Terms and Conditions

1. DEFINITIONS

1) “Contract” means the contract formed between the Owner and the Hirer for the supply of the Services, in accordance with clause 2 below.

2) A “day” shall be 8 site hours, unless otherwise specified in the Contract. Where Plant has been supplied on an ‘Operated Hire Basis’ then overtime will be charged on a ‘Per Hour Minimum Basis’ after 8 site hours unless otherwise agreed or stated within the Contract. Any breaks/downtime other than breakdowns will be included within the 8 hours on Site.

3) “Hirer” is the company, firm, person, partnership, corporation, public authority or other entity which is taking the Owner’s Plant on hire or who is otherwise identified in the Hire Confirmation or who otherwise purchases Services from the Owner and includes their successors, assigns or personal representatives.

4) “Hire Confirmation” means the email or other written document sent by the Owner to the Hirer to create the Contract, in accordance with clause 2.

5) 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 or if longer shall begin when the Owner commences the performance of any Services until such time as such Services are completed or otherwise ceased in accordance with the terms hereof.

6) “Idle Time Rate” is defined in clause 19.

7) “Office Hours” are 08:00 hours to 17:30 hours on Working Days only.

8) “Operator” means any person supplied by the Owner to the Hirer for any purpose in relation to the Contract, including (without limitation) to assist in driving or operating the Plant including rigging.

9) “Owner” means Prime Platforms Ltd (Company No. 7899697), registered in England and Wales at Belair House, Trevor Foster Way, Bradford, West Yorkshire, BD5 8HB, and includes its successors and assigns.

10) “Plant” means any and all classes of plant (including all MEWP), machinery, equipment, attachments and accessories, which the Owner agrees to hire to the Hirer whether as a standalone hire or as part of a traffic management service.

11) “Services” means the hire of Plant and/or traffic management services together with any other services to be provided by the Owner as the case may be pursuant to the Contract, and which may be more particularly described in the Hire Confirmation or other confirmation of Services issued by the Owner.

12) “Site” means the Site at which the Plant is delivered to, or used by (or on behalf of), the Hirer or the Services otherwise performed.

13) A “Working Day” means Monday to Friday (inclusive), excluding Saturday and Sundays, bank holidays and any other public holidays.

14) “MEWP(S)” means mobile elevating work platform(s), any individual powered access machine regardless of maker, age, or type including accessories and attachments.

15) The “Parties” means the Owner and the Hirer.

2. CONTRACT FORMATION

1) The Owner may provide to the Hirer a quotation for the Services on request. The Owner reserves the right to revise or withdraw any quotation for any reason whatsoever at any time prior to Contract formation. Any such quotation shall be an invitation only and accordingly, any purported acceptance of such quotation by the Hirer shall not form a Contract between the parties. Rather, the Hirer may submit an offer to contract in the form of a purchase order, requesting the Services on the basis of the information in the quotation.

2) The offer set out in the Hirer’s purchase order may be accepted by the Owner (thereby creating the “Contract” between the parties for the provision of the Services) by issuing to the Hirer (whether by email, post or fax) a Hire Confirmation or other Service confirmation or alternatively by delivering the Plant to the Site or otherwise commencing the Services (whichever is sooner). The Contract shall incorporate and be governed by these terms and conditions and any terms set out in the Hire Confirmation or other Service confirmation issued by the Owner, to the exclusion of any terms and conditions imposed or sought to be imposed by the Hirer at any time. In the event of any conflict between the terms of the Hire Confirmation or other Service confirmation and these terms and conditions, the former shall prevail.

3) Except as expressly otherwise set out in the Contract, 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 permitted, 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).

4) The Hire Confirmation or other Service confirmation and these terms and conditions form the entire agreement between the parties relating to the Services.

5) No agent, employee or servant of the Owner has any authority to vary in any way the terms of the Contract. The Contract may only be varied by agreement between the parties in writing, signed by a director of each party.

6) For the avoidance of any doubt, acceptance of the Plant on Site by the Hirer or other acceptance of the Services also implies acceptance of these terms and conditions.

7) Any requests for Services or other information relating to the Contract, raised by the Hirer must be in writing. Any verbal requests or other information will not be accepted. (h) In the event that the Services are amended by agreement of the Owner, following commencement of the Contract, such that any additional Services are to be performed, they shall be included in the Contract and shall be payable in accordance with these terms and conditions but the Owner does not undertake to issue to the Hirer any revised Hire Confirmation or other Service confirmation and it shall be the Hirer’s responsibility to amend its own purchase order documentation for its own internal purposes.

3. DELIVERY OF PLANT IN GOOD ORDER AND MAINTENANCE

(a) Unless notification in writing to the contrary is received by the Owner from the Hirer:

1) in the case of Plant supplied with an Operator, immediately on discovery of a fault and in any event within one hour of such discovery; and

2) in the case of Plant supplied without an Operator on the day on which a fault is discovered;

then 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. In the case of Plant supplied without an Operator, the Hirer shall inspect the Plant on the day of delivery to ascertain whether there is any such fault to be notified to the Owner, even if it does not intend to put the Plant into operation until after the date of delivery. Where Plant is to be erected on Site, the Hirer shall inspect the Plant on the day on which it is erected.

(b) The Hirer shall be responsible for the Plant when it takes possession of it, either when the Hirer collects the Plant from the Owner’s premises, or when the Owner delivers it to the Hirer’s site, and such responsibility shall continue throughout the whole period that the Plant is in the Hirer’s possession. In particular, the Hirer shall be responsible for the Plant’s safekeeping, use in a workmanlike manner within the manufacturer’s rated capacity, and return on the completion of the hire in equal good order (fair wear and tear excepted). (c) The Hirer shall, when hiring Plant without an Operator, take all reasonable steps to keep itself acquainted with the state and condition of the Plant. If such Plant be continued at work or in use in an unsafe and unsatisfactory state or environment, the Hirer shall be solely responsible for any damage, loss or accidents whether directly or indirectly arising therefrom.

(d) Any inspection report required by applicable legislation, or a copy thereof, shall be supplied by the Owner if requested by the Hirer and returned on completion of hire. (e) The Owner reserves the right to supply substitute Plant or Services in lieu of and which differs from any originally proposed specification.

4. SERVICING AND INSPECTION

The Hirer shall at all reasonable times allow the Owner, his agents, contractors and/or his insurers, to have access to the Plant to inspect, test, adjust, repair or replace the same and accordingly shall provide or shall procure the provision of, access to the same including access to any premises at which the Plant is located. So far as reasonably possible, such work will be carried out at times to suit the convenience of the Hirer.

5. HIRER’S OBLIGATIONS

1) The Hirer shall supply free of charge all necessary light, power, hot water, fuel and other facilities which may be required to enable the Owner and/or Operator to carry out the Services.

2) The Hirer shall provide adequate and secure accommodation for all Plant whilst it is on hire from the Owner and shall protect it from theft, damage or improper use.

3) The Hirer shall ensure that the Site complies with all Health and Safety legislation from time to time in force and shall regularly check that the Plant remains in good order and fit for purpose.

4) The Hirer will not, except with the Owner’s prior written consent, during the continuation of the Contract or within a period of twelve months from the date of termination of the Contract, offer or give employment to any of the employees of the Owner nor entice nor solicit nor in any manner be concerned in introducing any of them to the employment of any other person firm or company. If the Hirer breaches this clause it shall pay to the Owner a sum equal to half of the relevant employee’s annual salary, and such sum shall be recoverable by the Owner as a debt which the parties acknowledge is a genuine pre- estimate of the Owner’s loss.

5) The Hirer shall not move the Plant from the Site to which it was delivered or consigned to any other location without the prior written permission of the Owner.

6) The Hirer shall pay to the Owner, the cost of any repairs required due to any damage to, or neglect of the Plant.

7) The Hirer shall not permit the Plant to be used in any situation where it may become contaminated with dangerous substances, however to the extent that the Plant becomes contaminated, the Hirer must inform the Owner of this fact immediately and the Hirer must pay for any necessary decontamination.

8) The Hirer shall pay for cleaning any Plant that it returned to the Owner in an unreasonably dirty condition and the Owner reserves the right to charge the Hirer for any time the Plant is off hire due to cleaning or decontamination.

6. HANDLING OF PLANT

1) When an Operator is supplied by the Owner with the Plant, or for the purpose of loading/unloading it, the Operator shall be under the direction and control of the Hirer for so long as he is on the Site or otherwise loading/unloading or operating the Plant for or on behalf of the Hirer. The Hirer (without prejudice to any of the provisions of Clauses 10(a) and 11) shall be responsible for and shall indemnify the Owner against all claims, losses, demands, awards, proceedings, damages, charges, costs and expenses suffered or incurred by an Operator due to the Hirer’s breach of these terms and conditions, or arising in connection with the operation of the Plant by the said Operators (but not where the Operator has acted negligently unless in doing so he was following the express instructions of the Hirer).

2) Where an Operator is supplied by the Owner with the Plant, the Hirer shall not allow any person other than the Operator to operate the Plant without the Owner’s prior written consent.

3) The Hirer shall provide free, firm and suitable access to and from Site, including the removal and reinstatement of local obstructions, for the Owner where necessary and, unless otherwise agreed in writing, shall be responsible for unloading and loading of the Plant at the Site. The Hirer agrees to pay the Owner reasonable charges to cover any additional costs the Owner incurs due to any act or failure by the Hirer in this respect.

4) The Hirer warrants that it will provide a safe working environment for the Operator, in accordance with any applicable laws or rules relating to security and health and safety and shall provide proper and reasonable supervision.

5) The Hirer shall be responsible for conducting any risk assessment, method statement or safety check necessary on site before it, its own operator or an Operator use the Plant. (f) The Hirer shall ensure that its directions to the Operator or its own operator as to the operation of the Plant are, in accordance with the Plant maker’s design parameters and instructions and all applicable rules, regulations or enactments.

7) Where the Hirer is hiring the Plant on the basis that it, or its own operator, will operate the Plant, the Hirer must ensure that all such operators are competent and have been adequately trained on the type of Plant hired under the Contract, and shall ensure that all appropriate supervision and assistance are employed and provided at all time whilst the Plant is being operated.

8) The Hirer shall obtain any necessary consents, and shall comply with any rules in relation to the use of the Plant on, over or adjacent to property belonging to, or licenced or leased by, any other person.

7. BREAKDOWN, REPAIRS AND ADJUSTMENT

1) When the Plant is hired without an Operator, any breakdown or the unsatisfactory working of any part of the Plant must be notified immediately to the Owner and the Hirer must not allow the relevant part(s) of the Plant to be used again until it has been assessed as safe to use. Any claim for breakdown time will only be considered from the time and date of such notification.

2) Full allowance for the hire charges and for the 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 or stoppages for normal running repairs in accordance with the terms of the Contract. Full allowance shall mean a pro-rata allowance based on the period between the Plant not being in working order due to a need for the repair in accordance with this clause 7(b) and the time the machine is repaired or replaced. (c) Any repair or replacement of any Plant subject to a breakdown shall be at the Owner’s discretion, and the Hirer shall allow the Owner’s staff adequate access to the location of the relevant Plant for the purposes of its repair, inspection, calibration or collection. The Owner may charge the Hirer for any additional costs incurred due to any denial of such access. (d) The Hirer shall not, except for the changing of any tyre and repair of punctures, repair the Plant without the written authority 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 without awaiting authorisation from the Owner. The Hirer is responsible for all costs incurred in the changing or replacement of any tyre and the repair of any puncture and warrants that all replacement tyres or tubes fitted by the Hirer or anyone acting on its instruction, are of equivalent or better specification to those originally fitted.

(e) The Hirer shall be responsible for all expense involved arising 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 or agents, and for the payment of hire charges at the Idle Time Rate during the period the Plant is necessarily idle due to such breakdown, loss or damage. 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. (f) The Hirer is responsible for the cost of spares and/or repairs due to theft, loss or vandalism of the Plant.

8. OTHER STOPPAGES

No claims will be accepted (other than those expressly herein provided), for stoppages caused by circumstances outside the Owner’s control, including bad weather or ground conditions, nor shall the Owner be responsible for the cost or expense of recovering any Plant from soft ground. All times stated for transport or other attendance by the Owner or its staff are approximate only.

9. LOSS OF USE OF OTHER PLANT

(a) 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 one unit for the purpose of breakdown. (b) Any Service or Plant is subject to the relevant Service or Plant being available when the Hire Period or Service is due to commence.

10. LIMITATION OF LIABILITY

(a) Nothing in the Contract shall exclude or purport to exclude the Owner’s liability for death or personal injury caused by its negligence, or for fraud or fraudulent misrepresentation. (b) Subject to clause 10(a), and except for liability on the part of the Owner which is expressly provided for in the Contract the Owner shall not be liable in contract, tort (including negligence), for breach of statutory duty or otherwise, howsoever arising, for any claim, damage, loss, costs or liability in respect of: (1) any financial or economic loss, or indirect;

2) any direct loss of profit;

3) any direct loss of savings or anticipated savings;

4) any direct loss of use of money;

5) any direct loss of business;

6) any loss of business or contracts whether direct or indirect; or

7) any indirect loss or damage howsoever caused including (without limitation): (i) any indirect loss of profit;

2) loss of anticipated profit including loss of profit on contracts

3) loss of use of money

4) loss of savings or anticipated savings;

5) loss of opportunity

6) loss of use or data;

7) loss of goodwill; and/or

8) loss of reputation

9) loss of use of the Plant or any other asset or facility

10) loss of production or productivity

11) loss of contracts with any third party

12) liabilities of whatever nature to any third party

13) any other financial or economic loss or special, incidental, indirect, punitive or consequential loss or damage of whatever nature, and the Parties agree that the sub clauses of this clause (10)(b) shall be distinct and severable.

3) The Owner shall have no liability or responsibility for any loss of damage of whatever nature due to or arising through any cause beyond its reasonable control;

4) Subject to clause 10(a), the Owner will not be responsible for any loss, damages, proceedings, suits, third party claims, judgements, awards, expenses and costs (including legal costs) of any kind or nature caused directly or indirectly by the Plant or its use. (e) 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.

6) Owner shall not be liable to the Hirer for loss or damage to the Hirer’s property unless the same shall have been due to the negligence or other failure of Owner to perform its obligations under this Contract.

7) For any other liability of the Owner not otherwise limited by this clause 10, the Owner’s total liability under or in connection with each Contract will be limited to a sum equal to 3 times the value of the hire charges actually paid by the Hirer.

8) Any failure to provide the Service should be reported to the Owner within 48 hours by telephone with confirmation in writing within seven days of occurrence. The Owner cannot be liable for any claim that may arise that is not notified within this specified period of time. (i) The Hirer should put in place appropriate insurance against all risks under or in connection with or associated with this Agreement.

(j) The Hirer shall indemnify the Owner in full and hold the Owner harmless in respect of any losses, costs, claims, demands, awards, proceedings, damages, charges, liabilities and expenses:

1) which the Owner may incur in respect of any personal injury claims arising from use of the Plant where the same arise as a result of the negligence of the Hirer; and

2) incurred by or taken against the Owner as a result of the negligence, fault, error, omission, act or breach of the Hirer or the Hirer’s employees, staff, contractors, agents or representatives and for any breach of contract whatsoever.

11. HIRER'S RESPONSIBILITY FOR LOSS AND DAMAGE

1) Nothing in this Clause 11 affects the operation of Clauses 3, 5, 6 and 7.

2) 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, except as provided in Clause 7 (subject to clause 10(a)).

In the event of loss of or damage to the Plant, hire charges shall be continued at the Idle Time Rates until settlement has been effected.

3) Notwithstanding the above the Hirer shall not be responsible for damage, loss or injury due to or arising:

(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 completely erected/dismantled on Site, always provided that such erection/dismantling is under the exclusive control of the Owner, its staff or subcontractors or an Operator; (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 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 an Operator supplied by the Owner.

(d) Subject to clause 10(a), the Hirer shall indemnify and keep indemnified the Owner from and against any and all claims demands, losses, damage and liabilities (whether criminal or civil) suffered (and legal fees and costs incurred) by reason of, caused by or as a result of: (i) the presence or use of any Plant (provided in accordance with the Contract) or from any breach of this Contract by the Hirer including any default of the Hirer’s employees or agents or any breaches resulting in any successful claim by any third party against Owner; (ii) the storage, transit, transport, unloading, loading or use of the Plant during the continuance of the Hire Period, and in respect of all costs and charges in connection therewith whether arising under statute or common law.

12. NOTICE OF ACCIDENTS

If the Service results in, or any 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. If the Plant is involved in any other accident, whatever the circumstances, the Hirer must inform the Owner at the earliest opportunity and confirm the same in writing. 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.

13. RETURN OF PLANT FOR REPAIRS

(a) If during the Hire Period or otherwise during the Service, the Owner decides that urgent repairs to the Plant are necessary, it may arrange for such repairs to be carried out on Site or at any location of its nomination. Subject to the following, 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 7 or 11) shall pay 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 7 and/or 11 or this) by giving written notice to the Hirer. If such termination occurs:

1) within three months from the commencement of hire, the Owner shall pay all transport charges involved, or,

2) more than three months from the commencement of hire, the Owner shall be liable only for the cost of reloading and return transport.

14. BASIS OF CHARGING

1) Charges, or the basis upon which the charges will be calculated, are set out in or referred to in the Hire Confirmation or other Service confirmation as the case may be.

2) The Hirer shall render to the Owner for each week an accurate statement of the number of hours the Plant has worked each day. Where the Plant is accompanied by the Owner’s Operator, the Hirer shall sign the Operator's time record sheets. The signature of the Hirer’s representative shall bind the Hirer to accept the hours shown on the time record sheets including any overtime.

3) Where Plant is supplied on a ‘Operated Basis’ or any other overtime is completed on site, any overtime after a minimum of 8 site hours or any other pre-agreed minimum day working hours will be charged hourly pro rata plus 20% unless agreed otherwise in writing. Overtime will always be charged in hourly units rounded up to the next hour. Any breaks/downtime taken will be included in these 8 hours and overtime chargeable after this.

4) 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 acts or omissions of third parties and/or the Hirer’s misuse, misdirection or negligence.

5) Breakdown time in respect of such periods shall be allowed for not more than 8 hours per day less the actual hours worked.

6) Plant shall be hired out either:

1) for a stated minimum number of hours per day or per week or,

2) 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.

(g) Where Plant is hired on the basis that the Plant must only be used during Working Days, the Hirer must not use the Plant on any Saturday, Sunday or other non-Working Day. (h) Where Plant is hired on the basis of a minimum number of hours of hire, the total charges for that minimum number of hours shall be a minimum charge that will be levied even if the Hirer does not utilise such minimum number of hours, or finishes using the Plant early. (i) 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.

10) In the case of Plant which requires 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 hire, such modification of the hire charge and the period for which it shall apply shall be stated on the Hire Confirmation.

11) A non-refundable arrangement fee will be payable by the Hirer to the Owner in connection with the arrangement of any third party costs properly and reasonably incurred by the Owner in relation to the Contract and/or the Services, including but not limited to, hire cars, ferry costs, pre-booked accommodation costs, traffic & pedestrian management costs, council permits, hiring of specialist equipment to compliment the contracted hire, council charges, TTRO’s, road closure permits, plant equipment licences, bus stop suspensions, planned works associated advertising costs, incurred transport costs or ANY other costs. (l) The Owner will continue to charge the agreed rate when the Plant has broken down or is otherwise unavailable for work due to any action, inaction or fault of the Hirer. In the event of seizure or detention of the Plant by any receiver, liquidator or statutory body, the Owner may continue to charge the Hirer until the Owner has recovered the Plant.

(m) Any road or bridge tolls or congestion or road use charges that the Owner incurs during transport of the Plant to or from the Owner’s site or other premises allocated to store the Plant, will be charged to the Hirer.

15. 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 on such days.

16. 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.

17. PLANT HIRED BY THE WEEK OR THE HOUR FOR A MINIMUM OF 39 HOURS PER WEEK

If no breakdown occurs, the full hire for the agreed minimum period of hire 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 week of 39 hours shall be reduced by 8 hours Monday to Thursday and 7 hours Friday for each day’s statutory holiday occurring in such week, provided that the Plant does not work on any such statutory holidays.

18. “ALL-IN” RATES

Where “All-In” rates are charged by agreement the minimum period shall be set out or referred to in the Hire Confirmation or other Service confirmation and in accordance with the hire rates and terms contained therein, subject to the provisions of Clause 19.

19. IDLE TIME

When Plant is prevented by prolonged inclement weather from working for a full week, the charge shall be two thirds of the hire rate or such other Idle Time Rate as is referred to in the Hire Confirmation or other Service confirmation. 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 as provided for in Clause 14(i). Where an “All-In” rate is charged, idle time is charged on the Plant only. Full rate will be charged for the Operator.

20. PAYMENT TERMS

1) The Owner shall be entitled to invoice at any time on or after commencement of the Hire Period or on or after commencement of the Services, and for Hire Periods lasting more than one week, shall render invoices weekly. If the Hirer does not have a credit account with the Owner, the Owner shall invoice, and the Hirer shall pay, the charges in advance of the Hire Period. Time for payment of invoices shall be of the essence.

2) Payment of the Owner’s charges shall be made by a Hirer with an approved credit account not later than 30 DAYS NETT from the date of invoice/payment application. Any invoice queries must be raised within 7 working days of invoice receipt. No invoice queries will be accepted after this time.

3) If the Hirer fails to pay the Owner in full on the due date, all sums owing by the Hirer to the Owner shall immediately become due and payable, and the Owner may:

1) suspend or terminate the Contract;

2) charge the Hirer interest at the applicable rate pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (the “Act”):

1. calculated (on a daily basis) from the date the Owner’s invoice became due until payment;

2. compounded on the first day of each calendar month;

3. claim fixed sum compensation from the Hirer pursuant to the Act; and

4. recover and the Hirer shall reimburse all legal fees incurred by the Owner including, without limitation, the costs of taking legal proceedings against the Hirer.

(iii) If the Hirer has an approved credit account, the Owner may without notice withdraw it or reduce the credit limit or bring forward the due date for payment.

4) The Owner may set off any sum owing by it to the Hirer, against any sum owing by the Hirer to the Owner. The Hirer may not set off any sum owing by the Owner to it, against any sum owing by it to the Owner.

5) All sums payable under this Contract unless otherwise stated are exclusive of Value Added Tax (“VAT”) and other duties or taxes. Any VAT or other duties or taxes payable in respect of the hire charges shall be payable by the Hirer in addition to such charges. (f) Unless the Owner has agreed otherwise in writing, all invoices will be issued and will be payable in pounds sterling.

21. COMMENCEMENT AND CANCELLATION OF HIRE – SPECIFIC TO TRUCK MOUNTED ACCESS PLATFORMS

Operated Hire of Plant: Cancellation – 61m Platforms and above (where no other terms are agreed).

1) A minimum of One clear Working Day prior to the commencement of the Hire Period is required to cancel or postpone a hire without charge.

2) Where notice of hire cancellation is received by the Owner’s office with less than the minimum One Working Days’ notice as stipulated then the following charges will apply:

1. The first day of the hire will be charged in full

2. If applicable, the next consecutive hire day(s) will be charged at 80% of the minimum daily hire rate.

Operated Hire of Plant: Cancellation – 60m Platforms and below (where no other terms are agreed).

3) Where notice of hire cancellation is received the Working Day preceding commencement of the Hire Period before 15:00 hours then there will be no charges expect for those charges specified in Clause 25 below.

4) Where notice of hire cancellation is received the Working Day preceding commencement of the Hire Period after 15:00 hours then 100% of the first days hire will be charged and 80% of all consecutive days hire.

5) Where Owner incurs additional pre-hire costs in relation to the Contract, including but not limited to hire cars, ferry costs, pre-booked accommodation costs, traffic & pedestrian management costs, council permits, hiring of specialist equipment to compliment the contracted hire, council charges, TTRO’s, road closure permits, plant equipment licences, bus stop suspensions, planned works associated advertising costs, incurred transport costs or ANY other costs associated with a Contract in advance, such charges, together with any arrangement fee charged in accordance with clause 14(k), will be charged to Hirer in full in the event of a hire being cancelled in accordance with this clause.

22. TRANSPORT OF PLANT

1) An allowance shall be made of not more than one day’s hire or Service charge each way for travelling time. If Plant is used or Services otherwise performed on day of travelling, full rates shall be paid for the period of use or Service on that day as the case may be. If more than one day be 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 full 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.

2) An allowance of not more than one day’s travelling time shall be allowed when the Plant is travelling to a Site other than that specified in the Contract provided that: (1) prior written consent to such transfer has been given by the Owner, and,

2) the Plant is moved by means other than under its own power, and,

3) the Plant shall have been on the Site specified in the Contract or on any other Site to which consent to transfer has been given for a period of at least 14 days.

(c) 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 named depot or other agreed location on completion of the Hire Period.

23. NOTICE OF TERMINATION OF CONTRACT

Where the Hire Period 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 (without prejudice to any rights or liabilities accrued prior to termination). Notwithstanding that the Owner may have agreed to accept less than 7 days’ notice of termination, the Hirer’s obligations shall continue until all Plant is returned to the Owner in accordance with these terms and conditions or until the Owner has collected the Plant. Oral notice given by the Hirer to the Operator shall not be deemed to constitute compliance with the provisions of this Clause.

24. WAGES AND OTHER CHARGEABLE ITEMS RELATING TO OPERATORS

All chargeable items shall be paid by the Hirer at the rates contracted (and referred to in the Hire Confirmation or other Service confirmation) 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 employer’s statutory contribution shall be charged as additions at cost by the Owner and shall be admitted and paid by the Hirer in addition to the hire or other Service charges.

25. TRAVELLING TIME AND FARES

Travelling time and fares for Operators, similar expenses incurred at the beginning and end of the Hire Period and where appropriate return fare of the Operator from the Hirer’s site to his home will be chargeable at cost and shall be paid by the Hirer. No charge shall be made by the Owner for any such expenses 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.

26. OTHER COSTS

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. Unless otherwise agreed by the Owner, the Hirer shall be responsible for the upkeep of any Plant equipment once on hire to ensure sufficient levels of fuel, oil and water are maintained.

The cost of re-sharpening shall be borne by the Hirer.

27. GOVERNMENT REGULATIONS

The Hirer will be responsible for compliance with all applicable law and relevant regulations issued by the Government or Local Authorities, including Regulations under the Factories Acts, Health and Safety at Work etc Act and observance of Road Traffic Acts should they apply (and any and all updated and replacement legislation) and for putting in place any insurance or indemnity that is required by law when using the Plant. The Hirer shall be responsible for the cost of Road Fund Licences and any insurances made necessary thereby, save that if and during such time as any Plant is travelling, whether for full or part journey from Owner to Site and Site to Owner under its own power with an Operator supplied by the Owner, the Owner and not the Hirer shall be responsible as aforesaid.

28. PROTECTION OF OWNER’S RIGHTS

1) All Plant made available to the Hirer as part of the Services shall remain the sole and absolute property of Owner at all times.

2) The Hirer shall not re-hire, sell, mortgage, sub-let, lend, encumber, charge, pledge, part with possession of or otherwise deal with the Plant or any part thereof without the prior written permission of the Owner. The Hirer shall protect the Plant 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. (c) The Hirer must pay the cost of replacing any Plant that the Hirer is unable to restore or return to the Owner at the end of the Contract, and shall maintain at all times at its own cost and keep in force a fully comprehensive policy of insurance to insure all items of Plant whilst the same is in the Hirer’s possession, custody or control for the full current reinstatement value thereof against all loss or damage howsoever caused including for theft. The Owner shall be named as payee on any such insurance. Any Plant lost or stolen will remain on hire until replaced on a ‘New for Old’ replacement value basis. The Owner reserves the right to raise any additional charges to cover any further loss of revenue from the time the equipment is lost or stolen to when payment is received in full.

4) If the Hirer receives any money in settlement for all or part of any claim arising out of damage or theft of the Plant, the Hirer agrees to hold that money on trust for the Owner and to pay it to the Owner on demand. The Hirer shall not negotiate or compromise any settlement matter without the Owner’s written agreement.

5) 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 and must notify the Owner of any loss of, or damage to the same.

6) If the Hirer retains the Plant after the expiry date agreed in the Contract or the termination of the same, or if the Plant is unavailable when the Owner and/or its staff come to collect it from the location the Owner believes it is situated, the Hirer will pay the Owner’s reasonable expenses and charges incurred due to the Hirer’s failure to restore it to the Owner.

29. TERMINATION

(a) In addition to the Owner’s rights of termination including those in clause 20, if the Hirer:

1) fails to observe and perform any of the terms and conditions of this Contract, or

2) shall suffer any distress or execution to be levied against the Hirer or the Hirer makes or proposes to make any arrangement with his creditors, or

3) becomes insolvent within the meaning of Section 123 Insolvency Act 1986 or any amendment or re-enactment thereof for the time being in force, or

4) 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, or

5) has an order made in relation to it by a court of competent jurisdiction or a resolution is passed for the dissolution, winding-up, bankruptcy or administration of the Hirer (other than due to a solvent restructuring), or

6) has a trustee, receiver, administrator or other similar officer appointed in respect of the Hirer or all or any part of the Hirer’s business, or

7) an event analogous to any of the foregoing clauses occurs in any jurisdiction, 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 a like nature). The Contract shall thereupon be deemed terminated by reason of the Hirer’s breach and it shall be lawful for the Owner to retake possession of the Plant and for that purpose enter into or upon the Site or any premises where the Plant may be and the termination of the Contract shall not affect the right of the Owner to recover from the Hirer any monies due to the Owner under the Contract (which shall immediately become due and payable) or any of the Owner’s other rights and remedies. In particular, without limitation, the Owner shall be entitled to claim the charges outstanding as at the date of termination under this Clause, return transport charges, and damages for the Hirer’s breach of the Contract. (b) The Owner may terminate the Contract with immediate effect by verbal notice if it considers that any use or action the Hirer is undertaking or intends to undertake with the Plant is likely to place any person in danger of injury. Upon the issue of notice, the Hirer agrees to immediately cease its use of the equipment and to make it available for collection by the Owner, or its representative, immediately.

30. 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:

1) there being any change in the normal weekly hours in the industry in which the Hirer is engaged or,

2) the Contract being made with reference to a 5-day week of other than 39 hours, the definition of “day” and clauses 14(c) and (e) and clauses 15, 16 and 17 shall unless otherwise agreed 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 of Plant hired for a minimum weekly or daily period shall be varied pro rata.

31. DISPUTE RESOLUTION

1) This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

2) Each party irrevocably agrees that the courts of England and Wales shall, except as otherwise provided for in the Contract (including in clause 31(c)), have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

3) The Scheme for Construction Contracts contained in 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 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.

4) The Owner and the Hirer shall comply forthwith with any decision of the adjudicator.

32. SITE SURVEYS

1) Site Surveys may be completed by the Owner at the request of the Hirer to provide an indication only of the type of MEWP that would be best suited for the Site works or the most suitable scheme for a particular Site in the case of traffic management services.

2) A completed Site survey does not guarantee that a recommended MEWP will definitely reach all required areas and the Hirer shall be fully responsible for its ultimate selection of the Plant it hires, based on its own skill and judgement.

3) Owner will not be liable for any Site condition changes between a survey being completed and the MEWP reaching Site or the traffic management scheme commencing as the case may be.

4) Owner will not accept any liability for any consequential losses whatsoever in relation to a MEWP not allowing the Hirer to complete their work duties irrespective of a Site survey being completed or not.

33. GROUND & WEATHER CONDITIONS

1) The Hirer is responsible for ensuring suitable ground conditions for erection, operation and dismantling of the Plant and otherwise for the provision of the Services irrespective of any Site survey which may have been undertaken by the Owner.

2) No responsibility can be accepted by the Owner for damage to any surface over which the Plant has to be moved to reach its intended position or over which vehicular access is undertaken in order for the Services to be prepared or performed including the delivery or removal of any Plant to or from a Site.

3) The Hirer should take steps to protect such surfaces (paving slabs, soft ground etc.) before delivery of the Plant.

4) If the ground (including any private access road 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. (e) 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 relieve him of his legal, regulatory or contractual obligations to ensure adequate stability of the lifting equipment under the imposed loading.

6) No allowance for charges shall be made where the Service needs to be postponed due to weather conditions be it too cold, too hot, snow, rain, wind, ice, fog etc.

7) Inclement weather can have an adverse effect on ground conditions and as such the Owner will not accept any responsibility or any liability for inclement weather or the affect it may have on any Site conditions.

8) The Hirer is responsible for the isolation of, protection of and any damage to any services or utilities whatsoever which are located above, on the surface of or underground either on or adjacent to the Site. The Owner does not accept any responsibility or liability should any claim arise for the same.

9) If Plant or any other equipment/vehicle needs to be recovered from soft, uneven or unsuitable ground or a hazardous environment then the Hirer will be responsible for any associated recovery costs incurred for this.

34. ADVICE ON THE HIRER’S OPERATIONS

Under the Contract, the Owner, its representatives, agents or operators are not obliged to give nor are they responsible for the giving of advice as to the planning, supervision or control of the Hirer’s operations except where expressly contracted to do so. If, for any reason, any such person gives information or advice on any matter connected with the Hirer’s operations such information or advice is given on the basis that no legal liability therefore shall attach to that person or to the Owner and the Hirer shall indemnify such person and the Owner against all claims arising from the giving of such information or advice (whether such person is negligent or otherwise in breach of duty).

35. ADDITIONAL GENERAL CONDITIONS

1) Where required, reinstatement of fixing holes drilled in a building is the responsibility of the Hirer.

2) It is the Hirer’s responsibility where required to provide a 16 amp 3 phase and earth supply to the base of each machine. Subject to being requested by the Hirer the power supply may be installed by the Owner.

3) It is a health and safety executive requirement that rack and pinion work platforms are inspected weekly by a competent person. Site personnel appointed by the Hirer can be trained by the Owner to carry out this inspection. Should the Owner be required to carry out these inspections there would be a charge for each inspection.

4) Owner shall be under no obligation to supply new items of Plant, provided that the Plant supplied is in good repair.

5) Owner may use the services of sub-contractors for a portion or for the whole of the work specified in any Contract.

6) Owner may assign this Contract with all its rights hereunder.

7) Any securing of the Hirer’s premises including the setting of alarms does not form a part of this Contract and as such is undertaken on the express understanding that this is at the Hirer’s own risk and the Hirer hereby agrees to bear any loss incurred in relation to this matter.

8) Where, due to the Hirer’s business, it is appropriate for the Owner to obtain disclosures relating to its employees at that Site, the Hirer agrees to reimburse the Owner for all costs incurred in obtaining such disclosures.

9) The safe working load that may be carried in the cage of a MEWP is marked on the Plant and the Hirer must not allow it to be exceeded.

40. ADDITIONALTERMS APPLICABLE TO TRAFFIC MANAGEMENT SERVICES

The following terms and conditions in this clause 40 to 45 shall apply only to any Traffic Management Services which may be provided as part of the Services. For the avoidance of doubt, all other terms and conditions set out in clauses 1 to 39 above shall also apply to such Traffic Management Services except to the extent otherwise stated.

41. BASIS OF CHARGING CALCULATIONS

Work undertaken at weekends and evening beyond the hours of 08:00hrs to 17:00hrs, Monday to Friday will incur an uplift fee of 25%. Any Public Holiday work will also incur a cost uplift fee of 70% irrespective of the time of day.

42. CANCELLATION

1) Except to the extent otherwise set out in the Contract, any cancellation whether in whole or in part by the Hirer:

(i) within 24 hours of the due start date for the Services will be charged in full; (ii) following the commencement of the Services will be charged in full;

(iii) between 24 and 48 hours before the due start date for the Services will be charged at 50% of the total Services and equipment cost.

2) Any costs incurred by the Owner in the planning of any Services, including but not limited to hire cars, ferry costs, pre-booked accommodation costs, traffic & pedestrian management costs, council permits, hiring of specialist equipment to compliment the contracted hire, council charges, TTRO’s, road closure permits, plant equipment licences, bus stop suspensions, planned works associated advertising costs, incurred transport costs or ANY other costs will be charged in full to the Hirer regardless of the cancellation period.

43 SERVICE SCOPE AND ADDITIONAL LIMITATIONS

1) Where the Services include Operated, Manned Traffic and Pedestrian Management, the standard and minimum daily Service is 8 Site hours unless otherwise agreed in the Contract. Any time worked on Site that exceeds 8 hours will be charged by the hour and shall be paid in addition as overtime. The Owner also reserves the right to rise additional charges for equipment used beyond these times.

2) The Hirer accepts that when the Owner installs a traffic/pedestrian management scheme, irrespective of the Hirer being present or not, the Owner will ensure it is safe, in accordance with the scheme design and compliant with current legislation before leaving the Site. However, the Owner will not be liable in the event that any such scheme becomes non-compliant as a result of factors affecting the scheme once the Owner has left the Site following initial set-up including factors beyond the control of the Owner or acts or omission of or changes implemented by the Hirer.

3) If any Plant used in the performance of the Services is not available for collection when it has been off-hired then it will be placed back on-hire from the point when it was previously off-hired. The Hirer will also be responsible for any aborted collection charges which may be incurred by the Owner. These additional costs will be added to the Service invoice.

4) It is the Hirer’s responsibility to ensure that the Site is clear of all Plant once the Services are completed.

5) The Services will usually involve work being undertaken on a highway. The Owner can only perform the Services on a highway or highway area during the times approved in any agreement with the relevant Local Authority. Any work undertaken outside such hours is strictly the Hirer’s responsibility and the Owner will not accept responsibility or liability for any Fixed Penalty Notices or Over Stay Charges which may be issued as a result. No Fixed Penalty Fines will be accepted by the Owner as a result of any Plant being left on Site. It is the Hirer’s responsibility to ensure the Site is clear of all equipment once the Services cease.

6) Site satisfaction sheets will be presented for signature on Site to the Hirer’s representative at both the commencement and termination of Services on Site Refusal to sign the Site satisfaction sheet will result in alternative evidential site attendance confirmations being relied upon. The Hirer is responsible for ensuring that the Hirer’s representative passes the signed Site satisfaction copy sheet to the Hirer’s Head Office at the required times.

7) The Hirer is responsible for the off-hire of any Plant used in connection with the Services. The Hirer will be given a unique reference number which provides the Hirer with confirmation that the relevant Plant has been off-hired. The Hirer should also ensure that the unique reference number is used in all relevant communication and retained for records maintenance.

8) Any Plant used in the Services shall not be relocated by the Hirers and should remain in the location originally deployed except with the Owner’s prior written permission. Any such Plant which is moved in breach of this clause will be deemed lost and charged to the Hirer on a “New for Old” replacement value basis.

44. SITE CONDTIONS

The following conditions relating to Site conditions are in addition to and not in substitution of the provisions of clause 33. In the event of any conflict between the provisions of this clause 44 and 33, the provisions of this clause 44 shall prevail.

1) If the Owner reasonably believes any ground condition (which includes any access road) is unsuitable for the Services for any reason, then Services will be suspended until the Hirer makes good the same. Any suspended time will remain chargeable in full until ground conditions are made satisfactorily good.

2) If any ground protection or temporary surface trackway supplied by the Owner is solely to assist the Hirer and is not expressly included in the scope of works in the Contract, the Owner provides no guarantee that Site access can be gained or that any uneven or soft ground can be made safe to work on. If the Owner does provide any such ground protection or temporary surface trackway such provision shall not relieve the Hirer of its contractual, regulatory or legal obligations to provide firm and suitable ground for the Plant and the Services and to ensure that the same can be used safely in accordance with manufacturer and industry guidelines.

45. SYMOLOGY ETON NOTICING SUPPORT SERVICES TERMS AND CONDITIONS

Any Hirer also using the Symology System to submit Eton Notices as part of the Services shall also adhere to the following provisions.

1) The Hirer must provide the Owner and its representatives with login details in order for the Owner to submit Symology notices and/or permits on behalf of the Hirer. Submission of such notices on behalf of the Hirer does not however preclude the Hirer’s responsibility to ensure that all notices and permits are submitted/obtained as appropriate.

2) The Owner shall ensure that its personnel are trained to Eton 6 standards as a minimum requirement for the competent use of the Symology System.

3) The Hirer should adhere to the following ‘guidance’ notice periods when requesting the Owner to submit Eton notices via Symology. Failure to do so could result in notices or permits not being granted.

1) Minor Works 5 working days

2) Standard Works 10 working days

3) Major Works Up to 3 months

4) The Hirer must provide the Owner with all relevant information detailed below to upload the Eton Notice. Failure to do so may result in the Owner being unable to obtain the Hirer’s desired approval date.

1) Total Temporary Site Dimensions

2) Exact Site location including full address

3) Type of works that will be completed on Site

4) List of Vehicles and equipment/Plant that will attend Site with measurements and where they will be positioned on Site.

5) For multiple day sites, the Owner requires a breakdown of works programme for each day.

6) Exact dimensions of any civils works completed (once a hire is terminated).

7) Exact grid reference from Hirer of excavation location.

8) Where exactly the excavation was undertaken – e.g. footway, verge or a carriageway

9) Exact start time on Site.

10) Exact date and time works completed on Site.

5) The Hirer must provide the exact dimensions of any digging civils works within 24 hours of completion. Any deviation from digging the exact dimensions must also be sent in writing to the Owner within 24 hours of the works being completed on Site. Failure to do so may result in the Hirer being liable for a Fixed Penalty Notice issued by the Local Authority. Extension requests should be made within the following timescales:

1) Minor 1 day notice : before 10am on the day of the works:

2) 3 day notice : before 10am on the second day:

3) Standard works: before half the notice has passed.

6) If the Hirer requires an extension of time on Site, a written request must be forwarded to the Owner to enable the application for a time extension to be submitted and approved. Failure to do so may result in the Hirer being issued a Fixed Penalty Notice issued by the Local Authority.

7) Providing the Owner with the Hirer’s login details is based on the understanding that the Owner will be acting on behalf of the Hirer. It is still the Hirer’s responsibility to monitor the use of the login details and all information entered on to the system remains the complete responsibility of the Hirer. (h) If a Hirer chooses to terminate the processing of the Eton Notice by the Owner, the Hirer must in any event provide independent Symology login access to the Owner at any time in the future which will be used to monitor any claims which may be issued to the Owner by either the Hirer or the Local Authority.

(i) All vehicles on Site must be parked in accordance with the pre-agreed scheme drawing design. Failure to do so may result in a Fixed Penalty Notice being issued by the Local Authority for which the Hirer is responsible. The Owner will accept no liability for the Hirer’s vehicles on Site. (j) Any delayed or cancelled deliveries to Site, of any equipment used in the Services which cause time delays on Site shall be the responsibility of the Hirer and the Owner will not be responsible for any such delays.

(k) Any information provided, including information submitted via the Symology System, should be accurate. Inaccurate, false or misleading information may result in Fixed Penalty Notices or a Section 74 Notice or other notices or permits not being granted.

46. GENERAL

1) Failure by either party to exercise or enforce any right shall not be a waiver of that right nor prevent the exercise or enforcement of that or any other right at any time.

2) The Hirer may not assign or otherwise transfer the benefit of this Contract without the Owner’s prior written consent.

3) Any notice to be given shall be by post or fax sent to the recipient’s address stated at the start of this Agreement and shall be deemed to have been given: in the case of delivery by post, two Working Days after posting and if by fax, at the time of transmission.

4) Nothing in the Contract shall create or be deemed to create a partnership, joint venture or relationship of principal/agent or employer/employee between the Parties.

5) The Parties agree that the Contract constitutes the entire agreement between them with respect to its subject matter and supersedes all previous agreements and understandings between them.

6) Each party acknowledges that on entering into the Contract it does not do so on the basis of or rely on any representation, warranty or other provision except as expressly included.

7) If any provision of the Contract is held by any Court or other competent authority to be void or unenforceable in full or in part, all other clauses shall continue to be valid and the remainder of the affected provision shall be unaffected.

8) Except as expressly set out in the Contract, a person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of the Contract. Any remedy which exists or is available apart from the Act is not affected.

9) In these terms and conditions, the term “including” always means “including”.

10) Any verbal notification given in relation to the Contract must be confirmed in writing within 24 hours.

Appendix 1

Contract Lifting Terms and Conditions

1. SCOPE AND DEFINITIONS

1.1 The terms and conditions set out in this document describe the trading policy and practice of the Company for its “Contract Lifting Services”, as distinct from its crane-hire services, and form the Standard Contract Terms and Conditions for any Contract Lifting Services entered into by the Company. 1.2 “Contract Lifting Services” means the supply of a supervised lifting service including planning and execution of the lifting operation in accordance with the relevant Regulations and Codes of Practice.

1.3 These terms and conditions shall not be varied except with the Company’s written agreement.

1.4 No other terms and conditions shall apply to any Contract Lifting Services contract entered into by the Company unless expressly agreed in writing by means of a quotation or otherwise between the Company and Client. In particular, any terms and conditions specified by the Client on an order form or otherwise, shall not be binding on the Company and shall not apply to any Contract Lifting Services contract unless agreed in writing by the Company prior to the commencement of the lifting operation. 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 Company is deemed to become a party to the contract after the date of succession or assignment (as the case may be).

1.5 Unless otherwise agreed by the Company and the Client, these terms and conditions also apply to any additional work that the Company may agree to carry out for the Client and which may arise from or is connected with any Contract Lifting Services contract.

1.6 The following words and phrases used in these terms and conditions have the meanings indicated:

1.6.1 “Appointed Person” means the person given the authority to assess, plan and organise the work; to select suitable or appropriate plant and equipment, to ensure statutory documentation is current and in order; to provide instruction and supervision for the work to be undertaken safely; and to stop the work whenever he considers danger is likely to arise if it were to be continued.

1.6.2 “Crane Supervisor” means the person who supervises the lifting operation within the safe system of work developed by the Appointed Person and has the authority to stop the operation if he deems it unsafe to continue.

1.6.3 “Client” means the person or organisation requiring the lift to be carried out, and includes the Client’s employees, agents, assignees, successors and personal representatives.

1.6.4 “Company” means the company or firm agreeing to carry out the Contract Lifting Services and includes its assignees, successors and personal representatives.

1.6.5 “Contract Equipment” means any Lifting Appliance and other equipment and accessories used or intended to be used by the Company in performing, or in connection with, the Contract Lifting Services.

1.6.6 “Contract Goods” means the goods which are to be lifted by the Company in accordance with these terms and conditions.

1.6.7 “Contract Lifting Services” may include the removal, transportation, storage and installation of goods.© Copyright of the Construction Plant-hire Association 2011

1.6.8 “Contract Price” means the price agreed by the Company and the Client as payment for the performance by the Company of the Contract Lifting Services, which may be a lump-sum price or a time related schedule of rates.

1.6.9 “Lifting Appliance” means work equipment for lifting or lowering loads and includes its attachments used for anchoring, fixing or supporting it.

1.6.10 “Regulations and Codes of Practice” means the Lifting Operations and Lifting Equipment Regulations 1998 (SI 1998 No. 2307), the Provision and Use of Work Equipment Regulations 1998 (SI 1998 No. 2306), the British Standard Codes of Practice for the Safe Use of Cranes (BS 7121), as amended from time to time, and/or any other Regulations or Codes of Practice which may supersede them.

2. QUOTATIONS AND CONTRACT PRICE

2.1 Unless otherwise specified by the Company in writing, every quotation is open for acceptance for a period of thirty days, after which the quotation will be subject to confirmation.

2.2 Unless otherwise specifically noted by the Company in writing, every quotation is based on the assumption that the following circumstances apply:

2.2.1 The work will be carried out under the Company’s direction without interruption and on a clear site with adequate approaches suitable for the necessary movement of the Contract Equipment.

2.2.2 The Client is responsible for ensuring that the ground or other surface will be firm, level and in good condition, and will provide proper support for the loads imposed by the Contract Equipment as stated by the Company and also including the weight of the item(s) to be lifted as stated by the Client.

2.2.3 The Contract Lifting Services will be carried out in daylight during normal working hours unless otherwise agreed.

2.2.4 All information provided by the Client is complete, true and accurate.

2.3 Where all or any of the above circumstances do not apply, the Company may issue a revised quotation for the Contract Lifting Services. If this is not accepted by the Client, who shall be liable for the costs so far incurred by the Company, the Company may elect to be discharged from the contract without further liability to the Client.

2.4 Any additional work which the Company is required to perform must be authorised by the Client in writing and will involve an extra charge, additional to the Contract Price.

2.5 The Contract Price may be increased by the amount of any costs incurred by the Company as a result of delays or cancellations in commencing or completing the contract work due to circumstances beyond the Company’s reasonable control including but not limited to inclement weather or industrial action.

3. FORMATION AND TERMINATION OF THE CONTRACT

3.1 No contract is created before the Company accepts a written order for the carrying out of the Contract Lifting Services work. The commencement of the contract will be subject to availability of the Contract Equipment at the time requested.

3.2 If the Client terminates the contract without the written agreement of the Company, the Client is liable for the full Contract Price. If the Company has agreed in writing to the cancellation, the Client shall be liable for such reasonable proportion of the Contract Price as may be assessed by the Company at that time, together with all costs and charges incurred by the Company or to which it is committed.

3.3 A contract involving an unspecified number of lifts over an indeterminate period may be terminated by either party giving the other party not less than seven days’ notice in writing or such other notice as may be agreed between the parties. © Copyright of the Construction Plant-hire Association 2011

4. STATUS AND AUTHORITY OF CLIENT AND COMPANY

4.1 The Client warrants that the Client is the owner or the authorised agent of the owner of the Contract Goods and is authorised to accept and does accept these terms and conditions for Contract Lifting Services.

4.2 The Client requires and authorises the Company to assume overall control of the Contract Lifting Services, to provide the Appointed Person and to plan, supervise, carry out and complete the Contract Lifting Services in accordance with the relevant Regulations and Codes of Practice including, where considered by the Company to be appropriate, to control and instruct the Client’s personnel involved in the work.

4.3 The Client undertakes to clear the contract site, including public highways and access roads where necessary, of all vehicles and personnel not directly involved with the Contract Lifting Services and, for that purpose, is responsible for setting up barricades, tapes or cones, to the extent that the Company may at its discretion require for the performance of the contract. With respect to road closures, bus lane closures etc, irrespective of whether the Company has arranged these on behalf of the Client, the Client is ultimately responsible both for ensuring that the Company has clear and unrestricted access to all areas of operation and that the Client is responsible for all costs incurred should the operation be aborted due to the lack of such clear and unrestricted access, or other circumstances beyond the Company’s control.

4.4 With the permission of the Client, which shall not be unreasonably withheld, the Company may arrange for the Contract Lifting Services, or any part of the work, to be carried out by agents, sub-contractors or independent contractors who, for the purposes of the contract shall be regarded as the Company and whose rights against and liabilities to, the Client shall be the same as those of the Company under these contract terms and conditions.

5. REGULATIONS AND CODES OF PRACTICE

5.1 The Company will perform the Contract Lifting Services in accordance with the relevant Regulations and Codes of Practice.

5.2 At the Client’s request, the Company will provide the Client with any available information relevant to the qualifications and competence of the Appointed Person provided by the Company, who, in accordance with the relevant Regulations and Codes of Practice will have overall responsibility for the Contract Lifting Services under the contract.

5.3 In the absence of written notice by the Client to the contrary, received by the Company prior to the commencement of the lifting operation, the Appointed Person and/or Crane Supervisor shall be deemed to be to the satisfaction of the Client.

5.4 The Client shall supply, or confirm, in writing all information available to the Client, which is requested by the Company and/or the Appointed Person or which the Client should be reasonably aware may be necessary, or useful, to facilitate compliance with the Regulations and Codes of Practice. This includes, but is not limited to, the location of anything on or near the site, above or below the ground, which is likely to be damaged by, or cause damage to the Contract Equipment, or which is likely to affect the health or safety of any person involved in the work.

6. LIABILITY OF THE COMPANY

6.1 The Company shall be liable for loss or for damage or injury to persons or property when caused solely by the Company’s negligence in the performance of the contract and shall not be liable for any such loss, or damage or injury due in whole or in part to any negligence on the part of the Client or any third party.

6.2 The Company’s liability, if any, arising from or in connection with the Contract Lifting Services contract:

6.2.1 For loss or destruction of or damage to the Contract Goods shall be limited to a total of £25,000 (twenty-five thousand pounds sterling) irrespective of the number of items being lifted/handled.© Copyright of the Construction Plant-hire Association 2011

6.2.2 For any other loss, damage or injury shall be limited to a total sum of £5,000,000 (five million pounds sterling) Unless in either case, a different amount is agreed in writing by the Company and the Client prior to the commencement of the contract.

6.3 Full details of any loss, damage or injury, which is or may be the subject of a claim by the Client against the Company shall be notified by the Client to the Company within seven days of the date of discovery thereof. Any proceedings to enforce any such claim by the Client against the Company must be commenced not later than twelve months after the date of occurrence of the event giving rise to the loss, damage or injury.

7. EXCLUSION OF THE COMPANY’S LIABILITY

7.1 The Company shall not be liable for any loss, damage or injury caused by, or arising from or as the result of, any of the following:

7.1.1 Any defect in the Contract Goods including any design defect and any defect relating to the lifting points on the contract goods.

7.1.2 Inaccurate or incomplete information given by the Client.

7.1.3 Any instructions given by the Client to the Company’s employees.

7.1.4 Any defect in the equipment provided by the Client.

7.1.5 Any act or omission of any personnel supplied by the Client, or by any body or person under contract to the Client in connection with the Contract Goods, except when correctly following the Company’s instructions for the purpose of performing the Company’s work under the contract.

7.1.6 Delay in commencing or completing the contract work due to circumstances beyond the Company’s control including, but not limited to, any strike or other industrial action or adverse weather conditions.

7.1.7 Unexpected or unforeseen subsidence or unstable ground conditions.

7.2 The Company shall not be liable or responsible for any of the following, however arising:

7.2.1 Loss or damage of whatever nature due to or arising through any cause beyond the Company’s reasonable control.

7.2.2 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 contract, for any of the Client’s loss of profit, loss of the 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

7.2.3 Loss or damage to the Contract Goods whilst in storage outside the control of the Company.

8. INSURANCE

8.1 The Company will carry insurance to cover its potential liability under the contract having regard to the maximum amounts referred to in clause 6.2.

8.2 The Company may, at its discretion, exclude the contract from cover under its existing policies and require a specific insurance policy to cover the contract to be provided by and at the expense of the Client. This specific insurance policy shall provide the Company with protection no less extensive than would have been the case if this clause 8.2 had not been invoked.

8.3 If the Company is of the opinion that the insurance cover held by the Client may be insufficient to meet any applicable requirements of clause 8.2 of the Client’s liabilities under the contract, the Company may require the Client to take out at the Client’s expense additional liability insurance cover or take out such cover itself and recover the cost from the Client as a debt.© Copyright of the Construction Plant-hire Association 2011

8.4 If the value of the Contract Goods exceeds the Company’s liability limits referred to in clause 6.2, and the Client requires the Company to increase its cover, it is the responsibility of the Client to give the Company sufficient written notice of that fact with details of the value of the Contract Goods so that the Company’s liability cover, if agreed by the Company, can be increased accordingly. The cost of any additional cover will be passed on to the Client.

8.5 The Client agrees to indemnify the Company against -

8.5.1 Any claim arising from or connected with the Company’s work on the contract site, in preparing the site or performing the contract, including claims of nuisance and claims of trespass to persons, property, land or air space.

8.5.2 All other losses, damages or claims in respect of any matters arising from or in connection with the contract and for which, under these terms and conditions, the Client is liable or for which under clause 7 the Company is not liable; and

8.5.3 Any liability arising from or in connection with the contract to pay any amount in excess of the relevant limits referred to in clause 6.2.

8.6 The Client shall insure against its liability to indemnify the Company and all other liabilities of the Client under the contract.

8.7 If requested by the Company, the Client shall produce a copy of any insurance policy together with evidence of the premium having been paid, held by the Client and relevant to the contract.

9. TRANSPORTATION OF CONTRACT GOODS

9.1 The Company is not a common carrier.

9.2 If, under the contract, the Contract Goods, or any part of them, require transportation by air, sea, road or rail, the Company may either undertake the transportation or arrange for transportation by some other person or organisation.

9.3 In the latter event referred to in clause 9.2, unless otherwise agreed in writing by the Company, the Company’s liability for the Contract Goods so transported shall be no greater than that of the person or organisation carrying out the transportation, that is, the airline, shipping company, haulage contractors or railway authority concerned, and the amount of compensation, if any, payable for loss of or damage to the Contract Goods during transportation shall be limited to the amount recoverable from that person or organisation in respect of that loss or damage.

10. PAYMENT OF CHARGES

10.1 All prices quoted are exclusive of VAT, which will be charged at the rate prevailing at the date of invoice.

10.2 All charges by the Company are payable strictly thirty days net from the date of the Company’s invoice or as set out in the contract offer.

10.3 All charges are payable in full and the Client shall not withhold payment as retention or discount or for any reason whatsoever, regardless of any arrangements for payment to the Client by another party under any other contract.

10.4 The Company’s policy is to enforce its right to add interest and administration costs for late payments under the Late Payment of Commercial Debts Regulations 2002 or any other subsequent Regulations that supersede them.

10.5 The Company shall have a general lien over any goods and equipment, or the property of the Client in the custody of the Company, for unpaid debts due and payable to the Company by the Client. The Company shall notify the Client when exercising the right of lien under this clause and if the Client fails to settle all such debts within one month of notification, the Company may sell, as agent of the Client, all or any of the items subject to the lien and apply the proceeds towards payment of the outstanding debt and the expenses of the sale together with interest accrued to that date.© Copyright of the Construction Plant-hire Association 2011

11. LAW OF THE CONTRACT

11.1 If the original contract site is in England or Wales, the proper law of the contract shall be English law. If the original contract site is in Scotland, the contract shall in all respects be construed and operated as a Scottish contract, and shall be interpreted in accordance with Scots law. If the original contract site is in Northern Ireland, the proper law of Contract shall be Northern Ireland law.

11.2 The Scheme for Construction Contracts (England and Wales) Regulations 1998, or any amendment or re-enactment thereof for the time being in force (the “Scheme”), 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.

11.3 The Company and the Client shall comply forthwith with any decision of the adjudicator; and shall submit to summary judgment and enforcement (and/or, under Scottish 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 Scottish law, the Company, the Client, 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.

FOOTNOTES

1) Acceptance of the Contract Equipment on site implies acceptance of all these terms and conditions.

2) These standard terms and conditions for Contract Lifting Services are the copyright of the Construction Plant-hire Association and must NOT be reproduced, stored in any retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise unless they are current members of the Construction Plant-hire Association.

3) Copies of these standard terms and conditions are only available from the Construction Planthire Association.

Questions about these terms

If you have any questions about these terms and conditions, contact us at or 03333 444 380.