1. DEFINITIONS AND LAW
The “Contract” is the document or documents that set out these Conditions and all other details about your agreement with us. “We” and “Us” mean the supplier of the hired Equipment or the seller of the Goods. “You” means the person, firm, company, corporation or public authority or body to whom we supply Equipment on hire or to whom we sell Goods. “Equipment” means the hired items referred to in the Contract. “Goods” means the Goods we have sold to you which are as described in our catalogues or in any separate goods specification we have provided you with. “Recipient” means the person, firm, company, corporation or public authority to whom the Goods are delivered, when it is not you. These Conditions exclude any terms and conditions you may have put forward, except where we have agreed to any amendments or other conditions in writing. These Conditions do not affect the statutory rights of a person dealing as a consumer as defined by the Unfair Contract Terms Act 1977 or any statutory modification of that Act. The Contract will be governed by and interpreted in accordance with English Law.
2. BASIS OF CHARGING/PAYMENT
You will pay the hire charges or purchase price stated in the Contract. Hire charges will begin at the time stated in the Contract and will continue during the period of hire until we have given you a collection or off-hire number, or until you have restored the Equipment to us in a clean and serviceable condition and we have given you a receipt for it. All time is chargeable including Saturdays, Sundays and Bank Holidays. All charges are payable on demand. If payment is not made when due, we will be entitled to interest on the amount that is overdue at four per cent above the prevailing base rate of National Westminster Bank PLC calculated on a daily basis and all other sums payable under the Contract will fall due. This will be without prejudice to any other rights or remedies we may have. Should a dispute arise in respect of any specific item described by any specific invoice you shall not be entitled during the course of this dispute to withhold any sums for payment beyond those specifically relating to the disputed items(s). A counter-claim against us will only be accepted for deduction from any payment made to us where we have agreed to such a deduction in writing. Counter—claims will only be considered for acceptance between the parties to this contract. No amount which might be due for payment to an associate company or to the parent company will be deemed to be acceptable as a counter-claim in this context. You will also pay to us any charges we reasonably incur in the recovery from you of money or Equipment. We reserve the right to vary the hire charges by giving you not less than thirty (30) days prior written notice. Where we have granted monthly account facilities to you in writing, all invoices must be paid by the last day of the month following the month of delivery. Where no such facilities have been granted, payment will be made at the time you place your order, or where previously agreed, on delivery. Unless specifically stated otherwise, prices and rates shown in quotations, contracts, invoices, certificates and correspondence are nett exclusive of VAT, which will be payable to us as an addition to the hire charge at the rate or rates laid down from time to time by Law. We shall be entitled to adjust the rates and amount of VAT retrospectively or otherwise comply with any rulings made by H M Customs and Excise affecting any goods sold, hired or provided by us.
3. DELIVERY AND CARRIAGE CHARGES FOR HIRED EQUIPMENT
Hire charges do not include carriage. You will pay to us any agreed charges for delivering or collecting Equipment. Where we quote carriage charges, these include only the time required to load or unload alongside our vehicle at the address you have specified. You will pay extra for any further time or attendance including any attempt by us to carry out your pre-arranged instructions for delivery or collection which is unsuccessful due to your acts or omissions. You should satisfy yourself on delivery of the suitability of the Equipment and that your requirements will be fulfilled by the Equipment recommended prior to accepting the delivery. Time shall not be of the essence in relation to delivery or collection. Dates or times quoted by us are estimates only and not guaranteed. Where we have agreed to position the Equipment in a specific location you must have an authorised representative available at the time of delivery to instruct us regarding that position. You will be responsible for any parking or standing charges we incur during delivery.
4. RECEIPT OF GOODS
You, or the Recipient on your behalf, will receive and unload the Goods and should check them for quantity and condition in the presence of the carrier. If there is a shortage or if any of the Goods are in an unsatisfactory condition, you or the Recipient must so endorse the carrier’s delivery document and must give a separate written notice of this to us within three days of delivery. If this condition is not observed, no claim in respect of shortage or of unsatisfactory condition of the Goods will be entertained. If you or the Recipient are not present when the Equipment is delivered we will despatch a Hire Delivery Note to you. Your Hire Delivery Note shall be conclusive proof of the delivery of the Equipment set out therein. We undertake that the Goods will conform in all material respect with their description, be free from material defects in design. We shall at our option repair or replace defective goods or refund the price of the goods in full if we are given reasonable opportunity to inspect the goods and we agree that they do not meet their specification.
5. RISK AND TITLE TO EQUIPMENT
The ownership of the Equipment will remain with us and we reserve the right to dispose of the Equipment which we have supplied at any time to you. For the duration of the hire you will hold the Equipment on our behalf and will be under an obligation to return the Equipment to us on demand.
6. RISK AND TITLE TO GOODS
(i)The risk in the goods will pass to you immediately on delivery of the Goods to you or to the recipient.
(ii) the ownership of the Goods will remain with us and we reserve the right to dispose of the Goods until you have paid in full for all goods which we have supplied at any time to you. Until such payment has been made in full you will hold the Goods on our behalf and will be under an obligation to return them to us on demand. You will permit us to enter any land or premises of yours to recover our Goods.
7. WHEN THE CONTRACT COMES INTO BEING
The Contract comes into being when you have placed an order giving details of your requirements and have agreed to be bound by these Conditions and we have accepted your order.
8. ADVICE AND RECOMMENDATION
Where we give information to you or advise you on the choice of Equipment or provide advice, we do not warrant the correctness of any information, advice, or recommendation nor the suitability of the Equipment for a specific use. Save as expressly agreed otherwise, the same applies for suggestions from us regarding the configuration of the Equipment. Such suggestions are non-binding. They are solely based on the information given by you. You should verify whether the suggested configuration can be utilised on the relevant project either safely or at all. You must verify and be satisfied with and warrant that all information and data supplied to us by you or your employees or representatives, is accurate and complete, in particular sufficient for the provision of any advice regarding the Equipment by us. Unless otherwise agreed, we are not obliged to verify the information given by you or to investigate. All drawings, illustrations, designs, plans, performance figures, computations, descriptions, weights and measurements supplied by us to you are approximations only and shall not form part of the contract. You are relying on your own experience and judgement in relation to the Equipment. This applies in particular to the question of suitability of the Equipment for the purpose you are hiring it for as well as to the appropriateness of the Equipment’s configuration. Any changes to site conditions or other information provided by you must be notified in writing to us immediately. We reserve the right to amend our advice or suggestions for the Equipment’s configuration in accordance with the amended conditions. If you fail to notify us of such changes we take no responsibility for the continued use of the Equipment.
9. SAFETY AND INSTRUCTIONS
It is your responsibility to make sure that all people who use the Equipment are properly instructed in its safe and correct use and that they are in possession of all instructions supplied by us. You are responsible for ensuring that any checks, testing, examinations of the Equipment required by Employment and Health and Safety Legislation, and/or any operating instructions we provide are carried out after delivery and for so long as the Equipment remains under your control. You specifically acknowledge and agree that where an examination is to be carried out in accordance with any statutory regulations it is your responsibility to ensure that any examination is carried out within the prescribed inspection interval. You must ensure that the Equipment is not misused. Should we consider the site where the Equipment is to be delivered is in an unsafe condition or position, then we reserve the right to request you to render every possible assistance to make the site and the Equipment safe to work on in accordance with all applicable health and safety legislation and guidance. Failure to render the said assistance will entitle us to terminate the Contract or suspend provision of the Services without any liability to us. Should we carry out an inspection and our inspection reveal defects affecting the safety of the Equipment you will need to take appropriate action in relation to such item.
10. WHEN YOUR SIGNATURE FOR RECEIPT OF EQUIPMENT BECOMES EFFECTIVE
Where for administrative convenience, you or your agent are requested by us to sign a receipt for the Equipment before it is handed over, you or your agent will be given the opportunity to examine the Equipment when it is physically handed over to you or your agent. The receipt will not be effective until immediately after the physical handover.
11. RESPONSIBILITY OF HIRER (YOUR RESPONSIBILITY)
(i) You will be responsible for the loading and unloading of the Equipment at the address specified by you. You will also be responsible for the loading and unloading of the Equipment at our premises when the Equipment is transported by you or your agent. If we supply any person to assist you, he will be under your control at such times.
(ii) Your responsibility for the Equipment begins when you or your agent receive the Equipment. If it is delivered to you your responsibility begins on delivery. Your responsibilities include safekeeping of the Equipment, and protection against the elements, theft, vandalism or improper use. You are responsible for the return of the Equipment or making clear arrangements with us for the collection of the Equipment at the end of hire. Your responsibility ends only when the Equipment has been returned or collected and you have our unqualified receipt for all of the Equipment. You must not sell or otherwise part with control of the Equipment.
(iii) For the purposes of smoke free legislation you control and manage the Equipment under these terms and conditions, you must comply with the smoke free legislation. You will indemnify us for any loss or damage caused by you failing to comply with the smoke free legislation.
(iv) You will indemnify us against any and every expense, liability, financial loss, claim or proceedings whatsoever, and in respect of any death or personal injury whatsoever or damage to or loss of property whatsoever (other than the Equipment itself, which is governed by Conditions 19 and 20) arising out of the delivery, use, non-use, repossession, collection or return of the Equipment or any part of it.
(v) You should not remove, deface or cover up the name plates or marks which we have placed on Equipment, which indicates that it is the property that belongs to us. Nor will you deface, alter or cover up any notices giving warnings, information or instructions about the use of the Equipment. You must take all reasonable, adequate and proper measures to protect the Equipment from vandalism and any other damage including, but not limited to, damage caused by adverse weather conditions such as frost.
(vi) All components are to be returned in the exact dimensions supplied. Only Equipment provided by us and identified by us as such will be accepted at the end of the hire period.
(vii) You will be responsible for the equipment used for the loading and unloading of trenching and shoring equipment, including any lifting or other accessories used.
12. ENVIRONMENTAL
You are responsible for all environmental consequences and environmental impact caused as a result of your use of the Equipment, however so occurring and including but not being limited to any leaks or emissions stemming from the Equipment. You will keep us indemnified from any claims made against us by third parties relating to environmental contamination or emissions or any other environmental issue caused by the Equipment during your period of hire.
13. ELECTRICAL EQUIPMENT
Where any part of the Equipment is electrical it should normally be used with plugs and/or sockets as fitted but if temporarily fitted with other suitable plugs or sockets, this must be carried out by a competent person who must also return it to its original condition. It will be your responsibility at all times to arrange a suitable supply of electricity for use with the Equipment. Under no circumstances should electrical Equipment be used without it being correctly earthed unless it is of double insulated specification. You will be responsible for complying with the requirements of the Electricity at Work Regulations 1989 and any relevant subsequent regulations during the period of your responsibility for the Equipment.
14. MAINTENANCE OF EQUIPMENT, BREAKDOWN PROCEDURES AND ACCIDENT REPORTING
You must throughout the period of the Contract take good care of the Equipment and keep yourself acquainted with the state and condition of the Equipment, ensuring that it remains safe, serviceable and clean; carry out all User Routine Maintenance; order and pay for such consumable items as you shall require to operate and use the Equipment; and under no circumstances must you make or endeavour to make any repairs, alterations or additions to the Equipment or any part thereof nor permit any other person to do so without our prior written consent. Any breakdown or any unsatisfactory working of Equipment must be immediately notified to us. The Equipment must be returned to our premises for examination except where examination elsewhere has been mutually agreed upon. You must notify us immediately if the Equipment is involved in any accident resulting in damage to the Equipment or to other property, or injury to any person. No allowance for the hire charges or for the cost of repair will be made by us to you unless they have been specifically authorised in writing by us to carry out the repair. You will be responsible for the expense arising from any breakdown of the Equipment unless it is deemed by us to have been caused by an inherent fault in the Equipment, normal running repairs or fair wear and tear. You shall be responsible for all loss and damage incurred by us including but not limited to that caused by your negligent misdirection or misuse of the Equipment whether by you or your employees or agents. You shall be responsible for all hire fees during such time as the Equipment is idle due to such a breakdown.
15. PROVISIONS RELATING TO WELFARE EQUIPMENT
(i) You will be responsible for ensuring that the site to which we deliver is firm and level and there will be free and unrestricted access for our delivery and/or service vehicle. You should ensure that use of the Equipment is properly supervised in situations where the young, elderly or mentally or physically disabled (whether temporarily through drink or drugs or otherwise) are or are likely to use the Equipment. You will be responsible for making good any damage or loss caused to the Equipment or to any third party property which occurs as a result of this failure.
(ii) We will ordinarily service the Equipment once a week (or as otherwise agreed in writing). We will not be required to service the Equipment if it has been moved without our consent. It is your responsibility to contact us if weather conditions have affected your site, which are likely to prevent us carrying out the service. You should ensure that the Equipment is fixed to the ground so that it cannot be removed or fall over. Where the Equipment provided is a portable toilet it is offered in accordance with BS6465 and any relevant subsequent standards. We recommend a ratio of 1 toilet to 7 persons where weekly servicing is provided and accept no liability where this recommendation is not followed. Any recommendation we informally make about the amount of Equipment you may require does not form part of the contract between us. It is your responsibility to ensure that all persons using the Equipment are fully aware that the water provided as part of the Equipment (if any) is not potable. It is your responsibility to ensure that any water used in connection with the operation of the facility provided is free of contamination including water borne diseases. It is your responsibility to ensure that all other contamination (including but without limitation), needles, sharps, and other waste products or foreign objects are removed from the Equipment before it is returned to us. (We will charge you any costs we incur in restoring the Equipment to a clean state if this clause is not complied with). It is your responsibility to ensure that the Equipment is not used after the termination of the hire period.
16. PROVISIONS RELATING TO TRENCHING AND SHORING EQUIPMENT
(i) If we provide a CAD Design service for your Trenching and Shoring project you will be responsible for providing us with all information which could be relevant to the design. This includes but is not limited to details of the ground conditions on the site, the soil type and angle of any slope, a geotechnical report including, but not limited to soil pressures, the locations of any underground structures, water courses or existing services in the area, location of scaffold footings, buried services or the foundations of nearby buildings or walls adjacent to the site, operational activities and vehicular movement. You are responsible for ensuring the accuracy of all information about the site and of any measurements you provide. Surveys of the foundations and the advice of a structural engineer may be required in addition to any CAD Design we provide and you should instruct this separately.
(ii) You are responsible for insuring that when implementing any CAD Design we provide that before digging any trench pit, tunnel, or other excavations, you have the necessary temporary support and all Equipment including (trench sheets, props, baulks etc.) are available on site before work starts.
(iii) We may recommend Edge protection in our CAD Design which includes toe boards, trench sheets or box sides even with this equipment in place you should still ensure that appropriate head protection is worn and that edges of excavations are protected with substantial barriers.
(iv) You are responsible for ensuring inspection of the evacuation site is carried out by a competent person who fully understands the dangers and necessary precautions each day and that plant and machinery is not parked near to the evacuation site.
(v) Any faults that are found with the Equipment provided should be corrected immediately and reported to us. We provide a temporary works design only service and take no responsibility for the failure of that design in use. You are responsible for the safety of and the implementation of the design on site. The design we have provided should not be used if site conditions have changed, or if we have not been provided with all relevant information or if on inspection it has not produced a stable and safe working space.
(vi) For the avoidance of doubt if you do not instruct our CAD Design service then all trenching shoring equipment is provided on a hire only basis and we cannot advise on the type or quantity required.
17. LOCATION OF EQUIPMENT
Equipment must not be removed without our authority from any site originally specified by you or from any site we subsequently authorise. Where we give authority for you to re-hire the Equipment to a third party, you are deemed to retain control of the Equipment from us whether or not it might remain in your possession. You shall be solely responsible for the payment of all hire charges and liability incurred.
18. LIMITS OF OUR LIABILITY- YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
(i) We will not be liable for any delays caused by any circumstances beyond our reasonable control.
(ii) We will not be liable for any indirect consequential or special loss, loss of business, profits, goodwill, contracts, revenues, savings you expected to make, wasted money, wages, fees or expenses, due to late delivery, non-delivery, unsuitability, breakdown or stoppage of the Equipment or any part of it, even if you have advised us of the possibility of such loss or damage.
(iii) Nothing in these terms and conditions shall exclude us from liability for death or personal injury caused by our negligence, fraudulent misrepresentation or any other type of liability which cannot be excluded or limited by operation of law.
(iv) Our total Liability to you whether in Contract, tort, statutory breach of duty or otherwise, arising under or in connection with the contract shall not exceed 5 times the amount of the Charges or the sum of £1,000, whichever is the higher, under that Contract. To the extent that any of our Liability to you would be met by our insurance then our Liability shall be extended to the extent that such Liability is met by such insurance
(v) This clause will survive termination or expiry of these terms and conditions.
19. INSURANCE AND YOUR RESPONSIBILITY FOR LOST, STOLEN OR DAMAGED EQUIPMENT
You will pay to us the replacement cost of any Equipment which is lost or stolen or damaged beyond economic repair. You are advised to insure the Equipment on this basis. You will hold in trust for us and pay to us on demand all money you receive from an insurance company or from any other source in settlement of any claim relating to the loss, theft or damage of any of the Equipment. You must not compromise any claim without our express consent.
20. NON-RETURNED, LOST, STOLEN, DAMAGED OR UNCLEAN EQUIPMENT
(i) You have full responsibility for the care, safekeeping and return in good order of the Equipment.
(ii) You will pay to us all costs we incur in rectifying any Equipment returned damaged or unclean. Additionally, you will pay for our financial loss until such rectification is complete.
(iii) Where Equipment is lost or stolen or damaged beyond economic repair, you will pay for all financial loss to us until you have paid to us the replacement cost. This is without
prejudice to our other rights.
21. CONFIDENTIAILTY, DISCLOSURE AND DEFAMATION – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
If an incident should occur on your Site or elsewhere in which a piece of our Equipment provided to you is involved this must be reported to us as soon as possible. No announcement relating to our Equipment should be made or any blame attributed to our Equipment without our having had the opportunity to investigate the incident. Any press release, discussion, briefing or industry circular which falsely attributes blame to our Equipment will be investigated and we will take appropriate action against any party who makes inaccurate statements about our Equipment when another factor out with our control such as operator error, site conditions or your failure to comply with a clause of this Contract was to blame. Making inaccurate statements about our Equipment may cause us financial loss. If this occurs we will seek to recover that loss from you. We take matters of this nature very seriously and may refuse to hire Equipment or sell Goods to you in the future should you fail to comply with the terms of this clause.
22. DATA PROTECTION AND DATA PROCESSING
You acknowledge that for the purposes of UK Data Protection Legislation (meaning any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.) and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy we will comply with all applicable requirements of the Data Protection Legislation. For the purposes of the Data Protection Legislation you are the data controller and we are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement. We shall, in relation to any Personal Data
processed in connection with the performance by us of our obligations under this contract process that Personal Data only on the written instructions unless we are required by Applicable Laws to otherwise process that Personal Data. Where we are relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you. Ensure that we have in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it). Ensure that all of our personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential. Not transfer any Personal Data outside of the European Economic Area unless we have your prior written consent and the following conditions are fulfilled: (i) we have provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; and (iii) we comply with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred. You do not consent to us appointing any third party processor of Personal Data under this Contract.
For the purposes of the prevention and detection of crime we may share any Personal Data you provide to us with police and other parties in our industry if we consider there is a significant public interest in us doing so. We will not seek your additional consent in these circumstances.
23. FORCE MAJEURE
Neither party to the Contract shall be under any Liability for any the failure to perform any of their respective obligations as a result of Force Majeure, other than your obligation to make any payment hereunder. Following notification by one party to the other of Force Majeure, the affected party shall be allowed a reasonable extension of time for the performance of its obligations. For the purposes of this Clause, “Force Majeure” means fire, explosion, flood, adverse weather conditions, lightning, act of God, act of terrorism, war, rebellion, riot, sabotage, strike or similar labour dispute, traffic delays or other events or circumstances outside the reasonable control of the affected party.
24. TERMINATION OF HIRE
We will be entitled at any time to terminate the Contract with immediate effect and to repossess any or all of the Equipment if you commit a material breach of your obligations under this Contract or if any proceedings are commenced in which your solvency is called into question or your financial position deteriorates to such an extent that we feel your capability to fulfil your obligations under the contract has been placed in jeopardy. Such termination will not affect our right to recover from you any money due to us under this Contract or damages for breach of contract.
25. OUR RIGHTS OF ACCESS
You authorise us to enter any land or premises where we reasonably believe any Equipment or Goods to be, in order to inspect, test, repair, replace or repossess it.
26. RIGHTS RESERVED
Any failure by us to enforce any or all of these Conditions shall not amount to, or be interpreted as, a waiver of any of our rights.
27. SEPARATE TERM VALIDITY AND HEADINGS
If any term in this Contract is held invalid this shall not affect the validity of the remaining terms. The headings in these Conditions are for reference purposes only and shall not affect the interpretation of these Conditions.
INFECTIOUS DISEASES, BIOLOGICAL HAZARDS/AGENTS, HAZARDOUS SUBSTANCES CONTAMINATION AND OUTBREAKS – CLEANING AND NOTIFICATION REQUIREMENTS
Where the Equipment is/has been in use or stored at a site where infectious diseases, biological hazards/agents, hazardous substances have been found or are suspected (or where any individual known to be infected by any infectious disease have worked) You must notify Us as soon as reasonably practicable and undertake an extensive and documented cleaning/decontamination process using appropriate cleaning materials and methods, ensuring that the Equipment is returned to Us in a safe, clean and decontaminated condition. Where the Equipment is unable to be cleaned/decontaminated to an acceptable standard as advised by a regulatory or statutory body, You will be responsible for the full costs of disposal and replacement of the Equipment. If the cleaning process is not considered adequate or has not been documented, We reserve the right to arrange for specialist cleaning/decontamination or the replacement of the Equipment, the cost (including disposal) of which will be charged to you.
