STANDARD CONDITIONS FOR HIRE AND SALE OF PRODUCTS IN ENGLAND AND
WALES AND THE REPUBLIC OF IRELAND
1
INTERPRETATION
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; or (ii) the physical
repossession or collection of Hire Goods by the Supplier;
"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;
"Supplier"
means [Raisers Hire & service Ltd] and will include its employees,
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 in the United Kingdom or the
Consumer Credit Act 1995 in the Republic of Ireland 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.
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, have
no force or effect. For further information about your statutory rights contact
your local authority Trading Standards Department or Citizens Advice Bureau in
the United Kingdom, or your local office of the Director of Consumer Affairs or
Citizens Information Centre in the Republic or Ireland.
3
PAYMENT
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
Payments by the Customer on time under the Contract are 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) on the amount
unpaid at the rate of 8% above the base rate from time to time of the
Supplier's bank. Such interest shall be compounded with quarterly rests.
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.
3.7 Interest and late
payment charges may be levied in accordance with the Late Payment of Commercial
Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations
2002.
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. 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 additional cost to the Rental. Alternatively the Supplier may require
the Customer to insure the Hire Goods on such reasonable terms and for such
reasonable risks as the Supplier may specify. The proceeds of any such
insurance shall be held by the Customer in trust for the Supplier and 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 power supplies and 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, their working
mechanisms or any other parts of them and take reasonable care of the Hire
Goods and only use them for their proper purpose 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 damage to 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's
request provide details of the location of the Hire Goods;
6.1.5
permit the Supplier at all reasonable times to inspect the Hire Goods including
procuring access to any property where the Hire Goods are situated;
6.1.6
keep the Hire Goods at all times in its possession and control and not to
remove the Hire Goods from the country in which they were hired without the
prior written consent of the Supplier;
6.1.7
be responsible for the conduct and cost of any testing, examinations and/or
checks in relation to the Hire Goods required by any legislation, best practice
and/or operating instructions except to the extent that the Supplier has agreed
to provide them as part of any Services;
6.1.8
not do or omit to do any thing which will or may be deemed to invalidate any
policy of insurance related to the Hire Goods which is notified to the
Customer;
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 an accident resulting in
damage to the Hire Goods, other property and/or injury to any person; and
6.1.10
where the Hire Goods require fuel, oil and/or electricity ensure that the
proper type and/or voltage is used and that, where appropriate, the Hire Goods
are properly installed by a qualified and competent person.
6.2
The Hire Goods must be returned by the Customer in good working order and
condition (fair wear and tear excepted) and in a clean condition together with
all insurance policies, licences, registration and other documents relating to
the Hire Goods.
7
BREAKDOWN
7.1
Allowance will be made in relation to the Rental to the Customer for any
non-use of the Hire Goods due to breakdown caused by the development of an
inherent fault and/or fair wear and tear only on condition that the Customer
informs the Supplier as soon as practicable of the breakdown. No other allowances will be made in any
respect.
7.2
The Customer shall be responsible for all expenses, loss (including loss of
Rental) and/or damage suffered by the Supplier arising from any breakdown 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 and repairs
to the Hire Goods during the Hire Period and all repairs which are required due
to fair wear and tear and/or an inherent fault in the Hire Goods. The Customer
will be responsible for the cost of all repairs necessary to Hire Goods during
the Hire Period which arise otherwise than as a result of fair wear and tear,
an inherent fault and/or the negligence of the Supplier while carrying out
routine maintenance and/or repairs.
7.4
The Customer must not repair or attempt to repair the Hire Goods unless
authorised 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 state
except where due to fair wear and tear and/or an inherent fault in the Hire
Goods the Customer 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 clause 8.3,
until such repairs and/or cleaning have been completed.
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 repair
during the Hire Period less the amount paid to the Supplier under any policy of
insurance taken out in accordance with these conditions.
8.3
The Customer shall pay the Rental for the Hire Goods up to and including the
date it notifies the Supplier that the Hire Goods have been lost, stolen and/or
damaged beyond economic repair. From that date until the Supplier 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 such Hire Goods for that period. The Supplier shall
use its reasonable commercial endeavours to purchase replacements for such Hire
Goods as 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 terminate the
Contract before the expiry of that fixed period unless agreed with the other
party.
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.
9.3
If no period of notice has been agreed or specified the Customer may terminate
the Hire Period by the physical return of the Hire Goods to the Supplier and
the Supplier shall be entitled to terminate the hire of the Hire Goods by
giving not less than 14 days' notice to the Customer.
10
DEFAULT
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 capable of remedy,
has not remedied the breach within 14 days of receiving notice 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/or
information in connection with the Contract;
10.1.5
pledges, charges or creates any form of security over any Hire Goods, or ceases
or threatens to cease to carry on business, or proposes to compound with its
creditors, applies for an interim moratorium in respect of claims and/or
proceedings, any distress, execution or other legal process is levied on any
property of the Customer, has a Bankruptcy Petition presented against it or the
Customer takes or suffers any similar action in any jurisdiction;
10.1.6
being a company, enters into voluntary or compulsory liquidation, has a
receiver, administrator, administrative receiver or examiner appointed over all
or any of its assets, any attachment order is made against the Customer, any
distress, execution or other legal process is levied on any property of the
Customer or the Customer takes or suffers any similar action in any
jurisdiction;
10.1.7
appears reasonably to the Supplier due to the Customer's credit rating to be
financially inadequate to meet its obligations under the Contract; and/or
10.1.8
appears reasonably to the Supplier to be about to suffer any of the above
events;
then
the Supplier shall have the right, without prejudice to any other remedies, to
exercise any or all of the rights set out in clause 10.2 below.
10.2
If any of the events set out in clause 10.1 above occurs in relation to the
Customer then:-
10.2.1
except where the Customer is acting as a consumer the Supplier may enter,
without prior notice, any premises of the Customer (or premises of third
parties with their consent) where Hire Goods owned by the Supplier may be and
repossess any Hire Goods;
10.2.2
the Supplier may withhold the performance of any Services and cease any
Services in progress under this and/or any other Contract with the Customer;
10.2.3
the Supplier may immediately cancel, terminate and/or suspend without Liability
to the Customer the Contract and/or any other contract with the Customer;
and/or
10.2.4
*all monies owed by the Customer to the Supplier shall immediately become due
and payable.
10.3
Any repossession of the Hire Goods shall not affect the Supplier's right to
recover from the Customer any monies due under the Contract and/or any damages
in respect of any breach which occurred prior to repossession of the Hire
Goods.
10.4
Upon termination of the Contract the Customer shall immediately:
10.4.1
return the Hire Goods to the Supplier or make the Hire Goods available for
collection by the Supplier as requested by the Supplier; and
10.4.2
pay to the Supplier all arrears for Rentals, Charges for any Services, monies
for any Products and/or any other sums payable under the Contract.
11
LIMITATIONS OF LIABILITY
11.1
*All warranties, representations, terms, conditions and duties implied by law
relating to fitness, quality and/or adequacy are excluded to the fullest extent
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 limited to
the retail cost of replacement of the damaged property.
11.3
Any defective Hire Goods must be returned to the Supplier for inspection if
requested by the Supplier before the Supplier will have any Liability for
defective Hire Goods.
11.4
*The Supplier shall have no Liability to the Customer if, without just cause,
any monies due in respect of the Hire Goods and/or the Services has 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's continued
use of defective Hire Goods and/or Services after a defect has become apparent
or suspected or should reasonably have become apparent to the Customer.
11.6
The Customer shall give the Supplier a reasonable opportunity to remedy any
matter for which the Supplier is liable before the Customer incurs any costs
and/or expenses in remedying the matter itself. If the Customer does not do so
the Supplier shall have no Liability to the Customer.
11.7
*The Supplier shall have no Liability to the Customer to the extent that the
Customer is covered by any policy of insurance arranged as a result of the
Contract and the Customer shall ensure that the Customer's insurers waive any
and all rights of subrogation they may have against the Supplier.
11.8
The Supplier shall have no Liability to the Customer for any:-
11.8.1
*consequential losses (including loss of profits and/or damage to goodwill);
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 in
relation to any Contract shall not exceed 5 times the amount of the Rental and
charges for Services (if any) under that Contract or the sum of £1,000 in the
United Kingdom or €1250 in the Republic of
Ireland whichever is the higher. To the extent that any Liability of the
Supplier to the Customer would be met by any insurance of the Supplier then the
Liability of the Supplier shall be extended to the extent that such Liability
is met by such insurance.
11.10
Each of the limitations and/or exclusions in this Contract shall be deemed to
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 (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 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
GENERAL
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 which shall
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 its employees,
agents, servants and/or subcontractors as though they were its own acts and/or
omissions under this Contract.
12.4
*The Customer agrees to indemnify and keep indemnified the Supplier against any
and all losses, lost profits, damages, claims, costs (including legal costs on
a full indemnity basis), actions and any other losses and/or liabilities
suffered by the Supplier and arising from or due to any breach of contract, any
tortious act and/or omission and/or any breach of statutory duty by the
Customer.
12.5
*No waiver by the Supplier of any breach of this Contract shall be considered
as a waiver of any subsequent breach of the same provision or any other
provision. If any provision is held by any competent authority to be
unenforceable in whole or in part the validity of the other provisions of this
Contract and the remainder of the affected provision shall be unaffected and
shall remain in full force and effect.
12.6
The Supplier shall have no Liability to the Customer for any delay and/or non
performance of a Contract to the extent that such delay is due to any Force
Majeure events. If the Supplier is affected by any such event then time for
performance shall be extended for a period equal to the period that such event
or events delayed such performance.
12.7
All third party rights are excluded and no third parties shall have any rights
to enforce the Contract. This shall not apply to any finance company with whom
the Supplier has an outstanding finance agreement relating to the Hire Goods.
Such finance company shall, subject to the Supplier's consent, have the right
to enforce this Contract as if they were the Supplier. This Contract is
governed by and interpreted in accordance with English law and the parties
agree to submit to the non-exclusive jurisdiction of the English courts.
12.8 All Hire Goods are
hired under the above conditions and also under CPA Model Terms and Conditions,
available from the Hirer with each hire and on request.
