Terms and conditions of hiring

1. DEFINITIONS

(a) “The Owner” is ‘name of NNC’ or where the context so requires its successors, assigns or associated companies.

(b) “The Hirer” is the hirer specified in the Schedule and includes its successors and personal representatives.

(c) “The Equipment” is the equipment hired by the Owner to the Hirer details of which are set out in the Schedule together with all alterations, additions or improvements.

(d) “Regulations” includes any Act of Parliament, Statutory instrument, Order, regulation, bye-law or other similar instrument whether national or local, including any amendment thereto or re-enactment or replacement thereof.

(e) “The Handbook” is the Operating and Safe Working Handbook provided by the Owner with the equipment.

(f) “A Working Week” is 40 hours in any period of five days.

(g) “The Premises” are the premises specified in the Schedule where the equipment will be kept and used.

(h) “Regular hours of business” of the Owner are 8 am to 5 pm Monday to Friday inclusive, or such times as the Owner may define from time to time.

(i) “Due date for payment” shall be 30 days from the date of invoice unless otherwise agreed in writing.

2. HIRE OF THE EQUIPMENT

(a) The Owner shall hire the equipment to the Hirer subject to its availability when the Hirer’s acceptance of this Agreement is received by the Owner and subject to the terms hereof.

(b) The Hirer shall provide Bank Details and Trade References satisfactory to the Owner prior to the commencement of hire. Invoices are rendered monthly unless otherwise agreed and are payable on the due date for payment.

(c) The cost of the delivery and collection of the equipment shall be borne by the Hirer and will be charged at the actual cost. Any cost shown on the face of the Agreement is approximate and relates only to the cost of delivery. Additional costs incurred by the Owner by reason of delays at the premises or wasted journeys to recover the equipment will also be charged to the Hirer.

(d) The equipment is hired for a minimum period of one working week or such longer periods as may be agreed between the Owner and the Hirer at the weekly rate specified and pro-rata for any part of a working week. Where no fixed hire period is agreed, 24 hours notice of termination must be given by the Hirer. Without prejudice to the foregoing, the period of hire shall be deemed to have been extended for any period after the termination of the Agreement during which the equipment or any part thereof cannot be removed from the premises to the Owner’s depot owing to an industrial dispute (including but not limited to strikes and lock-outs) or other factors affecting the Hirer or the premises and hire charges will be payable in respect of any such period.

(e) If the Hirer shall fail to pay any amount due to the Owner hereunder on the due date for payment the Owner shall be entitled to charge the Hirer interest on the overdue amount at the rate of 1.5 per cent per month compounded at three monthly intervals.

(f) Save as otherwise provided herein all sums due hereunder shall be payable on demand.

(g) Hire charges will be payable during the whole period of hire of the equipment and no allowances will be given for periods when the equipment is not in use except in accordance with clause 9 (d) hereof.

(h) All figures quoted in this Agreement are exclusive of VAT which must be added at the appropriate rate where necessary.

(i) All quotations are based on prices and conditions obtaining at the date of quoting and should, in the opinion of the Owner, any change in the market conditions subsequently occur the Owner reserves the right to apply in writing to the Hirer for a variation in the hire rates. If such rights is exercised and no agreement is reached within seven days of such application both the Hirer and the Owner shall have the option to:

(i) terminate the hire on 24 hours notice in writing if the equipment has commenced hire, or

(ii) cancel the contract if the equipment has not been delivered or the hire otherwise commenced.

3. LICENCES AND ADDITIONAL COSTS

(a) The Hirer shall be responsible for all fees, duties, assessments, levies, charges, rates, taxes (including value added tax) and other impositions which may from time to time be payable in respect of the equipment or this Agreement or the rent of the premises payable hereunder or which may be imposed on the hiring, possession or use of the equipment of any item comprised therein (excluding value added tax) payable on the purchase of the use of the equipment or any item comprised therein (excluding value added tax payable on the purchase of the equipment by the Owner as owner or assessed on or by reference to the profits of the Owner)

(b) The Hirer shall obtain all necessary licences, permits and permissions for the use of the equipment and shall not use the equipment or permit the same to be used contrary to law or to any bye-law or regulation for the time being in force.

4. TITLE AND POSSESSIONS

(a) The equipment shall be and at all times remain the sole and exclusive property of the Owner and the Hirer shall in no circumstances acquire any right, title or interest therein.

(b) The Hirer will not sell, let, charge, assign, pledge or otherwise deal with the equipment and will at its own expense protect and defend the Owner’s title to the equipment against all persons claiming through or against the Hirer and shall at all times keep the equipment on the premises and in its actual possession or control and free from any legal process or encumbrance whatsoever whether legal or equitable, including but not limited to any lien, distress or execution and shall give immediate written notice to the Owner of any such legal process or encumbrance as aforesaid and shall indemnify the Owner from any loss, occasioned thereby or resulting therefrom.

(c) The Owner may affix to the equipment such plates or other marks indicating that the equipment is the property of the Owner as the Owner thinks fit and the Hirer shall not remove, obliterate, deface or in any way cover up such plates or marks not allow any person so to do.

(d) The Owner covenants with the Hirer that so long as the Hirer is not at breach of this agreement the Hirer shall enjoy quiet possession of the equipment during the term of the hire and subject to the term of the hire and subject to the terms of this Agreement.

5. ACCESS TO THE EQUIPMENT

The Owner or its agents shall have the right at all reasonable times during normal business hours to enter into and upon any premises in which the equipment is used or stored for the purposes of fulfilling its obligations and exercising its rights under this Agreement and shall be granted reasonable facilities by the Hirer therefore.

6. INSURANCE

(a) The Hirer shall at all times from delivery of the equipment to the site until it is collected by the Owner at the Hirer’s expense fully insure with insurers approved by the Owner:

(i) the equipment at the value set out in the Schedule plus value added tax against loss, damage or destruction however arising;

(ii) in respect of the Hirer’s liability (or responsible and indemnity) to the Owner under clause 8(c), (d) and (e).

(b) The Hirer shall effect the insurance described in sub-clause (a) of this clause in the joint names of the Owner and the Hirer to the intent that any insurance monies payable under sub clause (a), (I) and (ii) shall be applied firstly in discharging the Hirer’s liability to the Owner under this agreement and secondly in reimbursing the Hirer for any loss it has suffered.

(c) The Hirer shall when required so to do by the Owner produce to the Owner the policy of such insurance together with the receipt of the then current renewal premium.

(d) For the avoidance of doubt, if the equipment is lost, stolen or is damaged as to render it a total loss, then the Hirer will continue to pay the agreed rental rate until the owner receives full compensation from the Hirer or the Hirer’s insurer.

7. OBLIGATIONS OF THE HIRER

(a) The Owner is not aware of the conditions in existence at the Hirer’s site and therefore the Hirer shall be responsible for unloading and reloading the equipment at the premises notwithstanding that the transporter driver or equipment operator may not be in the employment of the Hirer. The Hirer shall ensure that the conditions at the premises are at all times suitable for the safe delivery and operation of the equipment.

(b) The Hirer shall undertake daily routine maintenance in accordance with the Handbook and shall provide fuel, oil and grease and shall carry out a daily check to ensure that the correct engine, hydraulic and cooling system levels are maintained, and shall take steps to ensure the protection of the equipment from damage by frost, including the use of a suitable anti-freeze mixture in the proportion specified by the makes of the equipment and shall undertake regular cleaning, mending of punctures, the maintenance of the correct tyre pressures and the tightening of wheelnuts at the commencement of each shift. Without prejudice to the generality of the foregoing the Hirer shall cause the following steps to be taken to maintain any traction battery forming part of the equipment:

(i) Battery must be properly charged, must at no time be operated in a discharged condition and must be
allowed to cool for at least half an hour after charge and before use:

(ii) Battery must be checked daily to ensure the correct level of distilled water is maintained:

(iii) No electric truck battery shall be charged and discharged more than once in 24 hours:

(iv) Strict observance of the charging instructions on the battery charger provided is essential and when applicable an equalising charge must be carried out every four weeks:

(v) An equalising charge is recommended monthly after normal charging. The charger must be switched off manually after four (4) hours as the automatic timing device only operates in the “normal” position on the charging apparatus and otherwise damage to the battery may be caused.

(c) Any charger supplied with the equipment shall be installed in accordance with the Handbook and/or the instructions on the charger.

(d) If the equipment requires repair or replacement the Hirer shall notify the Owner immediately and shall not use the faulty equipment until repaired. Other than in the circumstances specified in Clause 9(d) hereof, the Hirer shall be responsible for any costs resulting therefrom and all such costs payable by that Hirer shall be due forthwith on demand.

(e) Save as aforesaid the Hirer shall not repair or attempt to repair the equipment or make replacement or alterations unless specifically authorised in writing by the Owner but any replacements made by the Hirer shall forthwith become part of the equipment and the property of the Owner.

(f) Except as otherwise specified in the Schedule the Hirer shall not operate the equipment in excess of the working week.

(g) The Hirer shall not use or cause or permit any person to use the equipment on any public road without having first obtained Owner’s written consent and provide the Owner with evidence of any statutory licencing and other requested relevant control documentation and where such consent is given the Hirer shall ensure that the driver holds a current British driving licence applicable to the equipment and shall insure the equipment for road use.

8. LOSS OR DAMAGE

(a) The Hirer undertakes that it will use the equipment for purposes and places for which it is suitable and for his own business and in a skilful, safe and workmanlike manner and in accordance with all regulations relating thereto and will comply and will procure that its employees and all other persons working with, on or near, or using the equipment comply in full with the instructions and recommendations made in the relevant Handbook which is provided by the manufacturers of the equipment or if no Handbook is provided with all instructions, whether written or verbal given by the Owner or manufacturer in connection with the use or operation of the equipment and in particular that only a trained and experienced driver (not being less than 18 years of age) shall operate the equipment.

(b) The Hirer accepts full liability for loss or damage to or destruction of the equipment suffered from the time it is delivered to the Hirer until it is collected by the Owner from whatever cause the same may arise (fair wear and tear accepted) and is fully responsible for the safekeeping of the equipment and its return in good condition and repair to the Owner (fair wear and tear excepted) at the end of the period of hire.

(c) The Hirer accepts all liability and responsibility in respect of, and shall fully and completely indemnify the Owner against all third party claims and losses howsoever arising in respect of damage to or loss or destruction of any property or in respect of the personal injury or death of any person in any way caused by or relating to the equipment or its use (including but not limited to the payment of all damages, costs and charges in connection therewith) except in so far as any such damage, loss, destruction, injury or death directly results from the neglect or default of the Owner its employees or agents.

(d) The Owner is not aware of the circumstances prevailing at all their Hirer’s premises not of the scale of the consequential loss or damage which could be suffered by the Hirer in connection with the equipment or its use. As a result the Owner hereby excludes any liability to the Hirer in respect of any damage to or loss or destruction of the property of the Hirer or its employees or contractors or other persons in any way caused by or relating to the equipment or its use against which loss or damage the Hirer should take out all necessary insurance.

(e) Where the equipment is used in areas to which the general public have access the Hirer shall indemnify the Owner against all loss, damage, death or personal injury to any person not employed by the Hirer arising from the hire or use of the equipment or otherwise connected therewith and against all costs, claims, proceedings, charges and expenses for which the Owner may become liable in respect thereof.

(f) The Hirer shall notify the Owner immediately in the event of any accident, loss or damage arising and in any way caused by or relating to the equipment and its use however caused.

(g) In the event of the equipment being used in areas where the general public have access, the Hirer shall indemnify the Owner against all loss, damage, death or personal injury to any person not employed by the Hirer, Firm or Company and against all costs, claims, proceedings, charges and expenses for which the Owner may become liable in respect of the products hired to the Hirer.

9. OWNERS OBLIGATIONS

(a) The Owner shall use all reasonable endeavors to deliver the equipment to the premises on or before the commencement of the hire (provided that the Owner shall incur no liability to the Hirer for any loss of damage caused by delay in delivery or non-delivery of the equipment where this was caused by circumstances beyond the control of the Owner) and shall ensure that at commencement of the hire the equipment shall be of sound construction, maintenance, testing and inspection applicable to the equipment have been complied with and unless the Hirer notifies the Owner to the contrary within 48 hours after delivery to the site, the equipment shall be deemed to have been delivered in good working order.

(b) Except where the Owner has given information to the Hirer in writing relating to the equipment and in particular concerning it’s suitability for any particular purpose or for work in any particular place: the Hirer confirms to the owner that no such representations were made to it concerning the equipment and that in entering this Agreement the Hirer relies upon no such representations and has satisfied itself independently on all such matters. No conditions or warranties other than herein specially set forth shall be implied or deemed to be incorporated in or to form part of this Agreement.

(c) The Owner shall be responsible throughout the term of this Agreement and shall undertake such repairs as soon as reasonably possible during the Owners regular hours of business after having received notice of any defects provided that the Owner shall incur no liability to the Hirer for any loss or damage caused by any delay in undertaking repairs where such delay is caused by circumstances beyond the control of the Owner. The Owner shall further inspect, test, adjust and replace the equipment from time to time as it shall in its sole discretion think necessary.

(d) If the equipment has been notified to the Owner s being defective under sub-clause (a) of this clause or if work requires to be done to the equipment which in the reasonable opinion of the Owner is due to fair wear and tear the Owner shall complete such work at its own expense (including the provision of one set of tyres a year only if necessary).

10. TERMINATION

(a) Without prejudice to the other provisions of this Agreement should the Hirer;

(i) withhold payment of the hire charges or any other sums due under this Agreement for thirty days; or

(ii) fail to observe and perform any of the other terms and conditions of this Agreement; or

(iii) do or cause to be done or permit or suffer anything, whereby the Owners rights in the equipment are prejudiced or put into jeopardy then and in any such case the Owner may determine the hiring.

b) Without prejudice to the other provisions of this Agreement should the Hirer;

(i) abandon the equipment or any part thereof; or

(ii) permit any act of bankruptcy or have a receiver appointed or make any composition or arrangement with its creditors or being a Company go into voluntary liquidation whether compulsory or voluntary (except for reconstruction or amalgamation without insolvency); or (iii) suffer any execution or distress upon its property then the hiring shall automatically and without notice determine and the Hirer shall cease to be in possession of the equipment without the consent of the Owner and no payment subsequently accepted by the Owner without knowledge of such automatic termination shall in any way affect or prejudice the operation of this clause.

(c) On termination of this Agreement from any cause;

(i) the Owner or its agents may without notice retake possession of the equipment and may for that purpose enter upon any land or buildings on or which the equipment is or is believed by the Owner or its agents to be situated; and

(ii) notwithstanding the termination of this Agreement the Hirer shall be liable to the Owner for any sums due from the Hirer to the Owner under this Agreement at the date of such termination whether by way of unpaid rent or arising from any breach of the obligations of the Hirer under this Agreement prior to that date or otherwise. The Hirer shall further be responsible for rental at the contract rate for all periods after the termination of the Agreement during which the equipment is unavailable for hire as a result of damage caused during the period of the Agreement (fair wear and tear excepted).

11. REMEDIES

(a) All rights, powers or remedies herein conferred upon or reserved to the Owner may be exercised by the Owner without prejudice to any other right, power or remedy and no neglect, delay or indulgence on the part of the Owner in enforcing the terms and conditions of this Agreement shall prejudice its strict rights hereunder or be construed as a waiver thereof.

(b) Without prejudice to any other rights of the Owner hereunder the Owner shall be entitled to recover from the Hirer all costs, charges and expenses however incurred by the Owner in remedying any failure of the Hirer to observe with terms and conditions of this Agreement or in ascertaining the whereabouts of taking possession of, preserving, insuring and storing the equipment or in enforcing the provisions of this Agreement.

(c) The Hirer, hereby agrees that any claim by the Hirer against the Owner under the Agreement or otherwise shall be the subject of a separate claim or action against the owner and accordingly the Hirer waives all rights of setoff in respect of any instalment of rent or other payment due hereunder and agrees to pay the rents and other payments due hereunder regardless of any equity, cross claim or set-off on the part of the Hirer against the Owner on any account whatsoever and further hereby renounces any lien which it may have over the equipment.

12. RETURN OF THE EQUIPMENT

On the termination of this Agreement for whatever reason the Owner shall collect the equipment but in the event that the Owner does not collect the equipment immediately at the end of the hiring the Hirer shall continue to be solely responsible for ensuring the safe and proper housing, storage, supervision and custody of the equipment pending its return to the Owner.

13. NOTICES

Any notice or instructions given by the Owner under this Agreement must be given in writing. Any notice given orally will be accepted by the owner on the basis that it will be confirmed in writing not less than 48 hours thereafter and the Owner will not be liable for the consequences of any inaccuracy or misunderstanding from any such oral notification.

14. GENERAL

(a) The terms and conditions of this Agreement comprise the entire agreement between the parties and supersede any previous arrangements and agreements relating to the equipment. No variation of this agreement shall have effect unless agreed in writing by the parties.

(b) The liability of the Hirer (if more than one) under the Agreement shall be joint and several.

(c) Headings to the clauses contained in this Agreement are for ease of reference only and do not affect its construction or limit its scope.