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| Terms & Conditions |
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| CONDITIONS FOR HIRE AND SALE OF PRODUCTS TO CONSUMERS
1 INTERPRETATION
1.1 In these conditions the following words have the following
meanings:
“Contract” means a contract which incorporates these conditions and
made between the Customer and the Supplier for the hire of Hire
Goods and/or the sale of Products;
“Customer” means the person hiring Hire Goods;
“Deposit” means any advance payment required by the Supplier in
relation to the Hire Goods which is to be held as security by the
Supplier;
“Hire Goods” means any machine, article, tool, and/or device together
with any accessories specified in a Contract which are hired to the
Customer;
“Hire Period” means the period commencing when the Customer holds
the Hire Goods on hire (including Saturdays Sundays and Bank
Holidays) and ending upon the happening of any of the following
events: (i) the physical return of the Hire Goods by the Customer into
the Supplier’s possession; or (ii) the physical repossession or
collection of Hire Goods by the Supplier;
“Liability” means liability for any and all damages, claims, proceedings,
actions, awards, expenses, costs and any other losses and/or
liabilities;
“Products” means the products sold to the Customer by the Supplier;
“Rental” means the Supplier’s charging rate for the hire of the Hire
Goods which is current from time to time during the Hire Period;
“Supplier” means [NAME OF HAE MEMBER] and will include its
employees, servants, agents and/or duly authorised representatives;
“Services” means the services and/or work (if any) to be performed by
the Supplier for the Customer in conjunction with the hire of Hire
Goods including any delivery and/or collection service for the Hire
Goods.
2 BASIS OF CONTRACT
2.1 Hire Goods are hired subject to them being available for hire to
the Customer at the time required by the Customer. The
Supplier will not be liable for any loss suffered by the Customer
as a result of the Hire Goods being unavailable for hire where
the Hire Goods are unavailable due to circumstances beyond the
Supplier’s control that are unknown to the Supplier at the time of
entering into the Contract.
2.2 The duration of the Hire Period shall not exceed 3 months and
accordingly the hire of any Hire Goods is not covered by the
Consumer Credit Act 1974.
2.3 Nothing in this Contract shall exclude or limit any statutory rights
of the Customer which may not be excluded or limited due to the
Customer acting as a consumer. For further information about
your statutory rights contact your local authority Trading
Standards Department or Citizens Advice Bureau or if based in
the Republic of Ireland your local office of the Director of
Consumer Affairs or Citizens Information Centre.
3 PAYMENT
3.1 The amount of any Deposit, Rental and/or charges for any
Services shall be as quoted to the Customer or otherwise as
shown in the Supplier’s current price list from time to time.
Where a Deposit is required for the Hire Goods it must be paid in
advance of the Customer hiring the Hire Goods. The Supplier
may also require an initial payment on account of the Rental in
advance of the Customer hiring the Hire Goods.
3.2 The Customer shall pay the Rental, charges for any Services,
monies for any Products and/or any other sums payable under
the contract to the Supplier at the time and in the manner
agreed. The Supplier’s prices are, unless otherwise stated,
exclusive of any applicable VAT for which the Customer shall be
additionally liable.
3.3 Payment shall not be deemed to be made until the Supplier has
received either cash or cleared funds in respect of the full
amount outstanding.
3.4 If the Customer fails to make any payment in full on the due date
the Supplier may charge the Customer interest (both before and
after judgment/decree) on the amount unpaid at the rate of [4]%
above the base rate from time to time of the Supplier’s bank.
3.5 The Supplier may set a reasonable credit limit for the Customer.
The Supplier reserves the right to terminate or suspend the
Contract for hire of the Hire Goods and/or the provision of
Services if allowing it to continue would result in the Customer
exceeding its credit limit or the credit limit is already exceeded.
4 RISK OWNERSHIP AND INSURANCE
4.1 Risk in the Hire Goods and any Products will pass immediately
to the Customer when they leave the physical possession or
control of the Supplier.
4.2 Risk in the Hire Goods will not pass back to the Supplier from the
Customer until the Hire Goods are back in the physical
possession of the Supplier. This shall apply even if the Supplier
has agreed to cease charging the Rental.
4.3 Ownership of the Hire Goods remains at all times with the
Supplier. The Customer has no right, title or interest in the Hire
Goods except that they are hired to the Customer. Ownership of
any Products remains with the Supplier until all monies payable
to the Supplier by the Customer for the Products have been paid
in full.
4.4 The Customer must not deal with the ownership or any interest
in the Hire Goods. This includes but is not limited to selling,
assigning, mortgaging, pledging, charging, securing, hiring,
withholding, exerting any right to withhold, disposing of and/or
lending.
4.5 The Supplier may provide reasonably priced insurance in respect
of the Hire Goods at an additional cost to the Rental.
Alternatively the Supplier may require the Customer to insure the
Hire Goods on such reasonable terms and for such reasonable
risks as the Supplier may specify. The proceeds of any such
insurance that relate directly to the Hire Goods shall be held by
the Customer in trust for the Supplier and be paid to the Supplier
on demand. The Customer must not compromise any claim in
respect of the Hire Goods and/or any associated insurance
without the Supplier’s written consent.
5 DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Goods
from the Supplier and then return them to the Supplier at the end
of the Hire Period. If the Supplier agrees to deliver or collect the
Hire Goods to and/or from the Customer it will do so at its
standard delivery cost and such delivery and/or collection will
form part of the Services.
5.2 The Customer will allow and/or procure sufficient access to and
from the relevant site and procure sufficient unloading space,
facilities, equipment and access to utilities for the Supplier’s
employees, sub-contractors and/or agents to allow them to carry
out the Services. The Customer will ensure that the site where
the Services are to be performed is, where necessary, cleared
and prepared before the Services are due to commence.
6 CARE OF HIRE GOODS
6.1 The Customer shall:-
6.1.1 not remove any labels from and/or interfere with the Hire
Goods, their working mechanisms or any other parts of them
and shall take reasonable care of the Hire Goods and only use
them for their proper purpose in a safe and correct manner in
accordance with any operating and/or safety instructions
provided or supplied to the Customer;
6.1.2 notify the Supplier immediately after any breakdown, loss
and/or damage to the Hire Goods;
6.1.3 take adequate and proper measures to protect the Hire Goods
from theft, damage and/or other risks;
6.1.4 notify the Supplier of any change of its address and upon the
Supplier’s request provide details of the location of the Hire
Goods;
6.1.5 permit the Supplier at all reasonable times and upon
reasonable notice to inspect the Hire Goods including
procuring access to any property where the Hire Goods are
situated;
6.1.6 keep the Hire Goods at all times in its possession and control
and not to remove the Hire Goods from the country where the
Customer is located and/or the country where the Supplier is
located without the prior written consent of the Supplier;
6.1.7 not do or omit to do anything which the Customer has been
notified will or may be deemed to invalidate any policy of
insurance related to the Hire Goods;
6.1.8 not continue to use Hire Goods where they have been
damaged and will notify the Supplier immediately if the Hire
Goods are involved in an accident resulting in damage to the
Hire Goods, other property and/or injury to any person; and
6.1.9 where the Hire Goods require fuel, oil and/or electricity ensure
that the proper type and/or voltage is used and that, where
appropriate, the Hire Goods are properly installed by a
qualified and competent person.
6.2 The Hire Goods must be returned by the Customer to the
Supplier in good working order and condition (fair wear and tear
excepted) and in a clean condition together with all insurance
policies, licences, registration and other documents relating to
the Hire Goods.
7 BREAKDOWN
7.1 Allowance will be made in relation to the Rental to the Customer
for any non-use of the Hire Goods due to breakdown caused by
the development of an inherent fault and/or fair wear and tear on
condition that the Customer informs the Supplier as soon as
practicable of the breakdown.
7.2 The Customer shall be responsible for all expenses, loss
(including loss of Rental) and/or damage suffered by the Supplier
arising from any breakdown of the Hire Goods due to the
Customer’s negligence, misdirection and/or misuse of the Hire
Goods.
7.3 The Supplier will at its own cost carry out all routine maintenance
and repairs to the Hire Goods during the Hire Period and all
repairs which are required due to fair wear and tear and/or an
inherent fault in the Hire Goods. The Customer will be
responsible for the cost of all repairs necessary to Hire Goods
during the Hire Period which arise otherwise than as a result of
fair wear and tear, a manufacturing or design fault and/or the
negligence of the Supplier.
7.4 The Customer must not repair or attempt to repair the Hire
Goods unless authorised to do so in writing by the Supplier.
8 LOSS OR DAMAGE TO THE HIRE GOODS
8.1 If the Hire Goods are returned in damaged, unclean and/or
defective state (except where caused by the Supplier and/or due
to fair wear and tear and/or a manufacturing or design fault in the
Hire Goods) the Customer shall be liable to pay the Supplier for
the cost of any repair and/or cleaning required to return the Hire
Goods to a condition fit for re-hire and to pay the Rental, in
accordance with the provisions of clause 8.3, until such repairs
and/or cleaning have been completed. The Supplier shall be
under a duty to mitigate its loss.
8.2 The Customer will pay to the Supplier the replacement cost of
any Hire Goods which are lost, stolen and/or damaged beyond
economic repair during the Hire Period less the amount paid to
the Supplier under any policy of insurance taken out in
accordance with these conditions.
8.3 The Customer shall pay the Rental for the Hire Goods up to and
including the date it notifies the Supplier that the Hire Goods
have been lost, stolen and/or damaged beyond economic repair.
From that date until the Supplier has replaced such Hire Goods
the Customer shall pay, as a genuine pre-estimate of lost rental
profit, a sum as liquidated damages being equal to two thirds of
the Rental that would have applied for such Hire Goods for that
period. The Supplier shall use its reasonable commercial
endeavours to purchase replacements for such Hire Goods as
quickly as possible using the monies paid under clause 8.2
above.
9 TERMINATION BY NOTICE
9.1 If the Hire Period has a fixed duration, subject to the provisions
of Section 10 neither the Customer nor the Supplier shall be
entitled to terminate the Contract before the expiry of that fixed
period unless agreed with the other party.
9.2 If the Hire Period does not have a fixed duration either of the
Customer or the Supplier is entitled to terminate the Contract
upon giving to the other party not less than [ ] days’ notice.
9.3 If no period of notice has been agreed or specified the Customer
may terminate the Hire Period by the physical return of the Hire
Goods to the Supplier.
9.4 The Supplier shall be entitled to terminate the hire of the Hire
Goods by giving not less than 14 days’ notice to the Customer.
10 DEFAULT
10.1 If the Supplier:-
10.1.1 breaches the terms of the Contract (and where the breach is
capable of remedy, has not remedied the breach within 14
days of receiving notice requiring the breach to be remedied);
and/or
10.1.2 persistently breaches the terms of the Contract;
then the Customer shall have the right to immediately terminate
the Contract upon written notice to the Supplier.
10.2 If the Customer:-
10.2.1 fails to make any payment to the Supplier when due without
just cause;
10.2.2 breaches the terms of the Contract (and where the breach is
capable of remedy, has not remedied the breach within 14
days of receiving notice requiring the breach to be remedied);
10.2.3 persistently breaches the terms of the Contract;
10.2.4 provides incomplete, materially inaccurate or misleading facts
and/or information in connection with the Contract;
10.2.5 pledges, charges or creates any form of security over any Hire
Goods, has a Bankruptcy Petition/Petition for Sequestration
presented against it or the Customer takes or suffers any
similar action in any jurisdiction;
10.2.6 appears reasonably to the Supplier due to the Customer’s
credit rating to be financially inadequate to meet its obligations
under the Contract; and/or
10.2.7 appears reasonably to the Supplier to be about to suffer any of
the above events;
then the Supplier shall have the right, without prejudice to any
other remedies to exercise any or all of the rights set out in 10.3
below.
10.3 If any of the events set out in clause 10.2 above occurs in
relation to the Customer then:-
10.3.1 the Customer will allow the Supplier to enter the premises of
the Customer (or premises of third parties with their consent)
where Hire Goods and/or Products owned by the Supplier may
be and repossess any Hire Goods and/or Products;
10.3.2 the Supplier may withhold the performance of any Services
and cease any services in progress under this Contract; and/or
10.3.3 the Supplier may immediately cancel, terminate and/or
suspend without Liability to the Customer the Contract and/or
any other contract with the Customer.
10.4 Any repossession of the Hire Goods and/or Products shall not
affect the Supplier’s right to recover from the Customer any
monies due under the Contract and/or any damages in respect
of any breach which occurred prior to repossession of the Hire
Goods and/or Products.
10.5 Upon termination of the Contract the Customer shall
immediately:
10.5.1 return the Hire Goods to the Supplier or make the Hire Goods
available for collection by the Supplier as requested by the
Supplier; and
10.5.2 pay to the Supplier all arrears for Rentals, Charges for any
Services, monies for any Products and/or any other sums
payable under the Contract.
11 LIMITATIONS OF LIABILITY
11.1 Defective Hire Goods must be returned to the Supplier for
inspection if requested by the Supplier before the Supplier will
have any Liability for the defective Hire Goods.
11.2 The Supplier shall have no Liability for additional damage, loss,
liability, claims, costs or expenses caused or contributed to by
the Customer’s continued use of defective Hire Goods and/or
Services after a defect has become apparent or suspected or
should reasonably have become apparent to the Customer.
11.3 The Customer shall give the Supplier a reasonable opportunity to
remedy any matter for which the Supplier is liable before the
Customer incurs any costs and/or expenses in remedying the
matter itself. If the Customer does not do so the Supplier shall
have no Liability to the Customer.
11.4 The Supplier shall have no Liability to the Customer for any
indirect losses and loss of profits, loss of opportunity and/or loss
of use.
11.5 Nothing in this Contract shall exclude or limit the Liability of the
Supplier for death or personal injury due to the Supplier’s breach
of duty of care nor exclude or limit any other type of Liability
which it is not permitted to exclude or limit as a matter of law.
12 GENERAL
12.1 Upon termination of the Contract the provisions of clauses 3.2,
3.4, 8.1, 8.2, 8.3 and Section 6 shall continue in full force and
effect.
12.2 Each hire of an item of Hire Goods shall form a distinct Contract
which shall be separate to any other Contract relating to other
Hire Goods.
12.3 No waiver by the Supplier of any breach of this Contract shall be
considered as a waiver of any subsequent breach of the same
provision or any other provision. If any provision is held by any
competent authority to be unenforceable in whole or in part the
validity of the other provisions of this Contract and the remainder
of the affected provision shall be unaffected and shall remain in
full force and effect.
12.4 The Supplier will do all that it reasonably can to meet the date
given for delivery of the Hire Goods and/or performance of the
Contract. The Supplier is not responsible for any inconvenience
or non compliance arising as a result of unforeseen
circumstances beyond the reasonable control of the Supplier
such as adverse weather conditions, unpredictable delays
caused by traffic congestion, road works, diversions or
mechanical breakdowns which are unexpected and could not
have been reasonably prevented.
12.5 All third party rights are excluded and no third parties shall have
any rights to enforce the Contract. This shall not apply to any
finance company with whom the Supplier has an outstanding
finance agreement relating to the Hire Goods. Such finance
company shall, subject to the Supplier’s consent, have the right
to enforce this Contract as if they were the Supplier.
12.6 This Contract is governed by and interpreted in accordance with
the law of the country where the Supplier is located and that
country will have exclusive jurisdiction in relation to this Contract.
Copyright Hire Association Europe 1 April 2004 |
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