HEY Smile Foundation (trading as “The Vault”)
Terms & Conditions for Equipment Hire
IMPORTANT: Before submitting a booking request for any of our Equipment, or signing a Hire Form, please read these Conditions carefully. These Conditions tell you who we are, how the Hire Contract is made, how you and we can end the Hire Contract, how we will provide hire services to you, what to do if there is a problem and other important information. If you think that there is a mistake in these Conditions, please contact us to discuss.
If you are a consumer, you have legal rights in relation to the provision of equipment and services. Advice about consumer legal rights is available from the Citizens’ Advice Bureau or Trading Standards Office. Nothing in these Terms & Conditions will affect these legal rights.
1. Information about us
1.1 We are the HEY Smile Foundation (trading as “The Vault” for the purposes of the Hire Contract). We are a registered UK charity (charity registration number 1125856) and a limited company registered in England (registered company number 06455490). Our registered office is at Gosschalks Dock Street, Queens Gardens, Hull, East Yorkshire, HU1 3AE.
1.2 If you have any questions, or if you have a complaint, please contact us. We can be contacted by telephone on 01482 590270 or by e-mailing firstname.lastname@example.org, by contacting us via our website (www.thevaulthull.co.uk) or by writing to us at our address at HEY Smile Foundation, c/o Gosschalks, Dock Street, Queens Gardens, Hull HU1 3AE.
2. Formation and commencement of Hire Contract
2.1 These Conditions (together with the Hire Form referred to below) will form the Hire Contract which sets out the terms which we, as supplier of the Equipment, will hire Equipment to other charities, community organisations and carefully selected customers for charitable fund-raising purposes.
2.2 Any enquiry, booking or order placed by you for the hire of Equipment (whether via our website or through social media, by telephone or otherwise) will be an offer by you to receive Hire Services on these Conditions.
2.3 A Hire Contract will be formed between us and you for the provision of Hire Services only when we and you sign a Hire Form. The signing by you of the Hire Form and/or the acceptance of delivery of the Equipment shall be conclusive evidence of your acceptance of these Conditions.
2.4 The Hire Contract shall commence on the Hire Commencement Date and shall continue for the Hire Period until the Hire End Date (in each case as stated in the Hire Form) unless cancelled early in accordance with these Conditions. If no Hire Period or Hire End Date is set out in the Hire Form, the Hire Period shall end when the Hire Contract is cancelled in accordance with these Conditions (the “Term”).
2.5 It is your responsibility to ensure that all information in each Hire Form is accurate and complete, and that the Equipment is suitable for your requirements.
2.6 Nothing in these Conditions requires us to accept any proposed Equipment hire which you request. We reserve the right to refuse to hire Equipment to you for any reason whatsoever at our sole discretion.
3. The Equipment
Your use of Equipment
3.1 We hire the Equipment to you on the basis that the Equipment is used only for charitable fund-raising (non-commercial) purposes. You must not use the Equipment for any commercial purposes unless we have authorised this in writing in advance. We will have no liability to you whatsoever for any loss of profit, loss of business, business interruption, or loss of business opportunity (subject to clause 7.2).
Ownership and Return of Equipment
3.2 You acknowledge that the Equipment remains our property at all times (or that of our supplier(s), as applicable), and title and ownership will not pass to you. You have no right, title or interest in the Equipment except that it is hired to you in accordance with the terms of the Hire Contract.
3.3 On cancellation of the Hire Contract for whatever reason, all Equipment then in your possession shall immediately become due for return to us. You grant, and will ensure that the owner of any third party premises grants us, our agents, employees and sub-contractors an irrevocable licence at any time to enter any premises (including, but not limited to, the Location) where the Equipment is or may be stored in order to recover the Equipment. The rights granted in this clause 3.3 are without prejudice to any rights and remedies which may have accrued to us up to and including the Hire End Date.
3.4 We will not, other than in the exercise of our rights under the Hire Contract or applicable law, interfere with your quiet possession of the Equipment during any Hire Period.
3.5 You must immediately notify us of any loss, accident, damage or defect in the Equipment, or if you consider that the Equipment may cause damage to your (or other’s) property.
3.6 You will grant (or will procure that we or our authorised representative is granted) access to the Location at all reasonable times upon request to:
(a) inspect the Equipment and ensure your compliance with the Hire Contract; and/or
(b) carry out any inspections or repairs of the Equipment as provided for in the Hire Contract.
3.7 Where the Equipment is supplied with fuel, you are responsible for returning the Equipment with the same or greater amount of fuel, and we may charge you for any refueling costs if you fail to comply with this clause 3.7, at such rates as may be notified to you from time to time, even if this is after the submission of the final invoice.
Condition, Use and Storage of the Equipment
3.8 You agree that you will:
(a) keep the Equipment in good repair and condition, (fair wear and tear only excepted) but you must not repair or allow any third party to repair the Equipment, and you must notify us immediately if any repair is necessary;
(b) where the Equipment requires fuel, oil and/or electricity, ensure that the proper type of fuel, oil and/or voltage is used;
(c) use the Equipment in compliance with all laws and applicable regulations, including any health and safety legislation which relates to the use of the Equipment and in accordance with any operating and/or safety instructions provided to or supplied to you by us;
(d) not make any alteration to the Equipment (which includes not defacing or covering up our name, plate or markings on the Equipment);
(e) not without our prior written consent attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture;
(f) not, without our prior written consent, sub-hire or part with control of the Equipment (including for the purposes of repair or maintenance);
(g) not do or permit to be done anything which could invalidate our insurance;
(h) be responsible for the security of the Equipment whilst in your possession; and
(i) take all appropriate measures to secure the Equipment when not in use. You must pay us for any Equipment which is lost, stolen or in our reasonable opinion (or the opinion of our insurer(s)), damaged beyond repair at full replacement value of such Equipment, such value to be confirmed to you by us, subject to supporting documentation. Replacement value shall be determined as the manufacturer’s retail price at the time of loss, plus all ancillary costs, including but not limited to administration costs and lost hire time costs. (The amount which you have to pay under this clause 3.8(i) will be reduced by the proceeds of any insurance cover which we may receive in respect of the loss or damage concerned to the Equipment.)
3.9 We will during the Hire Period ensure that:
(a) the Hire Services are carried out with reasonable skill and care; and
(b) on the Hire Commencement Date, the Equipment complies with applicable laws and statutory regulations, is of satisfactory quality and fit for its intended purpose.
3.10 If, at any time during the Hire Period, you become aware of a breach of clause 3.9 you must:
(a) notify us immediately (via telephone using the our contact number given in clause 1.2), and if we ask you to do so, also notify us in writing (via email or post using our relevant contact address given in clause 1.2); and
(b) give us a reasonable opportunity to rectify any issues.
3.11 Following receipt of written notice under clause 3.10, we will:
(a) repair or (where available) replace the Equipment with equipment of a similar specification; and/or
(b) if a Hire Charge has been made, reduce the Hire Charge of the relevant Equipment by a sum which is fair in the circumstances.
3.12 We will not be responsible to you for any breach of clause 3.9 and shall not be required to repair or replace the Equipment in accordance with clause 3.11 if:
(a) the breach arose directly as a result of your act or omission; and/or
(b) the breach was caused by (or was contributed to) as a result of your misuse, neglect, alteration, mishandling or unauthorised manipulation of the Equipment.
Damage to or Loss of Equipment
3.13 You are responsible to us for:
(a) all costs and expenses in respect of:
(i) rectifying any damage to the Equipment (fair wear and tear excepted) which occurred during the period in which the Equipment was at your risk in accordance with clause 4.6; and
(ii) cleaning the Equipment following collection of the Equipment, in each case to return the Equipment to a condition fit for rehire. Such costs and expenses shall be confirmed to you by us, subject to supporting documentation;
In addition, you must continue to pay us any Hire Charges, in accordance with clause 5, until any repairs and or cleaning have been completed; and
(b) the Replacement Cost in respect of lost or stolen Equipment and/or Equipment which is beyond economic repair, and you must continue to pay us any Hire Charges, in accordance with clause 5, until the Replacement Cost has been received by us.
4. Delivery & Collection/Return
4.1 We will use reasonable efforts to ensure the Equipment is available for delivery to you (i.e. collection by you) at the Collection Point during Working Hours on the date or within the period specified in the Hire Form. (We will not deliver any Equipment to your Location or collect Equipment from your Location unless we specifically agree to do so in writing).
4.2 If there is a delay in delivery or non-performance by us, you may cancel the Hire Contract if you have given 24 hours’ notice to us requiring the delivery and/or performance to be made and we have not fulfilled the delivery and/or performance within that period.
4.3 If you cancel the Hire Contract in accordance with clause 4.2, then:
(a) we will refund to you any sums which you have paid to us in respect of the Hire Contract or part of the Hire Contract which has been cancelled; and
(b) you will not be required to make any further payments in respect of the Hire Contract or part of the Hire Contract which has been cancelled.
4.4 You must ensure that your Location where the Equipment is to be used/located is, where necessary, appropriately prepared for use of the Equipment before the Hire Period commences.
4.5 Delivery will occur when the Equipment is handed over to you at the Collection Point (or in any case where we specifically agree to deliver the Equipment to you, when it arrives at the agreed delivery address). You must load the Equipment onto your delivery vehicle. We will provide reasonable assistance to load the Equipment but will only provide such assistance if the Equipment can be loaded safely.
4.6 Unless otherwise agreed by the parties in writing, risk of loss, theft, damage or destruction of the Equipment shall pass to you on delivery. Risk in the Equipment will return to us once the Equipment is returned into our possession at the Collection Point, (or in any case where we specifically agree to collect the Equipment from you, following hand-over to us at the agreed collection address).
4.7 In any case where we deliver the Equipment to your address, or collect the Equipment from your address, you must grant (or procure the grant of) access to the Location to us to do so on the relevant date and time (including if we require the return of the Equipment at any point during the Term to carry out our obligations under the Hire Contract).
4.8 If we are unable to deliver or take collection/return of the Equipment on the relevant date(s) agreed, unless this our fault we will charge you reasonable Additional Charges in respect of such inability to deliver or take collection/return, including additional delivery charges for any re-delivery of the Equipment (including any third party costs which are incurred). The Additional Charges for late collection/return of the Equipment will be stated in the Hire Form, or if no amount is stated a daily charge of £5 (exclusive of VAT) per item of Equipment shall apply.
5. Charges and Payment
5.1 You will become liable to pay the Hire Charges from the date of delivery pursuant to clause 4.5.
5.2 You must pay the Hire Charges and any Additional Charges for the hire of the Equipment in accordance with these Conditions.
5.3 We will be entitled to vary the Hire Charges and any Additional Charges at any time by giving written notice to you in the event of:
(a) any variation in your requirements for the Equipment;
(b) any information provided by you being inaccurate or incomplete; or
(c) any failure or delay by you in providing information.
5.4 We may, prior to the hire of the Equipment, require you to pay such deposit as is considered appropriate by us (“Deposit”) and/or require you to provide details of a valid credit or debit card as a Deposit. The Deposit shall be a deposit against default by you of payment of any Hire Charges or any loss of or damage caused to the Equipment including any Replacement Cost and shall not act as a limitation of your liability in respect of unpaid Hire Charges, Additional Charges, damage or loss to the Equipment or any Replacement Cost.
5.5 If you fail without a valid reason to make any payment of any Hire Charges, Additional Charges or any Replacement Cost or causes any loss or damage to the Equipment (in whole or in part), we are entitled to apply the Deposit or such further sums as are necessary against such default, loss, Replacement Cost or damage either by deduction from the Deposit sum and/or deduction of such further sums as are necessary from the credit or debit card (as applicable). Any Deposit sum (or balance thereof) shall be refundable at the end of the Hire Period.
5.6 Any sum payable under the Hire Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies) which shall be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
5.7 The Hire Charges are exclusive of any Additional Charges. Where Hire Charges or Additional Charges are quoted on a daily basis, these shall include any and all weekends and public and bank holidays which fall within the Hire Period.
5.8 The Hire Charges will be payable by you to us for the duration of the Hire Period.
5.9 Unless otherwise agreed by the parties in writing or in the Hire Contract, all invoices submitted by us shall be paid by you immediately (and in any event within 3 days of the date the relevant invoice is issued).
5.10 If any Hire Charges or Additional Charges are not paid on or before the due date for payment, we are entitled to charge you interest on that sum at 4% per annum above the base lending rate from time to time of NatWest Bank plc from the due date until the date of payment, such interest to accrue on a daily basis.
5.11 Save as otherwise expressly provided in the Hire Contract or required by law, all payments to be made by either party under the Hire Contract shall be made in full and without any deduction or withholding including on account of any counterclaim.
5.12 Should any portion of an account fall overdue then the total account will become due on demand. You will be responsible for reasonable legal charges incurred by us in the recovery of amounts due or the recovery of the Equipment. In addition, we are entitled to suspend further services to you.
6. If there is a problem with the Hire Service or Equipment
6.1 If you have any questions or complaints about the Hire Service or any Equipment, please contact us using our contact details in clause 1.2.
6.2 If we fail to supply the Hire Services (or any part thereof) and the failure was not caused by you and/or your failure to comply with your obligations and restrictions under the Hire Contract then, except where specified otherwise in these Conditions, you are entitled (without prejudice to any other rights or remedies you may have):
(a) to require us to remedy such breach by re-supplying the relevant Hire Services at no additional charge; or
(b) to require us to repay or credit to you that part of the Hire Charges already paid by you relating to the relevant Hire Services that we have failed to supply.
7. Our liability to you
7.1 If we fail to comply with these Conditions, we are responsible for loss or damage you suffer that is a foreseeable result of such breach or our negligence. We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it was an obvious consequence of our breach or if it was contemplated by you and by us at the time the Hire Contract is entered into.
7.2 We do not in any way exclude or limit our liability for:
(a) death or personal injury caused by our negligence;
(b) fraud or fraudulent misrepresentation;
(c) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(d) any breach of the terms implied by section 13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples);
(e) any breach arising under Section 2(3) of the Consumer Protection Act 1987; or
(f) any matter which it is not permitted by law to limit or exclude, or attempt to limit or exclude, our liability.
8. Automatic Cancellation of Hire Contract
Subject to our and your rights to cancel set out in the Hire Contract, the Hire Period shall not exceed 14 days, after which time the relevant Hire Contract shall automatically end.
9. Your rights to Cancel
9.1 You may cancel any Hire Contract for Hire Services at any time before the Hire Period starts by notifying us using our contact details in clause 1.2.
9.2 Where you cancel a Hire Contract because of our failure to comply with these Conditions (except where we have been affected by an Event Outside Our Control), your do not have to make any payment to us.
9.3 If you cancel a Hire Contract under clause 9.1 and you have made any payment in advance for Hire Services that have not been provided to you, we will refund these amounts.
9.4 If we have already commenced work fulfilling a Hire Contract when you cancel it, then we will be entitled to charge you any costs we reasonably incur in starting to fulfil the Hire Contract. This charge may be deducted from any refund that is due to you under clause 9.3 or, if no refund is due to you, invoiced to you. We will advise you of the costs incurred when you cancel a Hire Contract.
9.5 At any time after both you and we have signed a Hire Form, you may cancel the Hire Services by notifying us at any time by contacting us using any of the methods referred to in clause 1.2 (including notifying us via our website at www.thevaulthull.co.uk). We will thereafter refund any advance payment you have made for Hire Services that have not been provided.
9.6 Once the Equipment has been delivered to you, you may cancel the Hire Contract with immediate effect by giving us written notice if:
(a) we breach the Hire Contract in any material way and does not correct or fix the situation within 7 days of receiving written notice from you, requesting that the situation be remedied. Any such notice should be sent to us at our address in clause 1.2; or
(b) we go into liquidation or a receiver or an administrator is appointed over our assets; or
(c) we are affected by an Event Outside Our Control.
10. Our rights to Cancel
10.1 We may have to cancel a Hire Contract before the start date for the Hire Services, due to an Event Outside Our Control or the unavailability key personnel, the Equipment or other equipment without which we cannot provide the Hire Services. If this happens:
(a) we will promptly inform you;
(b) if you have made any payment in advance for Hire Services that have not been provided to you, we will refund these amounts to you; and
(c) where we have already started work on the Hire Contract, we will not charge you anything and you will not have to make any payment to us.
10.2 Once we have begun to provide the Hire Services to you, we may cancel the Hire Contract at any time by providing you with at least 5 Business Days’ notice in writing. If you have made any payment in advance for Hire Services that have not been provided to you, we will refund these amounts to you.
10.3 We may cancel the Hire Contract at any time with immediate effect by giving you written notice if:
(a) you do not pay us any amount due when you are supposed to as set out in clause 5. This does not affect our right to charge you interest under clause 5.10; or
(b) you break the Hire Contract in any other material way and do not correct or fix the situation within 3 Business Days of us asking you to in writing.
11. Cancellation for Bankruptcy
11.1 We may, immediately on giving written notice to you, cancel the Hire Contract if you become bankrupt and you must notify us immediately upon becoming bankrupt.
11.2 You may, immediately on giving written notice to us, cancel the Hire Contract if we become insolvent and we will notify you immediately upon becoming insolvent.
We may update these Conditions from time to time, for example, to comply with changes in the law or to take account of new ordering or payment processes or new products we may offer. You must always check these Conditions prior to signing a Hire Form to ensure that the terms which apply to that Hire Contract are understood.
13.1 If we fail to insist that you perform any of your obligations under the Hire Contract or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have agreed not to enforce our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
13.2 Each of the paragraphs of these Conditions operates separately. If any court or relevant authority decides that any term is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
13.3 The parties do not intend that any part of these Conditions or any term of the Hire Contract shall be enforceable by any person other than the parties.
13.4 These Conditions and the Hire Contract are personal to you and you may not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of your rights and responsibilities under the Hire Contract without our prior written consent.
14. Law and disputes
14.1 These Conditions and the Hire Contract and any non-contractual obligations arising out of or in connection with them will be governed by English law.
14.2 We and you both agree that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with these Conditions or the Hire Contract (including in relation to any non-contractual obligations), except if you are a consumer and a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a resident of Scotland, you may also bring proceedings in Scotland.
In each Hire Contract, the following words and expressions shall, unless the context or circumstances require otherwise, have the meanings assigned to them below:
“Additional Charges” means charges applicable to the provision of the Hire Services which are charged other than Hire Charges including, as applicable, delivery costs, costs incurred in failed deliveries or collections, fuel, insurance charges and any other additional costs and expenses referred to in these Conditions;
“Business Day” means a day (other than a Saturday, Sunday or public or bank holiday) on which the banks are ordinarily open for business in the City of London;
“Collection Point” means our Equipment storage location specified in the Hire Form (or which we specify to you for these purposes) used for collection and return of Equipment;
“Conditions” means these terms and conditions;
“Equipment” means the item(s) of equipment to be hired by you as listed in the Hire Form, all substitutions or replacements of such equipment and all related accessories, manuals and instructions provided for it to be supplied as part of the Hire Services;
“Event Outside Our Control” means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
“Hire Charges” means the hire charges (if any) for the Equipment set out in the Hire Contract;
“Hire Commencement Date” means the day on which the hire of the Equipment commences under the Hire Contract;
“Hire Contract” means the contract for Hire Services between us and you created in accordance with clause 3, comprising a Hire Form and these Conditions, and any additional documentation we issue to you in writing;
“Hire End Date” means the date on which the Hire Contract expires or is cancelled for whatever reason;
“Hire Form” means the Vault hire form which we issue to you, as referred to in clause 3;
“Hire Period” means the period of hire of the Equipment in respect of each Hire Contract as set out in the Hire Form (if not cancelled earlier in accordance with these Conditions);
“Hire Services” means the hire of the Equipment by us to you;
“Location” means your premises, unless specified otherwise in the Hire Form, or any other premises at which the Equipment is to be used/located;
“Replacement Cost” means the cost of replacing any item of Equipment or part of it including but not limited to the cost of the item or part of it, any unpaid Hire Charges that would otherwise have been paid by you were it not for such replacement, and a reasonable administrative charge to be determined by us covering our cost of administering the replacement, notified to you at the point of hire;
“we” means us, the HEY Smile Foundation as set out in clause 1.1 and in the Hire Contract (and “us” and “our” will have a corresponding meaning);
“Working Hours” are from 7.30 am to 5.30 pm on a Business Day unless specified otherwise in writing by us;
“you” means you, the hirer of the Equipment set out as such in the Hire Contract (and “your” will have a corresponding meaning).