Order confirmation: Terms and Conditions for Container Rental

MASTER RENTAL AGREEMENT

Except as expressly agreed by Tower, these terms and conditions apply exclusively to each and every Order by Hirer for lease/hire of Tower’s range of proprietary thermally protective shipment containers (“Container(s)”). In particular, any other terms or conditions submitted by the Hirer at any time or in any form, whether with an Order or otherwise. will be void.

Defined terms used in these terms and conditions will have the meanings set out in the Master Rental Agreement.

1. Ordering

1.1     When Hirer wishes to lease/hire a Container pursuant to this Master Rental Agreement, the Hirer will send a written request in the form of (or in any other agreed form specifying the required details set out in) Tower’s Order Form (each an “Order”).

1.2    An Order is subject to availability of Container(s) and acceptance by Tower (except where the Container(s) have been pre-arranged, or the Order forms part of an agreed minimum order quantity (“MOQ”) commitment set out in Appendix A). Each Order will form a separate contract, incorporating these terms and conditions (each an “Agreement”) when Tower sends an Order acknowledgement confirming availability of the requested Container(s).

2. Dispatch and Return

2.1    The Container(s) will be made available for collection by Hirer at the nominated Tower Hub, or will be delivered to the Hirer (at Hirer’s cost) at the time and date specified in the Order Acknowledgement. The Container(s) will include internal packaging (where ordered), and all required external labelling. Tower will send Hirer a pre-collection/delivery note with all required shipping information/documentation, certification of pre-delivery checks, and confirmation of correct temperature conditioning.

2.2    The Hirer will return the Container(s) to a Tower Hub, or Tower will collect the Container(s) from Hirer (at Hirer’s cost) and where applicable will be responsible for repositioning the Container(s), as specified in the Order.

2.3   On receipt by Tower, a visual inspection will be performed on the Container(s), and Tower will send Hirer a receipt/collection note, which will notify Hirer if any damage is found. Tower will then promptly perform a complete inspection and issue a detailed damage report with repair cost for any damage discovered.

3. Warranty and Acceptance

3.1     Tower warrants that the Container(s) will:

(i) correspond with its description and any specification provided by Tower;

(ii) be supplied in satisfactory condition, freshly cleaned, in good repair and working order, correctly labelled, configured, and thermally conditioned for use as specified in the Order;

(iii) be fit for any purpose set out in the specification or specified in the Order;

(iv) when used correctly under the pre-qualified environmental conditions will maintain an internal temperature profile within the range and for the time period tested;

(v) comply with all applicable statutory and regulatory requirements relating to the supply and use of the Container(s).

To the extent permitted by applicable law, all other express or implied conditions, warranties, representations or other terms relating to Container(s) or otherwise, including without limitation those of satisfactory quality, fitness for a particular or any purpose, or ability to achieve any particular result.

3.2    In the event that the Hirer notifies Tower of a non-conformance in a Container (due to Tower’s default) within 24 hrs of dispatch, Tower will collect the Container from Hirer and deliver a conforming Container as soon as possible using best efforts. If the Hirer notifies Tower of a non-conformance after 24 hrs (or a non-conformance that is not caused by Tower), Hirer will return the subject Container to the Dispatch Hub (or such other location as is agreed) and Tower will provide a conforming Container as soon as possible using best efforts.

3.3    If Tower is not notified of a non-conformance, or if Hirer uses the Container for the required purpose, Hirer will be deemed to have accepted the Container.

3.4    Hirer will not be liable for hire charges for a non-conforming Container notified and returned to Tower, where this is evidenced to be due to the default of Tower. Hirer will be responsible for the cost of replacing a non-conforming Container in the event that the non-conformance is not shown to be due to the default of Tower.

3.5    The foregoing is Hirer’s exclusive remedy for a failure or non-conformance of a Container.

4.   Conditioning by Hirer (where applicable)

4.1    In the event that a Container is delivered to Hirer to be conditioned by the Hirer, the following will apply:

(a) Tower will perform the pre-delivery cleaning and inspection, and insert the cooling plates (where applicable), and will deliver the Container to Hirer not conditioned;

(b) prior to use of the Container, Hirer will perform pre-delivery cleaning and inspection, configure, condition and check, the Container in accordance with Tower’s Standard Operating Procedures (“SOPs”;

(c) Hirer will send Tower a copy of the confirmation that the Container has been prepared and checked in accordance with agreed SOPs and is conditioned in accordance with the Order.

4.2    If during (or at any time before) the performance of the inspection and checks, Hirer discovers any non-conformance in the Container (except in respect of conditioning), Hirer will inform Tower of the non-conformance and return the subject Container to the Dispatch Hub (or such other location as is agreed) and Tower following Hirer’s notification will provide a conforming Container as soon as possible using best efforts.

4.3    If Tower is not notified of a non-conformance, or if Hirer uses the Container for the required purpose, Hirer will be deemed to have accepted the Container. Hirer will not be liable for hire charges for a non-conforming Container notified and returned to Tower, where this is evidenced to be due to the default of Tower. Hirer will be responsible for the cost of replacing a non-conforming Container in the event that the non-conformance is not evidenced to be due to the default of Tower.

4.4     The foregoing is Hirer’s exclusive remedy for a failure or non-conformance of a Container. Tower will have no responsibility where Hirer fails to prepare, check, and condition the Container in accordance with the relevant SOPs.

5.   Hirer’s Responsibilities

5.1    The Hirer represents and warrants that it will at all times comply with all applicable laws, rules, and regulation, including but not limited to those relating to air freight, sea freight, and import/export controls, and will not directly or indirectly allow a Container to be used by and/or transported to any person, entity or country which is the subject of UK, EU or US sanctions, or used to transport any sanctioned goods.

5.2    The Hirer will:

(a) on receipt of a Container, perform an inspection to satisfy itself that the Container(s) are in accordance with the Agreement, and notify Tower as soon as possible of any non-conformance found;

(b) promptly notify Tower of any problem, issue, incident, breakdown, loss, damage, destruction, or theft of a Container;

(c) keep the Container(s) safe and secure, including protecting them against theft, distress, execution or seizure;

(d) pack out, load, handle, transport, store, and use the Container(s) with due care and properly in accordance with good industry practice and any handling or operating instructions or training provided by Tower, using appropriate materials and equipment, and operated or handled by trained competent personnel.

5.3    The Hirer will not:

(a) re-hire, rent, lease, loan, lend, transfer, or otherwise make a Container available to any third party, except for its use as part of a logistics services provided to a customer;

(b) remove or obstruct any nameplates, logos, or any labelling placed by Tower;

(c) attempt to repair a Container, except where authorised by Tower in writing in order to replace specific components;

(d) alter, modify, disassemble, remove any part of, or reverse engineer a Container, or allow or suffer any person to do so;

(e) sell, mortgage, lien, charge, pledge, part with possession of, or otherwise deal with, the Container(s) except as permitted in this Agreement;

5.4    Tower recommends that, in accordance with Good Distribution Practice, the Hirer does not rely solely on the integrated data logger as the primary temperature recording device. In particular, where critical cargo is being transported, and Hirer should utilise a secondary or backup temperature monitoring system.

6.   Risk of Loss or Damage

6.1     The Hirer will be responsible for maintaining such insurance cover as the Hirer sees fit in its sole discretion to cover liabilities arising under this Agreement and/or from the use of Container(s) and the transportation of cargo.

6.2    The Hirer will have full risk in respect of any contents transported in a Container, and will have risk in a Container whilst in its care, custody and control (risk in a Container will pass from dispatch of the Container from the Dispatch Hub until the Container is received back by Tower as agreed). Hirer will:

(a) indemnify Tower for any liability for loss of or damage to any items, goods, or cargo, transported in a Container due to any cause whatsoever, arising under statute, common law (including negligence), or otherwise;

(b) indemnify Tower in respect of all claims by any person whatsoever for death or personal injury howsoever arising by or in connection with a Container whilst in Hirer’s care, custody and control, and all costs and charges in connection therewith, arising under statute, common law (including negligence), or otherwise, except where arising due to the sole fault or negligence of Tower;

(c) reimburse Tower for the cost of all loss of or damage to a Container from whatever cause (fair wear and tear excepted), including but not limited to destruction, theft or seizure. Hirer will be released from such liability to the extent set out in set out in Appendix B, except where the Hirer has opted to not to take the Accidental Damage Waiver.

6.3    “Total Loss” applies in the event that a Container is lost, stolen, damaged beyond practical or economic repair, destroyed, or the Hirer has not returned the Container to Tower within six (6) Weeks after the scheduled or agreed return date, except where Hirer has extended its hire period. Any additional hire time until Total Loss is declared is chargeable at the additional Day rate set out in Appendix A, except where agreed otherwise.

6.4     In the event of Total Loss:

(a) the Hirer will be charged the relevant current Total Loss Cost, set out in Appendix A;

(b) A Director of the Hirer must provide a letter to certify that he has taken all possible steps to locate the Container, and undertake that if the Container is located in the future, Tower will be promptly notified and it will be returned to Tower. It is a condition of this Agreement, and Hirer expressly agrees, that a Container must be returned to Tower whatever its condition and whenever it is found, regardless whether Total Loss has been applied;

(c) if the Container is found or recovered at a later date, the Hirer must immediately notify Tower and arrange for return of the Container to Tower. Following inspection, Tower will reimburse the Total Loss charge paid by the Hirer less: (a) the applicable hire charges for the period, and (b) any repair costs (subject to the Accidental Damage Waiver where relevant). If the Container is structurally damaged and/or beyond economic repair, no reimbursed will be applicable.

6.5    Where a Container is returned damaged, the hire charges will continue to be payable until settlement of the charges payable has been agreed, or on payment of the Total Loss charge, as applicable.

7.    Pricing and Payment

7.1    A Container is hired out in 24hr (“Day”) periods, or 7 Day (“Week”) periods (calculated from dispatch of the Container(s) from the Dispatch Hub, and continuing until the Container is received back by Tower), and where applicable for any minimum period set out in Appendix A and/or an Order. Except where specified otherwise additional hire time at the end of a minimum hire period will be charged at the additional Day rate set out in Appendix A.

7.2    The hire rate, charges, and terms are set out in Appendix A. Except for the terms of any fixed pricing period specified in Appendix A, Tower reserves the right to amend its rates and prices at any time by notice to Hirer.

7.3    All rates and charges are exclusive of any applicable sales or value added tax, and any other applicable taxes, duties or similar charges which will be payable by the Hirer at the rate prescribed by applicable law

7.4    Except where quoted hire rates include delivery/return logistics costs, the Hirer will pay agreed additional charges for:

(a) delivery to/collection from a specified location(s) that is not a Tower hub;

(b) repositioning due to return by Hirer to a Tower hub that is not the Dispatch Hub.

7.5    Tower will issue a pro-forma invoice for the agreed hire period on dispatch of the Container, and will issue a final invoice after redelivery of the Container, or in accordance with any specific payment/hire schedule set out in Appendix A (e.g. an applicable MOQ), for any additional hire charges and any repair costs.

7.6    Each invoice will be: (i) sent to the Hirer entity and contact details set out in the Order; (ii) include the applicable Order number/job reference together with any other information the Hirer may reasonable specify in the Order to be referenced; (iii) itemise the Container(s), hire dates, hire charges, any additional charges, and amount of any tax payable.

7.7    Payment of valid invoices is due 30 days net from the date of invoice. Payment will be made by bank transfer to the account set out in the invoice, and the Hirer will make payment in the currency specified in Appendix A and the invoice without set-off of any kind.

7.8    Payment on time is essential for Tower, therefore Tower will provide Hirer with monthly reports detailing unpaid and overdue invoices, and if Hirer fails to pay any due amount by the payment date (subject to bona fide disputes), Tower will be entitled to charge the Hirer monthly interest of 1%, charged daily pro rata.

7.9    If the Hirer disputes any sum on an invoice it must notify Tower in writing of such dispute within 14 days of receipt of an invoice, giving full details of the dispute and of the actual sum it claims on bona fide grounds not to be liable to pay. All amounts due will be paid in full without set-off, counterclaim, deduction or withholding.

8.    Limit of Liability

8.1    Tower hereby excludes all liability that is not expressly accepted in this Agreement, and in no event will either party be liable for any damages resulting from loss of: use; profits; anticipated savings; revenue; loss of contracts with, and/or liabilities of any nature to, any third party; and/or any indirect or consequential loss of whatever nature, whether such damages were foreseeable or not.

8.2    Tower’s maximum aggregate liability arising out of or in relation to this Agreement, or any Order, whether arising in contract, tort (including negligence), misrepresentation or otherwise, will be limited to an amount equal to 125% of the sums paid and payable by Hirer in respect of the Container that gives rise to the claim.

8.3    Except in respect of the indemnities given under Clause 6.2, Hirer’s maximum liability will not exceed the charges and costs paid and payable under the relevant Order.

8.4    Nothing in this Agreement will operate to exclude or limit either party’s liability for (i) fraud or other criminal act, (ii) personal injury or death caused by negligence, (iii) fraudulent misrepresentation, or (iv) any other liability that cannot be excluded by law.

8.5    No action, regardless of form, arising out of transactions occurring under or contemplated under this Agreement may be brought by either party more than one (1) years after the cause of action has accrued.

9.    Duration, Cancellation, Delay and Termination

9.1    This Agreement comes into force on the date of signature and will continue until terminated in accordance with these terms.

9.2    Each Order will come into effect on the date of the Order Acknowledgement and will continue until completed, or terminated in accordance with these terms.

9.3    If before dispatch the Hirer wishes to: change an Order, or cancel all or part of an Order, or delay or postpone a Container, then the applicable charges set out in Appendix A will apply.

9.4   Either party may terminate an Order on giving written notice to the other party if:

(a) the other party materially breaches any term or condition and fails to remedy the breach within thirty (30) days of a written request to do so, or immediately if the breach cannot be remedied; or

(b) immediately on notice if the other party has a receiver or administrative receiver appointed over it or any of its undertaking or assets or pass a resolution for winding up (otherwise than for the purpose of solvent corporate restructuring where the resulting entity will assume all of its liabilities) or if any substantially similar event takes place.

9.5    On the termination of an Order for any reason, the Hirer will promptly return all Container(s) to the relevant Tower Hub and pay all outstanding sums due and payable to Tower.

9.6    Termination for any reason will be without prejudice to any additional rights or remedies a party may be entitled to under law and will not affect the respective rights and liabilities of either of the parties accrued prior to such termination.

10.    Data Protection (where applicable)

10.1    “Data Protection Legislation” means the Data Protection Act 2018 and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and any statutory instrument, order, rule or regulation made thereunder, as from time to time amended, extended, re-enacted or consolidated).

10.2    The terms ‘Personal Data’, ‘Personal Data Breach’, ‘Data Protection Officer’, ‘Data Controller’, ‘Data Processor’, ‘Data Subject’, and ‘process’ (in the context of the use of Personal Data) have the meanings given to them in the Data Protection Legislation and ‘Approved Countries’ means the European Economic Area and any territory which is subject to a current finding by the relevant authority under applicable Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals.

10.3    Standard Contractual Clauses means the European Commission’s Standard Contractual Clauses for the transfer of Personal Data from the European Union to processors established in third countries, controller-to-processor or controller-to-controller transfers, as applicable.

10.4    The Data Processor will:

(a) act solely on the instructions of the Data Controller;

(b) ensure that, (i) the appropriate technical and organisational measures are in place to comply with the Data Protection Legislation and protect the rights of the Data Subjects, and (ii) persons authorised to access the Personal Data are subject to appropriate confidentiality undertakings;

(c) not transfer the Personal Data outside of the Approved Countries, or to any third party without the Data Controller’s consent and, if required, the parties will enter into the applicable Standard Contractual Clauses prior to the transfer of Personal Data and take all other actions required to legitimise the transfer;

(d) give the Data Controller reasonable assistance and information in relation to either parties compliance with the Data Protection Legislation;

(e) at the end of the processing, (i) either delete or return the Personal Data to the Data Controller, and (ii) delete copies of the Personal Data unless subject to a legal obligation to store the copies

(f) not engage another processor of the Personal Data without the prior written consent of the Data Controller.

11.    General

11.1     Confidentiality – ‘Confidential Information’ means any and all technical and commercial information disclosed by one party to the other (whether disclosed in oral, written or electronic form) and belonging to that party or relating to its affairs or activities that is not: (i) in the public domain otherwise than by breach of this Agreement; (ii) lawfully in the possession of the receiving party before disclosure;] (iii) lawfully obtained without restriction from a third party.

Each party undertakes that it will use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) only as necessary for the performance of its rights and obligations under this Agreement.

11.2    Title – An Order constitutes a contract for bailment of the Container(s) and is not a sale or the creation of a security interest. Hirer will not have, or at any time acquire, any right, title, or interest in a Container, except the right to possession and use as provided for in the Order. Tower will at all times remain the sole owner of all Container(s) (including where Total Loss is applicable) and Hirer hereby waives all rights to claim a lien on the Container(s). All intellectual property rights in the Container(s) will remain with or immediately vest in Tower regardless of which party created them.

11.3    Force Majeure – Tower will not be liable for failure to perform any obligation to the extent due to any cause beyond its reasonable control that materially affects the performance and could not have reasonably been foreseen or anticipated and the effects avoided or mitigated.

11.4    Severability – Each provisions of an Agreement operates separately. If any court or relevant authority decides that any of them are invalid, void, or unenforceable, the parties agree that the remaining provisions will remain valid and enforceable.

11.5    No Waiver – No waiver by either party of any right or obligation will constitute a waiver of any prior or subsequent right or obligation.

11.6    Third Parties – No person who is not a party to this Agreement will have no right to enforce its terms.

11.7    Entire Agreement – An Agreement, incorporating these Terms, constitutes the entire agreement between the parties with respect to the subject matter thereof and will supersede all previous representations, agreements and other communications between the parties, both oral and written.

11.8    Amendments – This Agreement may only be amended in writing signed by duly authorised representatives of the parties.

11.9    Assignment – The Hirer may not transfer or assign this Agreement, without prior written approval of Tower. Tower may subcontract its obligations, but will remain liable for the performance of the subcontractor. Tower may assign its rights and obligations by notice in the event of the sale or transfer of its business or assets.

11.10    Notices – All notices must be given in writing, addressed to the other party’s registered address marked for the attention of ‘The Directors’, unless notified otherwise. All notices will be deemed given on the day of their receipt.

11.11    Governing Law – This Agreement will be governed by English law and all disputes will be subject to the exclusive jurisdiction of the English courts.

11.12    Dispute Resolution – The representatives of the parties will seek to discuss and resolve in good faith any dispute arising of this Agreement. If they are unable to resolve between themselves, a director from each party must meet to attempted to settle the dispute before either party may commence any court proceedings, except in respect of the right to seek injunctive relief, or in the case of the other party’s refusal or failure to participate.

11.13    Survival – The following clauses ill continue to be in effect after the termination or expiration of this Agreement or an Order: 3, 6 ,7 8, 11.