The “Contract” is the Contract between Orange Plant (the Owner) and the Hirer for the hire of the Plant, which incorporates the Offer and is governed by these conditions. The “Hire Period” shall commence from the agreed time of collection or when the Plant leaves an Orange Plant depot and shall continue until the Plant is received back at an Orange Plant depot or other agreed location. For the avoidance of doubt the Hire Period includes the time Plant is left on site over a Weekend or Holiday Period.
(a) 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 and direct employees.
(b) “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.
(c) The “Owner” is the Company, firm or person letting the Plant on hire and includes their successors, assignees or personal representatives.
(d) “Plant” covers all classes of Plant, or replacement Plant, machinery, vehicles, equipment, trailers, accessories, and any ancillary items, vehicles or equipment, 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.
(e) A “Working Day” shall be from 7.30 am to 5.00 pm.
(f) A “Working Week” covers the period from 7.30am on Monday to 5.00pm on Friday, unless otherwise specified.
2. EXTENT OF CONTRACT
(a) 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.
(b) We will make a search with a credit reference agency, which will keep a record of that search and will share the information with other businesses. We may also make enquiries about the principal directors with a credit reference agency.
3. ACCEPTANCE OF PLANT
Acceptance of the Plant on site implies acceptance of all terms and conditions herein unless otherwise previously agreed in writing. This includes that the Hirer received familiarisation specific to the plant hired, shown the basic operation, safe use and daily checks/maintenance (including supply of fuel, oils, grease and water) to be carried out by the Hirer. Also that the Plant is in good working order and all blades/cutters were sharp. The plant was fully fuelled. Any defects must be pointed out at delivery/collection and noted on the contract at hand over.
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 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:
(a) Unless notification in writing to the contrary is received by the Owner from the Hirer, 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. The Hirer shall be responsible for the safe keeping of the Plant, its use in a workmanlike manner within the manufacturers rated capacity and in accordance with the manufacturers and/or the Owner’s recommendations, and its return on the completion of the Hire Period in equal good order.
(b) The Hirer shall at all times when hiring Plant take all reasonable steps to keep himself acquainted with the state and condition of the Plant. If such Plant is used use in an unsafe and unsatisfactory state or environment, the Hirer shall be solely responsible for any damage, loss, cost, expense or accidents whether arising directly or indirectly.
(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) 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
The Hirer shall not allow any other person to operate such Plant without the Owner’s prior written consent.
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 in accordance with the terms of the Contract.
(c) The Hirer shall not (except for the changing of any tyre and repair of punctures or refitting of slipped track and lighting system), 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. 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”), 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 through any cause whatsoever, shall not entitle the Hirer to compensation or allowance for the loss of working time.
12. LIMITATION OF LIABILITY
Except for liability on the part of the Owner which is expressly provided for in the Contract (including these clauses): 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.
(a) 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
(b) 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.
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 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 until full payment for the loss or damages has been made by the hirer.
(c) Notwithstanding the above the Hirer shall not be responsible for damage, loss or injury:
(i) Prior to delivery of any Plant to the site where the Plant is in transit by transport of the Owner or as otherwise arranged by the Owner,
(ii) After the Plant has been removed from the site and is in to the Owner by transport of 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. “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.
17. COMMENCEMENT AND TERMINATION OF CONTRACT
(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 . The Hirer must obtain an “off hire “number before 14.00 on the day which the Hirer wishes to terminate the contract as confirmation. Please note this on any further correspondence.
(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.
(d) Late returns outside of the normal working day will incur an additional charge of £35 (per half hour)
18. FUEL, OIL AND GREASE
Fuel, oil and grease shall, when supplied by the Owner will be charged, 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.
19. SHARPENING OF BLADES, TEETH ETC
No cost of re-sharpening or replacement of blades, teeth shall be borne by the Hirer unless excessive wear and tear is evident or they have exceeded the service hours set out by the manufacturer of the cutters. However mileage charges to site will be borne by the Hirer.
21. OWNER’S NAME PLATES
The Hirer shall not remove, deface or cover up the Owner’s name plate or place any mark on the Plant indicating that it is his property.
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.
23. 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 Act and observance of the Road Traffic Acts should they apply.
(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.
24. 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 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 immediately by written notice to the Hirer if one or more of the following events occur:
(i) 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;
(ii) The Hirer fails to observe and perform the terms and conditions of the Contract;
(iii) The Hirer suffers, or the Owner reasonably believes that the Hirer shall suffer, any distress or execution to be levied against him;
(iv) The Hirer makes or proposes to make any arrangement with his creditors or becomes insolvent.
(v) 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.
(d) The rights under sub-paragraph (b) and (c) above:
(i) May be exercised notwithstanding that the Owner may have waived some previous default or matter of the same or a like nature.
(ii) 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.
25. DISPUTE RESOLUTION
(a) 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.
26. 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.
CPA The Construction Plant-hire Association
2011 Hire Contact Terms and Conditions for Consumers for Plant and Equipment Supplied without an Operator
Important note to Owners and Hirers of Plant and Equipment: These CPA Hire Contract Terms for Consumers are intended to apply to the hiring of Plant and Equipment supplied without an operator to individual consumers not acting in the course of any business. All these terms have been drawn up by the CPA and are recommended to CPA members and consumers as a comprehensive, fair and properly integrated set of hire terms appropriate to this type of equipment. Both the Owner and the Hirer must ensure that they are fully covered by insurance against the risks involved in the hire of the Plant and Equipment under these Terms and Conditions.
15 FAULTS, DEFECTS OR BREAKDOWN OF PLANT AND EQUIPMENT
15.1 You must immediately notify us if the Plant and Equipment breaks down or suffers a fault or defect such that it is inoperable or unsafe to use.
15.2 The Plant and Equipment must be returned to us as soon as possible and in any event within the time agreed with us when you notify us of the problem. On return of the Plant and Equipment we will use our best endeavours to repair it or exchange it.
15.3 We will not charge you for the hire of the Plant and Equipment during the period that it is broken down. It is therefore important that you notify us as soon as the breakdown occurs.
15.4 In the case of wheeled Plant and Equipment, you will be responsible for repairing any punctures that occur and/or replacing any tyre damaged (fair wear and tear excepted) while the Plant and Equipment is in your possession. No refund of Hire Charges will be made by us in respect of stoppages caused by punctures or tyre damage occurring during the period of hire.
15.5 Except for the repair of punctures, you must not repair or attempt to repair the Plant and Equipment unless authorised to do so by us.
15.6 Where the Plant and Equipment has broken down or is faulty or defective and is not readily repairable, we will substitute it with plant and equipment of a similar type. If no suitable substitute is available immediately, we will suggest alternative dates when you can hire the substitute plant and equipment. If the suggested replacement or the suggested alternative dates are not satisfactory to you, you can terminate the hire and claim for a refund for the period during which you could not make use of the Plant and Equipment.
16 NOTIFICATION OF ACCIDENTS You must notify us immediately if there is any accident involving the Plant and Equipment which results in damage to the Plant and Equipment or to other property or injury to or the death of any person.
17 TERMINATION OF HIRE
17.1 You can bring this Agreement to an end at any time by returning the Plant and Equipment to us in accordance with clause 18 below and paying the Outstanding Balance.
17.2 If you breach any term of this Agreement, we may terminate this Agreement and require the immediate return of the Plant and Equipment to us. You undertake to return the Plant and Equipment to us upon termination of this Agreement. We will not ask you to return the Plant and Equipment before the end of the minimum or fixed period unless you are in default.
17.3 At the end of the minimum or fixed period agreed between the parties you must return the Plant and Equipment to us in accordance with clause 18 below. If you wish to extend the period of hire, you must contact us before the minimum or fixed period expires. We may agree an extension, up to a maximum of three months including the original minimum or fixed period of hire.
18 RETURN OF PLANT AND EQUIPMENT
18.1 You must return the Plant and Equipment to us in the same condition as when we supplied it to you although you will not be responsible for reasonable wear and tear which may occur during the period of hire.
18.2 You must clean the Plant and Equipment before you return it to us. If you have not made a reasonable attempt to clean it, you will be responsible for our reasonable costs for cleaning and restoration of the Plant and Equipment to enable it to be hired to someone else in a fit and proper condition.
19.1 The Plant and Equipment can be hired by the day, for the weekend, by the working week, by the week or by the month. If you do not return the Plant and Equipment to us by the times set out below then we will be entitled to charge you for an additional day’s (or days’) hire. The latest times, by which the Plant and Equipment must be returned, unless we are collecting it, are as follows:
Plant and Equipment hired for a day Must be returned within 24 hours Plant and Equipment hired for a weekend Must be returned by 8.30 am on Monday Plant and Equipment hired for a working Must be returned by 3.30pm on Friday week (Monday – Friday) Plant and Equipment hired for a week Must be returned by 3.30 pm on the seventh consecutive day (so if you hire it on Wednesday it must be returned by 3.30 pm Tuesday) Plant and Equipment hired for a month Must be returned by 3.30 pm on the last day of the calendar month (so if you hire it on the 15th of the month you must return it by 3.30 pm on 14th of the next month).
19.2 You must pay Hire Charges for each day that you hire the Plant and Equipment, including Saturdays, Sundays and Public Holidays. If you agreed to take the Plant and Equipment for a minimum or a fixed period, you must pay the Hire Charges applicable for the whole of the minimum or the fixed period.
19.3 Hire Charges are due at the beginning and/or at the end of the hire. We will let you know when you must pay the Hire Charges at the time you hire the Plant and Equipment.
19.4 You must pay the Hire Charges in full and on the due dates, and time is of the essence for payment. 19.5 If any payment due under this Agreement is not paid in full and on the due date, interest will be charged from the due date to the date of payment at the base rate of the Bank of England plus 8% per annum.
20 CONSUMABLE ITEMS
20.1 We will supply fuel, oils and greases to you if you ask us to do so. We will make a charge for any fuel, oils and greases, which we supply. You may buy your own fuel, oils and greases but you must use the grade and type we specify.
20.2 You are responsible for the cost of re-sharpening drills, cutting edges and other tools.
20.3 If we supply you with any consumable items or ear and eye protectors for use with the Plant and Equipment, these are sold to you and you must pay for them. At our discretion, we may refund the price of any such items that are returned to us in a suitable condition for taking back into stock.
21 OUR NAMEPLATES
You must not remove, deface or cover up any nameplate or identification mark or number on the Plant and Equipment, nor put any mark on the Plant and Equipment, which might indicate or suggest that the Plant and Equipment belongs to you.
We may ask you to pay a reasonable deposit based on the value of the Plant and Equipment you hire. We will keep the deposit until the Plant and Equipment is returned to us. The deposit will be returned to you if the Plant and Equipment is returned in the same condition as it was when hired to you (fair wear and tear excepted). However, when we repay the deposit we will be allowed to deduct from it any monies you may owe us.
23.1 If any provision of this Agreement is held to be unlawful, void or unenforceable then that provision will be deemed severable and will not affect the validity and enforceability of the remaining provisions, to the extent permitted by law.
23.2 Notices from you to us should be sent to us at our principal office address. Notices from us to you will be sent to the address provided to us by you or to any other address which you have notified to us in writing. You will notify us immediately in writing of any change to your address.
23.3 This Agreement incorporates all of the terms agreed between you and us. It cannot be varied except by a document signed by you and us on or after the date of this Agreement.
23.4 A party who is not a party to this Agreement shall have no right to enforce any term of this Agreement under the Contracts (Rights of Third) Parties Act 1999.
23.5 If any amount is payable to you by us under this Agreement, we may withhold from those monies an amount equal to the total monies you owe us under this Agreement.
23.6 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 our head office is located.
IMPORTANT SAFETY WARNING
Before using any Plant and Equipment provided by us, we would draw your attention to the following points: A You must ensure that all users of the Plant and Equipment, in particular electrical equipment, have been instructed in its safe use and operation and that such use is in accordance with any relevant operating and safety instructions supplied with the Plant and Equipment. B You must ensure that all electrical equipment is connected to the correct supply via suitable plugs or sockets. Where a temporary change in electrical plugs or sockets is required, this must be carried out by a qualified electrician who must also reinstate the Plant and Equipment to its original condition. You must ensure that all electrical equipment is correctly earthed and insulated. C You must ensure that all liquid fuels and compressed gases supplied for use with the Plant and Equipment are transported, stored and used in a safe manner in accordance with any safety instructions supplied, or as instructed by us. D WE WILL PROVIDE YOU WITH SAFETY AND OPERATING INSTRUCTIONS FOR SAFE USE OF THE PLANT AND EQUIPMENT. YOU MUST ONLY OPERATE THE PLANT AND EQUIPMENT IN ACCORDANCE WITH THE OPERATING AND SAFETY INSTRUCTIONS SUPPLIED WITH IT OR ANY OTHER SAFETY INSTRUCTION GIVEN TO YOU BY US. IF YOU DO NOT UNDERSTAND ANY PART OF THE RELEVANT OPERATING AND SAFETY INSTRUCTIONS YOU MUST SEEK ASSISTANCE FROM A SUITABLY QUALIFIED PERSON OR US BEFORE USING THE PLANT AND EQUIPMENT. WE WILL NOT ACCEPT ANY RESPONSIBILITY FOR ANY DAMAGE AND/ OR INJURY CAUSED BY YOUR FAILURE TO COMPLY WITH OPERATING AND SAFETY INSTRUCTIONS SUPPLIED TO YOU. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU ARE FULLY COVERED BY INSURANCE FOR ANY RISKS INVOLVED IN THE USE OF THE PLANT AND EQUIPMENT, SUCH AS PERSONAL INJURY OR DEATH TO USERS OF THE PLANT AND EQUIPMENT OR OTHER PERSONS. E THIS SAFETY WARNING IS NOT IN ANY WAY INTENDED TO EXCLUDE OR LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE, BREACH OF CONTRACT OR OTHER DEFAULT.
In this Hire Agreement (the “Agreement”), 1.1 “Hire Charges” means the charges including the hire charges, delivery fee, Waiver Fee and other fees (as applicable) charged to you by us in respect of the hire of the Plant and Equipment. 1.2 “Outstanding Balance” means all amounts payable under this Agreement less the amount paid. 1.3 “Plant and Equipment” means the plant and equipment hired to you by us including any substitutions, replacements and additions made in accordance with the terms of this Agreement and any manuals, accessories or other item supplied with the Plant and Equipment. 1.4 “Site” means the location where you intend to use the Plant and Equipment. 1.5 “you”, “your” means the hirer (or hirers) of the Plant and Equipment. 1.6 “Waiver Fee” means the fee to be paid by you in accordance with clause 5.2 , if applicable. 1.7 “we”, “us”, “our” – means the owner of the Plant and Equipment, its successors, its employees and agents, and any business or other person to whom the owner transfers (by absolute assignment, by way of novation or by way of security) any or all of its rights or its rights and responsibilities (whether legal or equitable) under the Agreement.
2 MAXIMUM PERIOD OF HIRE
The term of this Agreement will not exceed three calendar months.
3 NON-BUSINESS HIRE
The Plant and Equipment is hired to you on the basis that it is used only for private or non-commercial use. You must not use the Plant and Equipment for commercial purposes.
4.1 If either you or we are in breach of any term of this Agreement, neither of us will be responsible for any losses that the other suffers as a result of such breach except losses which are a foreseeable consequence of the breach.
4.2 You have agreed to hire the Plant and Equipment for domestic and non-commercial purposes only. In the circumstances, if we are in breach of this Agreement we will not be liable to you for any claim relating to business expenses or losses, including but not limited to claims for loss of profit.
4.3 We will not accept any responsibility for any damage and/or injury caused by your failure to comply with operating and safety instructions supplied to you. It is your responsibility to ensure that you are fully covered by insurance for any risks involved in the use of the Plant and Equipment, such as personal injury or death to users of the Plant and Equipment or other persons. This clause does not exclude or limit our liability for death or personal injury caused by our negligence, breach of contract or other default.
4.4 If a third party makes a claim against us in relation to any loss or damage caused by the Plant and Equipment as a result of your breach of any term of this Agreement, you will indemnify us in full for all costs and/or losses suffered by us as result thereof including but not limited to payment of compensation (including interest where applicable) to the third party, our reasonable legal and other fees incurred as a result of any legal action resulting from the claim. You will not be responsible for such a claim to the extent that the loss or damage results from our negligence or breach of contract.
4.5 Subject to clause 4.7, our liability is limited as follows: Our liability for loss, destruction or damage to goods or property is limited to a total of £1 million whether due to our breach of contract, negligence or otherwise.
4.6 If you think that there is a possibility that goods or property could be damaged which have a value of more than the limit set out in clause 4.5, then you must notify us in writing before the Plant and Equipment is delivered to the Site. On receipt of such notification, we may choose to make additional coverage available and this will involve an increase in the Hire Charges. You will not be able to claim more than the amount set out in clause 4.5 if:
4.6.1 – you do not notify us that the damage could exceed the above limit;
4.6.2 – we choose not to have additional coverage made available;
4.6.3 – you do not agree to meet the extra charge for additional coverage; or
4.6.4 – the additional coverage fails for some reason that is not our fault. This will be so, even where we are at fault, except where your claim is for death or personal injury, as mentioned in paragraph 4.7 below.
4.7 The limit set out in paragraph 4.5 does not apply to claims for death or personal injury caused by our negligence. There is no limit on the amount of our liability for such claims.
5 LOSS, THEFT OF, OR DAMAGE TO THE PLANT AND EQUIPMENT
5.1 Subject to clause 5.3 below, if the Plant and Equipment is lost, damaged, destroyed or stolen whilst in your care, you will be liable for the full cost of repairing or replacing the Plant and Equipment.
5.2 We may take out insurance to cover the risk to our Plant and Equipment. If we do so and you pay the Waiver Fee, we will not pursue you for the costs of repairing or replacing the Plant and Equipment, but only to the extent that such costs are reimbursed to us by our insurers. You will still be liable to us, however, to the extent that the insurers do not reimburse us for the loss or damage. You must take reasonable care of the Plant and Equipment whilst it is in your custody, even if the Waiver Fee has been paid.
5.3 You will not be liable to pay us for any damage caused to the Plant and Equipment arising from any defect in the Plant and Equipment which was not apparent when it was hired to you. You will not be liable for any loss or theft of the Plant and Equipment resulting from a fault in the Plant and Equipment’s security system which occurred before you took delivery of the Plant and Equipment. You must notify us immediately if there is a fault with the Plant and Equipment’s security system, including but not limited to faulty locks or other security devices.
5.4 Where the Plant and Equipment or any part of it is lost, stolen, damaged or destroyed you must notify us immediately in order that we can notify our insurers. If the insurers refuse to pay us because of a delay in notification by you, you will be liable to us for what would have been recovered from the insurers if you had complied with this clause. You must provide our insurers and us with all reasonable assistance when so requested.
5.5 You must notify the police immediately if the Plant and Equipment, or any part of it, is stolen or has been criminally damaged.
6 DAMAGE TO SITE AND/OR ACCESS DURING DELIVERY AND COLLECTION
6.1 You acknowledge that the Plant and Equipment you have chosen to hire may cause superficial damage to the ground, particularly in wet weather (for example, ruts may be created or paving stones may be cracked). You further acknowledge that the Plant and Equipment may also cause damage to underground services such as drains and sewers. If you have chosen to have the Plant and Equipment delivered to you, our delivery driver will do his best to limit any such damage, but we cannot be held responsible for any damage of this sort. You are responsible for making good any damage caused to your property or adjoining land in obtaining access.
6.2 If you are particularly concerned to avoid superficial damage to the ground you must let us know as soon as possible. We may be able to provide extra protection, although there will be an additional cost in doing so, which we will pass on to you.
7 DELIVERY IN GOOD ORDER
7.1 We will ensure that the Plant and Equipment hired to you is in good working order and fit for the purpose for which the Plant and Equipment of that kind is normally used.
7.2 You must check the Plant and Equipment when it is provided to you and immediately notify us of any obvious faults or defects.
8.1 You warrant that you will use the Plant and Equipment in accordance with the safety warning at the beginning of this Agreement.
8.2 You must read any relevant operating and safety instructions supplied with the Plant and Equipment and you must only use (or permit the use of) the Plant and Equipment in accordance with the operating and safety instructions supplied with it or any other safety instruction given to you by us. If you do not understand any part of the relevant operating and safety instructions you must seek assistance from a suitably qualified person or us before using the Plant and Equipment.
8.3 You must also take your own sensible safety precautions (for example, you must take all reasonable measures to prevent children from playing on or near the Plant and Equipment at all times).
8.4 You must ensure that the Site itself is safe.
9 TRANSPORTATION, LOADING AND UNLOADING
9.1 If you would like us to deliver and collect the Plant and Equipment, we will provide this service at a reasonable cost, which we will confirm to you prior to the hire.
9.2 Unless we have agreed to deliver and collect the Plant and Equipment, you are responsible for collecting it from our premises, and for delivering it back to our premises.
9.3 Where you transport the Plant and Equipment yourself, you are responsible for loading at the time of collection from our premises and for unloading at the time of delivering it back to our premises.
9.4 If one of our employees helps you in the loading or unloading of the Plant and Equipment you must tell him what you want him to do and how you want him to help. If the Plant and Equipment is damaged, or causes damage, whilst being loaded or unloaded, you will be responsible for the damage unless the damage is caused by our employee’s negligence.
10 UNAUTHORISED CHANGE OF SITE
The Plant and Equipment must only be used at the Site. If you want to use the Plant and Equipment at any other place you must first get from us written confirmation that we allow you to do so.
11 UNAUTHORISED RE-HIRING OF EQUIPMENT You must not re-hire, sublet, or lend any of the Plant and Equipment to any third party or otherwise part with possession of the Plant and Equipment.
12 CONDITION OF EQUIPMENT
12.1 You must check the state and condition of the Plant and Equipment at reasonable intervals during the period of hire to ensure that it remains safe, serviceable and clean. We will not check the Plant and Equipment during the period of hire unless you bring it back to us and ask us to do so.
12.2 You must not use (or permit the use of) the Plant and Equipment for any purpose beyond its capacity or in a manner likely to result in excessive wear.
12.3 Other than arranging for the changing of plugs and sockets (if necessary) to be carried out by a qualified electrician you must not make any alterations or modifications to the Plant and Equipment.
13 FITTING OF ACCESSORIES
13.1 If the Plant and Equipment requires the fitting or re-fitting of any accessories (such as drills, wheels, discs, and blades etc), it is your responsibility to ensure that any such accessory is correctly fitted or re-fitted in accordance with any relevant operating and safety instructions that you are given.
13.2 If any injury or damage to persons or property or to the Plant and Equipment arises because you have incorrectly fitted or re-fitted any accessory, you will be responsible for that injury or damage (unless we have been negligent in any way). The only exception to this is where the injury/damage occurs as a result of a fault or defect in the Plant and Equipment, which you were not aware of.
14 ACCESS BY US FOR SERVICING AND INSPECTION AND RECOVERY OF EQUIPMENT
You undertake that you will allow us to have access to your premises at any reasonable time to enable us to inspect, test, adjust, repair, or replace the Plant and Equipment as necessary while it is in your possession or to recover the Plant and Equipment if you fail to return the Plant and Equipment to us on termination of this Agreement.