with clause 5.5(g) below;
  4. Davlav shall not be required to provide service beyond the usual place of collection or delivery but if any such service is given by Davlav it shall be at the sole risk of the Customer;
  5. where Davlav supplies to and leaves with the Customer a Transport Unit for the Customer to load, the Customer will indemnify Davlav in respect of any loss or damage sustained to or caused by the Transport Unit prior to collection of the Transport Unit by Davlav from the Customer;
  6. the Customer shall indemnify Davlav against all claims and demands whatsoever which could not have been made if such instructions as are referred to in clause 5.5(d) and such service as is referred to in clause 5.5(e) had not been given.

5.7 The Customer shall load or unload the Hire Goods or Goods at the Customer Site with all skill, care and diligence and shall not suffer or permit the Transport Unit to be unduly delayed on the Customer Site. Davlav may make a charge for any delays on the Customer Site (as determined by Davlav from time to time and this additional charge shall be included on Davlav’s invoice to the Customer.

5.8 Davlav reserves the right to determine the best procedure to be followed in the performance of the Services.

5.9 If the Hire Goods or Goods are delivered by Davlav without the Customer being present, the delivery note shall be forwarded to the Customer’s address as soon as reasonably practicable and deemed to be conclusive proof of delivery of the Hire Goods or Goods in good working order.

5.10 The Customer shall provide at least 7 (seven) days written notice, in writing, if the Customer wishes the Hire Goods to be collected by Davlav on a specific date and the Customer shall obtain an off hire reference number from Davlav. The Customer shall sign any collection note provided by Davlav at the time of collection of the Hire Goods.

5.11 When any Hire Goods are confirmed by Davlav as off hired, those Hire Goods must be accessible for collection by Davlav at any time. If Davlav is unable to access the Hire Goods for collection, the Charges will continue to apply until Davlav is able to access the Hire Goods for collection.

5.12 It is the Customer’s responsibility to ensure that any Hire Goods plumbed into a mains supply, or connected to an external power source is disconnected before collection, and this must be done at the Customer’s cost.

5.13 Any Customer collecting or delivering Hire Goods from or to the Davlav depot must abide by Davlav’s site rules.

 

6. Customer’s obligations

6.1 In relation to all Services, the Customer shall:

  1. ensure that the terms of the Order or Telephone Order, and subsequent Order Confirmation are complete and accurate;
  2. provide Davlav, its employees, agents, consultants and subcontractors, with access to the Customer Site, office accommodation and other facilities as reasonably required by Davlav;
  3. provide Davlav with such information and materials as Davlav may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  4. obtain and maintain all necessary licences, permissions and consents which may be required for the Services, Davlav’s Equipment and the use of the Hire Goods and Customer’s Equipment in relation to the Services, in all cases before the date on which the Services are to start;
  5. comply with all applicable laws, including health and safety laws, and inform Davlav of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer Site;
  6. ensure that all Customer Equipment or any Transport Unit supplied by the Customer to Davlav is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
  7. keep all materials, equipment, documents and other property of Davlav (“Davlav Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Davlav Materials in good condition until returned to Davlav, and not dispose of or use the Davlav Materials other than in accordance with Davlav’s written instructions or authorisation;
  8. comply with any additional obligations as set out in the Order Confirmation;
  9. obtain and maintain at its own cost appropriate insurance cover and security arrangements in respect of any of the Goods which are handled, stored, distributed, transported or otherwise dealt with by Davlav in the course of providing the Services;
  10. ensure that any Goods are adequately packaged and protected so as to enable Davlav to perform the Services and the Customer warrants that the packaging of any Goods is sufficient to withstand the ordinary rigours of transit;
  11. ensure that all Goods shall be presented to Davlav securely and properly packed in compliance with all applicable laws and shall, when presented, be in a condition to be safely handled, stored and/or carried and so as not to cause injury, damage, contamination or deterioration (or the possibility of them) to any person, premises, equipment or to any other items in any way;
  12. provide suitable facilities and equipment for, and will procure, safe and prompt loading and unloading of the Goods, and will indemnify Davlav in respect of any loss, damage or liability resulting from such operations;
  13. warrant that where Davlav receives the Goods from the Customer already stowed in or on a Transport Unit, the Transport Unit is in good condition, and is suitable for the carriage of the Goods to the intended Delivery Location;
  14. ensure that all welfare units and other Hire Goods that require servicing and maintenance by Davlav are in a safe and accessible location for Davlav to access at any time during the Hire Period;
  15. not place welfare units or other Hire Goods on scaffolding without Davlav’s prior written consent, and the Customer shall be aware that this may incur additional Charges due to the additional work required for service and maintenance of such units;
  16. accept that not all Hire Goods supplied by Davlav will be brand new;
  17. report any breakdown or damage relating to the Hire Goods in accordance clause 8.4;
  18. accept that they will remain responsible for the Hire Goods during any enforced government lockdown period;
  19. must inform Davlav of any infectious disease outbreaks on the Customer Site prior to any visit of Davlav’s employees, agents, consultants and subcontractors to that Customer Site;
  20. not post negative reviews or defamatory statements regarding Davlav or the Davlav brand on any social media or any internet site;
  21. immediately upon written request from Davlav, remove or take down any negative reviews or defamatory statements which the Customer has made regarding Davlav or the Davlav brand on any social media or any internet site;
  22. obtain written approval from Davlav before moving any Davlav Equipment from the Delivery Location. For the avoidance of doubt, Davlav Equipment must not be transported outside of England; and
  23. co-operate with Davlav in all matters relating to the Services.

6.2 The Customer shall at all reasonable times allow Davlav, or its insurers access to the Hire Goods to inspect, test, adjust, repair or replace the Hire Goods.

6.3 The Customer shall not, without the prior written consent of Davlav, at any time from the date of the Contract to the expiry of three months after the termination of the Contract, solicit or entice away from Davlav or employ (or attempt to employ) any person who is, or has been, engaged as an employee or subcontractor of Davlav in the provision of the Services.

6.4 Any consent given by Davlav in accordance with clause 6.3 shall be subject to the Customer paying to Davlav a sum equivalent to 15% of the then current annual remuneration of Davlav’s employee or subcontractor or, if higher, 15% of the annual remuneration to be paid by the Customer to that employee or subcontractor.

 

7. Use of Hire Goods

7.1 Davlav and the Customer shall agree in writing the terms of the Hire Period including the terms on which the Contract will terminate. Davlav reserves the right to specify a date of return of the Hire Goods and a drop off point in the Order Confirmation.

7.2 The Hire Goods must be returned by the Customer at the end of the Hire Period as specified in the Order Confirmation in good working order and condition (fair wear and tear excepted) and in a clean condition together with all insurance policies, licences, registration and other documents relating to the Hire Goods. The Customer must not use or allow the Hire Goods to be used after the termination of the Hire Period. Davlav will be entitled to charge additional Charges and any reasonable expenditure Davlav incurs resulting from any such unauthorised use.

7.3 The Customer shall, and shall ensure its authorised persons shall, use the Hire Goods in a skilful, diligent and proper manner and the Customer shall be responsible for day to day maintenance and servicing (including but not limited to it greasing and oiling). Unless otherwise agreed by Davlav, the Customer must ensure the correct grade of fuel, oil and grease is used for the Hire Goods and shall be solely responsible for and shall indemnify and keep indemnified Davlav in respect of all damages, losses, costs and expenses arising as a result of the wrong grade of fuel, oil or grease being used.

7.4 The Customer shall indemnify and keep indemnified Davlav for injury to persons or loss of or damage to property caused by the Customer’s use of the Hire Goods or the Customer’s failure to operate the Hire Goods in a safe and proper manner.

7.5 The Customer shall indemnify and keep indemnified Davlav against any and all liability, charges, fines, costs and expenses incurred or imposed as a result of the Customer’s use of the Hire Goods during the hire period, including but not limited to any parking fines, excess charges incurred under the Road Traffic Regulations Act 1984, any liability arising under any applicable Congestion Charge Order, any breach of any legislation or regulations covering vehicle excise and any charges made by HM Revenue & Customs as a result of seizure of the Hire Goods.

7.6 The Customer shall be responsible for ensuring that the Hire Goods are not used or stored in an environment that could result in the Hire Goods being affected by any type of corrosion or erosion. The Customer shall be solely responsible for all costs and expenses payable in order to repair the Hire Goods damaged as a result of the Customer using or storing the Hire Goods in a corrosive or erosive environment.

7.7 Where the Hired Goods include a toilet facility (including but not limited to welfare units), the Customer shall be solely responsible for the lawful and safe discharge and disposal of all waste, which for the avoidance of doubt shall be classified as trade waste. The Customer shall be solely responsible for obtaining and maintaining all necessary licences, consents and authorisations relating to the discharge and disposal of all such waste.

7.8 The Customer shall:

  1. not remove or deface, alter or cover up any label, nameplate, mark or informational notice on the Hire Goods nor interfere with the Hire Goods, their working mechanisms or any other parts of them and shall take reasonable care of the Hire Goods and only use them for their proper purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer and any relevant legislation and/or best practice standards;
  2. notify Davlav immediately after any breakdown (including but not limited to any failure of the Hire Goods to work satisfactorily), and loss of and/or damage to the Hire Goods as soon as is practicably possible;
  3. take adequate and proper measures to protect the Hire Goods from theft, damage and/or other risks and properly supervise the Hire Goods where the young, elderly or mentally or physically disabled (whether temporarily through drink or drugs or otherwise) are using or are likely to use the Hire Goods;
  4. notify Davlav of any change of its address and upon Davlav’s request provide details of the location of the Hire Goods;
  5. permit Davlav at all reasonable times to inspect the Hire Goods including procuring access to any property where the Hire Goods are situated;
  6. keep the Hire Goods at all times in its possession and control;
  7. be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Hire Goods required by any legislation, best practice and/or operating instructions except to the extent that Davlav has agreed to provide them as part of any Services;
  8. not do or omit to do anything which will or may be deemed to invalidate any policy of insurance related to the Hire Goods which is notified to the Customer or taken out by the Customer;
  9. not continue to use Hire Goods where they have been damaged and/or in the event of any breakdown will notify Davlav immediately if the Hire Goods are involved in an accident resulting in damage to the Hire Goods, other property and/or injury to any person;
  10. where the Hire Goods require fuel, oil and/or electricity ensure that the proper type and/or voltage is used and that, where appropriate, the Hire Goods are properly installed by a qualified and competent person;
  11. check on a daily basis during the Hire Period the engine oil level, radiator water level, washers and wipers, lights, wheel nuts, brake fluid level and if applicable, the tow-bar;
  12. place generators on level ground to avoid possible damage; and
  13. be responsible for returning keys for any Hire Goods at the end of the Hire Period and be liable for Davlav’s cost of replacing such keys if they are not returned by the Customer.

7.9 Where the Contract is for the hire of a Hire Vehicle, the Customer shall:

  1. not allow the Hire Vehicle to be driven by anyone other than those persons specified in the Contract;
  2. not allow the Hire Vehicle to be driven by an individual whose ability to drive is impaired by mental or physical incapacity or who is restricted by law;
  3. not take the Hire Vehicle outside of the United Kingdom unless this has been agreed in writing with Davlav;
  4. only refuel the Hire Vehicle with the correct type of fuel as stated on the Contract;
  5. ensure that the Hire Vehicle is returned with a full tank of fuel;
  6. be liable for all fees, tolls, fines and penalties incurred in connection with the use of the Hire Vehicle and for which Davlav is charged, unless they have arisen through the fault of Davlav;
  7. be responsible for carrying out the usual vehicle checks (including but not limited to daily engine oil level, water levels, fuel levels, and regular checks on tyre pressure, etc.) and the Customer must respect the maintenance cycle of the Hire Vehicle as stated in the maintenance guide, if any and failure to do so may result in charges being levied against the Customer;
  8. be responsible for all fees incurred in connection with any callouts by Davlav’s engineer in accordance with clause 6.9(g);
  9. when parking the Hire Vehicle, even for a short period, lock it and make use of the Hire Vehicle’s alarm and/or immobilisation equipment.
  10. not leave the Hire Vehicle unoccupied with the keys in the ignition;

not use the Hire Vehicle under any of the following conditions or for any of the following purposes:

  1. driving the Hire Vehicle under the influence of alcohol, drugs or any other type of narcotic substances;
  2. transportation of inflammable or dangerous goods, as well as toxic, corrosive, radioactive or other harmful substances;
  3. carrying anything which, because of its smell or condition, harms the Hire Vehicle or causes Davlav to lose time or money before it can rent the Hire Vehicle again;
  4. transportation of live animals;
  5. with a roof rack, luggage carrier or similar;
  6. re-rental to or use by persons other than the Customer and its employees;
  7. carrying passengers for hire or reward;
  8. participating in rallies, competitions or trials, wherever they may take place;
  9. giving driving lessons;
  10. pushing or towing another vehicle or exceeding the authorised load weight;
  11. travelling on non-paved roads or on roads, the surface or state of repair of which could put the Hire Vehicle’s wheels, tyres or its under body mechanics at risk;
  12. intentionally committing any offence;
  13. allowing the goods and baggage carried in the Hire Vehicle, including their packing and stowage equipment, to damage the Hire Vehicle, or to put the occupants abnormally at risk; and
  14. in any way which breaks the Highway Code, road traffic laws or any other laws.

7.10 be liable for any offence committed during the Hire Period which relates in any way to the Customer’s use of the Hire Goods.

7.11 Where the Hire Goods comprises electrical equipment (in part or in whole) those Hire Goods should only be used with plugs and/or sockets as fitted but if temporarily replaced with other suitable plugs or sockets it shall be the Customer’s responsibility to ensure that this is carried out by a qualified electrician, who must also reinstate the Hire Goods to original condition on the expiry of the Hire Period, and any electrical work required in relation to the Hire Goods must be carried out by a qualified electrician.

7.12 The Customer shall be solely responsible during the Hire Period for ensuring that, where applicable, any digital tachograph affixed to the Hire Goods is maintained in good working order and that any data recorded by such digital tachograph is kept safe and secure throughout the Hire Period.

 

8. Breakdown, maintenance and repairs

8.1 The Customer shall be responsible for all expenses, loss (including loss of Rental) and/or damage suffered by Davlav arising from any breakdown of the Hire Goods due to the Customer’s negligence, misdirection and/or misuse of the Hire Goods.

8.2 Davlav will at its own cost carry out all routine maintenance and repairs to the Hire Goods during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Hire Goods including but not limited to cleaning the Hire Goods on a weekly basis, unless otherwise agreed in writing. The Customer will be responsible for the cost of all repairs necessary to Hire Goods during the Hire Period which arise otherwise than as a result of fair wear and tear, an inherent fault and/or the negligence of Davlav while carrying out routine maintenance and/or repairs.

8.3 The Customer must not repair or attempt to repair the Hire Goods unless authorised to do so in writing by Davlav.

8.4 The Customer must notify Davlav of all accidents, damage to or breakdowns of the Hire Goods as soon as is practicable by email to repairs@davlav.com and again at the end of the Hire Period. The Customer shall remain liable to Davlav for any damage to the Hire Goods which is due to the Customer’s negligence, misdirection and/or misuse of the Hire Goods.

8.5 The Customer shall take all necessary steps to communicate to Davlav the state and condition of the Hire Goods. If the Customer continues to use the Hire Goods after it is known by the Customer to be in an unsafe or unsatisfactory state or environment the Customer shall be solely responsible for any further damage, loss or accident.

8.6 No claims will be admitted for stoppages through causes outside Davlav’s control, including but not limited to bad weather or ground conditions nor shall Davlav be responsible for the cost or expense of recovering any of the Hire Goods from soft ground.

8.7 If during the Hire Period Davlav decides that urgent repairs to the Hire Goods are necessary Davlav may (at its sole discretion) arrange for such repairs to be carried out on the Customer Site or at any location as Davlav may determine. In that event Davlav shall elect to replace the Hire Goods with similar Hire Goods if available. In the event of Davlav being unable to replace the Hire Goods Davlav may be entitled to terminate the Contract immediately by giving written notice to the Customer.

 

9. Theft, Loss or Damage

9.1 In the event of measures by third parties, including attachment, confiscation or impounding of the Hire Goods, the Customer must immediately inform Davlav in writing. Davlav shall then be entitled to take all measures which it deems necessary to protect its rights. The Customer shall indemnify Davlav for all damage, costs, losses and/or expenses associated with the above measures and for any direct, indirect, consequential damages (such as loss) to the Hire Goods unless it is demonstrated that Davlav is directly responsible for such confiscation or impounding of the Hire Goods. Furthermore, the Contract may be automatically terminated as soon as Davlav is informed of such action by third parties.

9.2 During the Hire Period the Customer shall indemnify Davlav in respect of all loss of or damage to the Hire Goods (including, but not limited to, any damage caused to tyres and inner tubes including punctures and breakages to windows and windscreens and any corrosive or erosive damage), fair wear and tear excepted, and shall also fully and completely indemnify and keep indemnified Davlav in respect of all claims losses and damages by any person whatsoever for injury to person or property caused by or in connection with or arising out of the storage, transit, transport, unloading, loading or use of the Hire Goods during the Hire Period, and in respect of all costs and charges in connection therewith whether arising under statute or common law. In the event of loss of or damage to the Hire Goods, the Customer shall pay the Charges until settlement is agreed in writing.

9.3 The Customer shall pay to Davlav the replacement cost of any Hire Goods which are lost, stolen and/or damaged during the Hire Period (on the basis of new for old in the case of loss, theft or damage which it is uneconomic or impossible to repair properly) less the amount paid to Davlav under any policy of insurance taken out in accordance with these conditions. In addition to being responsible for the replacement value of the Hire Goods the Customer shall also indemnify Davlav against any other reasonable costs resulting from the unavailability of the Hire Goods (such as having to obtain Hire Goods to comply with other hire contracts) that Davlav suffers.

9.4 If the Hire Goods are returned in damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hire Goods the Customer agrees to pay to Davlav on demand, all costs and expenses incurred by Davlav for any repair and/or cleaning and other services required to return the Hire Goods to a condition fit for re-hire and to pay the Charges, in accordance with the provisions of clause 9.2, until such repairs and/or cleaning have been completed.

9.5 The Customer is responsible for all costs Davlav may incur in recovering any lost or stolen Hire Goods regardless of whether the Hire Goods are fitted with a tracking or similar device. Davlav accepts no liability whatsoever for any loss, theft or damage to Hire Goods during the Hire Period.

9.6 The Customer shall pay the Charges for the Hire Goods up to and including the date it notifies Davlav that the Hire Goods have been lost, stolen and/or damaged. From that date until Davlav has replaced such Hire Goods the Customer shall pay, as a genuine pre-estimate of lost rental profit, a sum as liquidated damages being equal to two thirds of the Charges that would have applied for such Hire Goods for that period and shall pay any additional amount in the event that the actual lost rental profit exceeds this sum. Davlav shall use its reasonable commercial endeavours to purchase replacements for such Hire Goods as quickly as possible using the monies paid under clause 9.2. If Davlav provides replacement Hire Goods, the Contract will be amended accordingly.

9.7 Davlav will have no responsibility for loss, theft, robbery or damage of whatever nature relating to objects and/or utensils transported or which are found in the Hire Goods including, in particular, baggage and/or goods.

9.8 The Customer shall be liable and shall pay to Davlav on demand any hazardous waste disposal charges in relation to costs incurred by Davlav for the disposal items (including but not limited to fire extinguishers and refrigerators) left in any Hire Goods at the end of the Hire period.

9.9 If the Hire Goods are involved in any accident resulting in injury to persons or damage to property, immediate notice must be given to Davlav by telephone and confirmed in writing to Davlav within (3) three working days. In relation to any claim in respect of which the Customer is not bound fully to indemnify Davlav, no admission, offer of payment or indemnity shall be made by the Customer without Davlav’s prior written consent.

 

10. Insurance, Title and Risk

10.1 Davlav shall require the Customer to insure the Hire Goods on reasonable terms and for reasonable risks, including insuring the Hire Goods for loss or damage, and against bodily injury and/or property damage that the Customer might inflict on a third party as a result of an accident involving the Hire Goods.

10.2 The Customer shall prove to Davlav that it has taken out valid insurance for the Hire Period and the proceeds of any such insurance shall be paid directly to Davlav, or where this is not possible, held by the Customer on trust for Davlav and be paid to Davlav on demand. The Customer must not compromise any claim in respect of the Hire Goods and/or any associated insurance without Davlav’s written consent.

10.3 If the Customer fails to keep the Hire Goods insured to the satisfaction of Davlav or fails to produce evidence of insurance, Davlav may, at the expense of the Customer, insure the Hire Goods and the Customer will pay to Davlav on demand any sums expended by Davlav for such purpose with interest payable in addition at a rate of 8% above the base rate from time to time of Davlav’s bank from the time of Davlav having taken out such insurance until the date of repayment of such sums by the Customer

10.4 Ownership of the Hire Goods remains at all times with Davlav. The Customer has no right, title or interest in the Hire Goods except that they are hired to the Customer.

10.5 The Customer must not deal with the ownership or any interest in the Hire Goods. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending.

10.6 Risk in the Hire Goods shall pass immediately to the Customer when they leave the physical possession or control of Davlav at any time after the Order Confirmation.

10.7 Risk in the Hire Goods shall not pass back to Davlav from the Customer until the Hire Goods are back in the physical possession of Davlav. This shall apply even if Davlav has agreed to cease charging the Charges.

10.8 The Customer shall, during the Hire Period, be responsible for the safety of all personal property, items and goods left in any Hire Goods by the Customer, its employees, subcontractors and agents and the Customer shall indemnify and keep indemnified Davlav in respect of all claims for the loss or theft of such personal property, items and goods.

10.9 The Customer will be given 7 days’ notice to collect any property, items or goods which have been found in the Hire Goods upon their return to Davlav. Any property, items or goods remaining in the returned Hire Goods after this time shall be destroyed and Davlav shall have no liability in respect of such property, items or goods.

 

11. Price and payment

11.1 In consideration of the provision of the Services by Davlav, the Customer shall pay the Charges as set out in the Order Confirmation. Where Davlav accepts a request from the Customer to provide the Services without a price having been quoted or agreed prior to performance of the Services, the Customer shall pay such price as Davlav shall reasonably specify after performance of the Services, taking into account any Tariff that applies, Davlav’s costs and expenses incurred in providing the Services, and the urgency of the Customer’s requirement.

11.2 Where a Deposit is required for the Hire Goods, it must be paid in advance of the Customer hiring the Hire Goods. Davlav may also require an initial payment on account of the Charges in advance of the Customer hiring the Hire Goods. The Customer may be required to produce a valid credit card with an expiry date of after the end of the Hire Period.

11.3 The Charges for the Services set out in the Order Confirmation or as otherwise determined in accordance with clause 10.1 shall be paid to Davlav (without deduction or set-off) on the date set out in the Order Confirmation or, if there is no such date specified in the Order Confirmation, then, unless otherwise agreed between Davlav and the Customer, within 30 days of the date of the invoice issued by Davlav to the Customer, to a bank account nominated in writing by Davlav. Davlav shall invoice the Customer for the price payable, together with VAT at the appropriate rate, at the end of the week or month in which the Services are provided, as notified from time to time. Davlav shall add a 2.5% handling charge to all AMEX payments made by the Customer and a 2.5% handling charge to all credit card and debit card payments made by the Customer over £10,000.

11.4 Davlav may make charges for any abortive delivery or collection of the Hire Goods including charging for waiting times at an hourly rate if the Customer has not complied with the terms of the Contract in relation to such delivery collections or supply.

11.5 In the event of an order being cancelled or aborted in full or in part by the Customer then the full amount of any outstanding Deposit, or Charges shall be payable to Davlav.

11.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by Davlav to the Customer, the Customer shall pay to Davlav such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

11.7 Time for payment by the Customer shall be of the essence of the Contract. Payment shall not be deemed to be made until Davlav has received either cash or cleared funds in respect of the full amount outstanding. If the Customer does not have an account with Davlav, the Customer must pay Davlav when the Customer places the order. Where the Customer holds an account with Davlav sums must be paid to Davlav in accordance with clause 11.3 or, if different, the terms of the account held. Where the Customer disputes any amount that Davlav has invoiced the Customer, the Customer must notify Davlav of this by email to accounts@davlav.com within 21 days from the date of the invoice. If the Customer fails to do this, the invoice will be deemed to be correct. Where any dispute arises as to the contents of any invoice, the parties shall enter into good faith discussions to resolve such dispute but, for the avoidance of doubt, the Customer shall not be relieved of its obligation to pay the disputed invoice in full and on time.

11.8 If the Customer fails to make any payment in full on the due date, the Davlav may charge the Customer interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of Davlav’s bank. Such interest shall be compounded quarterly.

11.9 Any failure to settle any sums due under an account on the agreed terms of payment could result in all Services offered by Davlav to the Customer being suspended and all Hire Goods collected from the Customer Site with immediate effect.

11.10 The parties agree that Davlav may review and increase the Charges set out in the Order Confirmation in relation to Services not yet performed by Davlav. Davlav will give the Customer written notice of any such increase 30 days before the proposed date of the increase. If such increase is not acceptable to the Customer, it may, within 7 days of such notice being received or deemed to have been received in accordance with clause 10, terminate the Contract by giving 21 days written notice to Davlav.

11.11 The parties agree that Davlav’s charges for fuel shortages at the end of a Hire Period will be added to the Charges which will be set out in the final invoice. In the event of a change in fuel prices, Davlav may add or modify a fuel charge by an amount it may reasonably consider to reflect the consequential increase in its direct operating costs. Additional hours for the Customer’s use of generators will also be added to the Charges.

11.12 Davlav shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Davlav engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Davlav for the performance of the Services, and for the cost of any materials.

11.13 In the event that Davlav incurs increases in operating costs as a result of expenses incurred during transit, including as a result of:

  1. legislation that may be in place in a particular country through which transit or collection/ delivery takes place, or changes or revisions to legislation in such countries; or
  2. the introduction or variation of taxes that affect the transit;

Davlav will be entitled to invite the Customer to agree new rates, and if an agreement on new rates cannot be reached within 14 days of an invitation in writing to agree new rates, Davlav will be entitled to terminate the Contract with the Customer immediately.

The Customer shall be liable to pay demurrage for unreasonable detention of any vehicle or other equipment of Davlav at Davlav’s current rates of demurrage but the rights of Davlav against any other person on respect thereof shall remain unaffected.

11.14 Davlav reserves the right to recover from the Customer on a full indemnity basis all parking fine and congestion zone charges incurred by Davlav in the performance of the Services, any applicable wide load charges and any Losses incurred by Davlav in the event of an abortive or diverted load.

11.15 Without prejudice to any other right or remedy that Davlav may have, if the Customer becomes insolvent or fails to pay Davlav any amount due under this Contract on the due date, Davlav may:

  1. charge interest on any overdue sums from the due date for payment at the annual rate of 4% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest together with the overdue amount immediately on demand; and
  2. suspend all Services until payment has been made in full; and
  3. cancel any credit agreement made between Davlav and the Customer with immediate effect and all sums due to Davlav shall immediately become due and owing.

11.17 All sums payable to Davlav under the Contract shall become due immediately on its        termination, despite any other provision. This clause 11.17 is without prejudice to any right to         claim for interest under the law, or any such right under the Contract.

11.18 Davlav may, without prejudice to any other rights it may have, set off any liability of the Customer to Davlav against any liability of Davlav to the Customer.

11.19 Where Davlav is unable to make delivery of all or part of an Order as requested by the Customer, Davlav shall take all reasonable steps to notify the Customer of non-delivery and seek the Customer’s further instructions. Pending such instructions, Davlav shall hold the Hire Goods (or the non-delivered part) at the sole risk and expense of the Customer.

11.20 The Customer shall be liable to pay to Davlav, on demand, all Losses, including storage costs, incurred by Davlav as a result of any failure by the Customer to take delivery as set out in clause 11.19.

 

12. Termination

12.1 If the Hire Period has a specified fixed duration in the Order Confirmation, subject to the provisions of clause 12.6, neither the Customer nor Davlav shall be entitled to terminate the Contract before the expiry of that fixed period unless agreed with the other party in writing.

12.2 If the Hire Period does not have a fixed duration, the Customer or Davlav may terminate the Contract upon giving to the other party no less than one months’ written notice.If no period of notice has been agreed or specified, the Customer may terminate the Hire Period by the physical return of the Hire Goods to Davlav and Davlav shall be entitled to terminate the hire of the Hire Goods by giving not less than 14 days’ notice to the Customer.

12.3 Once the Hire Period has terminated or expired and the account with the Customer closed, payment of all monies due under the Contract shall become immediately payable.

12.4 Failure to adhere to immediate payment required under clause 12.4 could result in further charges being levied against the Customer.

12.5 Without prejudice to any other rights or remedies which the parties may have, Davlav may terminate the Contract without liability to the Customer immediately on giving written notice to the Customer if:

  1. the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
  2. the Customer commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or
  3. the Customer repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
  4. the Customer provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract; or
  5. the Customer pledges, charges or creates any form of security over any Hire Goods, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim moratorium in respect of claims and/or proceedings, any distress, execution or other legal process is levied on any property of the Customer, has a bankruptcy petition presented against it or the Customer takes or suffers any similar action in any jurisdiction;
  6. the Customer 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 (being a company or a limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
  7. the Customer 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 other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or
  8. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
  9. 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 Customer (being a Company); or
  10. there is a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001); or
  11. the Customer’s financial position deteriorates to such an extent that in Davlav’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
  12. the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

12.6 If any of the events set out in clause 12.6 occurs in relation to the Customer then:

  1. except where the Customer is acting as a consumer, Davlav may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where the Hire Goods may be and repossess any Hire Goods;
  2. Davlav may withhold the performance of any Services and cease any Services in progress under this and/or any other contract with the Customer:
  3. Davlav may immediately cancel, terminate and/or suspend without liability in relation to the Customer, the Contract and/or any other contract with the Customer; and
  4. all monies owed by the Customer to Davlav shall immediately become due and payable.

12.7 Any repossession of the Hire Goods shall not affect Davlav’s right to recover from the Customer any monies due under the Contract and/or any damages in respect of any breach which occurred prior to repossession of the Hire Goods.

12.8 Upon termination of the Contract the Customer shall immediately:

  1. return the Hire Goods to Davlav or make the Hire Goods available for collection by Davlav in accordance with clause 4.8 and clause 5 as requested by Davlav. If the Customer fails to do so, then Davlav may enter the Customer’s premises and take possession of any Davlav Equipment or Hire Goods at the Customer’s premises. Until the Davlav Equipment and Hire Goods have been returned or repossessed, the Customer shall be solely responsible for its safe keeping and will not use them for any purpose not connection with this Contract; and
  2. immediately pay to Davlav all of Davlav’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Davlav may submit an invoice, which shall be payable immediately on receipt;
  3. at Davlav’s request, any Goods of the Customer in the possession of Davlav shall be removed by the Customer at the time agreed between the Parties, or if such agreement cannot be reached for any reason, Davlav may at any time by notice in writing to the Customer require the removal of such goods within 3 days from the date of such notice. Davlav is not responsible for any damage to the goods in the event the Customer fails to collect the same and such goods perish or develop a defect or quality issue as a result; and
  4. the accrued rights and liabilities of the parties as at termination (including the right to claim damages in respect of any breach of the Contract which existed at or before the         date of expiry or termination) and the continuation of any provision expressly stated to         survive or implicitly surviving termination, shall not be affected.

 

13. Indemnity and Limitation of Liability

13.1 All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and/or adequacy are excluded to the fullest extent permitted by law.

13.2 The Customer shall indemnify Davlav in full for any claims made by or against you, or Losses incurred by us as a result of any act or omission of you, your employees, agents or contractors in connection with any hiring or cross-hiring to your own customers (with or without our consent) of the Hire Goods.

13.3 The Customer shall indemnify Davlav for any reputational damage suffered by Davlav as a result of the Customer’s breach of clauses 6.1(t) or 6.1(u).

13.4 Davlav shall have no Liability to the Customer for any loss or damage to the Customer’s property on delivery of the Hire Goods or Davlav Products pursuant to section 5.

13.5 If Davlav is found to be liable in respect of any loss or damage to the Customer’s property, the extent of Davlav’s Liability will be limited to the retail cost of replacement of the damaged property.

13.6 Davlav shall have no liability or responsibility for any loss or damage of whatever nature due to or arising through any cause beyond Davlav’s reasonable control including late or non-arrival of the Hire Goods or Davlav Products at the Customer Site.

13.7 Any defective Hire Goods or Davlav Products must be returned to Davlav for inspection if requested by Davlav before Davlav will have any Liability for defective Hire Goods or Davlav Products.

13.8 Davlav shall have no Liability to the Customer if, without just cause, any monies due in respect of the Hire Goods, Davlav Products and/or the Services have not been paid in full by the due date for payment.

13.9 Davlav shall have no Liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s continued use of defective Hire Goods, Davlav Products and/or Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.

13.10 The Customer shall give Davlav a reasonable opportunity to remedy any matter for which Davlav is liable before the Customer incurs any costs and/or expenses in remedying the matter itself. If the Customer does not do so, Davlav shall have no Liability to the Customer.

13.11 Davlav shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance arranged as a result of the Contract and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against Davlav.

13.12 Davlav accepts no Liability for articles that may have been left in the Hire Goods at the end of the Hire Period.

13.13 Davlav, its directors, officers or employees shall have under no circumstances have any Liability to the Customer for any:

  1. consequential losses (including loss of profits and/or damage to goodwill);
  2. economic and/or other similar losses;
  3. special damages and indirect losses; and/or
  4. business intention, loss of business, loss of production or productivity, loss of contracts and/or opportunity.

13.14 Davlav’s total Liability to the Customer under and/or arising in relation to any Contract shall not exceed 5 times the amount of the Charges (if any) under that Contract or the sum of £1,000 whichever is the lower. To the extent that any Liability of Davlav to the Customer would be met by any insurance of Davlav, then the Liability of Davlav shall be extended to the extent that such Liability is met by such insurance.

13.15 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:

  1. Liability for breach of contract;
  2. Liability in tort (including negligence); and
  3. Liability for breach of statutory and/or common law duty;

except clause 13.14 which shall apply once only in respect of all the said types of Liability.

13.16 Nothing in this Contract shall exclude or limit the Liability of Davlav for death or personal injury due to Davlav’s negligence nor exclude or limit any other type of Liability which it is not permitted to exclude or limit as a matter of law.

13.17 If Davlav’s performance of its obligations under the Contract is prevented or delayed by any Force Majeure Event, or any act or omission of the Customer, its agents, subcontractors, consultants or employees or failure by the Customer to perform any relevant obligation including payment of the Charges (“Customer Default”), Davlav shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

13.18 Davlav shall not be liable for any Losses to the extent that they are caused or contributed to by a breach of the Customer’s obligations.

13.19 Davlav shall have no Liability to the Customer in respect of any Losses relating to infectious diseases, legionella disease, waste spillage or environmental issues, arising from the Customer’s use of the Hire Goods or Goods.

13.20 Davlav shall not be held responsible nor assume any responsibility for

  1. any delay to the delivery of the Goods or Services;
  2. any inability to provide Goods under the Contract;
  3. any modifications of or interruptions to the Services; or
  4. any other adverse impact experienced or suffered by the Customer in connection with the Contract;

or any consequences arising therefrom arising out of or in connection with a Brexit Event and the Customer hereby agrees and acknowledges that they shall bear all associated costs and risks.

 

14. Sale of Davlav Products and/or other Goods

Terms for sale

14.1 Where the Customer is a consumer, these Conditions do not affect any of the Customer’s statutory rights as a consumer.

14.2 These Conditions govern the sale of Davlav Products and other Goods by Davlav to the Customer. However, this clause 14 applies specifically to the sale of Davlav Products of Goods to a Customer and therefore the provisions of this clause 14 shall override any conflicting terms contained in these Conditions, or which the Customer otherwise seeks to impose.

Payment

14.3 Time for payment is of the essence. Unless otherwise agreed by Davlav or detailed in the Order Confirmation, payment shall be due on or before delivery of the Davlav Products in accordance with condition 14.13 below and if payment is not received by the delivery date, Davlav shall be entitled, without notice to the Customer (even if the Customer has a contract with a third party), to:

  1. terminate any outstanding order or quotation;
  2. withhold and/or suspend supplies of any Goods or Services;
  3. reduce the Customer’s credit limit;
  4. claim damages for any loss or cost incurred by Davlav; or
  5. cancel the Contract.

14.4 Davlav shall be entitled to charge the Customer interest on the amount unpaid at the rate of 8% above HSBC Bank Plc base rate until full payment is made in cleared funds.

14.5 The Customer will indemnify and keep indemnified Davlav in respect of all costs incurred by Davlav in recovering payment, including all legal costs. The Customer will also indemnify and keep indemnified Davlav in respect of all bank charges incurred by Davlav for returned cheques presented by the Customer.

14.6 The Customer shall make all payments due under the Contract without any deduction, withholding, set off or counterclaim.

14.7 Davlav reserves the right to set off or deduct any amounts due from Davlav under any other arrangement with the Customer against any monies due to Davlav under the Contract.

14.8 All Prices shall be subject to VAT and are correct at the time of issue to the Customer but are subject to change by Davlav without prior notice to the Customer. The Prices will also be subject to currency fluctuations and necessary adjustments will be made on all quotes.

Insurance, title and risk

14.9 Although risk in the Goods to be purchased passes to the Customer on delivery, legal title in such Goods shall not pass to the Customer until Davlav has received in cleared funds the full price payable for such Goods supplied by Davlav to the Customer for which payment is then due.

14.10 Until legal title passes, the Customer shall keep the Goods properly protected, insured and stored separately from any other goods (whether or not supplied by Davlav). The Customer shall not remove, deface or obscure any identifying mark or packaging on or relating to the goods. Until that time the Customer is entitled to resell or use the goods in the ordinary course of its business but shall account to Davlav for the proceeds of sale and pending payment shall hold such proceeds on trust for Davlav absolutely.

14.11 The Customer’s right to resell or use the goods shall terminate automatically on the occurrence of any event set out in condition 12 and/or if any sum owed to Davlav by the Customer is not paid when due.

14.12 Davlav reserves the right at any time before title in the goods has passed to the Customer to require the Customer to deliver up the goods if any of the events specified in condition 12 occurs.

Delivery

14.13 The provisions of clause 5 will apply in relation to delivery and collection of the Goods. The Customer acknowledges that delivery lead times are subject to change due to availability of the Goods and manufacturing issues and that Davlav has no control over any change and shall have no liability to the Customer in respect of this.

14.14 If for any reason the Customer does not accept delivery of any of the Goods when they are ready for delivery or Davlav or its contractor is unable to deliver the Goods due to the Customer’s fault then the Goods will be deemed to have been delivered, risk passing to the Customer (including for loss or damage caused by Davlav’s negligence) and Davlav may:

  1. store the goods until actual delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance); or
  2. sell the goods at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge the Customer for any shortfall below the Contract price.

14.15 Davlav reserves the right to deliver in instalments and any failure to deliver one instalment will not entitle the Customer to terminate the Contract.

14.16 Claims for shortages or damaged Goods must be made in writing to Davlav within 3 (three) days of receipt of the Goods and claims for non-delivery must be made to Davlav within 10 (ten) days of date of despatch shown on invoice.

Returns and refunds

14.17 Davlav may at its sole option and discretion allow the Customer to return the Goods upon the following conditions:

  1. in relation to brand new Goods, that the relevant Goods are non-faulty and, in relation to second-hand goods, that the relevant Goods are materially faulty;
  2. that the relevant Goods are Goods that are ordinarily held in stock at one of Davlav’s locations;
  3. that the Customer notifies Davlav within 10 (ten) days of delivery of its intention to return the Goods;
  4. that the Goods are returned to Davlav within 15 (fifteen) days of delivery;
  5. that the Goods are undamaged, in the original packaging, with all labelling present and fully suitable for re-sale; and
  6. the Customer agrees to pay Davlav a 15% (fifteen per cent) handling fee against the return of non-faulty standard Goods.

14.18 Davlav may from time to time at its sole option and discretion accept the return of non-standard, non-faulty Goods on separate rates, terms and conditions, to be agreed with the Customer in advance of any such return. Davlav may also, at its sole discretion, agree to buy back Goods previously supplied to the Customer at the amount agreed between the parties at the time but shall be under no obligation to do so.

14.19 If Davlav establishes to its reasonable satisfaction that there is a material defect in the Goods or there is some other material failure by Davlav in relation to the conformity of the Goods with the Contract, then Davlav shall at its sole discretion and within a reasonable time:

  1. replace such Goods with Goods which are in all respects in accordance with the Contract; or
  2. repair such Goods to ensure that, once repaired, the Goods conform with the Contract; or
  3. issue a credit note to the Customer in respect of the whole or part of the Contract price of such Goods as appropriate having taken back such Goods, subject, in every case, to the remaining provisions of this Condition provided that the liability of Davlav under this clause shall in no event exceed the purchase price of such Goods and performance of any one of the above options shall constitute an entire discharge of Davlav’s liability under this clause.

14.20 Clause 14.18 shall not apply unless the Customer:

  1. notifies Davlav of the alleged defect within 3 (three) days of the time when the Customer discovers or ought to have discovered the defect;
  2. allows Davlav to collect the relevant Goods;
  3. complies with any reasonable request or instruction from Davlav; and
  4. allows Davlav a reasonable opportunity to inspect the relevant Goods.

14.21 If Davlav elects to replace the Goods pursuant to this Condition, Davlav shall deliver the replacement Goods to the Customer at Davlav’s own expense at the address to which the defective Goods were delivered and the legal title to the defective Goods which are being replaced shall (if it has vested in the Customer) vest in Davlav.

14.22 Davlav shall be under no liability under clause 14.18:

  1. in respect of any defect arising from wilful damage, negligence, abnormal storage conditions, failure to follow Davlav’s or the manufacturer’s instructions (whether oral or in writing);
  2. if the Customer alters or repairs the Goods without Davlav’s written consent;
  3. if the total price for the Goods has not been paid by the due date for payment;
  4. in respect of any type of defect or damage specifically excluded by Davlav by notice

in writing; or

  1. if the Customer makes any further use of the Goods after giving notice in accordance with this Condition.

14.23 Subject to Condition 14.23 below all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

Quality

14.24 Notwithstanding Condition 14.22 above, Davlav warrants that, on delivery, the goods shall:

  1. conform in all material respect with their description; and
  2. be free from material defects in design, material and workmanship but shall otherwise be sold as seen, which the Customer accepts.
  3. Where the Goods supplied by Davlav under a Contract with the Customer are sold with a manufacturer’s guarantee and/or any warranty only, Davlav shall (provided that it is legally able to do so) ensure that such manufacturer’s guarantee and/or warranty is transferred to the Customer at the same time as title in the Goods transfers to the Customer in accordance with clause 14.9 above. All warranty and guarantee details relating to the Goods will be included in the Order Confirmation.

14.25 The Customer should satisfy itself that the persons responsible for the storage and use of any Goods supplied by Davlav have received all the information required on health and safety and Davlav shall not be liable to the Customer in any civil proceedings brought by the Customer against Davlav in respect of a breach of the user instructions or any applicable health and safety legislation or regulations in force from time to time.

14.26 The Customer shall keep Davlav properly informed of all complaints concerning the Goods and shall comply with any directions of Davlav in any issues, proceedings or negotiations relating to such complaint. In the event of any recall of the Goods by Davlav, the Customer shall co-operate fully and promptly with any steps taken by Davlav under clause 14.26 below.

14.27 Davlav may at its discretion recall any Goods already sold by Davlav to the Customer, (whether for a refund or credit or for replacement of the Goods which shall in each case be undertaken by Davlav) and/or issue any written or other notification to the Customer about the manner of use of any Goods already sold by Davlav to the Customer.

14.28 The Customer agrees to give all reasonable assistance to Davlav or the manufacturer in resisting any claim which may arise under any recall of product by Davlav or the manufacturer of such product.

14.29 The Customer should check any details and information they wish to rely on in relation to the Goods with Davlav at the time of purchase. Davlav accepts no liability in respect of any errors or omissions herein contained or for any loss or damage, malfunction or consequential loss arising from reliance upon our online or print publications.

 

15. Data protection

15.1 In this Clause the following definitions apply:

“Controller” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Data Protection Laws” means, as binding on either party or the Services:

  1. Data Protection Act 2018 and or the GDPR;
  2. any laws which implement any such laws; and
  3. any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

”Data Subject” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“GDPR” means the General Data Protection Regulation (EU) 2016/679;

“International Organisation” shall have the meaning given to it in the GDPR;

“Personal Data” shall have the meaning given to it in applicable Data Protection Laws from time to time;

“Personal Data Breach” shall have the meaning given to it in the GDPR;

“Processor” shall have the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly);

“Protected Data” means Personal Data received from or on behalf of the Customer in connection with the performance of Davlav’s obligations under the Contract;

“Sub-Processor” means any agent, subcontractor or other third party (excluding its employees) engaged by Davlav for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;

15.2 The Parties agree to comply with the Data Protection Laws and Davlav shall handle Personal Data in accordance with its privacy policy which is available on request or on its website.

15.3 The parties agree that the Customer is a Controller and that Davlav is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall ensure all instructions given by it to Davlav in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.

15.4 The Customer shall indemnify and keep indemnified Davlav against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this Contract.

15.5 Davlav shall:

  1. only process (and shall ensure its personnel only process) the Protected Data in accordance with written instructions given by the Customer except where otherwise required by applicable law; and
  2. if Davlav believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

15.6 Taking into account the state of technical development and the nature of processing, Davlav shall implement and maintain the technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

15.7 Davlav shall:

  1. not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the consent of the Customer;
  2. prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 14 that is enforceable by Davlav and ensure each such Sub-Processor complies with all such obligations;
  3. remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
  4. ensure that all persons authorised by Davlav or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

15.8 The Customer consents to the appointment of the Sub-Processors categories of which are listed in Davlav’s privacy policy.

15.9 Davlav shall (at the Customer’s cost):

  1. assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Davlav; and
  2. taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

15.10 Davlav shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Davlav’s compliance with the obligations placed on it under this clause and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28).

15.11 Davlav shall if required by law notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.

15.12 At the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, Davlav shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Davlav to store such Protected Data. This clause shall survive termination or expiry of the Contract.

 

16. TUPE and Service Provision Change

16.1 Where there is an Inward TUPE Transfer, the Customer will indemnify Davlav against all Liability and expense which Davlav may incur in connection with:

  1. the employment or the termination of employment, before the Effective Time, of any Employee;
  2. any failure by the Transferor to comply with its legal obligations in respect of any of the Employees;
  3. the transfer to Davlav, by virtue of TUPE or otherwise, of the employment of any person or the applicability of terms of employment, other than those previously notified to, and previously accepted by, Davlav in writing;
  4. any act or omission of the Transferor, on or before the Effective Time, for which Davlav becomes liable by virtue of TUPE or otherwise; or
  5. the Transferor’s failure to comply with its obligations under regulation 13 of TUPE.

16.2 Where there is an Outward TUPE Transfer, the Customer will indemnify Davlav against all liability and expense which Davlav may incur in connection with the Transferee’s failure to comply with its legal obligations, including without limitation those under regulation 13 of TUPE.

 

17. Confidentiality

17.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 17.2.

17.2 Each party may disclose the other party’s confidential information:

  1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 17; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

17.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

17.4 All materials, equipment and tools, drawings, specifications and data supplied by Davlav to the Customer (including the Davlav Equipment) shall, at all times, be and remain the exclusive property of Davlav, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Davlav, and shall not be disposed of or used other than in accordance with Davlav’s written instructions or authorisation.

 

18. Force majeure and Brexit

18.1 Davlav shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.

18.2 If the period of delay or non-performance continues for more than 3 weeks, Davlav may terminate the Contract immediately by giving written notice to the Customer.

18.3 Davlav shall not be held responsible nor assume any responsibility for

  1. any delay to the delivery of the Goods or Services;
  2. any inability to provide Goods under the Contract;
  3. any modifications of or interruptions to the Services; or
  4. any other adverse impact experienced or suffered by the Customer in connection with the Contract;

or any consequences arising therefrom arising out of or in connection with a Brexit Event and the Customer hereby agrees and acknowledges that they shall bear all associated costs and risks.

18.4 For the avoidance of doubt a Force Majeure Event will not relieve the Customer of its ongoing payment obligations under clause 11 of this agreement.

 

19. Assignment

19.1 Davlav may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract, and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

19.2. The Customer may not assign, transfer, mortgage, charge, subcontract, 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 Davlav.

19.3 If the Customer wishes to cross hire the Hire Goods or any part to the account of another person it shall give prior written notice to Davlav. The notice shall not be effective unless before the effective date of the transfer the proposed transferee notifies Davlav in writing that it wishes to become a customer, and agrees to be bound by these Conditions. The Customer will pay the Charges for the period until written acceptance by Davlav of the notice and of the proposed transferee as a customer. In any event the Customer will remain jointly liable for Charges and indemnities relating to Hire Goods consigned by it to Davlav.

19.4 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.

 

20. Variation

20.1 Davlav may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the Charges for the Services.

20.2 Subject to clause 20.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.

 

21. Waiver

21.1 A waiver of any right under the Contract or law is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. 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.

21.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights 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 modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

22.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

 

23. Third party rights

No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

 

24. No partnership or agency

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

 

25. Notices

  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
    1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
    2. sent by email to toilets@davlav.com
  2. Any notice or communication shall be deemed to have been received:
    1. if delivered by hand, on signature of a delivery receipt;
    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 at the time recorded by the delivery service; and
    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. In this Clause 23(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
  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.

 

26. Entire agreement

26.1 This 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.

26.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

 

27. Governing law and jurisdiction

27.1 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.

27.2 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 this Contract or its subject matter or formation.