CONDITIONS FOR HIRE AND SALE OF PRODUCTS TO CONSUMERS AND BUSINESSES
1.1 In these conditions the following words have the following meanings:
“Contract” means a contract which incorporates these conditions and made betweenthe Customer and the Supplier for the hire of Hire Goods and/or the sale of Products;
“Customer” means the person, firm, company or other organisation hiring Hire Goods;
“Deposit” means any advance payment required by the Supplier in relation to the HireGoods which is to be held as security by the Supplier;
“Force Majeure” means any event outside a party’s reasonable control including butnot limited to acts of God, war, flood, fire, labour disputes, strikes, sub-contractors,lock-outs, riots, civil commotion, malicious damage, explosion, terrorism,governmental actions and any other similar events;
“Hire Goods” means any machine, article, tool, and/or device together with anyaccessories specified in a Contract which are hired to the Customer;
“Hire Period” means the period commencing when the Customer holds the HireGoods 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 bythe Customer into the Supplier’s possession; or (ii) the physical repossession orcollection 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 iscurrent from time to time during the Hire Period;
“Supplier” means JB Tool hire ltd 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 forthe 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 atthe time required by the Customer. The Supplier will not be liable for any losssuffered by the Customer as a result of the Hire Goods being unavailable forhire where the Hire Goods are unavailable due to circumstances beyond theSupplier’s control.
2.2 Where hire of the Hire Goods is to a Customer who is an individual and the hirewould be covered by the Consumer Credit Act 1974 the duration of the HirePeriod shall not exceed 3 months, after which time the Contract shall bedeemed to have automatically terminated. Accordingly the hire of any HireGoods is not covered by the Consumer Credit Act 1974.
2.3 Nothing in this Contract shall exclude or limit any statutory rights of theCustomer which may not be excluded or limited due to the Customer acting asa consumer. Where the Customer is acting as a consumer any provision whichis marked with an asterisk (*) may, subject to determination by the Courts orany applicable legislation, have no force or effect and if any provision is underthe applicable law of the Contract unenforceable in whole or in part or shallhave no force or effect the Contract shall be deemed not to include suchprovisions but this shall not effect the enforceability of the remainder of theContract. For further information about your statutory rights contact your localauthority Trading Standards Department or Citizens Advice Bureau or if basedin the Republic of Ireland your local office of the Director of Consumer Affairs orCitizens Information Centre.
3.1 The amount of any Deposit, Rental and/or charges for any Services shall be asquoted to the Customer or otherwise as shown in the Supplier’s current pricelist from time to time. Where a Deposit is required for the Hire Goods it must bepaid in advance of the Customer hiring the Hire Goods. The Supplier may alsorequire an initial payment on account of the Rental in advance of the Customerhiring the Hire Goods.
3.2 The Customer shall pay the Rental, charges for any Services, monies for anyProducts and/or any other sums payable under the contract to the Supplier atthe time and in the manner agreed. The Supplier’s prices are, unless otherwisestated, exclusive of any applicable VAT for which the Customer shalladditionally be liable.
3.3 Payment by the Customer on time under the Contract is an essential conditionof the Contract. Payment shall not be deemed to be made until the Supplierhas received either cash or cleared funds in respect of the full amountoutstanding.
3.4 *If the Customer fails to make any payment in full on the due date the Suppliermay charge the Customer interest (both before and after judgment/decree) onthe amount unpaid at the rate implied by law under the Late Payment ofCommercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4%above the base rate from time to time of the Supplier’s bank whichever ishigher.
3.5 *The Customer shall pay all sums due to the Supplier under this Contractwithout any set-off, deduction, counterclaim and/or any other withholding ofmonies.
3.6 The Supplier may set a reasonable credit limit for the Customer. The Supplierreserves the right to terminate or suspend the Contract for hire of the HireGoods and/or the provision of Services if allowing it to continue would result inthe Customer exceeding its credit limit or the credit limit is already exceeded.
3.7 The Supplier reserves the right to store the Customer’s credit card details on itspassword protected customer account system and further reserves the right touse such details against future Rentals made by the Customer.
4 RISK OWNERSHIP AND INSURANCE
4.1 Risk in the Hire Goods and any Products will pass immediately to the Customerwhen 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 Customeruntil the Hire Goods are back in the physical possession of the Supplier. Thisshall 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. TheCustomer has no right, title or interest in the Hire Goods except that they arehired to the Customer. Ownership of any Products remains with the Supplieruntil all monies payable to the Supplier by the Customer for the Products havebeen paid in full.
4.4 The Customer must not deal with the ownership or any interest in the HireGoods. 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. However the Customer may re-hire the HireGoods to a third party with the prior written consent of the Supplier.
4.5 The Supplier may provide reasonably priced insurance in respect of the HireGoods at an additional cost to the Rental in accordance with Financial ServicesAuthority Requirements. Alternatively the Supplier may require the Customer toinsure the Hire Goods for such reasonable risks as the Supplier mayspecifyand any proceeds of any such insurance shall be paid to the Supplieron demand. The Customer must not compromise any claim in respect of theHire Goods and/or any associated insurance without the Supplier’s writtenconsent.
5 DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Goods from theSupplier and return them to the Supplier at the end of the Hire Period. If theSupplier agrees to deliver or collect the Hire Goods to and/or from theCustomer it will do so at its standard delivery cost and such delivery and/orcollection will form part of the Services.
5.2 If the Supplier agrees to collect the Hire Goods from the Customer at the end ofthe Hire Period the Customer must give the Supplier reasonable notice whichshall include at least three (3) working days notice from the end of the HirePeriod. The Customer shall remain responsible and liable for any loss,damage or theft to the Hire Goods until the Hire Goods are collected by theSupplier unless the Supplier fails to collect the Hire Goods within 3 workingdays from the end of the Hire Period whereupon the Supplier shall be liable forany loss, damage or theft thereafter.
5.3 Where the Supplier provides Services the persons performing the Services areservants of the Customer and once the Customer instructs such person theyare under the direction and control of the Customer. The Customer shall besolely responsible for any instruction, guidance and/or advice given by theCustomer to any such person and for any damage which occurs as a result ofsuch persons following the Customer’s instructions, guidance and/or adviceexcept to the extent that the persons performing the Services are negligent.
5.4 The Customer will allow and/or procure sufficient access to and from therelevant site and procure sufficient unloading space, facilities, equipment andaccess to utilities for the Supplier’s employees, sub-contractors and/or agentsto allow them to carry out the Services. The Customer will ensure that the sitewhere the Services are to be performed is, where necessary, cleared andprepared before the Services are due to commence.
5.5 If any Services are delayed, postponed and/or are cancelled due to theCustomer failing to comply with its obligations the Customer will be liable to paythe Supplier’s additional standard charges from time to time for such delay,postponement and/or cancellation except where the Customer is acting as aconsumer and the delay is due to a Force Majeure event.
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, theirworking mechanisms or any other parts of them and shall take reasonablecare of the Hire Goods and only use them for their proper purpose in a safeand correct manner in accordance with any operating and/or safetyinstructions provided or supplied to the Customer;
6.1.2 notify the Supplier immediately after any breakdown, loss and/or damage tothe 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’srequest provide details of the location of the Hire Goods;
6.1.5 permit the Supplier at all reasonable times and upon reasonable notice toinspect the Hire Goods including procuring access to any property where theHire Goods are situated;
6.1.6 keep the Hire Goods at all times in its possession and control and not toremove the Hire Goods from the country where the Customer is locatedand/or the country where the Supplier is located without the prior writtenconsent of the Supplier;
6.1.7 be responsible for the conduct and cost of any testing, examinations and/orchecks in relation to the Hire Goods required by any legislation, best practiceand/or operating instructions except to the extent that the Supplier hasagreed to provide them as part of any Services;
6.1.8 not do or omit to do anything which the Customer has been notified will ormay be deemed to invalidate any policy of insurance related to the HireGoods;
6.1.9 not continue to use Hire Goods where they have been damaged and willnotify the Supplier immediately if the Hire Goods are involved in an accidentresulting in damage to the Hire Goods, other property and/or injury to anyperson; and
6.1.10 where the Hire Goods require fuel, oil and/or electricity ensure that theproper type and/or voltage is used and that, where appropriate, the HireGoods are properly installed by a qualified and competent person.
6.1.11 ensure that any employees, agents or contractors that operate the HIRE GOODS are, if applicable, adequately and sufficiently qualified and trained TO OPERATE the Hire Goods in accordance with all current and applicable
6.2 The Hire Goods must be returned by the Customer in good working order and condition (fair wear and tear excepted) and in a clean condition together with allinsurance POLICIES, licences, registration and other documents relating to THE HIRE Goods.
7.1 Allowance may 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 and the Supplier is unable to repair or replace the Hire Goods within a reasonable time.
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, an inherent fault and/or the negligence of the Supplier while carrying out routine maintenance and/or repairs.
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 due to fair wear and tear and/or an inherent 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 rehire and to pay the Rental, in accordance with the provisions of clause 8.3, until such repairs and/or cleaning have been completed.
8.2 The Customer will pay to the Supplier the new replacement cost for any Hire Goods less than twelve (12) months old from first registration and/or shall pay the Supplier for any loss or costs for any Hire Goods more than twelve (12) months old from first registration, which are lost, stolen or damaged beyond economic repair during the Hire Period less the amount paid to the Supplier under any policy of insurance in respect of the Hire Goods.
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 paidunder clause 8.2 above.
9 TERMINATION BY NOTICE
9.1 If the Hire Period has a fixed duration, subject to the provisions of Section 10neither 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 any agreed period of notice.
9.2.1 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.
9.2.2 if no period of notice has been agreed or specified either party shall be entitled to terminate the hire of the Hire Goods by giving not less than 14days’ notice to the other.
10.1 If the Customer:-
10.1.1 fails to make any payment to the Supplier when due without just cause;
10.1.2 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;
10.1.3 persistently breaches the terms of the Contract;
10.1.4 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
10.1.5 pledges, charges or creates any form of security over any Hire Goods or proposes to compound with its creditors, creates a trust deed for its creditors, applies for an interim moratorium in respect of claims and/or proceedings, any distress/diligence, execution or other legal process is levied on any property of the Customer, has a Bankruptcy Petition/Petition for Sequestration presented against it or the Customer takes or suffers any similar action in any jurisdiction;
10.1.6 being a company, ceases or threatens to cease to carry on business, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver or in the Republic of Ireland an examiner appointed over all or any of its assets, any attachment order/arrestment is made against the Customer, any distress/diligence, execution or other legal process is levied on any property of the Customer or the Customer takes or suffers any similar action in any jurisdiction;
10.1.7 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
10.1.8 appears reasonably to the Supplier to be about to suffer any of the aboveevents;then the Supplier shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 10.2 below.
10.2 If any of the events set out in clause 10.1 above occurs in relation to theCustomer then:-
10.2.1 except where the Customer is acting as a consumer the Supplier may enter without prior notice, any 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;
10.2.2 the Supplier may withhold the performance of any Services and cease any Services in progress under this and/or any other Contract with the Customer;
10.2.3 the Supplier may immediately cancel, terminate and/or suspend without Liability to the Customer the Contract and/or any other contract with THE CUSTOMER; and/or
10.2.4 *all monies owed by the Customer to the Supplier shall immediately BECOME DUE and payable.
10.3 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.
10.4 Upon termination of the Contract the Customer shall immediately:
10.4.1 return the Hire Goods to the Supplier or make the Hire Goods available for collection by the Supplier as requested by the Supplier; and
10.4.2 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 *All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and/or adequacy are excluded to the fullest EXTENT PERMITTED by law.
11.2 *If the Supplier is found to be liable in respect of any loss or damage to the Customer’s property the extent of the Supplier’s Liability will be limited to the retail cost of replacement of the damaged property.
11.3 Any defective Hire Goods must be returned to the Supplier for inspection if requested by the Supplier before the Supplier will have any Liability for defective Hire Goods.
11.4 *The Supplier shall have no Liability to the Customer if, without just cause, any monies due in respect of the Hire Goods and/or the Services have not been paid in full by the due date for payment.
11.5 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.
11.6 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.
11.7 *The Supplier shall have no Liability to the Customer to the extent that the Customer is covered by any policy of insurance arranged as a result of the Contract and the Customer shall ensure that the Customer’s insurers waive any and all rights of subrogation they may have against the Supplier.
11.8 The Supplier shall have no Liability to the Customer for any of the following losses (whether direct or indirect):-
11.8.1 *consequential losses (including loss of profits and/or damage to goodwill);
11.8.2 economic and/or other similar losses;
11.8.3 special damages and indirect losses; and/or
11.8.4 business interruption, loss of business, contracts and/or opportunity.
11.9 *The Supplier’s total Liability to the Customer under and/or arising in relation to any Contract shall not exceed 5 times the amount of the Rental and charges for Services (if any) under that Contract or the sum of £1,000 (or Euro equivalent) whichever is the higher. To the extent that any Liability of the Supplier to the Customer would be met by any insurance of the Supplier then the Liability of the Supplier shall be extended to the extent that such Liability is met by such insurance.
11.10 Each of the limitations and/or exclusions in this Contract shall be deemed tobe repeated and apply as a separate provision for each of:
11.10.1 Liability for breach of contract;
11.10.2 *Liability in tort/delict (including negligence); and
11.10.3 *Liability for breach of statutory and/or common law duty;except clause 11.9 above which shall apply once only in respect of all thesaid types of Liability.
11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier for fraud, death or personal injury due to the Supplier’s negligence, nor exclude or limit any other type of Liability which it is not permitted to exclude or limit as a matter of law.
12.1 Upon termination of the Contract the provisions of clauses 3.2, 3.4, 3.5, 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 The Customer shall be liable for the acts and/or omissions of its employees, agents, servants and/or subcontractors as though they were its own acts and/or omissions under this Contract.
12.4 *The Customer agrees to indemnify and keep indemnified the Supplier AGAINST any and all losses, lost profits, damages, claims, costs (including legal costs on a full indemnity basis), actions and any other losses and/or liabilities suffered by the Supplier and arising from or due to any breach of contract, any TORTUOUS/delictual act and/or omission and/or any breach of statutory duty by THE CUSTOMER.
12.5 *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.
12.6 The Supplier shall have no Liability to the Customer for any delay and/or non performance of a Contract to the extent that such delay is due to any Force Majeure events. If the Supplier is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.
12.7 All third party rights are excluded and no third parties shall have any rights to enforce the Contract by virtue of the Contracts (Rights of Third Parties) Act1999. 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. 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.