STANDARD CONDITIONS FOR HIRE AND SALE OF PRODUCTS IN SCOTLAND
INTERPRETATION
1.1 In these conditions the following words have the following meanings:
“Contract” means a contract which incorporates these conditions and
made between the customer and the Supplier for the hire of Hire Goods
and/or the sale of Products;
“Customer” means the person, firm, company or other organisation
hiring Hire Goods;
“Deposit” means any advance payment required by the Supplier in
relation to the Hire Goods which is to be held as security by the Supplier;
“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;
“Hire Goods” means any machine, article, tool, and/or device together
with any accessories specified in a Contract which are hired to the Customer;
“Hire Period” means the period commencing when the Customer
holds the Hire Goods on hire (including Saturdays, Sundays and Bank
Holidays) and ending upon the happening of any of the following
events: (i) the physical return of the Hire Goods by the customer into
the Supplier’s possession; or return of the Hire Goods by the Customer
into the Supplier’s possession; or
(ii) the physical repossession or collection of Hire Goods by the Supplier;
“Liability” means liability for any and all damages, claims, proceedings,
actions, awards, expenses, costs and any other losses and/or liabilities;
“Products” means the products sold to the Customer by the Supplier; “Rental” means the Supplier’s charging rate for the hire of the Hire
goods which is current from time to time during the Hire Period;
“Supplier” means Tree Maintenance Services and will include its
employees, servants, agents and/or duly authorised representatives;
“Services” means the services and/or work (if any) to be performed
by the Supplier for the customer in conjunction with the hire of Hire
Goods including any delivery and/or collection service for the Hire Goods.
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BASIS OF CONTRACT
2.1 Hire Goods are hired subject to them being available for hire to the
Customer at the time required by the Customer. The Supplier will
not be liable for any loss suffered by the Customer as a result of the
Hire Goods being unavailable for hire where the Hire Goods are
unavailable due to circumstances beyond the Supplier’s control.
2.2 Where hire of the Hire Goods is to a Customer who is an individual and
the hire would be covered by the Consumer Credit Act 1974 the
duration of the Hire Period shall not exceed 3 months, after which time
the Contract shall be deemed to have automatically terminated.
Accordingly the hire of any Hire Goods is not covered by the Consumer
Credit Act 1974.
2.3 Nothing in this Contract shall exclude or limit any statutory rights of the
Customer which may not be excluded or limited due to the Customer
acting as a consumer. Where the Customer is acting as a consumer
any provision which is marked with an asterisk (*) may, subject to
determination by the Courts, have no force or effect. For further
information about your statutory rights contact your local authority
Trading Standards Department or Citizens Advice Bureau.
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PAYMENT
3.1 The amount of any Deposit, Rental and/or charges for any Services
shall be as quoted to the Customer or otherwise as shown in the
Supplier’s current price list from time to time. Where a Deposit is
required for the Hire Goods it must be paid in advance of the Customer
hiring the Hire Goods. The Supplier may also require an initial payment
on account of the Rental in Advance of the Customer hiring the Hire Goods.
3.2 The Customer shall pay the Rental, charges for any Services,
monies for any Products and/or any other sums payable under the
contract to the Supplier at the time and in the manner agreed. The
Supplier’s prices are, unless otherwise stated, exclusive of any
applicable VAT for which the Customer shall additionally be liable.
3.3 Payments by the Customer on time under the Contract are an essential
condition of the Contract. Payment shall not be deemed to be made
until the Supplier has received either cash or cleared funds in respect of
the full amount outstanding.
3.4 *If the Customer fails to make any payment in full on the due date the
Supplier may charge the Customer interest (both before and after
decree) on the amount unpaid at the rate of 4% about the base rate
from time to time of the Supplier’s bank. Such interest shall be
compounded with quarterly rests.
3.5 *The Customer shall pay all sums due to the Supplier under this
Contract without any set-off, deduction, counterclaim and/or any other
withholding of monies.
3.6 The Supplier may set a reasonable credit limit for the Customer. The
Supplier reserves the right to terminate or suspend the Contract for
hire of the Hire Goods and/or the provision of Services if allowing it to
continue would result in the Customer exceeding its credit limit or the
credit limit is already exceeded.
RISK OWNERSHIP AND INSURANCE
4.1 Risk in the Hire Goods and any Products will pass immediately to the
Customer when they leave the physical possession or control of the
Supplier.
4.2 Risk in the Hire Goods will not pass back to the Supplier from the
Customer until the Hire Goods are back in the physical possession
of the Supplier. This shall apply even if the Supplier has agreed to
cease charging the Rental.
4.3 Ownership of the Hire Goods remains at all times with the Supplier. The
Customer has no right, title or interest in the Hire Goods except that
they are hired to the Customer. Ownership of any Products remains
with the Supplier until all monies payable to the Supplier by the
Customer for the Products have been paid in full.
4.4 The Customer must not deal with the ownership or any interest in the
Hire Goods. This includes but is not limited to selling, assigning,
mortgaging, pledging, charging, securing, hiring, withholding, exerting
any right to withhold, disposing of an/or lending. However the Customer
may re-hire the Hire Goods 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 Hire Goods at additional cost to the Rental. Alternatively the
Supplier may require the Customer to insure the Hire Goods on such
reasonable terms and for such reasonable risks as the Supplier may
specify. The proceeds of any such insurance shall be held by the
Customer in trust for the Supplier and be paid to the Supplier on
demand. The Customer must not compromise any claim in respect of
the Hire Goods and/or any associated insurance without the supplier’s
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DELIVERY, COLLECTION AND SERVICES
5.1 It is the responsibility of the Customer to collect the Hire Goods from
the Supplier and return them to the Supplier at the end of the Hire
Period. If the Supplier agrees to deliver or collect the Hire Goods to
and/or from the Customer it will do so at its standard delivery cost and
such delivery and/or collection will form part of the Services.
5.2 Where the Supplier provides Services the 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 negligent.
5.3 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 power supplies and 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.
5.4 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 Supplier’s additional standard charges from time
to time for such delay, postponement and/or cancellation except where
the Customer is acting as a consumer and the delay is due to a Force
Majeure event.
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CARE OF HIRE GOODS
6.1 The Customer shall:-
6.1.1 not remove any labels from and/or interfere with the Hire Goods, their
working mechanisms or any other parts of them and take reasonable
care of the Hire Goods and only use them for their proper purpose
in a safe and correct manner in accordance with any operating and/or
safety instructions provided or supplied to the Customer;
6.1.2 notify the Supplier immediately after any breakdown, loss and/or
damage to the Hire Goods;
6.1.3 take adequate and proper measures to protect the Hire Goods from
theft, damage and/or other risks;
6.1.4 notify the Supplier of any change of its address and upon the Supplier’s
request provide details of the location of the Hire Goods;
6.1.5 permit the Supplier at all reasonable times to inspect the Hire Goods
including procuring access to any property where the Hire Goods are
situated;
6.1.6 keep the Hire Goods at all times in its possession and control and not
to remove the Hire Goods from the United Kingdom without the prior
written consent of the Supplier;
6.1.7 be responsible for the conduct and cost of any testing, examinations
and/or checks in relation to the Hire Goods required by any legislation,
best practice and/or operating instructions except to the extent that the
Supplier has agreed to provide them as part of any Services;
6.1.8 not do or omit to do any thing which will or may be deemed to invalidate
any policy of insurance related to the Hire Goods which is notified to the
Customer;
6.1.9 not continue to use Hire Goods where they have been damaged and
will notify the Supplier immediately if the Hire Goods are involved in an
accident resulting in damage to the Hire Goods, other property and/or
injury to any person; and
6.1.10 where the Hire Goods require fuel, oil and/or electricity ensure that the
proper type and/or voltage is used and that, where appropriate, the Hire
Goods are properly installed by a qualified and competent person.
6.2 The Hire Goods must be returned by the Customer in good working
order and condition (fair wear and tear excepted) and in a clean
condition together with all insurance policies, licences, registration and
other documents relating to the Hire Goods.
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BREAKDOWN
7.1 Allowance will be made in relation to the Rental to the Customer for any
non-use of the Hire Goods due to breakdown caused by the
development of an inherent fault and/or fair wear and tear on condition
that the Customer informs the Supplier as soon as practicable of the
breakdown.
7.2 The Customer shall be responsible for all expenses, loss (including loss
of Rental) and/or damage suffered by the Supplier arising from any
breakdown of the Hire Goods due to the Customer’s negligence,
misdirection and/or misuse of the Hire Goods.
7.3 The Supplier will at its own cost carry out all routine maintenance and
repairs to the Hire Goods during the Hire Period and all repairs which
are required due to fair wear and tear and/or an inherent fault in the Hire
Goods. The Customer will be responsible for the cost of all repairs
necessary to Hire Goods during the Hire Period which arise otherwise
than as a result of fair wear and tear, an inherent fault and/ore 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.
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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 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.
8.2 The Customer will pay to the Supplier the replacement cost of any
Hire Goods which are lost, stolen and/or damaged beyond economic
repair during the Hire Period less the amount paid to the Supplier under
any policy of insurance taken out in accordance with these conditions.
8.3 The Customer shall pay the Rental for the Hire Goods up to and
including the date it notifies the Supplier that the Hire Goods have been
lost, stolen and/or damaged beyond economic repair. From that date
until the Supplier has replaced such Hire Goods the Customer shall
pay, as a genuine pre-estimate of lost rental profit, a sum as liquidated
damages being equal to two thirds of the Rental that would have applied
for such Hire Goods for that period. The Supplier shall use its
reasonable commercial endeavours to purchase replacements for
such Hire Goods as quickly as possible using the monies paid under
clause 8.2 above.
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TERMINATION BY NOTICE
9.1 If the Hire Period has a fixed duration, subject to the provisions of
Section 10 neither the Customer nor the Supplier shall be entitled to
terminate the Contract before the expiry of that fixed period unless
agreed with the other party.
9.2 If the Hire Period does not have a fixed duration either of the Customer
or the Supplier is entitled to terminate the Contract upon giving to the
other party any agreed period of notice.
9.3 If no period of notice has been agreed or specified the Customer may
terminate the Hire Period by the physical return of the Hire Goods to
the Supplier and the Supplier shall be entitled to terminate the hire of
the Hire Goods by giving not less than 14 days’ notice to the Customer.
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DEFAULT
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 ceases or threatens to cease to carry on business, 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 diligence, execution or other legal process is
levied on any property of the Customer, has a Petition for Sequestration
presented against it or the Customer takes or suffers any similar action
in any jurisdiction;
10.1.6 being a company, enters into voluntary or compulsory liquidation, has
a receiver, administrator or administrative receive appointed over all or
any of its assets, any arrestment is made against the customer, any
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
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
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 10.2 below.
10.2 If any of the events set out in clause 10.1 above occurs in relation to the
Customer 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 owned by the
Supplier may be and repossess any Hire Goods;
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 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.
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.
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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
has 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 right of subrogation they may have against
the Supplier.
11.8 The Supplier shall have no Liability to the Customer for any:-
11.8.1 *consequential losses (including loss of profits and/or damage to
goodwill);
11.8.2 economic and/or 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 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 the Contract shall be
deemed to be repeated and apply as a separate provision for each of:
11.10.1 Liability for breach of contract.
11.10.2 *Liability in 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
the said types of Liability.
11.11 Nothing in this Contract shall exclude or limit the Liability of the Supplier
for 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.
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GENERAL
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 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. 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 Scots law and the parties agree to
submit to the non-exclusive jurisdiction of the Scottish courts
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