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Terms And Conditions
Terms And Conditions
CONDITIONS FOR HIRE AND SALE OF GOODS TO CONSUMERS AND BUSINESSES
Effective from 1 January 2016
1 INTERPRETATION
1.1. In these conditions the following words have the following meanings:
“Consumer” an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession;
“Contract” means a contract which incorporates these conditions and made between the Customer and the Supplier for the hire or sale of Goods;
“Customer” means the person, firm, company or other organisation hiring Hired Goods or purchasing Sale Goods;
“Deposit” means any advance payment required by the Supplier in relation to the Hired Goods which is to be held as security by the Supplier;
“Digital Content” means data which is produced and supplied in digital form;
“Facilitator” means the company Procure-Hire Limited (Company Number :11324984) whose registered office is Five Mile House, 128 Hanbury Road, Stoke Prior, Bromsgrove, England, B60 4JZ.
“Force Majeure” means any event outside a party’s reasonable control including but not 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;
“Goods” means any machine, article, tool, and/or device together with any accessories specified in a Contract which are hired or sold to the Customer;
“Hired Goods” means any Goods which are hired to the Customer;
“Hire Period” means the period commencing when the Customer holds the Hired 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 Hired Goods by the Customer into the Supplier’s possession; or
(ii) the physical repossession or collection of Hired 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;
“Rental” means the Supplier’s charging rate for the hire of the Hired Goods which is current from time to time during the Hire Period;
“Sale Goods” means any Goods which are sold to the Customer;
“Supplier” means the organisation or individual that provides products or services to a Customer;
“Services” means the services and/or work (if any) to be performed by the Supplier for the Customer in conjunction with the hire or sale of Goods including any delivery and/or collection service in respect of the Goods.
2 BASIS OF CONTRACT
2.1 Goods are hired or sold subject to them being available for hire or sale 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 Goods being unavailable for hire or sale where the Goods are unavailable due to circumstances beyond the Supplier’s control.
2.2 In the event that the hire of the Hired Goods is to a Customer who is an individual, an unincorporated entity or a two (2) or three (3) partner business, the hire would be regulated by the Consumer Credit Act 1974.In these circumstances, the duration of the Hire Period shall not exceed 3 months, after which time the Contract shall be deemed to have automatically terminated. Once the contract is terminated, the hire of any Hired Goods is not covered by the Consumer Credit Act 1974. In such circumstances, the Customer shall return the Hired Goods to the Supplier on the final day of the 3 month Hire Period. In the event that a Customer fails to return the Hired Goods in line with this agreement, they shall be liable for any financial loss which this causes the Facilitator.
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. In circumstances where the Customer is acting as a Consumer, provisions marked with an asterisk (*) may, subject to determination by the Courts or any applicable legislation, have no force or effect.and provision which, under the applicable law of the Contract is unenforceable in whole or in part or shall have no force or effect the Contract, shall be deemed not to include such provisions. However, in circumstances such as these the relevant provision shall not effect the enforceability of the remainder of the Contract. For further information about statutory rights, please refer to information given by your local authority Trading Standards Department or Citizens Advice Bureau or your local office of the Director of Consumer Affairs or Citizens Information Centre if based in the Republic of Ireland.
3 FAULTY GOODS, DIGITAL CONTENT AND/OR SERVICES
3.1 In the event that a Customer deals as a Consumer, the Supplier is under a legal duty to supply Goods, Digital Content and Services that are in conformity with the contract between the parties. In such circumstances, the Customer has legal rights in relation to Goods and Digital Content that are faulty or not as described and in relation to Services for reasons inclusive of but not exhausted to the manufacture of the Hired Goods not being carried out with reasonable skill and care or if the materials used to carry out the Services are faulty or not as described.
3.2 Advice about Customers’ legal rights in relation to faulty goods, digital contect and/or services can be found at the Consumer’slocal Citizens’ Advice Bureau or Trading Standards office. The terms and conditions detailed in this agreementwill affect these legal rights.
4 PAYMENT
4.1 The amount of any Deposit, Rental, monies for Sale Goods and/or charges for any Services shall be as quoted to the Customer or otherwise as shown in the Facilitator’s current price list from time to time. Where a Deposit is required for the Hired Goods it must be paid in advance of the Customer hiring the Hired Goods. The Facilitator may also require an initial payment on account of the Rental in advance of the Customer hiring the Hired Goods.
4.2 The Customer shall pay the Deposit, Rental, charges for any Services, monies for any Sale Goods and/or any other sums payable under the Contract to the Facilitator at the time and in the manner agreed. The Facilitator’s prices are, unless otherwise stated, exclusive of any applicable VAT for which the Customer shall additionally be liable.
4.3 It is essential that the payment by the Customer is on time under this Contract. Payment shall not be deemed to be made until the Facilitator has received either cash or cleared funds in respect of the full outstanding amount .
4.4 If the Customer fails to make any payment in full on the agreed due date, the Facilitator may charge the Customer interest (both before and after judgment/decree) on the amount unpaid at the rate. The Facilitator will apply the higher applicable rate either implied by law under the Late Payment of Commercial Debts (Interest) Act 1998 (where applicable) or at the rate of 4% above the base rate from time to time of the Facilitator’s bank.
4.5 *The Customer shall pay all sums due to the Facilitator under this Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.
4.6 The Facilitator and the Supplier may choose to set an agreed reasonable credit limit for the Customer. The Facilitator and the Supplier reserves the right to terminate or suspend the Contract for hire of the Hired 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.
4.7 The Facilitator reserves the right to store the Customer’s credit card details on its password protected customer account system and the right to use such details against future Rentals made by the Customer.
5 RISK, OWNERSHIP AND INSURANCE
5.1 Risk for Hired Goods will pass immediately to the Customer when they leave the physical possession or control of the Supplier.
5.2 Risk of the Hired Goods will pass back to the Supplier upon return of the Hired Goods. This shall apply even if the Supplier has agreed to cease charging the Rental.
5.3 Ownership of the Hired Goods remains at all times with the Supplier. The Customer has no right, title or interest in the Hired Goods except that they are hired to the Customer. Ownership of any Sale Goods remains with the Supplier until all monies payable to the Supplier by the Customer for the Sale Goods have been paid in full.
5.4 Until ownership in the Sale Goods passes to the Customer, the Customer shall:
5.4.1 hold the Sale Goods on a fiduciary basis as the Supplier’s’s bailee;
5.4.2 maintain the Sale Goods in satisfactory condition; and
5.4.3 keep the Sale Goods insured against all risks for their full price from the time they leave the physical possession or control of the Supplier.
5.5 The Customer must not deal with the ownership or any interest in the Hired Goods including, but not limited to selling, assigning, mortgaging, pledging, charging, securing, hiring, withholding, exerting any right to withhold, disposing of and/or lending. The Customer may re-hire the Hired Goods to a third party with the prior written consent of the Supplier.
5.6 The Supplier may provide reasonably priced insurance in respect of the Hired Goods at an additional cost to the Rental. Alternatively, the Supplier may require the Customer to insure the Hired Goods for such reasonable risks as the Supplier may specify and any proceeds of any such insurance shall be paid to the Supplier on demand. The Customer must not compromise any claim in respect of the Hired Goods and/or any associated insurance without the Supplier’s’s written consent.
6 DELIVERY, COLLECTION AND SERVICES
6.1 It is the responsibility of the Customer to collect the Goods from the Supplier, and, in the case of Hired Goods, return them to the Supplier at the end of the Hire Period. If the Supplier agrees to deliver Goods to and/or collect the Hired Goods from the Customer it will do so at an agreed delivery cost and such delivery and/or collection will form part of the Services.
6.2 In the event that the Supplier agrees to collect the Hired Goods from the Customer at the end of the Hire Period, the Customer must give the Supplier reasonable notice for collection allowing at least three (3) working days’ notice from the end of the Hire Period. The Customer shall remain responsible and liable for any loss, damage or theft to the Hired Goods until the Hired Goods are collected by the Supplier. In the event that the Supplier fails to collect the Hired Goods within five (5) working days of the Customer notifying the Supplier that the Hired Goods are ready for collection, the Supplier shall be liable for any loss, damage or theft thereafter.
6.3 In the event that the Supplier provides Services, the person or persons performing the Services are servants of the Customer and once the Customer instructs such person they are under the direction and control of the Customer. The Customer shall be solely responsible for any instruction, guidance and/or advice given by the Customer to any such person and for any damage which occurs as a result of such persons following the Customer’s instructions, guidance and/or advice except to the extent that the persons performing the Services are found to be negligent by a court with jurisdiction to make such finding pursuant to clause 8.
6.4 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.
6.5 If any Services are delayed, postponed and/or are cancelled due to the Customer failing to comply with its obligations the Customer will be liable to pay the Suppliersr an additional standard charges for such delay, postponement and/or cancellation except in circumstances where the delay is due to a Force Majeure event.
7 CARE OF HIRED GOODS
7.1 The Customer shall:
7.1.1 not remove any labels from, interfere with the structure of or the working mechanisms of Hired Goods. The Customer shall take reasonable care of the Hired Goods and only use them for their intended purpose in a safe and correct manner in accordance with any operating and/or safety instructions provided by the Supplier to the Customer;
7.1.2 notify the Supplier immediately or as soon as is reasonably possible, after any breakdown, loss and/or damage to the Hired Goods;
7.1.3 take adequate and proper measures to protect the Hired Goods from theft, damage and/or other foreseeable risks;
7.1.4 notify the Supplier of any change of its address and upon the Supplier’s request provide details of the location of the Hired Goods;
7.1.5 permit the Supplier at all reasonable times and upon reasonable notice to inspect the Hired Goods including procuring access to any property where the Hired Goods are situated;
7.1.6 keep the Hired Goods at all times in its possession and control and not to remove the Hired Goods from the locations previously agreed between the Supplier and the Customer and/or the country where the Supplier is located without the prior written consent of the Supplier;
7.1.7 be responsible for the conduct and cost of any testing, examinations and/or checks in relation to the Hired Goods required by any legislation, best practice and/or operating instructions as a result of the use of the Hired Goods by the Customer, except where previously agreed between both the Supplier and the Customer to provide them as part of any Services;
7.1.8 not do or omit to do anything, which the Customer has been previously notified which will or may be deemed to invalidate any policy of insurance related to the Hired Goods;
7.1.9 not continue to use Hired Goods where they have been damaged. The Customer will notify the Supplier immediately or as soon as reasonably possible if the Hired Goods are involved in a situation resulting in damage to the Hired Goods, other property and/or injury to any person;
7.1.10 where the Hired Goods require fuel, oil and/or electricity ensure that the correct type and/or voltage is used and that, where appropriate, the Hired Goods are properly installed by a qualified and competent individual.
7.1.11 ensure that any employees, agents or contractors that operate the Hired Goods are, if applicable, adequately and sufficiently qualified and trained to operate the Hired Goods in accordance with all current and applicable legislation; and
7.2 ensure that Hired 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 all insurance policies, licences, registration and other documents relating to the Hired Goods.
8 BREAKDOWN
8.1In the event that a Customer is unable to use Hired Goods due to breakdown caused by the development of an inherent fault and/or fair wear and tear on condition, an allowance may be made on the Rental of the named Hired Goods. This is only applicable if the Customer informs the Supplier as soon as reasonably practical of the breakdown and the Supplier is unable to repair or replace the Hired Goods within a reasonable time.
8.2 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 Hired Goods due to the Customer’s negligence, misdirection and/or misuse of the Hired Goods.
8.3 The Supplier will at its own cost carry out all routine maintenance and repairs to the Hired Goods during the Hire Period and all repairs which are required due to fair wear and tear and/or an inherent fault in the Hired Goods. The Customer will be responsible for the cost of all repairs necessary to Hired 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.
8.4 The Customer must not repair or attempt to repair the Hired Goods unless authorised to do so in writing by the Supplier.
9 LOSS OR DAMAGE TO THE HIRED GOODS
9.1 If the Hired Goods are returned damaged, unclean and/or defective state except where due to fair wear and tear and/or an inherent fault in the Hired Goods, the Customer shall be liable to pay the Supplier for the cost of any repair and/or cleaning required to return the Hired 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.
9.2 In respect of any Hired Goods which are lost, stolen or damaged beyond economic repair during the Hire Period the Customer will:-
9.2.1 pay the Supplier the new replacement cost for any Hired Goods less than twelve (12) months old from first registration; and/or
9.2.2 reimburse the Supplier for any loss or costs suffered or incurred by the Supplier for any Hired Goods more than twelve (12) months from first registration, less the amount paid to the Supplier under any policy of insurance and/or Deposit in respect of the Hired Goods.
9.3 The Customer shall remain liable to pay the Rental for the Hired Goods up to and including the date it notifies the Supplier that the Hired Goods have been lost, stolen and/or damaged beyond economic repair.
9.4 In addition to the obligations set out in clause 3 the Customer shall pay a pre-estimate of lost rental profit, a sum for liquidated damages, equal to two thirds of the Rental that would have applied for such Hired Goods during the Lost Rental Period. The Supplier shall use its reasonable commercial endeavours to purchase replacements for such Hired Goods as quickly as possible once it has received payment from the Customer under detailed in clause 9.2.
10 CANCELLATION POLICY
10.1 The Customer may cancel a rental order at their discretion. All Customers must cancel their order as soon as reasonably possible. Cancellations made less than 24 hours before the Rental Period start date or any time during the rental period may result in a 100% charge to the Customer of the total rental charge. Cancellations made less than 48 hours before the Rental Period start date may result in a 50% charge to the Customer of the total rental charge.
11 TERMINATION BY NOTICE
11.1 In the event that the Hire Period has a fixed duration, both the Supplier or the Customer is entitled to terminate the Contract prior to the initial expiry of the Hire Period upon agreement of both parties, subject to the provisions set out in clause 12.
11.2 If the Hire Period does not have a fixed duration either party is entitled to terminate the Contract upon agreement of both parties with an agreed notice period. giving to the other party any agreed period of notice.
11.3 If no period of notice has been agreed or specified the Customer may terminate the Hire Period by the physical return of the Hired Goods to the Supplier
11.4 If no period of notice has been agreed or specified either party shall be entitled to terminate the hire of the Hired Goods by giving not less than 14 days’ notice to the other.
11.5 The rights set out in this clause 11 are in addition to any rights the Customer may have under clause 10 (and any relevant legal rights).
12 DEFAULT
12.1 If the Customer:-
12.1.1 fails to make any payment to the Supplier when due without just cause;
12.1.2 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;
12.1.3 persistently breaches the terms of the Contract;
12.1.4 provides incomplete, materially inaccurate or misleading facts and/or information in connection with the Contract;
12.1.5 pledges, charges or creates any form of security over any Hired 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;
12.1.6 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;
12.1.7 appears to the Supplier (acting reasonably) due to the Customer’s credit rating to be financially incapable of meeting its obligations under the Contract; and/or
12.1.8 appears to the Supplier (acting reasonably) 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 clause 12.2.
12.2 If any of the events set out in clause 12.1 occurs in relation to the Customer then:-
12.2.1 except where the Customer is acting as a Consumer the Supplier may recover all Goods from the Customer immediately.
12.2.2 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;
12.2.3 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
12.2.4 *all monies owed by the Customer to the Supplier shall immediately become due and payable.
12.3 Any repossession of the Goods 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 Good
12.4 Upon termination of the Contract the Customer shall immediately:-
12.4.1 return the Goods to the Supplier or, as requested by the Supplier, make the Goods available for collection by the Supplier or its authorised representatives (the Customer granting or procuring for the Supplier or its authorised representative the right to enter the site without trespass) ; and
12.4.2 pay the Supplier all arrears for Rentals, Charges for any Services, monies for any Sale Goods and/or any other sums payable under the Contract including, but not limited to, the cost of returning the Goods.
13 LIMITATIONS OF LIABILITY
13.1 *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.
13.2 *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
13.3 Any defective Hired Goods must be returned to the Supplier for inspection if requested by the Supplier before the Supplier will have any Liability for defective Goods.
13.4 *The Supplier shall have no liability to the Customer if, without just cause, any monies due in respect of the Goods and/or the Services have not been paid in full by the due date for payment.
13.5 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 Goods and/or Services after a defect has become apparent or suspected or should reasonably have become apparent to the Customer.
13.6 The Customer shall give the Supplier 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.
13.7 *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.
13.8 The Supplier shall have no Liability to the Customer for any of the following losses (whether direct or indirect):-
13.8.1 *consequential losses (including loss of profits and/or damage to goodwill);
13.8.2 economic and/or other similar losses;
13.8.3 special damages and indirect losses; and/or
13.8.4 business interruption, loss of business, contracts and/or opportunity.
13.9 *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 or monies payable for Sale Goods, in addition to 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.
13.10 Each of the limitations and/or exclusions in this Contract shall be deemed to be repeated and apply as a separate provision for each of:-
13.10.1 Liability for breach of contract;
13.10.2 *Liability in tort/delict (including negligence); and
13.10.3 *Liability for breach of statutory and/or common law duty;
except clause 13.9 above which shall apply once only in respect of all the said types of Liability.
13.11 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.
14 GENERAL
14.1 Upon termination of the Contract the provisions of clauses 2, 4.4, 4.5, 7, 8, 9.1, 9.3 and shall continue in full force and effect.
14.2 Each hire of an item of Hired Goods shall form a distinct Contract which shall be separate to any other Contract relating to other Hired Goods.
14.3 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.
14.4 When dealing as a Consumer, if the Customer has any questions or complaints it may contact the Supplier by telephoning its customer service team or contact the Facilitator on 03301333967 or by e-mail at info@procure-hire.com.
14.5 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 tortious act and/or omission and/or any breach of statutory duty by the Customer.
14.6 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.
14.7 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.
14.8 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) Act 1999. This shall not apply to any finance company with whom the Supplier has an outstanding finance agreement relating to the Hired Goods. Such finance company shall, subject to the Supplier’s consent, have the right to enforce this Contract as if they were the Supplier.
14.9 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.
© Hire Association Europe October 2015
