1. DEFINITIONS
(a)
the
‘Owner’ is Glazeguard SW Ltd and includes their successors, assigns or personal
representatives.
(b)
the
‘Hirer’ is the Company, firm, person, Corporation or public authority taking
the Owners plant on hire and includes their successors or personal
representatives.
(c)
‘Plant’
covers all classes of plant, machinery, vehicles, equipment and accessories
therefore which the Owner agrees to hire to the Hirer.
(d)
‘Operator’
shall be deemed to be the driver of such plant that is self-powered and the
operator of either such plant when stationary or of such plant that is not
self-powered
(e)
a
‘day’ shall be 12 hours unless otherwise specified in the Contract.
(f)
A
‘week’ shall be 7 (seven) consecutive days
(g)
a
‘working week’ shall be from 08:30 on Monday until 17:30 on Friday.
(h)
the
hire period shall commence from the day when the plant arrives on site and
shall continue until an off-hire reference is obtained from the Owner.
2. EXTENT
OF CONTRACT
No conditions other than
specifically set forth in the Offer and Acceptance and herein shall be deemed
to be incorporated in 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 and Acceptance. The Contract does not create any right
enforceable by or purport to confer any benefit on any person not a party to it
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)
3.
ACCEPTANCE OF PLANT
Acceptance of plant on site
implies acceptance of all terms and conditions herein unless otherwise agreed
in writing.
4.
UNLOADING AND LOADING
The Hirer shall be
responsible for the unobstructed access and, unless otherwise agreed in
writing, for unloading and loading the plant at the site, and any personnel
supplied by the Owner 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 alone shall be 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)
unless
notification in writing to the contrary is received by the Owner from the
Hirer, in the case of plant supplied with an operator within four working days,
and in the case of plant supplied without an operator 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 the terms of the Contract and to the
Hirer’s satisfaction. The Hirer shall
be responsible for its safe keeping, use in a workmanlike manner within the
manufacturer’s rated capacity and return on the completion of hire in equal
good order (fair wear and tear excepted).
(b)
the
Hirer shall when hiring plant without the Owner’s operator take all reasonable
steps to keep himself acquainted with the state and condition of the
plant. If such plant be continued at
work or in use in an unsafe or unsatisfactory state or environment, the Hirer
shall be solely responsible for any damage, loss or accidents whether directly
or indirectly arising therefrom.
(c)
the
Hirer is responsible for ensuring that where equipment requires sufficient
battery charging to allow for correct performance this is carried out in
accordance with instructions provided by the Owner.
(d)
the
current Report of Thorough Examination required by Regulation 9(3)(a)(i) of the
Lifting Operations and Lifting Equipment Regulations 1998 shall be supplied
with the plant to the Hirer by the Owner and returned on completion of hire.
6.
SERVICING AND INSPECTION
(a)
where
the plant is not supplied with an operator the Hirer is responsible for the
completion and recording of relevant inspections as required by current
legislation and manufacturers instructions.
(b)
the
Hirer shall at all 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 is reasonably possible, such work
will be carried out at times to suit the convenience of the Hirer.
(a)
if
the ground (including any private access or track) is soft or unsuitable for
the plant to work on, travel or be transported over without timbers or
equivalents, the Hirer shall supply and lay suitable timbers or equivalents in
a suitable position for the plant to travel over, work on or be transported
over, including for the purpose of delivery and collection.
(b)
where
the hire is for lifting equipment, any sound timber or other material supplied
by the Owner for use with outriggers/stabilisers is provided solely to assist the
Hirer and expressly not to relieve him of his legal, regulatory or contractual
obligations to ensure adequate stability of the lifting equipment under the
imposed loading.
When an 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 control and direction of the
Hirer. Such operators shall for all
purposes in connection with their employment in the working of the plant be
regarded as servants or agents of the Hirer (but without prejudice to any of
the provisions of Clause 13) who alone shall be responsible for all claims
arising in connection with the operation of the plant by the said
operators. The Hirer shall not allow
any other person to operate such plant without the Owner’s previous consent to
be confirmed in writing.
(a)
when
the plant is hired without the Owner’s operator any breakdown or unsatisfactory
working of any part of the plant must be notified immediately to the
Owner. Any claim for breakdown time
will only be considered from the time and date of notification.
(c)
full
allowance will be made for the hire charges and for reasonable cost of repairs
that have been authorised by the Owner will be made to the Hirer for any
stoppage due to breakdown of 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 Contract.
(d)
the
Hirer shall not repair the plant without the written authority of the
Owner. Allowance for hire charges and
for the reasonable cost of repairs will be made by the Owner to the Hirer where
repairs have been authorised.
(e)
the
Hirer shall be responsible for all expense involved from any breakdown and all
loss or damage incurred by the Owner 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 appropriate rate during the period the plant is
necessarily idle due to such breakdowns, loss 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 to the plant involved in breakdowns from all other causes and will
bear the cost of providing spare parts.
10. OTHER STOPPAGES
No claims will be admitted
(other than those allowed for under ‘Breakdown’, as herein provided), for
stoppages through causes outside the Owner’s control, including bad weather or
ground conditions nor shall the Owner be responsible for the cost or expense of
recovering plant from soft ground.
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 hired together as a unit, such items shall be deemed a unit for the purpose
of breakdown.
12. LIMITATION OF LIABILITY
Except for liability on the
part of the Owner which is expressly provided for in the Contract (including
these Clauses):
(a)
the
Owner shall have no liability or responsibility for any loss, delivery delay or damage of whatever nature
due to or arising through any cause beyond his reasonable control;
(b)
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 damage of whatever nature; and
(c)
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 this Agreement.
(b)
during
the continuance of the hire 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 except as provided in Clause 9 herein, and shall also fully and
completely indemnify 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 storage, transit, transport, unloading, loading or use of the
plant during the continuance of the hire period, and in respect to all costs
and charges in connection therewith whether arising under statute or common
law. In the event of loss or damage to
the plant, hire charges shall be continued until settlement has been effected.
(c)
notwithstanding
the above the Owner shall accept liability for damage, loss or injury to or
arising
(i)
prior
to delivery of any plant to the site of the Hirer 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
completely erected/dismantled on site, always provided that such
erection/dismantling is under the exclusive control of the Owner or his Agent
(iii)
after
the plant has been removed from site and is in transit on a highway
maintainable at public expense (or where the site is not immediately adjacent
to a highway maintainable at the public expenses after it has joined such a
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 maintained at the public
expense (or where the site is not immediately adjacent to a highway maintained
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.
14. NOTICE OF ACCIDENTS
If the plant is involved in any accident resulting
in injury to persons or damage to property, immediate notice must be given to
the Owner by telephone and confirmed in writing to the Owner’s office. In relation to any claim in respect of which
the Hirer is not bound fully to indemnify the Owner, no admission, offer,
promise of payment or indemnity shall be made by the Hirer without the Owner’s
consent in writing.
15. RE-HIRING,
ETC.
The plant or any part thereof shall not be re-hired,
sub-let or lent to any third party.
16. CHANGE
OF SITE
The plant shall not be moved from the site to which
it was delivered or consigned without informing the Owner as to it’s new
location.
17. RETURN
OF PLANT FOR REPAIRS
If during the hire period the Owner decides that
urgent repairs to the plant are necessary he may arrange for such repairs to be
carried out on site or at any location of his nomination. In that event 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 determine 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 determination occurs:
(a)
within
three months from the commencement of hire 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 hire 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.
18. BASIS
OF CHARGING
(a)
Plant
without an operator provided by the Owner shall be hired out ‘per week’ for a
minimum of one week of 84 hours.
(b)
Plant
with an operator provided by the Owner shall be hired out per ‘working week’ or
such other period as may be mutually agreed between the Owner and the Hirer.
(c)
Full
allowance will be made for breakdown periods resulting from mechanical or
electrical faults or absence of Operator supplied by the Owner except where
breakdown is due to Hirer’s misuse, misdirection or negligence, subject however
to the provisions of Clause 8 of this Agreement.
(d)
Where
an operator is not provided by the Owner breakdown time shall be allowed for not
exceeding 12 hours each day on Monday to Sunday less the actual daily hours
worked.
(a)
Where
an operator is provided by the Owner breakdown time shall be allowed for not
exceeding 8 hours each day on Monday to Friday less the actual daily hours
worked.
If no breakdown occurs, the
full hire for the minimum period in the contract will be charged. The stipulated number of hours can be worked
at any time during the minimum period of a week after full allowance has been
made for battery recharging time.
Allowance will be made for breakdowns up to 12 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.
If no breakdown occurs, the
full hire for the minimum period in the contract will be charged. The stipulated number of hours can be worked
at any time during the minimum period of a working week subject to agreement
between the Owner and the Hirer. An
additional daily charge will be made for the operator for work in excess of
such minimum period. Allowance will be
made for breakdowns up to 8 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.
Where “All-In” rates are charged by agreement the
minimum period shall be defined in the Contract and in accordance with the hire
rates and terms contained therein, subject to the provisions of Clause 25.
The hire period shall
commence from the day when the plant arrives at the Hirer’s designated location
and shall continue until an off-hire reference is provided by the Owner. Off-hire negotiations must be conducted
verbally between the Owner and the Hirer.
Confirmation of off-hire reference may be provided by the Owner
verbally, by mail or electronic transmission.
If more than one day be properly and unavoidably occupied in
transporting the plant an allowance to the hire rate will be allowed by the
Owner. The hire period shall continue
in one week periods if the Hirer shall not make the plant available for
collection to the Owner or their contracted representatives on the agreed date.
Where the period of hire is
indeterminate or having been defined becomes indeterminate the Contract shall
be determinable 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 (seven) 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 27 or until the Owner has collected the plant
within the 7 (seven) days following the acceptance of short notice. Oral notice given by the Hirer to the
Owner’s operator shall not be deemed to constitute compliance with the provisions
of this Clause.
When the plant is prevented by prolonged inclement
weather from working for a complete week, the charge shall be two-thirds of the
hire rate or such other idle time as stated in the Offer. If the plant works for any time during the
guaranteed hire period then the whole of that guaranteed minimum period shall
be charged as working time. In any case
no period less than one 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 charged on the machine element only. Full rate will be charged for the operator.
All chargeable items shall be
paid by the Hirer at the rates contracted save that any subsequent increases
before and/or during the hire period arising from awards under national wage
agreements and/or from increases in the employers statutory contributions shall
be charged as additions at cost by the Owner and shall be admitted and paid by
the Hirer.
Travelling time and fares for
operator’s, similar expenses incurred at the beginning and end of the hire
period and where appropriate the operator’s return fare to his home at periods
in accordance with appropriate national agreements will be chargeable at cost. No charge shall be made by the Owner for any
such expense incurred by other employees of the Owner for the purpose of
servicing, repair or maintenance of plant, unless necessitated by the Hirer’s
negligence, misdirection or misuse of the plant.
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 not remove,
deface or cover up the Owner’s name plate or mark on the plant indicating that
it is his property.
The
Hirer shall not remove, replace, deface, cover up nor by any other method
render unrecognisable any marking that is affixed to the plant to accord with
relevant statutory legislation including, but not limited to, The Supply of
Machinery (Safety) Regulations 1992, as amended, and the Lifting Operations and Lifting Equipment Regulations 1998
or any amendments or re-enactments thereof for the time being in force.
The
Hirer shall pay the cost of transport of the plant from the Owner’s depot to
the designated site and return to named depot on completion of the hire period.
The Hirer will be responsible for compliance with
relevant regulations issued by the Government or Local or Unitary Authorities
including Regulations under the Health and Safety at Work, Etc. Act 1974 and
observance of the Road Traffic Acts should they apply.
(a)
Unless
otherwise expressly stated, orders are accepted on condition that each
consignment will be invoiced separately and payment therefore shall become due
30 days from the end of the month in which the goods are despatched.
(b)
Should
default be made by the Hirer in paying any sum due under any Contract as and
when it becomes due, or should the Hirer be in breach in any respect of the
Contract entered into, the Owner shall have the right by written notice posted
to the Hirer either forthwith to suspend any all further deliveries until the
default be made good or to determine any Contract then subsisting so far as any
further goods remain to be delivered without prejudice to any claim or right
the Owner might make or exercise
(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)
If
the Hirer make default in punctual payment of any sums due to the Owner for
hire of plant or other charges or shall fail to observe and perform the terms
and conditions of this Contract, or if the Hirer shall suffer any distress or
execution to be levied against him or make or propose 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 shall do or cause 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, this Contract may forthwith be
determined by notice from the Owner to the Hirer (notwithstanding that the
Owner may have waived some previous default or matter of the same or like
nature). The Contract shall thereupon
be deemed determined by reason of the Hirer’s breach and it shall be lawful for
the Owner to retake possession of the said plant and for that purpose enter
into or upon any premises where the same may be and the determination of the
hiring under this Condition shall not affect the right of the Owner to recover
from the Hirer any monies due to the Owner under the Contract or any of the
Owner’s rights and remedies. In
particular, without limitation, the Owner shall be entitled to claim the hire
charges outstanding as at the date of determination of the hire under this
clause, return transport charges under Clause 27, and damages for the Hirer’s
actual or deemed breach of the Contract under this Clause.
The foregoing provisions have been framed upon the
basis of the Hirer working:
(a)
where
an operator is provided by the Owner, a 5-day week of 40 hours;
(b)
where
an operator is not provided by the Owner, a 7-day week of 84 hours.
It is hereby agreed that in
the event of:
(a)
there
being any change in the normal weekly hours of the industry in which the Hirer
is engaged, or;
(b)
(c)
the
Contract being made with reference to a 5-day week being worked by the Hirer
(either of 40 hours or of such number of hours as may constitute the normal
working week in the said industry) Clauses 1(d) and (f), 18(a), (b) and (d) and
(in regard to breakdown allowance) 20 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 period shall be varied pro rata.
(a)
where
the Hirer has undertaken to agree with the Owners Annual Hire Contract all
clauses contained within these terms and conditions set forth shall apply to
all contracts undertaken between the Owner and the Hirer in the period as set
out in the Annual Hire Contract Offer.
(b)
failure
on the part of the Hirer to comply with the current Terms and Conditions of
Hire as herein set out shall be deemed as default and the Owner may, by giving
seven days’ notice to the Hirer, terminate any Contract unresolved at the time
of notice.
In the event of any item or
items of plant comprised in this hire Contract being used by the Hirer on or in
connection with a contract for the construction of works or buildings and of a
forfeiture of such contract being made by the Employer thereunder the Owner
shall request the return of said plant, unless within the hire period the Hirer
may gainfully employ said item or items under another contract. The Employer may not ask for nor be granted
enforced transference of contract.
(a)
if
the original site is in England or Wales, the proper law of the Contract shall
be English law. If the original site is
in Scotland, the contract shall in all respects shall be construed and operated
as a Scottish contract and shall be interpreted in accordance with Scots law. If the original site is in Northern Ireland,
the proper law of the Contract shall be Northern Ireland law.
(b)
(b)
the
Scheme for Construction Contracts contained within the Scheme for Construction
Contracts (England and Wales) Regulations 1998, or any amendment or
re-enactment thereof for the time being in force. Shall apply to the
Contract. 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. In paragraph 21 of the Scheme “this paragraph” shall be deleted
and “paragraph 20” substituted.
(c)
the
Owner and the Hirer shall comply with forthwith with any decision of the
adjudicator; and shall submit to summary judgement 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.