1. Definitions and interpretation
“Contract” means the contract for the Work formed by Recon survey and Safety LTD acceptance (which, however made or communicated, shall be deemed made subject to these Conditions) of the Customer’s Order;
“Contract Year” means a period of 12 consecutive months, starting on the date of the Order or any anniversary of the Order;
“Customer” means the person or firm placing an Order with Recon survey and Safety LTD;
“Equipment” means any equipment agreed to be sold and/or hired out to the Customer by Recon survey and Safety LTD
(including any part or parts of them);
“Hire Period” means the period of time for which Recon survey and Safety LTD agrees to hire out the Equipment to the Customer, as detailed in the Order;
“Intellectual Property” means all intellectual property rights including, without limitation, patents, registered designs and any rights to apply for the same, copyright, design rights, database rights, rights in and to confidential information and know-how and any rights analogous to the same subsisting anywhere in the world at any time;
“Order” means the order placed by the Customer for the supply of the Work;
“Quotation” means the rates quoted to the Customer by Recon survey and Safety LTD whether in writing or orally, prior to the Customer’s Order;
“Service” means the service of repairing and/or maintaining safety and/or surveying equipment and/or training provided by Recon survey and Safety LTD to the Customer in accordance with the Order;
“Service Period” means the period for which Recon survey and Safety LTD agrees to provide the Services as detailed in the Order;
“Site” means the site where the Work is to be provided;
“Work” means the
a. sale of the Equipment; and/or
b. hiring out of the Equipment; and/or
c. provision of Services; to the Customer by Recon survey and Safety LTD;
2. Supply of the Work
2.1 The Contract shall be deemed to have been entered into upon receipt of Recon survey and Safety LTD written order acknowledgement or when Recon survey and Safety LTD commences the Work. All Work carried out is done subject to these Conditions and these Conditions shall be the sole terms and conditions applicable. Terms and Conditions on the Customer’s order form or other similar document shall not be binding on Recon survey and Safety LTD and the placing of the Order by the Customer shall indicate unqualified acceptance of these Conditions. No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of the customer and Recon survey and Safety LTD.
2.2 No representative, agent or other person has Recon survey and Safety LTD authority to vary, amend or waive any of these Conditions of Supply on behalf of Recon survey and Safety LTD and no amendment or addition to any of these Conditions shall be deemed to have been accepted unless accepted in writing by one of Recon survey and Safety LTD Directors.
3. Rates and payment
3.1 Rates for the Work are the rates as detailed in the Quotation. For the avoidance of doubt, such rates shall not include delivery, packing, customs duties, import levies, VAT or other similar duties, levies or taxes, all of which the Customer shall be responsible for paying.
3.2 Rates for the Work may be increased on an annual basis at Recon survey and Safety LTD discretion. However, if Recon survey and Safety LTD increases the rates for the Work the Customer will be entitled to terminate by giving one month’s notice.
3.3 Where applicable, Recon survey and Safety LTD reserves the right to submit weekly invoices.
3.4 Payment by the Customer to Recon survey and Safety LTD shall be made within 30 (thirty) days of the date of Recon survey and Safety LTD invoice. Time for payment shall be of the essence under the Contract.
3.5 In the event that any amount payable to Recon survey and Safety LTD under the Contract becomes overdue in accordance with condition 3.4 above:
(a) interest shall be chargeable on any amounts overdue at the rate of 4% per annum above the base rate of the Lloyds Plc as applying from time to time to run from the due date for payment until receipt by Recon survey and Safety LTD of the full amount whether or not after judgment and without prejudice to any other right or remedy of Recon survey and Safety LTD; and
(b) the full price of any payments payable to Recon survey and Safety LTD under any other contract between Recon survey and Safety LTD and the Customer shall immediately fall due and be owing; and
(c) Recon survey and Safety LTD shall be entitled:
(i)to suspend all or any deliveries to be made under the Contract or under any other contract with the Customer. In such event the Customer shall not in any respect be released from its obligations to Recon survey and Safety LTD under the Contract or under any other contract; and/or
(ii)terminate the Contract and/or any other contract with the Customer in accordance with condition 18.
3.6 No payment shall be deemed to have been received until Recon survey and Safety LTD has received cleared funds.
3.7 All payments payable to Recon survey and Safety LTD under the Contract shall become due immediately on its termination despite any other provision.
3.8 In the event that Recon survey and Safety LTD, at its option and in its sole discretion, suspends or waives a payment or part of a payment, whether permanently or for a fixed period, due under the Contract (for example over the Christmas period), this shall not be deemed to be a waiver of Recon survey and Safety LTD right to payment or any other right, nor operate to bar the exercise or enforcement of it or any other right at any time or times thereafter and the Customer will still be obliged to comply with all its obligations under the Contract.
3.9 The Customer shall make all payments due under the Contract in full without any deduction whether by set-off, counterclaim, discount, abatement or otherwise.
4. Duration of the Quotation
4.1 The Quotation will be valid for 28 days or until a specified expiry date shown upon the quotation.
4.2 Upon the expiration of a Quotation it will be the Customer’s responsibility to obtain a new Quotation from Recon survey and Safety LTD or written confirmation from Recon survey and Safety LTD as to the continued validity of an existing Quotation.
5. Intellectual Property Rights
5.1 The Customer acknowledges that all Intellectual Property belonging to Recon survey and Safety LTD in the Equipment and used in the Work shall remain entirely in the ownership of Recon survey and Safety LTD. Nothing said or done by either party shall constitute the transfer of any such rights.
6. Description and Quality
6.1 The quantity of the Work supplied shall be as set out in the Quotation.
6.2 Recon survey and Safety LTD warrants that the description and specification of the Equipment hired or sold to the Customer shall be at the time of delivery as specified in the Equipment manufacturer’s specification including meeting the manufacturer’s tolerances which is set out in full on Recon survey and Safety LTD website or the relevant manufacturer’s website from time to time. Recon survey and Safety LTD does not warrant or give any guarantees that the Equipment or any element of the Work will be fit for purpose and it shall be for the Customer to determine that the Equipment and/or Service is fit for the Customer’s purpose prior to placing an Order.
6.3 The quantity and quality of any consignment of Equipment as recorded by Recon survey and Safety LTD upon despatch from Recon survey and Safety LTD place of business shall be conclusive evidence of the quantity and quality received by the Customer on delivery unless the Customer can provide evidence proving the contrary.
6.4 In the event that the Customer alleges that the Equipment delivered does not comply with the warranty above and/or quantity as agreed under the Contract and in accordance with the Order, the Customer:
(a)undertakes to notify Recon survey and Safety LTD in writing of any alleged defects in or insufficient quantity of the Equipment as soon as it becomes aware of such and in any event, within 2 (two) weeks from the date of delivery; and
(b)shall give Recon survey and Safety LTD or its representative(s) a reasonable opportunity to inspect the Equipment concerned in the state, condition and location in which it was delivered.
6.5 In the event that the Equipment does not comply with the warranty given in the above condition 6.2 Recon survey and Safety LTD shall at its option:
(a)repair or replace such Equipment (or the defective part); or
(b)refund the price of such Equipment if purchased or, if hired, terminate the Contract and refund any monies paid when the Equipment could not be used provided that, if Recon survey and Safety LTD so requests, the Customer shall, at Recon survey and Safety LTD expense, return the Equipment or the part of such Equipment which is defective to Recon survey and Safety LTD.
6.6 Recon survey and Safety LTD warrants that it shall deliver the Service with reasonable skill and care.
7. Delivery & Collection
7.1 Unless otherwise agreed in writing by Recon survey and Safety LTD, delivery or collection of the Work shall be at the address stated on the Order.
7.2 Any dates specified by Recon survey and Safety LTD for delivery of the Work are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
7.3 Recon survey and Safety LTD accepts no liability whatsoever for any loss or damage resulting, whether directly or indirectly, from any delay in delivery of the Work.
7.4 If for any reason the Customer fails to accept delivery of any of the Equipment when it is ready for delivery, or Recon survey and Safety LTD is unable to deliver the Equipment on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Equipment shall pass to the Customer at the point when Recon survey and Safety LTD was ready to deliver (including for loss or damage caused by Recon survey and Safety LTD negligence);
(b) the Equipment shall be deemed to have been delivered; and
(c) Recon survey and Safety LTD may store the Equipment until actual delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
7.5 Where the Customer is purchasing or hiring the Equipment:
(a) Recon survey and Safety LTD may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract; and
(b) each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
7.6 Where Recon survey and Safety LTD arrange collection of the Work on a customer’s behalf then:
(a) Collection is arranged the customers own risk.
(b) Liability during transit is limited to the replacement cost of the equipment if collected by a Recon survey and Safety LTD employee OR the courier’s limited liability insurance if a courier service is used. Additional insurance cover is the responsibility of the customer, alternatively contact Recon survey and Safety LTD before collection for a quotation.
(b) Liability of your goods will be limited to the replacement cost or current market value (whichever is lower) of the equipment stated on the collection note request. No liability will be accepted for alternative equipment.
8. Risk / Title
8.1 Risk in the Equipment shall pass to the Customer upon receipt of a signature received at the time of and place for delivery. For the avoidance of doubt, it shall be the Customer’s responsibility to ensure that any person who signs at the point of delivery is an authorised signatory of the Customer, especially in instances where a courier company is used.
8.2 Where Recon survey and Safety LTD sells the Equipment to the Customer (which, for the avoidance of doubt, does not include supplying the Equipment to the Customer on a hire basis) ownership in the Equipment shall not pass until Recon survey and Safety LTD has received payment of all sums due to it in respect of:
(a) the Equipment; and
(b) all other sums which are or which become due to Recon survey and Safety LTD from the Customer on any account for any aspect of any Work.
8.3 Subject to condition 8.2 above, ownership of the Equipment shall at no point pass to the Customer.
8.4 Where ownership in the Equipment has not passed to the Customer, the Customer undertakes:
(a) where it is purchasing the Equipment, to hold the Equipment as Recon survey and Safety LTD bailee until ownership in the Equipment passes in accordance with condition 8.2 above;
(b) to store the Equipment (at no cost to Recon survey and Safety LTD) separately from all other equipment of the Customer or any third party in such a way that they remain readily identifiable as Recon survey and Safety LTD’s property;
(c) not to destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment;
(d) to grant Recon survey and Safety LTD, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them; and
(e) that all proceeds of any sale shall be held in a designated account (of which the Customer shall provide Recon survey and Safety LTD with details) until ownership has passed to the Customer in accordance with clause 8.2.
8.5 In the event of stolen/missing hire equipment, the customer shall be liable and shall pay the full value of the items[s] to Recon survey and Safety LTD Survey which is deemed to be at the current purchase price shown on Recon survey and Safety LTD’s website OR at Manufacturers RRP where this is not available.
8.6 No other equipment will be accepted from the Customer as replacement for any missing/stolen equipment.
9. Specific Terms Relating to Hiring Equipment
9.1 The hirer shall pay to Recon survey and Safety LTD during the course of the hire the hire term rental as defined on the hire contract, payable the whole of the hire term, notwithstanding that the equipment may be returned before the term has expired. Punctual payment shall be a condition of the hire and if the hirer shall be 14 days or more in arrears Recon survey and Safety LTD shall be at liberty to forthwith terminate the hire and immediately recover possession of the equipment.
9.2 In accepting delivery of the equipment the hirer thereby agrees that the equipment has been inspected, it is of satisfactory quality, free from defect and is suitable for the purpose of the hirer.
9.3 Recon survey and Safety LTD makes no representation or warranty that the equipment is suitable for the hirers purpose whether made known to Recon survey and Safety LTD or not.
9.4 Any literature to the hirer shall not constitute a representation to the hirer and exclude from these standard conditions of hire.
9.5 The hirer shall insure the equipment against loss of damage to the full new replacement value thereof whilst in the hirers possession or control which is deemed to be at the current purchase price shown on Recon survey and Safety LTD’s website OR at Manufacturers RRP where this is not available.
9.6 The hirer shall keep the equipment in good and serviceable repair and condition, fair wear and tear excepted. Any damage caused to the equipment whilst in the hirers possession shall be deemed the responsibility of the hirer.
9.7 If the equipment is not returned within seven days of the completion of the hire term, Recon survey and Safety LTD shall be entitled to deem the equipment lost and to purchase the replacement and the cost shall be charged to the hirer. If the equipment is returned in a condition which, in the opinion of Recon survey and Safety LTD, is not good and serviceable, Recon survey and Safety LTD may, at its sole discretion repair or replace the equipment and the cost shall be charged to the hirer at the current purchase price shown on Recon survey and Safety LTD’s website OR at Manufacturers RRP where this is not available.
9.8 The hire term shall not be completed until the hirer has returned the equipment to Recon survey and Safety LTD in good and serviceable condition, fair wear and tear excepted and hire charges will continue to accrue until either the equipment is returned in full and acceptable condition or notification is received that the equipment has been lost, damaged or stolen.
9.9 The equipment shall remain the property and continue to be in the ownership of Recon survey and Safety LTD notwithstanding that it may be affixed to any land or property. If it is so affixed Recon survey and Safety LTD shall be entitled to enter the property on which the equipment is located without leave and to sever the equipment there from and remove it and the hirer shall be responsible for any damage thereby caused.
9.10 Hire charges paid or due will not be taken into account and excluded in calculating loss, damage or replacement value amounts due under this clause.
10.1 Where ownership in the Equipment has not passed to the Customer but delivery has occurred in accordance with condition 7, the Customer undertakes to maintain the Equipment in good condition and keep it insured on Recon survey and Safety LTD’s behalf for the full replacement value as stated on the Quotation against all risks, including but not limited to fire, theft, loss and damage, to the reasonable satisfaction of Recon survey and Safety LTD. The Customer will ensure that the insurers note Recon survey and Safety LTD’s interest on the relevant insurance policy and on request, the Customer shall produce the policy of insurance to Recon survey and Safety LTD.
10.2 In the event that the Equipment is damaged in any way (except for fair wear and tear), lost or stolen the Customer shall pay Recon survey and Safety LTD the full cost of repair and/or replacement of the Equipment as appropriate, regardless of whether the Customer receives payment from it’s insurers. In the event that the Equipment has become obsolete the Customer will pay to replace it with an equivalent new piece of Equipment. For the avoidance of doubt, the cost shall be charged at the current purchase price shown on Recon survey and Safety LTD’s website OR at Manufacturers RRP where this is not available.
11.1 The Customer undertakes and warrants that it has obtained at its own cost all the necessary certificates, licences, permits, wayleaves and consents required by Statute or any order or regulation made thereunder or by any regulation or by-law of any local authority needed in relation to the Equipment and/or Work prior to placing the Order.
12 Contract Documents and Specification
12.1 The Service shall be carried out in accordance with the Order and standard industry practice.
12.2 Recon survey and Safety LTD will only be deemed to be aware of any documents sent to Recon survey and Safety LTD if such documents are provided in paper copy to Recon survey and Safety LTD a minimum of 7 (seven) days prior to the Order being approved by Recon survey and Safety LTD and only if a member of Recon survey and Safety LTD’s management team (i.e. a Branch Manager or above) confirms in writing that they have taken such documents into account. Failure to do so will result in Recon survey and Safety LTD not being responsible for any default, error or omission which may have the consequence of causing or contributing to any breach on the part of the Customer of any of their responsibilities.
13. Change Control Procedure
13.1 In the event that the Customer wishes to make any changes to any aspect of an Order or the Contract, including but not limited to the volume, description or ownership status of the Equipment, it must notify Recon survey and Safety LTD of such changes in writing (“Change Request”).
13.2 On receipt of a Change Request Recon survey and Safety LTD shall, within 21 days, notify the Customer as to whether it accepts the Change Request. For the avoidance of doubt, Recon survey and Safety LTD is under no obligation to accept any Change Request.
13.3 In the event that Recon survey and Safety LTD does accept the Change Request, Recon survey and Safety LTD shall notify the Customer of any increase or decrease of the cost and the relevant changes that need to be made to the Contract, including but not limited to any additional terms and/or conditions which shall hereforth apply. Recon survey and Safety LTD is under no obligation to accept any changes.
14. Commencement date and timescale
14.1 The commencement date of the Work shall be agreed in advance, but will be subject to the availability to Recon survey and Safety LTD of labour and materials. Where the commencement date is of high importance, the Customer must inform Recon survey and Safety LTD.
14.2 Although Recon survey and Safety LTD shall use all reasonable endeavours to comply with the quoted timescale for the Work, the timescale is not binding and delays beyond the control of Recon survey and Safety LTD shall be charged for at the rates agreed between the parties and there shall be an appropriate extension to such timescales.
14.3 Where the Customer requires Recon survey and Safety LTD to carry out the Work to a different timescale to that agreed, Recon survey and Safety LTD reserves the right to amend the rates chargeable accordingly.
14.4 Recon survey and Safety LTD shall not be liable for any loss or damage whatsoever or howsoever caused by any delay in the completion of the Work resulting from events beyond Recon survey and Safety LTD’s control.
15. Damage and reinstatement of the Site
15.1 Recon survey and Safety LTD shall not be responsible for any damage caused to the Site unavoidably or necessary by the provision of any element of the Work.
16.1 This condition 16 sets out the entire financial liability of Recon survey and Safety LTD’s (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of any breach of the Contract; any use made by the Customer of the Work; any use made or resale by the Customer of any Equipment, or of any product incorporating any of the Equipment; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
16.2 Except as expressly set out in these Conditions, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
16.3 Nothing in these Conditions limits or excludes the liability of Recon survey and Safety LTD’s for death or personal injury resulting from negligence; or for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Recon survey and Safety LTD; or for any liability incurred by the Customer as a result of any breach by Recon survey and Safety LTD of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
16.4 Subject to condition 16.3
(a) Recon survey and Safety LTD’s shall not be liable for loss of profits; or loss of business; or depletion of goodwill and/or similar losses; or loss of anticipated savings; or loss of Equipment; or loss of contract; or loss of use; or loss of corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
(b) Recon survey and Safety LTD’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited:
(i) where the Equipment is sold to the Customer, to the price paid or payable for the Equipment; or
(ii) where the Equipment is hired, to the price paid or payable for the Equipment for the Hire Period or where the Hire Period is over a year, to the price paid or payable for the hire of the Equipment in the Contract Year in which such default occurred;
(iii) where the Service is provided, to the price paid or payable for the Services during the Service Period or if the Services are provided for more than one year the price paid in the Contract Year in which the default occurs.
16.5 The Customer shall fully indemnify and keep indemnified Recon survey and Safety LTD’s in respect of all damage or injury occurring to any person or to any property and against any and all damages, losses, actions, suits, claims, demands, costs, charges and expenses arising or reasonably foreseeable to arise in connection therewith which shall be occasioned by the act omission negligence and/or breach of the contract (including anticipatory breach) or breach of statutory duty by the Customer and/or any of its employees, sub-contractors, servants and agents.
17.1 The Customer shall at all times keep secret and confidential all technical or commercial know-how, specifications, inventions, processes, initiatives, business and trade secrets, methods of doing business, customer lists and all other information of a confidential nature which have been disclosed to the Customer or the Customers agent by Recon survey and Safety LTD, its employees, agents or sub-contractors and any other confidential information concerning Recon survey and Safety LTD’s business or its products or services which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to Recon survey and Safety LTD, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
17.2 The above 16.1 shall not apply to confidential information which:
(a) is in the public domain or is already lawfully known to the Customer at the time of disclosure; or
(b) subsequently comes lawfully into the possession of the Customer from a third party; or
(c) subsequently enters the public domain otherwise than as a result of unauthorised disclosure by Recon survey and Safety LTD or any other person.
17.3 This condition 17 shall survive termination of the Contract, however arising.
18.1 Recon survey and Safety LTD may terminate the Contract, or any part of the Contract, by giving 30 days written notice to the other.
18.2 Either party may (without prejudice to any other rights it may have under the Contract) forthwith terminate the Contract by written notice to the other if the other:
(a) commits a material breach of any provision of the Contract which is not capable of remedy;
(b) commits a material breach of any provision of the Contract and fails to remedy such breach (where capable of remedy) within 30 days of receipt of a notice from the innocent party specifying the breach; or
(c) becomes bankrupt insolvent compounds with its creditors or shall have distress or execution levied upon its property or is wound up or goes into liquidation (except for the purposes of a bona fide reconstruction) or shall have a receiver administrative receiver or administrator appointed of the whole or any part of its assets or shall suffer the appointment of any similar person under the laws of its domicile.
18.3 In the event of a termination in accordance with condition 18.2 above Recon survey and Safety LTD shall be entitled to repossess any Equipment which is owned by Recon survey and Safety LTD but which is in the possession or control of the Customer and for such purpose to enter the premises where the Equipment is located or any premises where Recon survey and Safety LTD has reason to believe the Equipment is located and the Customer shall cease to be entitled to sell any of the Equipment supplied by Recon survey and Safety LTD where it was previously so entitled and the rights contained in this condition shall be without prejudice to any of Recon survey and Safety LTD’s other rights under the Contract.
18.4 The exercise of the rights granted under this condition 18 shall not prejudice or affect any right of action or remedy which may have already accrued or may accrue thereafter to either Party.
19. Insolvency of the customer
19.1 If the customer (being an individual or firm) makes voluntary arrangements with its creditors or being subject to an administration order becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
19.2 An encumbrance takes possession or a receiver is appointed for any of the property or assets of the customer, or
19.3 The customer ceases to carry on business (or threatens to cease) or
19.4 The customer reasonably apprehends that any of the events mentioned above is about to occur in relation to the customer and notifies the customer accordingly then without prejudice to any other right or remedy available to Recon survey and Safety LTD, it shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the customer. If the goods have been delivered but not paid for the outstanding monies shall become immediately due and payable and not withstanding any previous agreement or arrangement to the contrary Recon survey and Safety LTD will then have an immediate right to recover these goods where ever they are situated.
20. General provisions
20.1 All payments to be made under the terms of the Contract are exclusive of any VAT (or any tax of a similar nature) which shall be payable on the production of a valid VAT invoice therefore in addition to any such payments.
20.2 Each provision of the Contract is severable and distinct from the others and if any provision is or at any time becomes to any extent or in any circumstances invalid, illegal or unenforceable for any reason, it shall to that extent or in those circumstances be deemed not to form part of the Contract, but the validity, legality and enforceability of all other provisions of the Contract shall not otherwise be affected or impaired, it being the parties’ intention that every provision of the Contract shall be and remain valid and enforceable to the fullest extent permitted by law.
20.3 Recon survey and Safety LTD shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing any of its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Recon survey and Safety LTD or any other party), failure of a utility service or transport network, act of God, act of terrorism, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Recon survey and Safety LTD’s or sub-contractors.
20.4 Failure or delay of a party to exercise or enforce any right under the Contract shall not be deemed a waiver of that right or any other right, nor operate to bar the exercise or enforcement of it or any other right at any time or times thereafter.
20.5 No variation of the Contract shall be effective unless it is in writing, refers specifically to the Contract and is executed by a duly authorised representative of each party.
20.6 Each party warrants to the other that, in entering into the Contract, it does not rely on any statement, representation, assurance, promise or warranty of any person (whether a party to this agreement or not) other than as expressly set out in this Agreement. Neither party excludes its liability for fraudulent misrepresentation.
20.7 The Customer shall not assign, transfer or sub-contract the Contract or any of its rights, benefits or obligations under it to any other person, firm or body corporate with gaining prior written consent from Recon survey and Safety LTD. For the avoidance of doubt, Recon survey and Safety LTD shall be entitled to assign, transfer or sub-contract the Contract or any of its rights, benefits or obligations under it to any other person, firm or body corporate at any time.
20.8 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract.
20.9 The Contract shall be governed by and construed in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract.
MODEL CONDITIONS FOR THE HIRING OF PLANT(WITH EFFECT FROM JULY 2011)
These conditions are not to be used for consumer contracts. A consumer contract is a contract entered into with a person acting in their own capacity and not for or on behalf of any business or trade entity.
(a) The “Contract” is the Contract between the Owner and the Hirer for the hire of Plant, which incorporates the Offer and is governed by these conditions.
(b)The “Hire Period” shall commence from the time when the Plant leaves the Owner’s depot or place where last employed and shall continue until the Plant is received back at the Owner’s named depot or other agreed location. For the avoidance of doubt the Hire Period includes the time Plant is left on site during a Holiday Period.
(c) The “Hirer” is the Company, firm, person, Corporation or public authority taking the Owner’s Plant on hire and includes their successors or personal representatives.
(d) “Holiday Period” covers any cessation of work over Easter, Christmas and the New Year; as well as any other Bank or Public holidays.
(e) “Offer” is the Owner’s offer to hire the Plant to the Hirer which will include details of the Plant to be hired, the Hire Period, relevant hire rates and charges and any supplementary conditions to be incorporated into the Contract.
(f) The “Owner” is the Company, firm or person letting the Plant on hire and includes their successors, assignees or personal representatives.
(g) “Plant” covers all classes of Plant, or replacement Plant, machinery, vehicles, equipment, accessories, and any ancillary items, vehicles or equipment therefor, which the Owner agrees to hire to the Hirer, or anything which is supplied by the Owner to effect the hire, and anything supplied by the Owner for the safe operation and routine inspection and maintenance of the Plant.
(h) A “Working Day” shall be from 8.00 am to 4.30 pm, Monday to Thursday, and 8.00am to 3.30 pm, on Friday allowing a half-hour lunch break each day, unless otherwise specified in the Contract.
(i) A “Working Week” covers the period from 8.00 am on Monday to 3.30 pm on Friday, unless otherwise specified in the Contract.
2. EXTENT OF CONTRACT
No terms, conditions or warranties other than as specifically set forth in the Offer shall be deemed to be incorporated or to form part of the Contract or shall otherwise govern the relationship between the Owner and the Hirer in relation to the hire of any particular Plant pursuant to the Offer. This excludes all other terms or conditions which the Hirer may seek to apply under any order or acknowledgement or acceptance or similar document and supersedes all prior negotiations, representations or agreements, whether written or oral unless and to the extent that they are expressly accepted in writing and signed by the Owner. The Owner and the Hirer do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract, except that a person who is a successor to or an assignee of the rights of the Owner is deemed to become a party to the Contract after the date of succession or assignment (as the case may be).
3. ACCEPTANCE OF PLANT
Acceptance of the Plant on site implies acceptance of all terms and conditions herein unless otherwise previously agreed in writing.
4. UNLOADING AND LOADING
The Hirer shall be responsible for the unobstructed access and egress and, unless otherwise agreed in writing, for unloading and loading of the Plant at the site; and any personnel supplied by the Owner for such unloading and / or loading shall be deemed to be under the direction and control of the Hirer. Such personnel shall for all purposes in connection with their employment in the unloading and / or loading of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) who shall be solely responsible for all claims arising in connection with unloading and / or loading of the Plant by, or with the assistance of, such personnel.
5. DELIVERY IN GOOD ORDER AND MAINTENANCE: INSPECTION REPORTS
(a) Unless notification in writing to the contrary is received by the Owner from the Hirer in the case of Plant supplied with an operator within four working days, and in the case of Plant supplied without an operator within three working days, of the Plant being delivered to the site, the Plant shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with terms of the Contract and to the Hirer’s satisfaction, provided that where the Plant requires to be erected on site, the periods stated above shall be calculated from the date of completed erection of Plant. The Hirer shall be responsible for the safe keeping of the Plant, its use in a workmanlike manner within the manufacturer’s rated capacity and in accordance with the manufacturer’s and / or the Owner’s recommendations, and its return on the completion of the Hire Period in equal good order (fair wear and tear excepted).
(b) The Hirer shall at all times when hiring Plant without the Owner’s operator or driver take all reasonable steps to keep himself acquainted with the state and condition of the Plant. If such Plant is continued at work or in use in an unsafe and unsatisfactory state or environment, the Hirer shall be solely responsible for any damage, loss, cost, expense or accidents whether directly or indirectly arising therefrom.
(c) Any inspection report required under the relevant legislation, or a copy thereof, shall be supplied by the Owner, if requested by the Hirer, and returned on completion of the Hire Period.
6. SERVICING AND INSPECTION
The Hirer shall at all reasonable times allow the Owner, his agents or his insurers to have access to the Plant to inspect, test, adjust, repair or replace the same. So far as reasonably practicable the Hirer shall allow such access during the Working Day.
7. GROUND AND SITE CONDITIONS
(a) The Hirer is deemed to have knowledge of the site or the property or land where the Plant is to be delivered and the Hirer warrants that the condition of the site or place of delivery of the Plant is suitable for the use of such Plant.
(b)If, in the opinion of the Hirer, the ground (including any private access road or track) is soft or unsuitable for the Plant to work on, travel over, be transported over, be erected or dismantled on without timbers or equivalent support, the Hirer shall supply and lay suitable timbers or equivalent support in a suitable position for the Plant to travel over, work on, be transported over, be erected or dismantled on, including for the purpose of delivery and collection.
(c) Any timber or other material supplied by the Owner is provided solely to assist the Hirer under their duties within clause 7(b) and expressly not to relieve him of his legal, regulatory or contractual obligations to ensure adequate stability of the Plant.
(d) The Hirer is responsible for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and any pavements, bridges, tunnels and roadways on or adjacent to the site and the Hirer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.
8. HANDLING OF PLANT
a) When a driver or operator or any person is supplied by the Owner with the Plant, the Owner shall supply a person competent in operating the Plant or for such purpose for which the person is supplied and such person shall be under the direction and control of the Hirer. Such drivers or operators or persons shall for all purposes in connection with their employment in the working of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) and the Hirer shall be solely responsible for all claims arising in connection with the operation of the Plant by the said drivers / operators / persons.
(b) The Hirer shall not allow any other person to operate such Plant without the Owner’s prior written consent.
(c) Such drivers or operators or persons shall not operate any other plant or machinery or undertake work other than that for which they are supplied by the Owner unless previously agreed in writing between the Owner and the Hirer.
9. BREAKDOWN, REPAIRS AND ADJUSTMENT
(a) Any breakdown or the unsatisfactory working of or damage to any part of the Plant must be notified immediately to the Owner, and confirmed in writing. Any claim for breakdown time will only be considered from the time and date at which written notification is received and acknowledged by the Owner.
(b) Full allowance for the hire charges set out in the Offer will be made to the Hirer for any stoppage due to breakdown of the Plant caused by the development of either an inherent fault or a fault not ascertainable by reasonable examination or fair wear and tear and for all stoppages for normal running repairs in accordance with the terms of the Contract.
(c) The Hirer shall not (except for the changing of any tyre and repair of punctures), repair, modify or alter the Plant without the prior written permission of the Owner. The changing of any tyre and repair of punctures are however the responsibility of the Hirer who should arrange for them to be changed / repaired. The Hirer is responsible for all costs incurred in the changing or replacement of any tyre (which must be of an equivalent specification) as approved by the Owner and for the repair of any puncture.
(d) The Hirer shall be responsible for all expense involved arising from any breakdown, unsatisfactory working of or damage to any part of the Plant due to the Hirer’s negligence, misdirection or misuse of the Plant, whether by the Hirer or his servants, and for the payment of hire at the idle time rate as defined in clause 25, during the period the Plant is necessarily idle due to such breakdown, unsatisfactory working or damage. The Hirer is responsible for the cost of spares and / or repairs due to theft, loss or vandalism of the Plant. The Owner will be responsible for the cost of repairs, inclusive of the cost of spares, to the Plant involved in breakdown from all other causes.
10. OTHER STOPPAGES
No claims will be admitted (other than those allowed for under “Breakdown” (clause 9) or for “Idle Time” (clause 25), as herein provided), for stoppages through causes outside the Owner’s control, including but not limited to bad weather and / or ground conditions nor shall the Owner be responsible for the cost or expense of recovering any Plant from soft or unsuitable ground, or a hazardous environment. For the avoidance of doubt, the Hirer shall be responsible for the cost and expense of recovering any Plant from soft or unsuitable ground or a hazardous environment.
11. LOSS OF OTHER PLANT DUE TO BREAKDOWN
Each item of Plant specified in the Contract is hired as a separate unit and the breakdown or stoppage of one or more units or vehicles (whether the property of the Owner or otherwise) through any cause whatsoever, shall not entitle the Hirer to compensation or allowance for the loss of working time by any other unit or units of Plant working in conjunction therewith, provided that where two or more items of Plant are expressly hired together as a unit, such items shall be deemed to be one unit for the purpose of breakdown.
12. LIMITATION OF LIABILITY
Except for liability on the part of the Owner which is expressly provided for in the Contract (including these clauses):
(a) the Owner shall have no liability or responsibility for any loss, or damage of whatever nature due to or arising through any cause beyond his reasonable control;
(b) the Owner shall have no liability or responsibility, whether by way of indemnity or by reason of any breach of the Contract, breach of statutory duty or misrepresentation or by reason of the commission of any tort (including but not limited to negligence) in connection with the hire, for any of the Hirer’s loss of profit, loss of use of the Plant or any other asset or facility, loss of production or productivity, loss of contracts with any third party, liabilities of whatever nature to any third party, and / or any other financial or economic loss or indirect or consequential loss or damage of whatever nature; and
(c) whenever the Contract (including these clauses) provides that any allowance is to be made against hire charges, such allowance shall be the Hirer’s sole and exclusive remedy in respect of the circumstances giving rise to the allowance, and such remedy shall be limited to the amount of hire charges which would otherwise be or become due if the allowance in question had not been made.
(d) For the avoidance of doubt, nothing in these conditions limits or seeks to exclude the Owner’s liability for claims of death or personal injury caused by the Owner’s negligence, fraud or for any other liability for which it is not permitted to seek to limit or exclude by operation of law.
13. HIRER’S RESPONSIBILITY FOR LOSS AND DAMAGE
(a) For the avoidance of doubt it is hereby declared and agreed that nothing in this clause affects the operation of clauses 4, 5, 8 and 9 of these conditions.
(b) For the duration of the Hire Period (which for the avoidance of doubt includes the time Plant is left on site during a Holiday Period) the Hirer shall, subject to the provisions referred to in sub paragraph (a) make good to the Owner all loss of or damage to the Plant from whatever cause the same may arise, fair wear and tear excepted, and except as provided in clause 9 herein, and shall also fully and completely indemnify the Owner and any personnel supplied by the Owner in respect of all claims 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 Plant during the continuance of the Hire Period, and in connection therewith, whether arising under statute or common law. In the event of loss of or damage to the Plant, hire charges shall be continued at idle time rates as defined in clause 25 until the settlement has been agreed. Payment of the settlement must be made within 21 calendar days of the date of the agreement or idle time charges can be reinstated from the date of that agreement. Should idle time charges be re-instated, the agreed settlement figure remains payable in full.
(c)Notwithstanding the above the Hirer shall not be responsible for damage, loss or injury:
- prior to delivery of any Plant to the site (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving such highway) where the Plant is in transit by transport of the Owner or as otherwise arranged by the Owner,
- during the erection and / or dismantling of any Plant where such Plant requires to be completely erected / dismantled on site, provided always that such erection / dismantling is under the exclusive control of the Owner or his agent,
(iii) after the Plant has been removed from the site and is in transit on a highway maintainable at the public expense (or where the site is not immediately adjacent to a highway maintainable at the public expense after it has joined such highway) to the Owner by transport of the Owner or as otherwise arranged by the Owner,
(iv) where the Plant is travelling to or from a site on a highway maintainable at the public expense (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving or after its joining such highway) under its own power with a driver supplied by the Owner.
14. NOTICE OF ACCIDENTS
If the Plant is involved in any accident resulting in injury to persons or damage to property, immediate notification must be given by the Hirer to the Owner by telephone and confirmed in writing to the Owner no later than 24 hours after such telephone notification. In relation to any claim in respect of which the Hirer is not bound to fully indemnify the Owner, no admission of liability, offer, promise of payment or indemnity shall be made by the Hirer without the Owner’s prior written permission.
15. RE-HIRING ETC.
Neither the Plant nor any part thereof shall be re-hired, sub-let, or lent to any third party without the prior written permission of the Owner.
16. CHANGE OF SITE
The Plant shall not be moved from the site to which it was delivered or consigned without the prior written permission of the Owner.
17. RETURN OF PLANT FOR REPAIRS
If during the Hire Period the Owner decides that urgent repairs to the Plant are necessary then he may arrange for such repairs to be carried out on site or at any location of his nomination. In the event that urgent repairs to the Plant are necessary the Owner shall be obliged to replace the Plant with similar Plant if available, the Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) paying all transport charges involved. In the event of the Owner being unable to replace the Plant he shall be entitled to terminate the Contract forthwith (but without prejudice to any of the provisions of clauses 9 and / or 13) by giving written notice to the Hirer. If such termination occurs:
(a) within three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) shall pay all transport charges involved, or,
(b) more than three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) shall be liable only for the cost of reloading and return transport.
18. BASIS OF CHARGING
(a) The Hirer shall render to the Owner for each Working Week an accurate statement of the number of hours the Plant has worked each day. When any personnel, operator or driver is supplied by the Owner, the Hirer shall sign their time record sheets. The signature of the Hirer’s representative shall bind the Hirer to accept the hours shown on the time records sheets.
(b) Full allowance will be made for breakdown periods resulting from mechanical or electrical faults or absence of driver or operator supplied by the Owner except where breakdown is due to acts or omissions of third parties and / or the Hirer’s misuse, misdirection or negligence, subject however to the provisions of clause 8 of these conditions.
(c) Breakdown time in respect of such periods shall be allowed for not more than the Working Day less the actual hours worked.
(d) Plant shall be hired out either:
(i) for a stated minimum number of hours per Working Day or per Working Week or,
(ii) without any qualification as to minimum hours. Odd days at the beginning and at the end of the Hire Period shall be charged pro rata.
(e) Stoppages due to changing of tyres and repairs to punctures will be chargeable as working time up to a maximum of 2 hours for any one stoppage and any excess will be charged for at the appropriate idle time rates.
(f) In the case of Plant which is required to be dismantled for the purpose of transportation, if the Owner agrees to a modification of the hire charge for the period required for assembling on site and dismantling upon completion of the Hire Period, such modification of the hire charge and the Hire Period for which it shall apply shall be stated in the Offer / Contract.
19. PLANT HIRED ON A DAILY BASIS WITHOUT QUALIFICATION AS TO HOURS
The full daily rate will be charged on a daily basis irrespective of the hours worked except in the case of breakdown for which the Owner is responsible, when the actual hours worked will be charged pro rata of the average Working Day. No hire charge shall be made for Saturday and / or Sunday unless the Plant is actually worked.
20. PLANT HIRED BY THE WEEK OR MONTH WITHOUT QUALIFICATION AS TO HOURS
The weekly or monthly rate shall be charged irrespective of the number of hours worked, except in the case of breakdown for which the Owner is responsible when an allowance pro rata of the agreed weekly rate or pro rata of the agreed monthly rate will be made for each full Working Day broken down calculated to the nearest half Working Day.
21. PLANT HIRED BY THE WEEK OR THE HOUR FOR A MINIMUM OF 39 HOURS PER WEEK
The full hire for the minimum period in the Contract will be charged and an additional pro rata charge will be made for hours worked in excess of such minimum period. Allowance will be made for breakdowns up to 8 hours except on Fridays when the allowance will be up to 7 hours providing always that where the actual hours worked are in excess of the minimum period less breakdown time, the actual hours worked shall be chargeable. Idle time for this purpose shall be treated as actual working time. The minimum Working Week of 39 hours shall be reduced by 8 hours Monday to Thursday and 7 hours Friday for each Holiday Period occurring in such Working Week, provided that the Plant is not in use during such Holiday Period.
22. “ALL-IN” RATES
Where “All-In” rates are charged by agreement the minimum period shall be as defined in the Contract and in accordance with the hire rates and terms contained therein, subject to the provisions of clause 26.
23. COMMENCEMENT AND TERMINATION OF CONTRACT (TRANSPORT OF PLANT)
(a) The Hire Period shall commence from the time when the Plant leaves the Owner’s depot or place where last employed and shall continue until the Plant is received back at the Owner’s named depot or other agreed location but an allowance shall be made of not more than one day’s hire charge each way for travelling time. If the Plant is used on the day of travelling, full hire rates shall be paid for the period of use on that day. If more than one day is properly and unavoidably occupied in transporting the Plant, a hire charge at idle time rates shall be payable for such extra time, provided that where Plant is hired for a total period of less than one Working Week, the full hire rate shall be paid from the date of despatch to the date of return to the Owner’s named depot or other agreed location.
(b) If the Plant is not made available for collection as agreed between the parties, such Plant shall be deemed with immediate effect to be placed back on hire. The Hirer shall be responsible for the safekeeping of the Plant in accordance with clause 13, and for all the reasonable costs and expenses incurred by the Owner in seeking to collect such Plant.
(c) Upon the completion of the Hire Period, the Hirer shall clean and where necessary, decontaminate the Plant. All fuel and contaminates will be removed from bunds, storage tanks and bowsers. The Hirer shall be liable for any costs, liabilities and expenses incurred by the Owner should the Hirer fail to comply with this clause.
24. HIRER’S LIABILITY DURING THE NOTICE OF TERMINATION OF CONTRACT
a) Where the Hire Periodis indeterminate or having been defined becomes indeterminate the Contract shall be terminable by seven days’ notice in writing given by either party to the other except in cases where the Plant has been lost or damaged. Notwithstanding that the Owner may have agreed to accept less than 7 days’ notice of termination, the Hirer’s obligations under clause 13 shall continue until the Plant is returned to the Owner in accordance with clause 31 or until the Owner has collected the Plant within the 7 days following the acceptance of short notice. Oral notice given by the Hirer to the Owner’s driver or operator shall not be deemed to constitute compliance with the provisions of this clause.
b) Without prejudice to clause 24(a), should the Hirer fail to make the Plant available for collection by the Owner before the end of the 7 day notice, the Hirer’s obligations under clause 13 shall continue for a further 3 days or until such time as the Plant is made available for collection and the Owner has collected the Plant. For the avoidance of doubt, where the Hirer gives a notice pursuant to clause 24(a) but subsequently and with the consent of the Owner, withdraws such notice, the obligations of clause 13 shall continue to apply and the requirements of clause 24 will apply to any later termination of the Contract.
c) If the Hirer terminates the Contract before the Hire Period commences, then the Hirer is liable for all reasonable costs and charges incurred by the Owner or to which the Owner is committed at the time of termination.
25. IDLE TIME
When the Plant is prevented from working for a complete Working Week, the hire charges shall be two thirds of the hire rate or such other idle time rate as is agreed in writing by the Owner for the period during which the Plant is not in use. If the Plant works for any time during the Working Day then the whole of that Working Day shall be charged as working time. In any case no period less than one Working Day shall be reckoned as idle time save for as provided for in clause 18(e). Where an “All-In” rate is charged, idle time is calculated on the machine element only. Full rate will be charged for the operator.
26. WAGES AND OTHER CHARGEABLE ITEMS RELATING TO DRIVERS AND OPERATORS OF PLANT
All chargeable items shall be paid by the Hirer at the rates set out in the Contract save that any subsequent increases before and / or during the Hire Period arising from awards under any wage agreements and / or from increases in the Owner’s statutory contribution shall be charged as additions at cost by the Owner and shall be admitted and paid by the Hirer.
27. TRAVELLING TIME AND FARES
Travelling time, fares and similar expenses for drivers, operators and any person supplied by the Owner, incurred at the beginning and end of the Hire Period and where appropriate return fare of the driver, operator and any person supplied by the Owner to his home will be chargeable at cost. No charge shall be made by the Owner for any such expenses incurred by other employees of the Owner for the purpose of servicing, repair or maintenance of Plant, unless necessitated by the Hirer’s negligence, misdirection or misuse of the Plant.
28. FUEL, OIL AND GREASE
Fuel, oil and grease shall, when supplied by the Owner, be charged at net cost or an agreed estimate of net cost, and when supplied by the Hirer, shall be of a grade or type specified by the Owner. The Hirer shall be solely responsible for all damages, losses, costs and expenses incurred by the Owner if the Hirer uses the wrong fuel, oil or grease.
29. SHARPENING OF DRILLS/STEELS ETC.
The cost of re-sharpening or replacement of drill bits, blades and other ancillary items shall be borne by the Hirer.
30. OWNER’S NAME PLATES
The Hirer shall not remove, deface or cover up the Owner’s name plate or mark on the Plant indicating that it is his property, without the prior written permission of the Owner.
The Hirer shall pay the cost of and if required by the Owner, arrange transport of, the Plant from the Owner’s depot or other agreed location to the site and return to the Owner’s named depot or other agreed location on completion of the Hire Period.
32. GOVERNMENT REGULATIONS
a) The Hirer will be responsible for compliance with relevant regulations issued by the Government or Local Authorities, including regulations under the Environmental Acts, Factories Acts, Health and Safety at Work, etc. Act and observance of the Road Traffic Acts should they apply, including the cost of road fund licences and any insurances made necessary thereby, save that if and during such time as the Plant is travelling, whether for full or part journey from Owner to site and site to Owner under its own power with a driver supplied by the Owner, the Owner and not the Hirer shall be responsible as aforesaid.
b) The Hirer shall indemnify the Owner against any charges or fines that the Owner may become liable for as a result of the operation of the Plant during the Hire Period.
33. PROTECTION OF OWNER’S RIGHTS
(a) The Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Plant except as provided under clause 15 and shall protect the same against distress, execution or seizure and shall indemnify the Owner against all losses, damage, costs, charges and expenses arising as a direct result of any failure to observe and perform this condition except in the event of Government requisition.
(b) The Owner may terminate the Contract forthwith by written notice to the Hirer if one or more of the following events occur:
- The Hirer defaults in punctual payment of any sum due to the Owner for hire of Plant or other charges payable pursuant to these conditions;
- The Hirer fails to observe and perform the terms and conditions of the Contract;
- The Hirer suffers, or the Owner reasonably believes that the Hirer shall suffer, any distress or execution to be levied against him;
- The Hirer makes or proposes to make any arrangement with his creditors or becomes insolvent within the meaning of Section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or re-enactment thereof for the time being in force; or
- The Hirer does or causes to be done or permit or suffer any act or thing whereby the Owner’s rights in the Plant may be prejudiced or put into jeopardy.
(c) In the event of termination under sub-paragraph (b) above:
(i) The Hirer must give the Owner or his agents, immediate unobstructed access to recover the Plant.
(ii)The Owner shall be entitled to claim the hire charges outstanding as at the date of termination of the hire under this clause and return transport charges under clause 31.
(d) The rights under sub-paragraph (b) and (c) above:
- May be exercised notwithstanding that the Owner may have waived some previous default or matter of the same or a like nature.
- Shall not affect the Owner’s right to claim damages for breach of Contract or recover any sums due under the Contract as a debt.
(e) If the Hirer does not make payment of a sum by the final date on which payment is due to be made, the Owner has the right to suspend performance of its obligations under the Contract. The right to suspend may not be exercised without first giving to the Hirer at least 7 days’ notice in writing of the Owner’s intention to suspend performance, stating the ground or grounds on which the Owner intends to suspend performance. The right to suspend performance will cease when the Hirer makes payment in full of the amount due.
34. CHANGES IN NORMAL WORKING WEEK
The foregoing provisions have been framed upon the basis of the Hirer working a 5-day week of 39 hours; it is hereby agreed that in the event of:
(a) there being any agreed change in the normal weekly hours in the industry in which the Hirer is engaged or,
(b) the Contract being made with reference to a 5 day week of other than 39 hours.
Clauses 1(h) and (i), 18(c) and (d), 20 and (in regard to breakdown allowance and reduction for statutory holidays) 21 shall be deemed to be modified conformably and in the event of an alteration in the normal weekly working hours in the said industry the “Hire Rates and Terms” of Plant hired for a minimum weekly or daily period shall be varied pro rata.
35. DISPUTE RESOLUTION
(a) If the site is situated within the United Kingdom, then the court whose jurisdiction covers the site will have exclusive jurisdiction and interpretation of the law for this Contract. If the original site is not situated within the United Kingdom, then the relevant jurisdiction and interpretation of the law of the Contract will be governed by the country where the Owner’s head office is located.
(b) Both parties to the Contract have a right to refer any difference or dispute arising under or in connection with the Contract to adjudication and the procedure set out in Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (or any amendment or re-enactment thereof for the time being in force) will apply. The person (if any) specified in the Contract to act as adjudicator may be named in the Offer. The specified nominating body to select adjudicators shall be the Construction Plant-hire Association acting by its President or Chief Executive for the time being.
(c) The Owner and the Hirer shall comply forthwith with any decision of the adjudicator; and shall submit to summary judgment and enforcement (and / or, under Scots law, shall consent to a motion for summary decree and submit to enforcement) in respect of all such decisions; in each case, without any defence, set-off, counterclaim, abatement or deduction. Where, under Scots law, the Owner, the Hirer, or the adjudicator, wishes to register a decision of the adjudicator for execution in the Books of Council and Session, any other party shall, on being requested to do so, forthwith consent to such registration by subscribing the decision before a witness.
36. LATE PAYMENTS
The Owner reserves the right to charge the Hirer for the late payment of any outstanding invoices under the Late Payment of Commercial Debts (Interest) Act 1998, or any subsequent legislation.
If any of these clauses are held to be unlawful, void or unenforceable, then that clause will be deemed severable and will not affect the validity and enforceability of the remaining clauses, to the extent permitted by law.