Conditions of Sale and Hire of Goods to Businesses and Consumers
1.1. In these conditions the following words have the following meanings:
“Contract” means a contract which incorporates these conditions and made between the Customer and the Supplier for the hire of Hire Goods and/or the sale of Products;
“Customer” means the person, firm, company or other organisation hiring Hire Goods; “Deposit” means any advance payment required by the Supplier in relation to the Hire Goods which is to be held as security by the Supplier;
“Force Majeure” means any event outside a party’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, sub‐contractors, lock‐outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental actions and any other similar events;
“Hire Goods” means any machine, article, tool, and/or device together with any accessories specified in a Contract which are hired to the Customer;
“Hire Period” means the period commencing when the Customer holds the Hire Goods on hire (including Saturdays, Sundays and Bank Holidays) and ending upon the happening of any of the following events: (i) The physical return of the Hire Goods by the Customer into the Supplier’s possession evidenced by off hire documentation being issued to / obtained by the Customer from the Supplier; or (ii) the physical repossession or collection of the Hire Goods by the Supplier with off hire documentation being issued to and retained by the Customer;
“Liability” means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities;
“Products” means the products sold to the Customer by the Supplier;
“Rental” means the Supplier’s charging rate for the hire of the Hire Goods which is current from time to time during the Hire Period;servants, agents and/or duly authorised representatives;
“Services” means the services and/or work (if any) to be performed by the Supplier for the Customer in conjunction with the hire of Hire Goods including any delivery and/or collection service for the Hire Goods.
2 BASIS OF CONTRACT
2.1 Hire Goods are hired subject to them being available for hire to the Customer at the time required by the Customer. The Supplier will not be liable for any loss suffered by the Customer as a result of the Hire Goods being unavailable for hire where the Hire Goods are unavailable due to circumstances beyond the Supplier’s control.
2.2 Where hire of the Hire Goods is to a Customer who is an individual and the hire would be covered by the Consumer Credit Act 1974 the duration of the Hire Period shall not exceed 3 months, after which time the Contract shall be deemed to have automatically terminated. Accordingly the hire of any Hire Goods is not covered by the Consumer Credit Act 1974.
2.3 Nothing in this Contract shall exclude or limit any statutory rights of the Customer which may not be excluded or limited due to the Customer acting as a consumer. Where the Customer is acting as a consumer any provision which
is marked with an asterisk (*) may, subject to determination by the Courts or any applicable legislation, have no force or effect and if any provision is under the applicable law of the Contract unenforceable in whole or in part or
shall have no force or effect the Contract shall be deemed not to include such provisions but this shall not effect the enforceability of the remainder of the Contract. For further information about your statutory rights contact your local authority Trading Standards Department or Citizens Advice Bureau or if based in the Republic of Ireland your local office of the Director of Consumer Affairs or Citizens Information Centre.
3.1 The amount of any Deposit, Rental and/or charges for any Services shall be as quoted to the Customer or otherwise as shown in the Supplier’s current price list from time to time. Where a Deposit is required for the Hire Goods it must be paid in advance of the Customer hiring the Hire Goods. The Supplier may also require an initial payment on account of the Rental in advance of the Customer hiring the Hire Goods.
3.2 The Customer shall pay the Rental, charges for any Services, monies for any Products and/or any other sums payable under the contract to the Supplier at the time and in the manner agreed. The Supplier’s prices are, unless otherwise stated, exclusive of any applicable VAT for which the Customer shall additionally be liable.
3.3 Payment by the Customer on time under the Contract is an essential condition of the Contract. Payment shall not be deemed to be made until the Supplier has received either cash or cleared funds in respect of the full amount outstanding.
3.4 *If the Customer fails to make any payment in full on the due date the Supplier may charge the Customer interest (both before and after judgment/decree) on the amount unpaid at the rate implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4% above the base rate from time to time of the Supplier’s bank whichever is higher.
3.5 *The Customer shall pay all sums due to the Supplier under this Contract without any set‐off, deduction, counterclaim and/or any other withholding of monies.
3.6 The Supplier may set a reasonable credit limit for the Customer. The Supplier reserves the right to terminate or suspend the Contract for hire of the Hire Goods and/or the provision of Services if allowing it to continue would result in the Customer exceeding its credit limit or the credit limit is already exceeded.
4. RISK OWNERSHIP AND INSURANCE
4.1 Risk in the Hire Goods and any Products will pass immediately to the Customer when they leave the physical possession or control of the Supplier.
4.2 Risk in the Hire Goods will not pass back to the supplier from the customer until the Hire Goods are back in the physical possession of the Supplier with off hire documentation being issued to / obtained by the customer from the
supplier and retained as evidence of termination of hire. This shall apply even if the Supplier has agreed to cease charging the Rental.
4.3 Ownership of the Hire Goods remains at all times with the Supplier. The Customer has no right, title or interest in the Hire Goods except that they are hired to the Customer. Ownership of any Products remains with the Supplier
until all monies payable to the Supplier by the Customer for the Products have been paid in full.
4.4 The Customer must not deal with the ownership or any interest in the Hire Goods. This includes but is not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending. However the Customer may re‐hire the Hire Goods to a third party with the prior written consent of the Supplier.
4.5 The Supplier may provide reasonably priced insurance in respect of the Hire Goods at an additional cost to the Rental in accordance with Financial Services Authority Requirements. Alternatively the Supplier may require the Customer to insure the Hire Goods for such reasonable risks as the Supplier may specify and any proceeds of any such insurance shall be paid to the Supplier on demand. The Customer must not compromise any claim in respect of the Hire Goods and/or any associated insurance without the Supplier’s written consent.
5. DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Goods from the Supplier and return them to the Supplier at the end of the Hire Period. If the Supplier agrees to deliver or collect the Hire Goods to and/or from the
Customer it will do so at its standard delivery cost and such delivery and/or collection will form part of the Services.
5.2 Where the Supplier provides Services the persons performing the Services are servants of the Customer and once the Customer instructs such person they are under the direction and control of the Customer. The Customer shall be solely responsible for any instruction, guidance and/or advice given by the Customer to any such person and for any damage which occurs as a result of such persons following the Customer’s instructions, guidance and/or advice except to the extent that the persons performing the Services are negligent.
5.3 The Customer will allow and/or procure sufficient access to and from the relevant site and procure sufficient unloading space, facilities, equipment and access to utilities for the Supplier’s employees, sub‐contractors and/or agents to allow them to carry out the Services. The Customer will ensure that the site where the Services are to be performed is, where necessary, cleared and prepared before the Services are due to commence.
5.4 If any Services are delayed, postponed and/or are cancelled due to the Customer failing to comply with its obligations the Customer will be liable to pay the Supplier’s additional standard charges from time to time for such delay, postponement and/or cancellation except where the Customer is acting as a consumer and the delay is due to a Force Majeure event.
6. CARE OF HIRE GOODS
6.1 The Customer shall:-
6.1.1 not remove any labels from and/or interfere with the Hire Goods, theirworking mechanisms or any other parts of them and shall takereasonable care of the Hire Goods and only use them for their properpurpose in a safe and correct manner in accordance with any operating and/or safety instructions provided or supplied to the Customer;
6.1.2 notify the Supplier immediately after any breakdown, loss and/or damageto the Hire Goods;
6.1.3 take adequate and proper measures to protect the Hire Goods from theft,damage and/or other risks;
6.1.4 notify the Supplier of any change of its address and upon the Supplier’srequest provide details of the location of the Hire Goods;
6.1.5 permit the Supplier at all reasonable times and upon reasonable noticeto inspect the Hire Goods including procuring access to any propertywhere the Hire Goods are situated;
6.1.6 keep the Hire Goods at all times in its possession and control and not toremove the Hire Goods from the country where the Customer is locatedand/or the country where the Supplier is located without the prior writtenconsent of the Supplier;
6.1.7 be responsible for the conduct and cost of any testing, examinationsand/or checks in relation to the Hire Goods required by any legislation,best practice and/or operating instructions except to the extent that theSupplier has agreed to provide them as part of any Services;
6.1.8 not do or omit to do anything which the Customer has been notified willor may be deemed to invalidate any policy of insurance related to theHire Goods;
6.1.9 not continue to use Hire Goods where they have been damaged and will notify the Supplier immediately if the Hire Goods are involved in anaccident resulting in damage to the Hire Goods, other property and/orinjury to any person; and
6.1.10 where the Hire Goods require fuel, oil and/or electricity ensure that theproper type and/or voltage is used and that, where appropriate, theHire Goods are properly installed by a qualified and competent person.
6.1.11 ensure that any employees, agents or contractors that operate the HireGoods are, if applicable, adequately and sufficiently qualified andtrained to operate the Hire Goods in accordance with all current andapplicable legislation.
6.2 The Hire Goods must be returned by the Customer in complete conditionwith all associated components and be in good working order andcondition (fair wear and tear excepted) and in a clean condition togetherwith all insurance policies, licences, registration and other documentsrelating to the Hire Goods.
7.1 Allowance may be made in relation to the Rental to the Customer for anynon — use of the Hire Goods due to breakdown caused by the developmentof an inherent fault and/or fair wear and tear on condition that theCustomer informs the Supplier as soon as practicable of the breakdownand the Supplier is unable to repair or replace the Hire Goods within areasonable time.
7.2 The Customer shall be responsible for all expenses, loss (including lossof Rental) and/or damage suffered by the Supplier arising from anybreakdown of the Hire Goods due to the Customer’s negligence,misdirection and/or misuse of the Hire Goods.
7.3 The Supplier will at its own cost carry out all routine maintenance andrepairs to the Hire Goods during the Hire Period and all repairs whichare required due to fair wear and tear and/or an inherent fault in the HireGoods. The Customer will be responsible for the cost of all repairsnecessary to Hire Goods during the Hire Period which arise otherwisethan as a result of fair wear and tear, an inherent fault and/or thenegligence of the Supplier while carrying out routine maintenance and/orrepairs. 7.4 The Customer must not repair or attempt to repair the Hire Goods unlessauthorised to do so in writing by the Supplier.
8. LOSS OR DAMAGE TO THE HIRE GOODS
8.1 If the Hire Goods are returned in damaged, unclean and /or defective / incomplete state (including component shortages) except where due tofair wear and tear and / or an inherent fault in the Hire Goods theCustomer shall
be liable to pay the Supplier for the cost of any repair and/ or cleaning required to return the Hire Goods to a condition fit for re‐hire and to pay the Rental, in accordance with the provisions of clause8.3, until such repairs, component shortages and / or cleaning have beenaddressed.
8.2 The Customer will pay to the Supplier the replacement cost of any Hire Goods which are lost, stolen and / or damaged beyond economic repairduring the Hire Period less the amount paid to the Supplier under anypolicy of insurance taken out in accordance with these conditions.
8.3 The Customer shall pay the Rental for the Hire Goods up to and includingthe date it notifies the Supplier that the Hire Goods have been lost, stolenand/ or damaged beyond economic repair. From that date until theSupplier has replaced such Hire Goods the Customer shall pay, as a genuine pre‐estimate of lost rental profit, a sum as liquidated damages being equal to two thirds of the Rental that would have applied for suchHire Goods for that period. The Supplier shall use its reasonablecommercial endeavours to purchase replacements for such Hire Goodsas quickly as possible using the monies paid under clause 8.2 above.
9. TERMINATION BY NOTICE
9.1 If the Hire Period has a fixed duration, subject to the provisions of Section 10 neither the Customer nor the Supplier shall be entitled to terminatethe Contract before the expiry of that fixed period unless agreed with theother
9.2 If the Hire Period does not have a fixed duration either of the Customer or the Supplier is entitled to terminate the Contract upon giving to the other party any agreed period of notice whereupon an official off hire reference number will be issued to / obtained by the Customer from the Supplier.
9.2.1 If no period of notice has been agreed or specified either party shall beentitled to terminate the hire of the Hire Goods by giving not less than 14 days’ notice to the other.
9.3 If no period of notice has been agreed or specified the Customer mayterminate the Hire Period by the physical return of the Hire Goods to the supplier with off hire documentation being issued to / obtained by theCustomer from the Supplier and retained as evidence of termination of hire.
10.1 If the Customer:-
10.1.1 fails to make any payment to the Supplier when due without just cause;
10.1.2 breaches the terms of the Contract and, where the breach is capableof remedy, has not remedied the breach within 14 days of receivingnotice requiring the breach to be remedied;
10.1.3 persistently breaches the terms of the Contract;
10.1.4 provides incomplete, materially inaccurate or misleading facts and/ orinformation in connection with the Contract;
10.1.5 pledges, charges or creates any form of security over any Hire Goodsor proposes to compound with its creditors, creates a trust deed for itscreditors, applies for an interim moratorium in respect of claims and/orproceedings, any distress/diligence, execution or other legal processis levied on any property of
the Customer, has a BankruptcyPetition/Petition for Sequestration presented against it or the Customer takes or suffers any similar action in any jurisdiction;
11. LIMITATIONS OF LIABILITY
11.1 *All warranties, representations, terms, conditions and duties implied bylaw relating to fitness, quality and/or adequacy are excluded to the fullestextent permitted by law.
11.2 *If the Supplier is found to be liable in respect of any loss or damage to the Customer’s property the extent of the Supplier’s Liability will be limitedto the retail cost of replacement of the damaged property.
11.3 Any defective Hire Goods must be returned to the Supplier for inspectionif requested by the Supplier before the Supplier will have any Liability fordefective Hire Goods.
11.4 *The Supplier shall have no Liability to the Customer if, without justcause, any monies due in respect of the Hire Goods and/or the Serviceshave not been paid in full by the due date for payment.
11.5 The Supplier shall have no Liability for additional damage, loss, liability,claims, costs or expenses caused or contributed to by the Customer’scontinued use of defective Hire Goods and/or Services after a defect hasbecome apparent or suspected or should reasonably have becomeapparent to the Customer.
11.6 The Customer shall give the Supplier a reasonable opportunity to remedyany matter for which the Supplier is liable before the Customer incursany costs and/ or expenses in remedying the matter itself. If theCustomer does not do so the Supplier shall have no Liability to theCustomer. 11.7 *The Supplier shall have no Liability to the Customer to the extent thatthe Customer is covered by any policy of insurance arranged as a resultof the Contract and the Customer shall ensure that the Customer’sinsurers waive any and all rights of subrogation they may have againstthe Supplier.
11.8 The Supplier shall have no Liability to the Customer for any of thefollowing losses (whether direct or indirect):-
11.8.1 *consequential losses (including loss of profits and/or damage togoodwill);
11.8.2 economic and/or other similar losses;
11.8.3 special damages and indirect losses; and/or
11.8.4 business interruption, loss of business, contracts and/or opportunity.
11.9 *The Supplier’s total Liability to the Customer under and/or arising inrelation to any Contract shall not exceed 2 times the amount of the Rentaland charges for Services (if any) under that Contract or the sum of £1,000(or Euro equivalent) whichever is the higher. To the extent that anyLiability of the Supplier to the Customer would be met by any insuranceof the Supplier then the Liability of the Supplier shall be extended to theextent that such Liability is met by such insurance.
11.10 Each of the limitations and/or exclusions in this Contract shall be deemedto be repeated and apply as a separate provision for each of:
11.10.1 Liability for breach of contract;
11.10.2 *Liability in tort/delict (including negligence); and
11.10.3* Liability for breach of statutory and/or common law duty; except clause 11.9 above which shall apply once only in respect of all the said types of Liability.
11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier for fraud, death or personal injury due to the Supplier’s negligence, nor exclude or limit any other type of Liability which it is not permitted to exclude or limit as a matter of law.
12.1 Upon termination of the Contract the provisions of clauses 3.2, 3.4, 3.5,8.1, 8.2, 8.3 and Section 6 shall continue in full force and effect.
12.2 Each hire of an item of Hire Goods shall form a distinct Contract whichshall be separate to any other Contract relating to other Hire Goods.
12.3 The Customer shall be liable for the acts and/or omissions of tsemployees, agents, servants and/or subcontractors as though they wereits own acts and/or omissions under this Contract.
12.4* The Customer agrees to indemnify and keep indemnified the Supplieragainst any and all losses, lost profits, damages, claims, costs (includinglegal costs on a full indemnity basis), actions and any other losses and/orliabilities suffered by the Supplier and arising from or due to any breachof contract, any tortious/ delictual act and/or omission and/or any breachof statutory duty by the Customer.
12.5* No waiver by the Supplier of any breach of this Contract shall beconsidered as a waiver of any subsequent breach of the same provisionor any other provision. If any provision is held by any competent authorityto be unenforceable in whole or in part the validity of the other provisionsof this Contract and the remainder of the affected provision shall beunaffected and shall remain in full force and effect.
12.6 The Supplier shall have no Liability to the Customer for any delay and/ornon performance of a Contract to the extent that such delay is due to anyForce Majeure events. If the Supplier is affected by any such event thentime for performance shall be extended for a period equal to the periodthat such event or events delayed such performance.
12.7 All third party rights are excluded and no third parties shall have anyrights to enforce the Contract by virtue of the Contracts (Rights of ThirdParties) Act 1999. This shall not apply to any finance company withwhom the Supplier has an outstanding finance agreement relating to theHire Goods. Such finance company shall, subject to the Supplier’sconsent, have the right to enforce this Contract as if they were theSupplier. This Contract is governed by and interpreted in accordancewith the law of the country where the Supplier is located and that countrywill have exclusive jurisdiction in relation to this Contract.