TERMS & CONDITIONS
IMPORTANT SAFETY WARNING
The Hirer’s attention is drawn to the following points:
A. INSTRUCTION ON USE
(a) The Hirer must ensure that all users of the Equipment have been instructed in the safe use and operation of the Equipment and that such use is in accordance with any relevant operating and safety instructions supplied with the Equipment.
B. ELECTRICAL EQUIPMENT
The Hirer must ensure that:
(a) All electrical Equipment is used in accordance with any operating and safety instructions supplied with the Equipment or as instructed by the Owner.
(b) All electrical Equipment is connected to the correct supply via suitable plugs or sockets. Where a temporary change in plugs or sockets is required then this must be carried out by a competent person who must also reinstate the Equipment to its original condition.
(c) All electrical Equipment is correctly earthed and insulated.
(d) All 240v electrical Equipment must be protected by an electrical circuit breaker. Portable circuit breakers are available for hire.
C. LIQUID FUELS AND COMPRESSED GASES
The Hirer must ensure that:
All liquid fuels and compressed gases supplied for use with the Equipment are transported, stored and used in a safe manner in accordance with any safety instructions supplied with the Equipment or as instructed by the Owner.
YOU, THE HIRER, MUST ENSURE THAT YOU ARE PROPERLY COVERED BY INSURANCE IN RESPECT OF ANY LIABILITY FALLING ON YOU UNDER THIS CONTRACT
1.1 The ‘Owner’ is THX Limited (registered in England & Wales with company number 07279384).
1.2 The ‘Hirer’ is the company, firm, person, corporation or public authority named on the Account Sign-Up Form in connection with taking the Owner’s Equipment on hire and includes their successors or personal representatives.
1.3 ‘Account Sign-Up Form’ means the Owner’s standard form to apply for a Trade Account.
1.4 ‘Equipment’ means plant, machinery, equipment and accessories thereto which the Owner agrees to hire to the Hirer as set out in an Order Confirmation (as amended by the Owner) or, if no Order Confirmation is issued, in the Hirer’s order together with any recommended safety Equipment or clothing to be used when operating the Equipment.
1.5 ‘Order Confirmation’ means the Owner’s email acknowledging and accepting an order from the Hirer to hire Equipment and confirming the details of that order.
1.6 The length of the hire period shall be as detailed in the Order Confirmation and shall commence from the time when the plant leaves the Owner’s depot and continues until the plant is received back at the Owner’s depot, evidence of which shall be a dated and signed receipt by the Owner. If no hire period is specified in the Order Confirmation, the hire shall be an open hire with no fixed end date and charged to the Hirer at a weekly rate.
2. EXTENT OF CONTRACT
2.1 These terms and conditions (Conditions) become binding on the Hirer when the Hirer submits a completed Account Sign-Up Form to the Owner or the Owner accepts an order for the hire of equipment placed by the Hirer, whichever is the earlier, when a contract comes into existence between the Owner and the Hirer (Contract). The Contract applies to all orders placed by the Hirer for the hire of Equipment and incorporates the Conditions, the completed Account Sign-Up Form and the contents of any Order Confirmation issued by the Owner to the Hirer.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Hirer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing..
2.3 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2.4 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
2.5 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales..
2.6 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation
3. MAXIMUM PERIOD OF CONTRACT
3.1 The period of hire may be stated in the Order Confirmation but if the Hirer is an individual, partnership or other unincorporated body, the period of hire will terminate not later than 28 days from the date of its commencement and the Hirer shall restore the Equipment to the Owner on or before the last day of that period.
4. DELIVERY AND RISK
4.1 The Equipment supplied shall be in good working order and fit for the purpose for which Equipment of that kind is normally used.
4.2 The Owner does not warrant that the Equipment supplied shall be fit for any special purpose.
4.3 The Hirer shall satisfy himself as to the condition of the Equipment supplied at the time of acceptance of the Equipment by the Hirer, his agent or employee.
4.4 The Hirer shall be responsible for unloading and loading.
4.5 Unless notice to the contrary is received by the Owner within twenty-four hours of the supply of Equipment, the Equipment shall be deemed to have been supplied in good order, except for defects which could not have been discovered by reasonable examination.
5. TRANSPORTATION, LOADING AND UNLOADING
5.1 The Hirer shall be responsible for collecting the Equipment from the Owner’s premises and for delivering the Equipment to the Owner’s premises at the end of the hire period.
5.2 When the Hirer requires the Owner to transport the Equipment, the transportation shall be at the Hirer’s expense.
5.3 The Hirer shall be responsible for loading and unloading at the time of collection from the Owner’s premises and at the time of delivery to the Owner’s premises on the termination of the hire period.
5.4 Any person supplied by the Owner to assist in the loading and unloading shall be deemed to be under the Hirer’s control and shall comply with all the directions of the Hirer who alone shall be responsible for any damage caused to the Equipment as a result of such loading and unloading.
6. UNAUTHORISED CHANGE OF SITE
6.1 The Equipment must not be moved from the site to which it was delivered, or when the Equipment is collected by the Hirer, the site specified by the Hirer, without the written authority of the Owner.
7. MAINTENANCE, OPERATION AND USE OF EQUIPMENT
7.1 The Hirer shall ensure that before using the Equipment hired to him he will read all instructional and safety literature (including the manufacturer’s operating instructions) provided by the Owner (Instructions) and ensure that anyone using the Equipment has also read and understood the Instructions. Furthermore, the Hirer will ensure that he or the person using the Equipment correctly applies and uses all safety clothing provided (this may be termed Personal Protective Equipment or PPE) with the Equipment. If no PPE is provided with the Equipment, the Hirer is responsible for provided their own PPE in accordance with the Instructions.
7.2 The Hirer shall at all times keep himself acquainted with the state and condition of the Equipment and ensure that it remains safe, serviceable and clean. The Hirer must ensure that a competent person checks daily all aspects of the Equipment which are safety-critical, consumable or subject to deterioration in normal use. These items include (but not limited to) such items as engine oil, coolant fluid, hydraulic oil, air and fuel filters. The Hirer, at his own expense, must maintain these items at their correct operating condition/level, in accordance with any applicable legislation, best practice and/or the Instructions, using the correct grade/specification materials as required.
7.3 The Hirer shall not use or permit the use of the Equipment for any purpose beyond its capacity or in a manner likely to result in excessive wear or damage.
7.4 The Hirer shall not make any alterations or modifications to the Equipment.
7.5 The Hirer acknowledges that the Hirer, his agent, or employee has been instructed in the safe use and operation of the Equipment supplied and undertakes to ensure that any other user of the Equipment will also be accordingly instructed.
8. FITTING OF ACCESSORIES
8.1 When the Equipment requires the fitting or re-fitting of any accessory (which term includes but is not confined to drill bits, wheels, discs and blades), it shall be the Hirer’s responsibility to ensure that any such accessory is approved by the manufacturer and correctly fitted or re-fitted in a manner so as not to render the Equipment unsafe to the user and that any legislation and/or instructional literature supplied relating to the fitting or use of such accessory is complied with.
8.2 The Hirer shall be responsible for any injury or damage to persons or property arising from the incorrect or unsafe fitting or use of any accessory.
9. CONSUMABLE ITEMS
9.1 Fuel, oil and grease shall, when supplied as separate items by the Owner, be paid for by the Hirer in accordance with the Owner’s price scale prevailing at the time of the hire. Fuel oil and grease supplied by the Hirer shall be of a grade and type specified by the Owner.
9.2 The cost of re-sharpening drills cutting edges and other tools shall be met by the Hirer.
9.3 Consumable items including ear and eye protectors supplied by the Owner to the Hirer for use with the hired Equipment shall be deemed to have been sold to the Hirer at the time of supply, but the Owner may at his discretion refund to the Hirer the price of any consumable items which have been used and which are returned to the Owner in a suitable condition for taking back into stock.
9.4 When items are supplied for sale they remain the property of the Owner until such times as they are paid for in full to the Owner.
10. ACCESS BY OWNER FOR SERVICING AND INSPECTION OF EQUIPMENT
10.1 The Hirer shall at all reasonable times allow the Owner, his agent, employees and insurers to have access to the Equipment to inspect, test, adjust, repair or replace the Equipment.
11. BREAKDOWN OF EQUIPMENT
11.1 Any breakdown or unsatisfactory working of the Equipment must be notified to the Owner immediately by the quickest means.
11.2 No hire charge will be made to the Hirer from the time and date when notice is received by the Owner in respect of stoppage due to breakdown of the Equipment caused by the development of a fault not discovered by reasonable examination.
11.3 The Owner accepts no liability or responsibility for any loss or damage arising from any stoppage due to breakdown of the Equipment from any cause whatsoever.
11.4 In the case of wheeled Equipment, punctures and their repair shall be the responsibility of the Hirer and no refund of hire charges will be made by the Owner in respect of stoppages caused by punctures.
11.5 Except for the repair of punctures, the Hirer shall not repair or attempt to repair Equipment unless authorised to do so by the Owner.
11.6 In the event of a breakdown in the Equipment which is not readily repairable the Owner shall be entitled to substitute Equipment of a similar type. If the Owner is not able to do so, the hire shall be terminated as from the date of notification of breakdown.
11.7 Where breakdown of the Equipment arises from a cause other than through the development of a fault not discovered by reasonable examination, all costs incurred by the Owner in repairing the Equipment, including transport costs, shall be chargeable to the Hirer.
12. NOTIFICATION OF ACCIDENTS
12.1 If the Equipment is involved in any accident resulting in damage to the Equipment or to other property or injury to any person the Owner must be notified immediately.
13. HIRER‘S RESPONSIBILITY FOR LOSS OF OR DAMAGE TO EQUIPMENT
13.1 From the moment the Equipment is received by the Hirer and until it is returned into the custody of the Owner, the Hirer shall be liable to the Owner for the cost of all loss or damage to the Equipment from any cause whatsoever, except for fair wear and tear.
13.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on collection of the Equipment (in accordance with clause 5). The Equipment shall remain at the sole risk of the Hirer during the hire period and any further term during which the Equipment is in the possession, custody or control of the Hirer (Risk Period) until such time as the Equipment is redelivered to the Owner. During the hire period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing together with such other insurance as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment,
13.3 For the avoidance of doubt, off hiring the Equipment shall not terminate the Hirer’s liability for the safekeeping of the Equipment and the Hirer must keep the Equipment safe on site for up to 120 hours after off-hire.
13.4 In the event of loss or damage to the Equipment, hire charges shall continue until such time and date as the Hirer pays for the cost incurred and until replacement Equipment is available for hire.
14. REPAIR CHARGE WAIVER
14.1 Repair to or replacement of plant tools and Equipment that is stolen or accidentally damaged whilst in the custody or control of the Hirer will not be chargeable to the Hirer if the Damage Waiver has been selected and the Waiver Fee has been paid.
14.2 The Damage Waiver does not cover damage caused wilfully or by neglect and disregard of operating instructions, nor to:
(i) alloy scaffold towers,
(ii) consumable items such as abrasives and drill bits,
(iii) components of items for which a specific wear charge is made.
14.3 The Damage Waiver is subject to the Hirer’s full compliance with all of its obligations under the contract.
14.4 The Damage Waiver does not cover Equipment that is stolen in circumstances where the Hirer does not report the theft to the police and provide the Owner with the relevant crime reference number or where the Hirer’s negligence or lack of reasonable care has contributed to the theft.
15. LIMITATION OF LIABILITY
15.1 The restrictions on liability in this clause 15 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise..
15.2 Nothing in these Conditions shall exclude or in any way limit either party’s liability for death or personal injury by its own negligence, either party’s liability for fraud or fraudulent misrepresentation or any other liability which cannot be excluded by law.
15.3 Without prejudice to clause 15.2, the Owner shall not be liable under the Contract for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
15.4 Without prejudice to clause 15.2, the Owner’s total liability to the Hirer in relation to any claim shall not exceed the hire charges paid by the Hirer to the Owner in respect of the Equipment to which the claim relates.
15.5 Without prejudice to clause 15.2, the Owner’s total liability to the Hirer shall not exceed the average 12-monthly hire charges paid by the Hirer to the Owner over the term of the Contract.
16. HIRER TO INDEMNIFY OWNER AGAINST THIRD PARTY CLAIMS
16.1 The Hirer shall at all times 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, the use of the Equipment, and in respect of all costs and charges (including legal costs) in connection therewith.
17. CHARGES AND PAYMENT
17.1 Unless otherwise stated in the Order Confirmation, and subject to 17.2 and 17.3 below, all hire charges are based on a weekly rate (one week for this purpose being 5 business days).
17.2 In the event that there is no minimum hire period and the Equipment is returned before the expiry of a week:
(a) if the Equipment is returned after 1 working day, the hire charge is 60% of the weekly rate;
(b) if the Equipment is returned after 2 working days, the hire charge is 80% of the weekly rate; and
(c) if the Equipment is returned after 3 or more working days, the full weekly rate is payable.
17.3 Once the Equipment has been on hire for one week, each subsequent working day on hire is charged at 20% of the weekly rate.
17.4 All hire charges (including where relevant the weekly rate) and other charges shall be those set out in the Order Confirmation or (where no hire charges are set out) the Owner’s price list from time to time in force as set out on the Owner’s website and are payable on demand.
17.5 All hire charges and other charges are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the manner from time to time prescribed by law
17.6 Hire charges shall continue until such time as the Equipment is returned to the Owner or until payment has been made by the Hirer as described in clause 22.3.
17.7 All payments made by the Hirer shall be made without withholding or set-off on account of disputes, counterclaims or for any other reason whatsoever.
17.8 If any sums under this Contract remain unpaid after the date on which they become payable:
(a) the Owner reserves the right to suspend supply under this Contract or under any other contract or account with the Hirer (or an associated business or group company of the Hirer);
(b) the Hirer shall pay to the Owner immediately on demand all hire charges and other sums due but unpaid at the date of such demand; and
(c) the Hirer shall pay interest on such sums for the period from and including the due date of payment up to the actual date of payment, whether before or after judgment. The interest shall be paid at the rate of 8% per annum above the base rate from time to time of Lloyds Bank plc. The Owner may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
18.1 Where a deposit is paid by the Hirer it is held against default by the Hirer of payment of any hHire charges or any loss of or damage caused to the Equipment. If the Hirer fails to make any hire charge payment in accordance with the Contract, or causes any loss or damage to the Equipment (in whole or in part), the Owner shall be entitled to apply the deposit against such default, loss or damage. The Hirer shall pay to the Owner any sums deducted from the deposit within ten (10) working days of a demand for the same.
19. OWNERSHIP OF THE EQUIPMENT
19.1 The Equipment shall at all times remain the property of the Owner, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these terms and conditions) except where the Owner agrees in writing to sell the Equipment to the Hirer.
19.2 The Equipment or any part thereof shall not be re-hired, sublet, or lent to any third party without the written consent of the Owner.
19.3 The Hirer shall not sell, mortgage, charge pledge or part with possession of, or otherwise deal with the Equipment except with the written consent of the Owner.
19.4 The Hirer shall protect the Equipment against distress, execution or seizure.
19.5 The Hirer shall indemnify the Owner against all losses, damage, costs, charges and expenses (including legal costs) arising as a result of any failure to observe and perform its obligations under this clause, except in the event of Government requisition.
20. OWNER’S NAME-PLATES
20.1 The Hirer shall not remove, deface or cover up any name or identification or number on the Equipment, or any safety or warning notice displayed on the Equipment, nor shall he put any mark on the Equipment which might indicate or suggest that the Equipment is not the property of the Owner.
20.2 If at the end of a period of hire the Owner (whose decision shall be final and binding) shall deem it necessary to replace any name-plate, identification plate, or any safety or warning notice displayed on the Equipment, the cost thereof shall be the sole responsibility of the Hirer.
21. EXPIRY OF HIRE CONTRACT
21.1 When the hire is for a fixed period, it shall terminate on the date that period expires.
22. RETURN OF EQUIPMENT ON COMPLETION OF HIRE
22.1 The Hirer shall be responsible for returning the Equipment on completion of the hire in a condition equal to that as at commencement of the hire, fair wear and tear excepted.
22.2 When Equipment is returned in unclean condition a charge shall be made for the cleaning and restoration of the Equipment to its condition as at the commencement of the hire.
22.3 When Equipment (or any part of the Equipment) cannot be returned to the Owner on the completion of the hire owing to the loss, destruction, or theft of the Equipment (or such part), whether or not due to any fault of the Hirer, his agent or employee, the Hirer shall pay to the Owner the manufacturer‘s current recommended selling price of that Equipment (or that part of the Equipment) or, if the machine is no longer in production, the manufacturer’s suggested equivalent model.
23. TERMINATION FOR BREACH OF CONTRACT
23.1 Without affecting any other right or remedy available to it, the Owner may terminate the Contract with immediate effect by giving written notice to the Hirer if:
(i) the Hirer defaults in the payment of any sums due to the Owner for the hire of Equipment or other charges: or
(ii) the Hirer fails to observe and perform the terms of this Contract: or
(iii) the Hirer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, becoming bankrupt or ceasing to carry on business; or
(iv) the Hirer does or causes to be done or permits or suffers any act or thing whereby the Owner’s rights in the Equipment may be prejudiced; or
(v) the Hirer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
23.2 If this Contract is terminated under this clause, it shall be lawful for the Owner to re-take possession of the Equipment and, for that purpose, to enter into or upon any premises where the Equipment may be for which purpose the Hirer grants the Owner specific licence.
23.3 The termination of the Contract under this clause shall not affect the right of the Owner to recover from the Hirer any moneys due under this Contract or damages for breach of this Contract.
23.4 On termination of the Contract, the Hirer shall pay to the Owner immediately on demand all hire charges and other sums due but unpaid at the date of termination together with any costs and expenses incurred by the Owner in recovering the Equipment or in collecting any sums due under the Contract (including any storage, insurance, repair, transport or legal costs).
24. FORCE MAJEURE
24.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
25.1 The waiver by the Owner of any breach of any term or condition of this Contract shall not prevent the subsequent operation of that term or condition and shall not be deemed a waiver of any subsequent breach.
25.2 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.
25.3 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s email address stated on the Account Sign-Up Form. A notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by prepaid first-class post or recorded delivery, at 9am on the second working day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next working day after transmission.
25.4 Any reference to writing in these Conditions includes email.
25.5 The Owner may amend these Conditions or any Order Confirmation at any time by giving written notice of the amendments to the Hirer.