DIRECT HIRE ACCESS LTD
TERMS & CONDITIONS
(a) The “Contract” is the Contract between the Owner and the Hirer for the hire of Plant, which incorporates the Offer and is governed by these conditions.
(b) The “Hire Period” shall commence from the time when the Plant leaves the Owner’s depot or place where last employed and shall continue until the Plant is received back at the Owner’s named depot or other agreed location. For the avoidance of doubt the Hire Period includes the time Plant is left on site during a Holiday Period
(c) The “Hirer” is the Company, firm, person, Corporation or public authority taking the Owner’s Plant on hire and includes their successors or personal representatives.
(d) “Holiday Period” covers any cessation of work over Easter, Christmas and the New Year; as well as any other Bank or Public holidays.
(e) “Offer” is the Owner’s offer to hire the Plant to the Hirer which will include details of the Plant to be hired, the Hire Period, relevant hire rates and charges and any supplementary conditions to be incorporated into the Contract.
(f) The “Owner” is the Company, firm or person letting the Plant on hire and includes their successors, assignees or personal representatives.
(g) “Plant” covers all classes of Plant, or replacement Plant, machinery, vehicles, equipment, accessories, and any ancillary items, vehicles or equipment therefor, which the Owner agrees to hire to the Hirer, or anything which is supplied by the Owner to effect the hire, and anything supplied by the Owner for the safe operation and routine inspection and maintenance of the Plant.
(h) A “Working Day” shall be from 8.00 am to 4.30 pm, Monday to Thursday, and 8.00 am to 3.30 pm, on Friday allowing a half-hour lunch break each day, unless otherwise specified in the Contract.
(i) A “Working Week” covers the period from 8.00 am on Monday to 3.30 pm on Friday, unless otherwise specified in the Contract.
2. EXTENT OF CONTRACT
No terms, conditions or warranties other than as specifically set forth in the Offer shall be deemed to be incorporated or to form part of the Contract or shall otherwise govern the relationship between the Owner and the Hirer in relation to the hire of any particular Plant pursuant to the Offer. This excludes all other terms or conditions which the Hirer may seek to apply under any order or acknowledgement or acceptance or similar document and supersedes all prior negotiations, representations or agreements, whether written or oral unless and to the extent that they are expressly accepted in writing and signed by the Owner. The Owner and the Hirer do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 (“or by way of the operation of jus quaesitum tertio”) by any person not a party to the Contract, except that a person who is a successor to or an assignee of the rights of the Owner is deemed to become a party to the Contract after the date of succession or assignment (as the case may be).
(a) The Owner shall hire the Plant to the Hirer subject to the terms and conditions of this Contract. The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).
3. ACCEPTANCE OF PLANT
Acceptance of the Plant on site implies acceptance of all terms and conditions herein unless otherwise previously agreed in writing. The risk of loss, theft, damage or destruction of the Plant shall pass to the Hirer from the start of the Hire Period. The Plant shall remain at the sole risk of the Hirer during the Hire Period and any further term during which the Plant is in the possession, custody or control of the Hirer until such time as the Plant is redelivered to the Owner or unless the off hire notification date has been previously notified in writing to the owner. (“the Risk Period”) During the rental period and the Risk Period the Hirer shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Plant to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing;
(b)insurance for such amounts as a prudent owner or operator of the Plant would insure for, such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Plant; and
(c) insurance against such other or further risks relating to the Plant as may be required by law, together with such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Hirer.
4. UNLOADING AND LOADING
The Hirer shall be responsible for the unobstructed access and egress and, unless otherwise agreed in writing, for unloading and loading of the Plant at the site; and any personnel supplied by the Owner for such unloading and/or loading shall be deemed to be under the direction and control of the Hirer. Such personnel shall for all purposes in connection with their employment in the unloading and/or loading of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) who shall be solely responsible for all claims arising in connection with unloading and/or loading of the Plant by, or with the assistance of, such personnel.
5 DELIVERY IN GOOD ORDER AND MAINTENANCE: INSPECTION REPORTS
(a) The Hirer shall procure that a duly authorised representative of the Hirer shall be present at the delivery of the Plant. Acceptance of delivery by such representative shall constitute conclusive evidence that the Hirer has examined the Plant and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Owner the Hirer’s duly authorised representative shall sign a receipt confirming such acceptance
(b) To facilitate delivery and installation, the Hirer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable delivery and installation to be carried out safely and expeditiously
(c) The Hirer shall during the term of this Contract:
a. ensure that the Plant is kept and operated in a suitable environment, used only for the purpose for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;
b. tack such steps (including compliance with all safety and usage instructions practicable, that the Plant is at all times safe and without risk to health with it is being set, used, cleaned or maintained by a person at work;
c. maintain at its own expense the Plant in good and substantial repair in order to keep it in as good an operating condition as it was at the start of the Hire Period (fair wear and tear only except)
d. make no alteration to the Plant and shall not remove any existing component(s) from the Plant;
e. keep the Owner fully informed of all material matters relating to the Plant;
f. keep the Plant at all times at the site and shall not move or attempt to move any part of the Plant to any other location without the Owner’s prior written consent;
g. maintain operating and maintenance records of the Plant and make copies of such records readily available to the Owner, together with such additional information as the Owner may reasonably require;
h. not attach the Plant to any land or building so as to cause the Plant to become a permanent or immovable fixture on such land or building;
i. not suffer or permit the Plant to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Plant is so confiscated, seized or taken, the Hirer shall notify the Owner and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Plant and shall indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
j. not use the Plant for any unlawful purpose;
k. ensure that at all times the Plant remains identifiable as being the Owner’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Plant.
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.
Direct Hire Access Ltd registration no: SC461793
7. GROUND AND SITE CONDITIONS
(a) The Hirer is deemed to have knowledge of the site or the property or land where the Plant is to be delivered and the Hirer warrants that the condition of the site or place of delivery of the Plant is suitable for the use of such Plant.
(b) If, in the opinion of the Hirer, the ground (including any private access road or track) is soft or unsuitable for the Plant to work on, travel over, be transported over, be erected or dismantled on without timbers or equivalent support, the Hirer shall supply and lay suitable timbers or equivalent support in a suitable position for the Plant to travel over, work on, be transported over, be erected or dismantled on, including for the purpose of delivery and collection.
(c) Any timber or other material supplied by the Owner is provided solely to assist the Hirer under their duties within clause 7(b) and expressly not to relieve him of his legal, regulatory or contractual obligations to ensure adequate stability of the Plant.
(d) The Hirer is responsible for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and any pavements, bridges, tunnels and roadways on or adjacent to the site and the Hirer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.
8 HANDLING OF PLANT
(a) When a driver or operator or any person is supplied by the Owner with the Plant, the Owner shall supply a person competent in operating the Plant or for such purpose for which the person is supplied and such person shall be under the direction and control of the Hirer. Such drivers or operators or persons shall for all purposes in connection with their employment in the working of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) and the Hirer shall be solely responsible for all claims arising in connection with the operation of the Plant by the said drivers/operators/persons.
(b) The Hirer shall not allow any other person to operate such Plant without the Owner’s prior written consent.
(c) Such drivers or operators or persons shall not operate any other plant or machinery or undertake work other than that for which they are supplied by the Owner unless previously agreed in writing between the Owner and the Hirer.
9. BREAKDOWN, REPAIRS AND ADJUSTMENT
(a) Any breakdown or the unsatisfactory working of or damage to any part of the Plant must be notified immediately to the Owner, and confirmed in writing. Any claim for breakdown time will only be considered from the time and date at which written notification is received and acknowledged by the Owner.
(b) Full allowance for the hire charges set out in the Offer will be made to the Hirer for any stoppage due to breakdown of the Plant caused by the development of either an inherent fault or a fault not ascertainable by reasonable examination or fair wear and tear and for all stoppages for normal running repairs in accordance with the terms of the Contract.
(c) The Hirer shall not (except for the changing of any tyre and repair of punctures), repair, modify or alter the Plant without the prior written permission of the Owner. The changing of any tyre and repair of punctures are however the responsibility of the Hirer who should arrange for them to be changed/repaired. The Hirer is responsible for all costs incurred in the changing or replacement of any tyre (which must be of an equivalent specification) as approved by the Owner and for the repair of any puncture.
(d) The Hirer shall be responsible for all expense involved arising from any breakdown, unsatisfactory working of or damage to any part of the Plant due to the Hirer’s negligence, misdirection or misuse of the Plant, whether by the Hirer or his servants, and for the payment of hire at the idle time rate as defined in clause 25, during the period the Plant is necessarily idle due to such breakdown, unsatisfactory working or damage. The Hirer is responsible for the cost of spares and/or repairs due to theft, loss or vandalism of the Plant. The Owner will be responsible for the cost of repairs, inclusive of the cost of spares, to the Plant involved in breakdown from all other causes.
10. OTHER STOPPAGES
No claims will be admitted (other than those allowed for under “Breakdown” (clause 9) or for “Idle Time” (clause 25), as herein provided), for stoppages through causes outside the Owner’s control, including but not limited to bad weather and/or ground conditions nor shall the Owner be responsible for the cost or expense of recovering any Plant from soft or unsuitable ground, or a hazardous environment. For the avoidance of doubt, the Hirer shall be responsible for the cost and expense of recovering any Plant from soft or unsuitable ground or a hazardous environment.
11. LOSS OF OTHER PLANT DUE TO BREAKDOWN
Each item of Plant specified in the Contract is hired as a separate unit and the breakdown or stoppage of one or more units or vehicles (whether the property of the Owner or otherwise) through any cause whatsoever, shall not entitle the Hirer to compensation or allowance for the loss of working time by any other unit or units of Plant working in conjunction therewith, provided that where two or more items of Plant are expressly hired together as a unit, such items shall be deemed to be one unit for the purpose of breakdown. The hirer shall not be entitled to compensation or allowance for the loss of any plant or manpower working in conjunction alongside any hire of a single operated platform
12 LIMITATION OF LIABILITY
(a) The Owner’s maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, delict (including negligence), misrepresentation or otherwise, shall in no circumstances exceed £1000000.
(b) Nothing in this agreement shall exclude or in any way limit: either party’s liability for death or personal injury caused by its own negligence or either party’s liability for fraud or fraudulent misrepresentation.
(c) This agreement sets forth extent of the Owner’s obligations and liabilities in respect of the Plant and its hiring to the Hirer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Owner except as specifically stated in this agreement. Any condition, warranty or other term concerning the Plant which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
(d) The Owner shall not be liable under this agreement for any loss of profit, loss of revenue, loss of business, loss of use of the ~Plant, loss of production or productivity, economic or financial loss and indirect or consequential loss in each case, however caused, even if foreseeable.
(e) Whenever the Contract provides that any allowance is to be made against hire charges such 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) The Hirer acknowledges that the Owner shall not be responsible for any loss of or damage to the Plant arising out of or in connection with any negligence, misuse, mishandling of the Plant or otherwise caused by the Hirer or its officers, employees, agents and contractors, and the Hirer undertakes to indemnify the Owner on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with the Contract, except to the extent that such loss is due to the negligence of the Owner. Notwithstanding the generality of the foregoing, the Hirer shall indemnify and keep indemnified the Owner in respect of liability for:
(a) any claims in respect of death or personal injury;
(b) all losses, liabilities, claims, damages, costs or expenses of whatever nature incurred by the Owner in respect of damage to the Owner including the Plant; and
(c) any liability of the owner.
In the event of loss or damage to the Plant, hire charges shall be continued at idle time rates as defined in clause 25 until termination of this Contract or payment of all sums due under this clause.
(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 (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving such highway) where the Plant is in transit by transport of the Owner or as otherwise arranged by the Owner, (ii) during the erection and/or dismantling of any Plant where such Plant requires to be complete erected/dismantled on site, provided always that such erection/dismantling is under the exclusive control of the Owner or his agent, (iii) after the Plant has been removed from the site and is in transit on a highway maintainable at the public expense (or where the site is not immediately adjacent to a highway maintainable at the public expense after it has joined such highway) to the Owner by transport of the Owner or as otherwise arranged by the Owner, (iv) where the Plant is travelling to or from a site on a highway maintainable at the public expense (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving or after its joining such highway) under its own power with a driver supplied by the Owner.
It is the responsibility of the hirer to provide employees / sub-contractors with the correct safety uniform required. The hirer/ contractor is responsible to undertake preventative safety measures to ensure that no such items i.e. tools or light equipment etc that is carried within the basket be at risk of falling out. Harnesses must also be supplied by the hirer. Under the Health & Safety regulations, working at Height act. The Operatives of Direct Hire Access Ltd shall refuse any person or persons into the basket of a Mewp if they are not equipped with the full correct uniform. Full hire charge rate shall still apply. Safety harnesses can be supplied on a daily hire rate on pre order request. it is the responsibility of the customer to ensure persons supplied to wear such Safety Harness holds a current qualification to do so under the Health & Safety regulations Working at Height Act.
15. 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.
16 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.
17. CHANGE OF SITE
The Plant shall not be moved from the site to which it was delivered or consigned without the prior written permission of the Owner.
18. RETURN OF PLANT FOR REPAIRS
If during the Hire Period the Owner decides that urgent repairs to the Plant are necessary then he may arrange for such repairs to be carried out on site or at any location of his nomination. In the event that urgent repairs to the Plant are necessary the Owner shall be obliged to replace the Plant with similar Plant if available, the Owner (but without prejudice to any of the provisions of clauses 9 and/or 13) paying all transport charges involved. In the event of the Owner being unable to replace the Plant he shall be entitled to terminate the Contract forthwith (but without prejudice to any of the provisions of clauses 9 and/or 13) by giving written notice to the Hirer. If such termination occurs:
(a) Within three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and/or 13) shall pay all transport charges involved, or,
(b) More than three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and/or 13) shall be liable only for the cost of reloading and return transport.
19. BASIS OF CHARGING
(a) The Hirer shall render to the Owner for each Working Week an accurate statement of the number of hours the Plant has worked each day. When any personnel, operator or driver is supplied by the Owner, the Hirer shall sign their time record sheets. The signature of the Hirer’s representative shall bind the Hirer to accept the hours shown on the time records sheets.
(b) Full allowance will be made for breakdown periods resulting from mechanical or electrical faults or absence of driver or operator supplied by the Owner except where breakdown is due to acts or omissions of third parties and/or the Hirer’s misuse, misdirection or negligence, subject however to the provisions of clause 8 of these conditions.
(c) Breakdown time in respect of such periods shall be allowed for not more than the Working Day less the actual hours worked.
(d) Plant shall be hired out either: (i) for a stated minimum number of hours per Working Day or per Working Week or, (ii) without any qualification as to minimum hours. Odd days at the beginning and at the end of the Hire Period shall be charged pro rata.
(e) Stoppages due to changing of tyres and repairs to punctures will be chargeable as working time up to a maximum of 2 hours for any one stoppage and any excess will be charged for at the appropriate idle time rates.
(f) In the case of Plant which is required to be dismantled for the purpose of transportation, if the Owner agrees to a modification of the hire charge for the period required for assembling on site and dismantling upon completion of the Hire Period, such modification of the hire charge and the Hire Period for which it shall apply shall be stated in the Offer/Contract.
20. PLANT HIRED ON A DAILY BASIS WITHOUT QUALIFICATION AS TO HOURS
The full daily rate will be charged on a daily basis irrespective of the hours worked except in the case of breakdown for which the Owner is responsible, when the actual hours worked will be charged pro rata of the average Working Day. No hire charge shall be made for Saturday and/or Sunday unless the Plant is actually worked
21. PLANT HIRED BY THE WEEK OR MONTH WITHOUT QUALIFICATION AS TO HOURS
The weekly or monthly rate shall be charged irrespective of the number of hours worked, except in the case of breakdown for which the Owner is responsible when an allowance pro rata of the agreed weekly rate or pro rata of the agreed monthly rate will be made for each full Working Day broken down calculated to the nearest half Working Day.
22. PLANT HIRED BY THE WEEK OR THE HOUR FOR A MINIMUM OF 39 HOURS PER WEEK
The full hire for the minimum period in the Contract will be charged and an additional pro rata charge will be made for hours worked in excess of such minimum period. Allowance will be made for breakdowns up to 8 hours except on Fridays when the allowance will be up to 7 hours providing always that where the actual hours worked are in excess of the minimum period less breakdown time, the actual hours worked shall be chargeable. Idle time for this purpose shall be treated as actual working time. The minimum Working Week of 39 hours shall be reduced by 8 hours Monday to Thursday and 7 hours Friday for each Holiday Period occurring in such Working Week, provided that the Plant is not in use during such Holiday Period.
23 “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.
24. COMMENCEMENT AND TERMINATION OF CONTRACT (TRANSPORT OF PLANT)
(a) The Hire Period shall commence from the time when the Plant leaves the Owner’s depot or place where last employed and shall continue until the Plant is received back at the Owner’s named depot or other agreed location but an allowance shall be made of not more than one day’s hire charge each way for travelling time. If the Plant is used on the day of travelling, full hire rates shall be paid for the period of use on that day. If more than one day is properly and unavoidably occupied in transporting the Plant, a hire charge at idle time rates shall be payable for such extra time, provided that where Plant is hired for a total period of less than one Working Week, the full hire rate shall be paid from the date of despatch to the date of return to the Owner’s named depot or other agreed location.
(b) If the Plant is not made available for collection as agreed between the parties, such Plant shall be deemed with immediate effect to be placed back on hire. The Hirer shall be responsible for the safekeeping of the Plant in accordance with clause 13, and for all the reasonable costs and expenses incurred by the Owner in seeking to collect such Plant.
(c) Upon the completion of the Hire Period, the Hirer shall clean and where necessary, decontaminate the Plant. All fuel and contaminates will be removed from bunds, storage tanks and bowsers. The Hirer shall be liable for any costs, liabilities and expenses incurred by the Owner should the Hirer fail to comply with this clause.
25 HIRER’S LIABILITY DURING THE NOTICE OF TERMINATION OF CONTRACT AND CANCELLATIONS
a) Where the Hire Period is indeterminate or having been defined becomes indeterminate the Contract shall be terminable by seven days’ notice in writing given by either party to the other except in cases where the Plant has been lost or damaged. Notwithstanding that the Owner may have agreed to accept less than 7 days’ notice of termination, the Hirer’s obligations under clause 13 shall continue until the Plant is returned to the Owner in accordance with clause 31 or until the Owner has collected the Plant within the 7 days following the acceptance of short notice. Oral notice given by the Hirer to the Owner’s driver or operator shall not be deemed to constitute compliance with the provisions of this clause.
b) Without prejudice to clause 24(a), should the Hirer fail to make the Plant available for collection by the Owner before the end of the 7 day notice, the Hirer’s obligations under clause 13 shall continue for a further 3 days or until such time as the Plant is made available for collection and the Owner has collected the Plant. For the avoidance of doubt, where the Hirer gives a notice pursuant to clause 24(a) but subsequently and with the consent of the Owner; withdraws such notice, the obligations of clause 13 shall continue to apply and the requirements of clause 24 will apply to any later termination of the Contract.
(b) If the Hirer terminates the Contract before the Hire Period commences, then the Hirer is liable for all reasonable costs and charges incurred by the Owner or to which the Owner is committed at the time of termination.
(c) Cancellations for operated daily hires must be provided in writing no less than a minimum advance notice period of 24 hours. The hirer shall be responsible to pay 2/3 of the full hire rate for late cancellations.
26. IDLE TIME
When the Plant is prevented from working for a complete Working Week, the hire charges shall be two thirds of the hire rate or such other idle time rate as is agreed in writing by the Owner for the period during which the Plant is not in use. If the Plant works for any time during the Working Day then the whole of that Working Day shall be charged as working time. In any case no period less than one Working Day shall be reckoned as idle time save for as provided for in clause 18(e). Where an “All-In” rate is charged, idle time is calculated on the machine element only. Full rate will be charged for the operator.
27. FUEL, OIL AND GREASE
Fuel, oil and grease shall, when supplied by the Owner, be charged at net cost or an agreed estimate of net cost, and when supplied by the Hirer, shall be of a grade or type specified by the Owner. The Hirer shall be solely responsible for all damages, losses, costs and expenses incurred by the Owner if the Hirer uses the wrong fuel, oil or grease.
28. SHARPENING OF DRILLS/STEELS ETC.
The cost of re-sharpening or replacement of drill bits, blades and other ancillary items shall be borne by the Hirer.
29. OWNER’S NAME PLATES
The Hirer shall not remove, deface or cover up the Owner’s name plate or mark on the Plant indicating that it is his property, without the prior written permission of the Owner.
The Hirer shall pay the cost of and if required by the Owner, arrange transport of, the Plant from the Owner’s depot or other agreed location to the site and return to the Owner’s named depot or other agreed location on completion of the Hire Period.
31. GOVERNMENT REGULATIONS
(a) The Hirer shall comply, and shall ensure that each item of Plant complies with all obligations imposed on the Hirer in relation to the Plant by and all other obligations applicable to the Plant under all applicable laws and regulations including but not limited to the Health and Safety at Work Act 1974 or by any regulations issued under any Road Traffic Acts should they apply, including the cost of road fund licences and any insurances made necessary thereby, save that if and during such time as the Plant is travelling, whether for full or part journey from Owner to site and site to Owner under its own power with a driver supplied by the Owner, the Owner and not the Hirer shall be responsible as aforesaid.
(b) The Hirer shall indemnify the Owner against any charges or fines that the Owner may become liable for as a result of the operation of the Plant during the Hire Period.
32. PROTECTION OF OWNER’S RIGHTS
(a) The Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Plant except as provided under clause 15 and shall protect the same against distress, execution or seizure and shall indemnify the Owner against all losses, damage, costs, charges and expenses arising as a direct result of any failure to observe and perform this condition except in the event of Government requisition.
(b) The Owner may terminate the Contract forthwith by written notice to the Hirer if one or more of the following events occur: (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 within the meaning of Section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or re-enactment thereof for the time being in force; or (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. “The hirer commits a material breach of this agreement which breach is irremediable, or which breach (if remediable) is not remedied within fourteen (14) days after the service of written notice from the Hirer requiring it to do so”.
(c) In the event of termination under sub-paragraph (b) above: (i) The Hirer must give the Owner or his agents, immediate unobstructed access to recover the Plant. (ii) The Owner shall be entitled to claim the hire charges outstanding as at the date of termination of the hire under this clause and return transport charges under clause 31.
(d) The rights under sub-paragraph (b) and (c) above: (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.(f) Termination of this agreement shall be without prejudice to the rights and obligations of the parties accrued up to the date of termination.
Direct Hire Access Ltd registration no: SC461793
33. PLANT EQUIPMENT AND OPERATOR
a) It is your responsibility to provide the operator of the plant equipment clear instructions regarding the job you wish to undertake. You must provide all information or explanation the operator requests from you.
b) The owner of the plant equipment hired by you will ensure that the operator is competent and qualified to operate the plant equipment.
c) The owner of the plant equipment shall ensure that the equipment hired to you is in good working order and holds a current LOLER certificate
d) The operator shall endeavour to complete the job you instruct him to undertake
e) The operator’s responsibility is generally limited to operating the plant equipment competently and safely to complete the job you have instructed him to do.
f) The sole purpose of the plant equipment hired by you is a man lift.
g) If you require a ‘ lifting operations’ special legal requirements must be met. .
34. PLANT EQUIPMENT AND OPERATOR HIRED ON A DAILY BASIS WITH QUALIFICATION TO HOURS
.Daily hire rates of operated plant machinery are charged on a daily rate of 8hrs minimum/maximum period on site. Travel time exceeding the total 50 miles radius shall be chargeable per mile or redeemed as overtime. Travelling times ,fares and similar expenses for drivers, operators and any person supplied by the owner , incurred at the beginning and end of the hire period and where appropriate return fare of driver , operator and any person supplied by the owner to his home will be chargeable at cost.
35 WAGES AND OTHER CHARGEABLE ITEMS RELATING TO DRIVERS AND OPERATORS OF PLANT
All chargeable items shall be paid by the Hirer at the rates set out in the Contract save that any subsequent increases before and/or during the Hire Period arising from awards under any wage agreements and/or from increases in the Owner’s statutory contribution shall be charged as additions at cost by the Owner and shall be admitted and paid by the Hirer
36. CHANGES IN NORMAL WORKING WEEK
The foregoing provisions have been framed upon the basis of the Hirer working a 5-day week of 39 hours; it is hereby agreed that in the event of:
(a) there being any agreed change in the normal weekly hours in the industry in which the Hirer is engaged or,
(b) the Contract being made with reference to a 5 day week of other than 39 hours. Clauses 1(h) and (i), 18(c) and (d), 20 and (in regard to breakdown allowance and reduction for statutory holidays) 21 shall be deemed to be modified conformably and in the event of an alteration in the normal weekly working hours in the said industry the “Hire Rates and Terms” of Plant hired for a minimum weekly or daily period shall be varied pro rata.
37. DISPUTE RESOLUTION
(a) If the site is situated within the United Kingdom, then the court whose jurisdiction covers the site will have exclusive jurisdiction and interpretation of the law for this Contract. If the original site is not situated within the United Kingdom, then the relevant jurisdiction and interpretation of the law of the Contract will be governed by the country where the Owner’s head office is located.
(b) Both parties to the Contract have a right to refer any difference or dispute arising under or in connection with the Contract to adjudication and the procedure set out in Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (or any amendment or re-enactment thereof for the time being in force) will apply. The person (if any) specified in the Contract to act as adjudicator may be named in the Offer. The specified nominating body to select adjudicators shall be the Construction Plant-hire Association acting by its President or Chief Executive for the time being.
(c) The Owner and the Hirer shall comply forthwith with any decision of the adjudicator; and shall submit to summary judgment and enforcement (and/or, under Scots law, shall consent to a motion for summary decree and submit to enforcement) in respect of all such decisions; in each case, without any defence, set-off, counterclaim, abatement or deduction. Where, under Scots law, the Owner, the Hirer, or the adjudicator, wishes to register a decision of the adjudicator for execution in the Books of Council and Session, any other party shall, on being requested to do so, forthwith consent to such registration by subscribing the decision before a witness.
DISPUTE OF SERVICES it is the sole responsibility of the client to ensure all works are inspected and passed immediately on completion, any discrepancies must be raised in writing within 24hrs. Discrepancies raised at the end of the payment terms shall be redeemed void.
38. PAYMENT TERMS
Payment terms are strictly 30 days from date of invoicing (unless otherwise prior written request has been granted). Late payments may result in losing any discounts applied by the owner where full charges shall then be applied without notice.
39. 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.
40. INVOICE DISPUTES
All disputes must be raised in writing immediately to defer payment exceeding the terms
If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, the provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected. If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
DIRECT HIRE ADDITIONAL CONDITIONS OF SELF HIRE
1. (a) unless otherwise agreed in writing, the Hirer is responsible for insuring against liabilities under clause 8 and 13.
(b) Insurance under clause 13(b) to be the full replacement value.
2. The Hirer to be responsible for all fuels, oils and greases and for routine daily maintenance while on hire.
3. All punctures and tyre damage are the Hirers responsibility, but Direct Hire Access will retain authorisation for the changing of tyres and wheels.
4. Direct Hire Access will not be liable for any claims in respect of inclement weather, clause 25 does not apply.
5. The Hirer is responsible for arranging work permits.
6. The hirer is responsible for supplying all safety equipment and PPE to any person(s) employed to carryout works related to the hire.
7. “No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.”
8. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control, and in such circumstances the time for performance of the obligation has been delayed or failed to be performed provided that if the period of delay or non-performance continues for more than 4 weeks, the party not affected may terminate this agreement by giving seven days written notice to other party.
HEALTH AND SAFETY AT WORK ACT 1974
1. If you are not fully conversant with the plant hired from Direct Hire Access, you are advised to contact your local depot for the appropriate operating instructions.
2. It is the Hirers responsibility to ensure that the persons using the plant have received the appropriate instructions, information and training.