MODEL CONDITIONS FOR THE HIRING OF PLANT
(With effect from July 2011)
These conditions are not to be used for consumer contracts.
A consumer contract is a contract entered into with a person acting in their own capacity and not for or on behalf of any business or trade entity.
(a) The “Contract” is the Contract between the Owner and the Hirer for the hire of Plant, which incorporates the Offer and is governed by these conditions.
No terms, conditions or warranties other than as specifically set forth in the Offershall be deemed to be incorporated or to form part of the Contract or shall otherwise govern the relationship between the Owner and the Hirer in relation to the hire of any particular Plant pursuant to the Offer. This excludes all other terms or conditions which the Hirer may seek to apply under any order or acknowledgement or acceptance or similar document and supersedes all prior negotiations, representations or agreements, whether written or oral unless and to the extent that they are expressly accepted in writing and signed by the Owner. The Owner and the Hirer do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract, except that a person who is a successor to or an assignee of the rights of the Owner is deemed to become a party to the Contract after the date of succession or assignment (as the case may be).
Acceptance of the Plant on site implies acceptance of all terms and conditions herein
unless otherwise previously agreed in writing.
The Hirer shall be responsible for the unobstructed access and egress and, unless otherwise agreed in writing, for unloading and loading of the Plant at the site; and any personnel supplied by the Owner for such unloading and / or loading shall be deemed to be under the direction and control of the Hirer. Such personnel shall for all purposes in connection with their employment in the unloading and / or loading of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) who shall be solely responsible for all claims arising in connection with unloading and / or loading of the Plant by, or with the assistance of, such personnel.
Hirer in the case of Plant supplied with an operator within four working days, and in the case of Plant supplied without an operator within three working days, of the Plant being delivered to the site, the Plant shall be deemed to be in good order, save for either an inherent fault or a fault not ascertainable by reasonable examination, in accordance with terms of the Contract and to the Hirer’s satisfaction, provided that where the Plant requires to be erected on site, the periods stated above shall be calculated from the date of completed erection of Plant. The Hirer shall be responsible for the safe keeping of the Plant, its use in a workmanlike manner within the manufacturer’s rated capacity and in accordance with the manufacturer’s and / or the Owner’s recommendations, and its return on the completion of the Hire Period in equal good order (fair wear and tear excepted).
(b) The Hirer shall at all times when hiring Plant without the Owner’s operator or driver take all reasonable steps to keep himself acquainted with the state and condition of the Plant. If such Plant is continued at work or in use in an unsafe and unsatisfactory state or environment, the Hirer shall be solely responsible for any damage, loss, cost, expense or accidents whether directly or indirectly arising therefrom.
(c) Any inspection report required under the relevant legislation, or a copy thereof, shall be supplied by the Owner, if requested by the Hirer, and returned on completion of the Hire Period.
6. SERVICING AND INSPECTION
The Hirer shall at all reasonable times allow the Owner, his agents or his insurers to have access to the Plant to inspect, test, adjust, repair or replace the same. So far as reasonably practicable the Hirer shall allow such access during the Working Day.
7. GROUND AND SITE CONDITIONS
(a) The Hirer is deemed to have knowledge of the site or the property or land where the Plant is to be delivered and the Hirer warrants that the condition of the site or place of delivery of the Plant is suitable for the use of such Plant.
(b) If, in the opinion of the Hirer, the ground (including any private access road or track) is soft or unsuitable for the Plant to work on, travel over, be transported over, be erected or dismantled on without timbers or equivalent support, the Hirer shall supply and lay suitable timbers or equivalent support in a suitable position for the Plant to travel over, work on, be transported over, be erected or dismantled on, including for the purpose of delivery and collection.
(c) Any timber or other material supplied by the Owner is provided solely to assist the Hirer under their duties within clause 7(b) and expressly not to relieve him of his legal, regulatory or contractual obligations to ensure adequate stability of the Plant.
(d) The Hirer is responsible for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and any pavements, bridges, tunnels and roadways on or adjacent to the site and the Hirer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body.
8. HANDLING OF PLANT
a) When a driver or operator or any person is supplied by the Owner with the Plant, the Owner shall supply a person competent in operating the Plant or for such purpose for which the person is supplied and such person shall be under the direction and control of the Hirer. Such drivers or operators or persons shall for all purposes in connection with their employment in the working of the Plant be regarded as the servants or agents of the Hirer (but without prejudice to any of the provisions of clause 13) and the Hirer shall be solely responsible for all claims arising in connection with the operation of the Plant by the said drivers / operators / persons.
(b) The Hirer shall not allow any other person to operate such Plant without the Owner’s prior written consent.
(c) Such drivers or operators or persons shall not operate any other plant or machinery or undertake work other than that for which they are supplied by the Owner unless previously agreed in writing between the Owner and the Hirer.
9. BREAKDOWN, REPAIRS AND ADJUSTMENT
10. OTHER STOPPAGES
No claims will be admitted (other than those allowed for under “Breakdown” (clause 9) or for “Idle Time” (clause 25), as herein provided), for stoppages through causes outside the Owner’s control, including but not limited to bad weather and / or ground conditions nor shall the Owner be responsible for the cost or expense of recovering any Plant from soft or unsuitable ground, or a hazardous environment. For the avoidance of doubt, the Hirer shall be responsible for the cost and expense of recovering any Plant from soft or unsuitable ground or a hazardous environment.
11. LOSS OF OTHER PLANT DUE TO BREAKDOWN
Each item of Plant specified in the Contract is hired as a separate unit and thebreakdown or stoppage of one or more units or vehicles (whether the property of the Owner or otherwise) through any cause whatsoever, shall not entitle the Hirer to compensation or allowance for the loss of working time by any other unit or units of Plant working in conjunction therewith, provided that where two or more items of Plant are expressly hired together as a unit, such items shall be deemed to be one unit for the purpose of breakdown.
12. LIMITATION OF LIABILITY
Except for liability on the part of the Owner which is expressly provided for in the Contract (including these clauses):
(a) the Owner shall have no liability or responsibility for any loss, or damage of
whatever nature due to or arising through any cause beyond his reasonable control;
otherwise be or become due if the allowance in question had not been made.
13. HIRER’S RESPONSIBILITY FOR LOSS AND DAMAGE
(a) For the avoidance of doubt it is hereby declared and agreed that nothing in this clause affects the operation of clauses 4, 5, 8 and 9 of these conditions.
14. NOTICE OF ACCIDENTS
If the Plant is involved in any accident resulting in injury to persons or damageto property, immediate notification must be given by the Hirer to the Owner by telephone and confirmed in writing to the Owner no later than 24 hours after such telephone notification. In relation to any claim in respect of which the Hirer is notbound to fully indemnify the Owner, no admission of liability, offer, promise of payment or indemnity shall be made by the Hirer without the Owner’s prior written permission.
15. RE-HIRING ETC.
Neither the Plant nor any part thereof shall be re-hired, sub-let, or lent to any third
party without the prior written permission of the Owner.
16. CHANGE OF SITE
The Plant shall not be moved from the site to which it was delivered or consigned
without the prior written permission of the Owner.
17. RETURN OF PLANT FOR REPAIRS
If during the Hire Period the Owner decides that urgent repairs to the Plant are necessary then he may arrange for such repairs to be carried out on site or at any location of his nomination. In the event that urgent repairs to the Plant are necessary the Owner shall be obliged to replace the Plant with similar Plant if available, the
Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) paying all transport charges involved. In the event of the Owner being unable to replace the Plant he shall be entitled to terminate the Contract forthwith (but without prejudice to any of the provisions of clauses 9 and / or 13) by giving written notice to the Hirer. If such termination occurs:
(a) within three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) shall pay all transport charges involved, or,
(b) more than three months from the commencement of the Hire Period, the Owner (but without prejudice to any of the provisions of clauses 9 and / or 13) shall be liable only for the cost of reloading and return transport.
18. BASIS OF CHARGING
(a) The Hirer shall render to the Owner for each Working Week an accurate statement of the number of hours the Plant has worked each day. When any personnel, operator or driver is supplied by the Owner, the Hirer shall sign their time record sheets. The signature of the Hirer’s representative shall bind the Hirer to accept the hours shown on the time records sheets.
(i) for a stated minimum number of hours per Working Day or per Working
(ii) without any qualification as to minimum hours. Odd days at the beginning
and at the end of the Hire Period shall be charged pro rata.
as working time up to a maximum of 2 hours for any one stoppage and any
excess will be charged for at the appropriate idle time rates.
it shall apply shall be stated in the Offer / Contract.
PLANT HIRED ON A DAILY BASIS WITHOUT QUALIFICATION
AS TO HOURS
The full daily rate will be charged on a daily basis irrespective of the hours worked except in the case of breakdown for which the Owner is responsible, when the actual hours worked will be charged pro rata of the average Working Day. No hire charge shall be made for Saturday and / or Sunday unless the Plant is actually worked.PLANT HIRED BY THE WEEK OR MONTH WITHOUT QUALIFICATION AS TO HOURS
The weekly or monthly rate shall be charged irrespective of the number of hours worked, except in the case of breakdown for which the Owner is responsible when an allowance pro rata of the agreed weekly rate or pro rata of the agreed monthly rate will be made for each full Working Day broken down calculated to the nearest half Working Day.
PLANT HIRED BY THE WEEK OR THE HOUR FOR A MINIMUM
OF 39 HOURS PER WEEK
The full hire for the minimum period in the Contract will be charged and an additional pro rata charge will be made for hours worked in excess of such minimum period. Allowance will be made for breakdowns up to 8 hours except on Fridays when the allowance will be up to 7 hours providing always that where the actual hours worked are in excess of the minimum period less breakdown time, the actual hours worked shall be chargeable. Idle time for this purpose shall be treated as actual working time. The minimum Working Week of 39 hours shall be reduced by 8 hours Monday to Thursday and 7 hours Friday for each Holiday Period occurring in such Working Week, provided that the Plant is not in use during such Holiday Period.
22. “ALL-IN” RATES
Where “All-In” rates are charged by agreement the minimum period shall be asdefined in the Contract and in accordance with the hire rates and terms containedtherein, subject to the provisions of clause 26.
23. COMMENCEMENT AND TERMINATION OF CONTRACT (TRANSPORT OF PLANT)
(a) The Hire Period shall commence from the time when the Plant leaves the
Owner’s depot or place where last employed and shall continue until the Plant is received back at the Owner’s named depot or other agreed location but an allowance shall be made of not more than one day’s hire charge each way for travelling time. If the Plant is used on the day of travelling, full hire rates shall be paid for the period of use on that day. If more than one day is properly and unavoidably occupied in transporting the Plant, a hire charge at idle time rates shall be payable for such extra time, provided that where Plant is hired for a total period of less than one Working Week, the full hire rate shall be paid from the date of despatch to the date of return to the Owner’s named depot or other agreed location.
24. HIRER’S LIABILITY DURING THE NOTICE OF TERMINATION OF CONTRACT
a) Where the Hire Period is indeterminate or having been defined becomesindeterminate the Contract shall be terminable by seven days notice in writing given by either party to the other except in cases where the Plant has been lost or damaged. Notwithstanding that the Owner may have agreed to accept less than 7 days notice of termination, the Hirer’s obligations under clause 13 shall continue until the Plant is returned to the Owner in accordance with clause 31 or until the Owner has collected the Plant within the 7 days following the acceptance of short notice. Oral notice given by the Hirer to the Owner’s driver or operator shall not be deemed to constitute compliance with the provisions of this clause.
25. IDLE TIME
When the Plant is prevented from working for a complete Working Week, the hire charges shall be two thirds of the hire rate or such other idle time rate as is agreed in writing by the Owner for the period during which the Plant is not in use. If the Plant works for any time during the Working Day then the whole of that Working Day shall be charged as working time. In any case no period less than one Working Day shall be reckoned as idle time save for as provided for in clause 18(e). Where an “All-In” rate is charged, idle time is calculated on the machine element only. Full rate will be charged for the operator.
26. WAGES AND OTHER CHARGEABLE ITEMS RELATING TO DRIVERS AND OPERATORS OF PLANT
All chargeable items shall be paid by the Hirer at the rates set out in the Contract save that any subsequent increases before and / or during the Hire Period arising from awards under any wage agreements and / or from increases in the Owner’s statutory contribution shall be charged as additions at cost by the Owner and shall be admitted and paid by the Hirer.
27. TRAVELLING TIME AND FARES
Travelling time, fares and similar expenses for drivers, operators and any person supplied by the Owner, incurred at the beginning and end of the Hire Period and where appropriate return fare of the driver, operator and any person supplied by the Owner to his home will be chargeable at cost. No charge shall be made by the Owner for any such expenses incurred by other employees of the Owner for the purpose of servicing, repair or maintenance of Plant, unless necessitated by the Hirer’s negligence, misdirection or misuse of the Plant.
28. FUEL, OIL AND GREASE
Fuel, oil and grease shall, when supplied by the Owner, be charged at net cost or an agreed estimate of net cost, and when supplied by the Hirer, shall be of a grade ortype specified by the Owner. The Hirer shall be solely responsible for all damages,losses, costs and expenses incurred by the Owner if the Hirer uses the wrong fuel, oil or grease.
29. SHARPENING OF DRILLS/STEELS ETC.
The cost of re-sharpening or replacement of drill bits, blades and other ancillary
items shall be borne by the Hirer.
30. OWNER’S NAME PLATES
The Hirer shall not remove, deface or cover up the Owner’s name plate or mark on the Plant indicating that it is his property, without the prior written permission of the Owner.
The Hirer shall pay the cost of and if required by the Owner, arrange transport of, the Plant from the Owner’s depot or other agreed location to the site and return to the Owner’s named depot or other agreed location on completion of the Hire Period.
32. GOVERNMENT REGULATIONS
a) The Hirer will be responsible for compliance with relevant regulations issued by the Government or Local Authorities, including regulations under the Environmental Acts, Factories Acts, Health and Safety at Work, etc. Act andobservance of the Road Traffic Acts should they apply, including the cost of roadfund licences and any insurances made necessary thereby, save that if and during such time as the Plant is travelling, whether for full or part journey from Owner to site and site to Owner under its own power with a driver supplied by the Owner, the Owner and not the Hirer shall be responsible as aforesaid.
b) The Hirer shall indemnify the Owner against any charges or fines that the Ownermay become liable for as a result of the operation of the Plant during the Hire Period.
33. PROTECTION OF OWNER’S RIGHTS
(a) The Hirer shall not re-hire, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Plant except as provided under clause 15 and shall protect the same against distress, execution or seizure and shall indemnify the
Owner against all losses, damage, costs, charges and expenses arising as a direct result of any failure to observe and perform this condition except in the event of Government requisition.
(b) The Owner may terminate the Contract forthwith by written notice to the Hirer if one or more of the following events occur:
(i) The Hirer defaults in punctual payment of any sum due to the Owner for hire
of Plant or other charges payable pursuant to these conditions;
(ii) The Hirer fails to observe and perform the terms and conditions of the
(iii) The Hirer suffers, or the Owner reasonably believes that the Hirer shall
suffer, any distress or execution to be levied against him;
(iv) The Hirer makes or proposes to make any arrangement with his creditors or becomes insolvent within the meaning of Section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or
re-enactment thereof for the time being in force; or
(v) The Hirer does or causes to be done or permit or suffer any act or thing
whereby the Owner’s rights in the Plant may be prejudiced or put into
(c) In the event of termination under sub-paragraph (b) above:
(i) The Hirer must give the Owner or his agents, immediate unobstructed access to recover the Plant.
(ii) The Owner shall be entitled to claim the hire charges outstanding as at the date of termination of the hire under this clause and return transport charges under clause 31.
(d) The rights under sub-paragraph (b) and (c) above:
previous default or matter of the same or a like nature.
recover any sums due under the Contract as a debt.
(e) If the Hirer does not make payment of a sum by the final date on which payment
is due to be made, the Owner has the right to suspend performance of its obligations under the Contract. The right to suspend may not be exercisedwithout first giving to the Hirer at least 7 days notice in writing of the Owner’sintention to suspend performance, stating the ground or grounds on which the Owner intends to suspend performance. The right to suspend performance will cease when the Hirer makes payment in full of the amount due.
34. CHANGES IN NORMAL WORKING WEEK
The foregoing provisions have been framed upon the basis of the Hirer working a 5-day week of 39 hours; it is hereby agreed that in the event of:
(a) there being any agreed change in the normal weekly hours in the industry in
which the Hirer is engaged or,
(b) the Contract being made with reference to a 5 day week of other than 39 hours. Clauses 1(h) and (i), 18(c) and (d), 20 and (in regard to breakdown allowance andreduction for statutory holidays) 21 shall be deemed to be modified conformably andin the event of an alteration in the normal weekly working hours in the said industry the “Hire Rates and Terms” of Plant hired for a minimum weekly or daily period shall be varied pro rata.
35. DISPUTE RESOLUTION
(a) If the site is situated within the United Kingdom, then the court whose jurisdiction covers the site will have exclusive jurisdiction and interpretation of the law for this Contract. If the original site is not situated within the United Kingdom, then the relevant jurisdiction and interpretation of the law of theContract will be governed by the country where the Owner’s head office islocated.
(b) Both parties to the Contract have a right to refer any difference or dispute arising under or in connection with the Contract to adjudication and the procedure set out in Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (or any amendment or re-enactment thereof for the timebeing in force) will apply. The person (if any) specified in the Contract to act as adjudicator may be named in the Offer. The specified nominating body toselect adjudicators shall be the Construction Plant-hire Association acting by its President or Chief Executive for the time being. .
(c) The Owner and the Hirer shall comply forthwith with any decision of the adjudicator; and shall submit to summary judgment and enforcement (and / or, under Scots law, shall consent to a motion for summary decree and submit to enforcement) in respect of all such decisions; in each case, without any defence, set-off, counterclaim, abatement or deduction. Where, under Scots law, the Owner, the Hirer, or the adjudicator, wishes to register a decision of the adjudicator for execution in the Books of Council and Session, any other party shall, on being requested to do so, forthwith consent to such registration by subscribing the decision before a witness.
36. LATE PAYMENTS
The Owner reserves the right to charge the Hirer for the late payment of any outstanding invoices under the Late Payment of Commercial Debts (Interest) Act 1998, or any subsequent legislation.
If any of these clauses are held to be unlawful, void or unenforceable, then that clause will be deemed severable and will not affect the validity and enforceability of the remaining clauses, to the extent permitted by law.
Copies of these Model Conditions are available (on bulk order from CPA) only to Subscribing members of The Construction Plant-hire Association. The Model Conditions are the COPYRIGHT of The Construction Plant-hire Association and must NOT be reproduced or reprinted in whole or in part as “the Model Conditions” without the written authority of the Association.
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