Garden equipment hire, cancelled

LarryR

So I emailed them saying that I am taking legal advice and asked them to send me their standard contract as I didn't receive it originally.

They emailed back with the contract, the invoice and a screenshot of their booking system showing the date and time the documents were originally sent out.


So looking through the contract it does have the following clauses:

2. Booking Confirmation
When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms.
A contract will be issued immediately to the Client and should be signed and returned within 5 days of its issue date. The Supplier will also receive a contract and should be returned within 5 days of its issue date.

Any alterations to this booking must be brought to the attention of the agent who will continue to act as a negotiator. Once all parties have agreed on the alterations the contract will be amended by the agent and re issued.
3. Payment of Fees
A deposit invoice will be issued to the Client with the booking contract and must be paid strictly within 5 days of the issue date. Deposits are paid via BACS transfer only. Deposits are non-refundable.

As of the 10th March 2020 a 40% deposit will be required to book until the Corona virus pandemic has subsided.
The Client must pay the remainder of the balance to the agent 2 weeks prior to the event.
If payment due to the Supplier is not received prior to their performance time, the Supplier reserves the right to terminate the booking contract without penalties. The Client will be liable for cancellation fees as outlined in section 4 – Cancellations by the Client.
If the deposit is not paid within the 5-day period as stated previously then this may be perceived as a breach of contract therefore would free the Supplier from contractual ties. The Client will still be held accountable and liable for the booking deposit.
4. Cancellation by the Client
The Client reserves the right to terminate the contract ONLY in the case of a Force Majeure Event (including national mourning, war, fire, strikes and lockouts directly affecting the venue) the Client must inform the agent as soon as reasonably practicable on becoming aware of the Force Majeure Event. The agent will then notify the Supplier of the cancellation as soon as reasonably practicable after being notified by the Client.
In the event of a cancellation by the Client due to a Force Majeure Event, the Supplier will endeavour to secure an alternative booking on the event date with either the agent or another agency that the Supplier works with.
As it currently stands on the 10th March 2020, there is no official government policy regarding the running or cancelling of events due to the Coronavirus COVID-19. As such the Coronavirus COVID-19 can’t be used as an excuse for Force Majeure which doesn’t exist in civil law (only in contract law). A Force Majeure event has to make the event "impossible to run" not just difficult which Coronavirus does not qualify for.
If the Client terminates the contract for any other reason than a Force Majeure Event the Client will be liable to pay a cancellation fee, in addition to loss of the deposit, calculated as follows:

As of the 10th March 2020 any bookings affected by Coronavirus will have the option to postpone the event within and up to 6 months after the original event date. This will stop cancellation charges however the 50% deposit is still required regardless and the remaining balance paid 2 weeks prior to the new event date. If the event cannot be postponed within the 6 month window, the full Cancellation fee is due.

If cancellation is made within 48 hours of confirmation then no cancellation fee is due unless the event is within the following 7 days, in which case the full fee will be due.
If cancellation by the Client is made up to 90 days before the event, then 50% of the total remaining balance is due.
If cancellation by the Client is made up to 61 days before the event, then 75% of the total remaining balance is due.
If cancellation by the Client is made within 60 days of the event, then 100% of the total remaining balance is due.
All cancellation fees will be paid to the agent within 14 days of the event date. The agent will then forward the fees on to the Supplier within 7 days of receipt of clear funds.

If cancellation fees are not received within the 14-day period stated previously we may take legal action or refer the amount to a debt recovery agency.

So, even if I had received it ... the first part of clause 2 looks 'unfair'. I don't understand the end of clause 3 where it says 'If the deposit is not paid within the 5-day period as stated previously then this may be perceived as a breach of contract therefore would free the Supplier from contractual ties. The Client will still be held accountable and liable for the booking deposit.'?! Is the supplier still contracted or not??

It's very confusing.

Do you think I can go back to them and say:

Dear X

Thank you for your email.

Even though your screenshot shows that the documents were sent, it does not show whether they were received or not. Furthermore, looking through the contract it states that "A deposit invoice will be issued to the Client with the booking contract and must be paid strictly within 5 days of the issue date. Deposits are paid via BACS transfer only.”. I received no deposit invoice, nor did I pay a deposit, as you would be aware.

In the same clause the contract states that "If the deposit is not paid within the 5-day period as stated previously then this may be perceived as a breach of contract therefore would free the Supplier from contractual ties. The Client will still be held accountable and liable for the booking deposit.”. As I did not know about a deposit, and did not pay a deposit, the contract has ceased?

What about saying something about the clause "When a booking has been accepted by the Client and the Supplier whether verbally, electronically or written, that booking is confirmed. The fact that the contract has not yet been signed and returned does not invalidate the booking or acceptance of these terms." being unfair/unenforceable/pointless?

Should I say something about the fact that they said in one of their early emails that they would send me a contract and I didn't receive one (even though they sent it), meant I was not aware of their terms & conditions around cancelling and didn't even know if we had completely confirmed the booking (as I hadn't signed a contract to that effect). If the contract and deposit were so key, why did they not ring and query/chase?

Is there anything else it would be useful to include? How should I end the email?

Thanks

the_lunatic_is_in_my_head

So they do talk about cancelling but they don't appear to specifically state that you have the right to cancel the contract but this right is excluded for "the supply of accommodation, transport of goods, vehicle rental services, catering or services related to leisure activities, if the contract provides for a specific date or period of performance."

Whether this is enough for you not to pay I don't think anyone here can say and you might need further advice. 

Did you check the contract information against the list here:

https://www.legislation.gov.uk/uksi/2013/3134/schedule/2/made

and is there anything they didn't included in the contract info?

mattyprice4004

I think you need proper, paid for legal advice - I can't see that the contract you've sent is particularly biased or misleading; sure it's got a bit of legalese in there but it's a contract so expected. 
Personally, I think both sides have made some errors so an element of compromise is needed. I would go for mediation when they take legal action, and offer 50% as full and final settlement.