Supply Terms & Conditions referred to in the foregoing Purchase Order
PLEASE CONSIDER BEFORE CONTRACTING: The Supplier confirms by counter-signing the Purchase Order that it has (or failing such counter-signature by the Supplier commencing the Order then the Supplier shall be deemed to have) (i) accepted that any and all exclusion and limitations set out herein are to form part, and be fair and reasonable in the circumstances of the Supply Agreement; and (ii) read, understood and accepted these Terms and Conditions.
1.1 Defined Terms
In construing this Agreement, the following expressions shall have the following meanings except where the context otherwise requires.
Applicable Law: shall be the law of Scotland.
RJM: R.J. McLeod (Contractors) Limited, incorporated under the Companies Act with Registered Number SC028565 and Registered Office at 2411 London Road, Glasgow, G32 8XT.
Business Day(s): a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
Delivery: completion of delivery of an Order in accordance with clause 5.2.
Delivery Date(s): the date(s) specified for delivery/deliveries of an Order in accordance with clause 3.(c) and set out in the Order.
Delivery Location: the location specified for delivery of an Order in accordance with clause 3.(c) and set out in the Order.
Good Industry Practice: means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected of a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances and conditions.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Main Contract: is the contract entered into between RJM and the employer stated therein for the carrying out and completion of the Main Contract Works.
Main Contract Delay Damages: the amount payable by RJM under the Main Contract in the event that RJM fails to complete the Main Contract Works in accordance with the terms of the Main Contract, if such a Main Contract is specified within the Order.
Main Contract Works: the design and construction of the works as more particularly described within the Main Contract.
Month: a calendar month.
Order: an order for Products submitted by RJM in accordance with clause 3..
Order Number: the order reference number to be applied to an Order by RJM in accordance with clause 3.3.
Products: the products and/or materials set out in the Order supplied and/or manufactured in accordance with the Specification, and, where the context requires, the Products ordered by and supplied to RJM in accordance with the terms of the Supply Agreement.
Product Prices: are those prices for the Products specified within the Order.
Specification: the technical specification of the Products as set out in or referred to within the Order.
Supply Agreement: the supply agreement between the Supplier and RJM comprising the Order, the Specification and any other documents referred to within the Order and these terms and conditions.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
1.2 Interpretation
(a) Any clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
(b) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(c) A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(d) Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
(e) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
(f) A reference to any party shall include that party’s personal representatives, successors and permitted assignees.
(g) A reference to a statute or statutory provision is a reference to it as is in force as at the date of this Agreement.
(h) A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
(i) A reference to writing or written includes fax and email.
(j) Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
2.1 The Supplier shall supply, and RJM shall purchase, such quantities of Products as RJM may order under clause 3 in accordance with the terms and conditions of the Supply Agreement.
3.1 RJM shall issue the Supplier its Order and the Supplier shall supply the Products subject to and in accordance with the requirements specified by RJM within such Order.
3.2 Each Order shall:
(a) be given in writing or, if given orally, shall be confirmed in writing within five Business Days;
(b) specify the type and quantity of Products ordered; and
(c) specify the date by which the Order is to be delivered (Delivery Date(s)), and the delivery location (Delivery Location).
3.3 RJM shall assign an Order Number to each Order to be supplied by the Supplier and notify such Order Numbers to the Supplier. Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.
3.4 RJM may at any time prior to despatch of the Products amend or cancel an Order by written notice to the Supplier. If RJM amends or cancels an Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably and properly incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation pursuant to this clause 3.4, except that where the amendment or cancellation results from the Supplier’s failure to comply with its obligations under this Supply Agreement, in which case RJM shall have no liability to the Supplier in respect of any direct or indirect costs incurred by the Supplier.
4.1 The Supplier shall manufacture, pack and supply the Products in accordance with Good Industry Practice and shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition.
4.2 The Products supplied to RJM by the Supplier under this Supply Agreement shall:
(a) conform to the Specification or be as otherwise described in the Order;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier and/or made known to the Supplier by RJM;
(c) be free from defects in design, material and workmanship and remain so for a period beginning on Delivery and remaining so for a period of no less than 12 years or such longer period as stated in the Specification from either (i) the date of practical completion of the Main Contract works where applicable or (ii) where there is no Main Contract, the final Delivery Date of the Products; and
(d) comply with all Applicable Law.
4.3 The Supplier shall obtain and maintain all licences, permissions, authorisations, consents and permits required under Applicable Law to manufacture and supply the Products in accordance with the terms of this Agreement and shall comply with all Applicable Laws relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the Products.
4.4 RJM shall have the right, on providing reasonable notice to the Supplier, to enter the Supplier’s premises during business hours to:
(a) inspect the manufacturing facilities and the equipment used by the Supplier in the manufacture of the Products;
(b) inspect and take samples of the raw materials, the packaging and the Products; and
(c) inspect stock levels of Products.
4.5 If, following an inspection pursuant to clause 4.4, RJM considers that the Products are not or are not likely to comply with clause 4.2, RJM shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure that the Products are in compliance with, or will comply with, clause 4.2.
4.6 For the avoidance of doubt, the number of inspections permitted under clause 4.4 shall not be restricted and RJM shall have the right to re-conduct inspections and take further samples following any remedial actions taken by the Supplier to ensure that the Products comply with clause 4.2.
4.7 The Supplier shall remain liable for any latent defects which may become apparent in the Products, provided written notice of such is given to the Supplier notwithstanding acceptance by RJM of the Products in accordance with clause 6.1 hereof.
5.1 The Supplier shall deliver the Order to the Delivery Location by the Delivery Date(s). The Supplier shall deliver the Order in accordance with the reasonable instructions of RJM.
5.2 Unless otherwise advised by RJM the Supplier shall be responsible for unloading the Order. Delivery of the Order shall be complete on the completion of unloading of the Order by the Supplier or, if RJM has agreed to unload by RJM, at the Delivery Location.
5.3 The Supplier shall not deliver Orders by instalments except with the prior written consent of RJM. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in this Agreement to Orders shall, where applicable, be read as references to instalments.
5.4 If an Order is not delivered on the specified Delivery Date(s), then, without limiting any other right or remedy RJM may have against the Supplier under statute, common law or otherwise, RJM may:
(a) refuse to take any subsequent attempted delivery of the Order;
(b) terminate the Supply Agreement with immediate effect;
(c) obtain substitute products from another supplier and recover from the Supplier any costs, losses, damages and expenses reasonably incurred by RJM in obtaining such substitute products;
(d) claim damages for delay. Where there is a Main Contract, the delay damages payable by the Supplier under this Supply Agreement will be such proportion of the Main Contract Delay Damages as, in the reasonable opinion of RJM, is fair and reasonable in the circumstances, as a direct consequence of the Supplier’s failure to deliver the Products by the Delivery Date(s); and/or
(e) claim damages for any other costs, expenses or losses resulting either directly or indirectly from the Supplier’s failure to deliver the Order on the Delivery Date(s);
5.5 Each Order shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Products included in the Order, and, in the case of an Order for a specific quantity of goods being delivered by instalments, the outstanding balance of Products remaining to be delivered.
6.1 RJM shall not be deemed to have accepted any Products until it has had a reasonable time to inspect them following Delivery, or, in the case of a latent defect in the Products, until a reasonable time after the latent defect has become apparent.
6.2 In the event that any Products delivered to RJM:
(a) do not comply with clause 4.2; and/or
(b) fail to conform with any other terms of this Supply Agreement;
then, without limiting any other right or remedy that RJM may have, RJM may reject those Products and:
(c) require the Supplier to repair or replace the rejected Products at the Supplier’s risk and expense within five Business Days of being requested to do so or such longer period as RJM may stipulate acting reasonably; or
(d) require the Supplier to repay the price of the rejected Products in full (whether or not RJM has previously required the Supplier to repair or replace the rejected Products); and
claim damages for any other costs, expenses or losses resulting or arising either directly or indirectly from the Supplier’s delivery of Products that are not in conformity with the terms of this Supply Agreement.
6.3 RJM’s rights and remedies under clause 6. are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this Agreement by the Sale of Goods Act 1979.
6.4 The terms of this Agreement shall apply to any repaired or replacement Products supplied by the Supplier pursuant to this clause 6.
6.5 If the Supplier fails to promptly repair or replace rejected Products in accordance with clause 6.3 RJM may, without affecting its rights under clause 6 obtain substitute products from a third party supplier, or have the rejected Products repaired by a third party, and the Supplier shall reimburse RJM for all costs, losses and expense incurred in doing so.
7.1 Title to Products delivered to RJM shall pass to RJM on the earlier of payment or Delivery, notwithstanding that the Products may not yet have been accepted by RJM in accordance with clause 6.1.
8.1 The Product Prices are exclusive of amounts in respect of VAT. RJM shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on a supply of Products.
8.2 The Product Prices are inclusive of the costs of packaging, insurance and carriage of the Products.
9.1 The Supplier shall invoice RJM for each Order within 28 Business Days of Delivery of the Products or pro rata for part thereof. Each invoice shall contain the following information:
(a) relevant Order Number(s);
(b) amount of Products ordered;
(c) amount of Products delivered;
(d) Product Price;
(e) Copy of delivery docket;
(f) Date of Delivery to Site;
(g) Invoice date;
(h) total amount due (exclusive of VAT); and
(i) VAT payable.
9.2 Subject to any dispute pursuant to clause 9.4, RJM shall pay invoices in full within 30 Business Days of receipt unless alternative payment terms have been specified in an Order. Payment shall be made to the bank account nominated in writing by the Supplier.
9.3 If either party fails to make any payment due to the other under the Supply Agreement by the due date for payment, then, without limiting the other party’s remedies under clause 13.1, the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The defaulting party shall pay the interest together with the overdue amount. In relation to payments disputed in good faith and in accordance with the terms of the Supply Agreement, interest under this clause is payable only after the dispute is resolved in accordance with the terms of the Supply Agreement, on sums found or agreed to be due, from the due date until payment.
9.4 If RJM disputes any invoice or other statement of monies due, RJM shall as soon as reasonably practicable, but in the event of an invoice, no later than 21 Business Days following the date on which the relevant invoice was submitted, notify the Supplier in writing of the reason for the dispute and the amount it considers due (if any). The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 30 days of RJM giving notice to the Supplier, the dispute shall be resolved in accordance with clause 15.. The Supplier’s obligations to supply the Products shall not be affected by any payment dispute.
9.5 RJM may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the Supplier against any amounts payable by it to the Supplier, whether under this Supply Agreement or otherwise.
9.6 In the event that the Supply Agreement is terminated in accordance with clause 5.4 (b) or clause 14, all payments payable to the Supplier or RJM under the Supply Agreement shall be payable in accordance with clauses 9.1 to 9.5 hereof. This clause 9.6 is without prejudice to any right to claim for interest under the law or under the Supply Agreement.
10.1 From the date of the Supply Agreement until the final Delivery Date or, in respect of the Product Liability Insurance only, for a period of twelve years following the date on which the last Products are delivered, the Supplier shall maintain in force the following insurance policies with reputable insurance companies:
(a) Public Liability Insurance for not less than £10,000,000.00 for any one event; and
(b) Employers Liability Insurance for not less that £10,000,000.00 for any one event; and
(c) Product Liability Insurance for not less than £5,000,000.00 for each and every claim
10.2 On RJM’s written request, the Supplier shall provide RJM with copies of the insurance policy certificates and details of the cover provided.
10.3 The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under the Supply Agreement which they are contracted to fulfil.
10.4 The Supplier shall:
(a) do nothing to invalidate any insurance policy required pursuant to the Supply Agreement or to prejudice RJM’s entitlement under it; and
(b) notify RJM if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.
10.5 The Supplier’s liabilities under the Supply Agreement shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause 10.1.
10.6 If the Supplier fails or is unable to maintain insurance in accordance with clause 10.1, or fails to provide evidence that it has paid the current year’s premiums in accordance with clause 10.2, RJM may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.
11.1 The Supplier shall indemnify RJM against all claims, liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by RJM arising out of or in connection with any error, omission, default, shortcoming, delay or failure caused by, or arising out of, or in connection with the Supplier’s delivery of the Products, including but not limited to:
(a) any claim made against RJM for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply or use of the Products;
(b) any claim made against RJM by a third party arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by the Supplier, its employees, agents or subcontractors; and
(c) any claim made against RJM by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
11.2 If a payment due from the Supplier under this clause is subject to tax (whether by way of direct assessment or withholding at its source), RJM shall be entitled to receive from the Supplier such amounts as shall ensure that the net receipt, after tax, to RJM in respect of the payment is the same as it would have been were the payment not subject to tax.
12.1 The Supplier shall not assign, transfer, mortgage, charge, subcontract, or deal in any other manner with any or all of its rights and obligations under this Agreement without the prior written consent of RJM. RJM may assign, transfer, mortgage, charge, subcontract or deal in any other manner any or all of its rights and obligations under this Agreement without the prior written consent of the Supplier.
13.1 Without affecting any other right or remedy available to it, RJM may terminate this Agreement with immediate effect by giving written notice to the Supplier if:
(a) Without reasonable cause, the Supplier suspends performance of its obligations under the Supply Agreement;
(b) The Supplier fails to proceed regularly and diligently with the performance of its obligations under the Supply Agreement.
(c) the Supplier commits a material breach of any term of the Supply Agreement which breach is irremediable or and (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(d) the Supplier repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify, in the opinion of RJM, that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Supply Agreement;
(e) the Supplier is insolvent, including where the Supplier has a winding up order or bankruptcy order made against him or he has appointed to him an administrator or administrative receiver.
For the purposes of these terms and conditions, “insolvent” shall have the same meaning as in Section 113 of the Housing Grants, Construction and Regeneration Act 1996 (as amended and updated).as well as any similar or equivalent process as those listed in the definition under any jurisdiction
14.1 On termination of the Supply Agreement the following clauses shall survive and continue in full force and effect:
(a) Clause 10. (Insurance);
(b) Clause 11. (Indemnity);
(c) Clause 6 (Dispute resolution); and
(d) Clause 22 (Governing law).
14.2 Termination of the Supply Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Supply Agreement which existed at or before the date of termination.
14.3 In the event that the Supplier is insolvent, no further sum will become due to the Supplier and RJM need not pay any sum that has already become due.
15.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition
15.2 Provided it has complied with clause 15.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Supply Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Supply Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 7 days from its start, notify the other party [in writing] of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Supply Agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than two weeks, the party not affected by the Force Majeure Event may terminate the Supply Agreement by giving one weeks ‘written notice to the Affected Party.
16.1 If a dispute arises out of or in connection with the Supply Agreement or the performance, validity or enforceability of it (Dispute) then the parties shall follow the procedure set out in this clause:
(a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Supplier and RJM shall attempt in good faith to resolve the Dispute;
(b) if the Supplier and RJM are for any reason unable to resolve the Dispute within 60 days of service of the Dispute Notice, the Courts stated in the Main Contract shall have exclusive jurisdiction over any dispute or difference between the Parties which arises out of or in connection with this Supply Agreement, if none is stated the Courts in the country in which the Supplier Supplies the Products,.
17.1 A waiver of any right or remedy under the Supply Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
17.2 A failure or delay by RJM to exercise any right or remedy provided under the Supply Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Supply Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.1 Any notice given to a party under or in connection with the Supply Agreement shall be given or served by any effective means and shall be deemed to be duly given or served if given by:
(a) Actual delivery or by pre-paid first-class post at its registered office (if a company) or its principal place of business (in any other case); or
(b) or sent by email to such address as may be agreed from time to time
18.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) If sent by email, on receipt of delivery receipt.
18.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19.1 The Supply Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party acknowledges that in entering into the Supply Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Supply Agreement and/or the documents referred to as forming part of the Supply Agreement.
19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Supply Agreement.
19.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of the Supply Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).
If any provision or part-provision of the Supply Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Supply Agreement.
This Supply Agreement is made in accordance with the law of Scotland.
23.1 This Agreement is made pursuant to the Main Contract, where so stated in the Order.
23.2 The Seller is deemed to have full knowledge of all the terms and conditions in the Main Contract which are available for inspection at the premises of R.J. McLeod (Contractors) Limited.
Save to the extent expressly provided in these Terms and Conditions, this Supply Agreement does not confer on any person other than the parties or their permitted assignees or successors any right to enforce or otherwise invoke any term of this Supply Agreement under the Contract (Third Party Rights) (Scotland) Act 2017.
All Purchase Orders issued by the Hirer that incorporate the Construction Plant-hire Association Model Conditions for the Hiring of Plant (with effect from October 2021) (“CPA terms”) are subject to the following amendments which shall be deemed to be incorporated into and, where relevant, amend the CPA Terms (together the Conditions). For the avoidance of doubt, in the event of conflict, the terms of these amendments shall take precedence over the CPA Terms:
INSERT at the end of the definition of “Offer” and before the full stop the following sentence:
“All references in these terms and conditions to an “Offer” shall be deemed to be references to a “Purchase Order” issued by the Hirer.”
On line 5 DELETE “Hirer” and replace with “Owner” and on line 8 DELETE “signed by the Owner” and replace with “signed by the Hirer”
On line 11 INSERT “or the Hirer” after “the Owner”
Rename as “Delivery of Plant”
DELETE “Acceptance” and replace with “Delivery”
INSERT after “terms and conditions” the following: “as amended”
Re-number as (a) and INSERT new paragraph (b) as follows:
“(b) The Owner shall ensure that the Plant delivered shall be in good working condition and complies with any specifications that have been advised by the Hirer and/or confirmed by the Owner. Notwithstanding that the Hirer may agree to pay delivery charges, the Hirer shall have no responsibility in relation to the Plant when the Plant is being transferred to and/or from the site”
DELETE in line 3 from “and any personnel” to the end of the clause and replace with the following sentence:
“The Hirer shall have no liability for any loss and damage arising out of and/or in connection with any default, omission, or failure of the Owner, the Owner’s personnel or any other party engaged by the Owner in connection with the loading/unloading of the plant at the site.”
In paragraph (a) DELETE “24 hours” and replace with “5 Working Days”.
In paragraph (a) DELETE “commencement of the Hire” and replace with “delivery of the Plant to the site”
In paragraph (b) DELETE “solely”
In paragraph (b) DELETE “whether directly or indirectly arising” and replace with “to the extent this arises directly”
INSERT new paragraph (d) as follows:
“(d) If the Hirer notifies the Owner of a fault in the Plant, the Owner shall either rectify the fault immediately or provide a replacement Plant”
DELETE in line 3 from “The Owner” until the end of the clause and replace with the following:
“The Owner shall, at its own cost during the Hire Period, maintain the Plant in good, safe and operating condition and in strictly in accordance with the Plant manufacturer’s recommendations (and at recommended service intervals)”.
In paragraph (a) INSERT at the end the following:
“provided that the Hirer shall be entitled to rely on the information provided by the Owner relating to the Plant and shall not be responsible to the extent that such information is inaccurate.”
DELETE paragraph (a) and replace with the following:
“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 the Owner shall procure that the person compiles with the instructions of the Hirer.
In paragraph (a) DELETE the second sentence.
DELETE paragraph (b) and replace with the following:
“Where the fault has been notified to the Owner and the Plant is not operating at its normal capacity the Hirer shall be entitled to deduct sums from the charges due to the Owner to recompense the Hirer for the reduction in capacity”
In paragraph (c) DELETE the second sentence and replace with the following:
“The Owner shall be responsible for the cost of replacement of any part required due to wear and tear (including without limitation the changing or repair of any tyre/puncture).”
DELETE paragraph (d) and replace with the following:
“(d) The Hirer shall be responsible for expenses arising from any breakdown or the unsatisfactory working of the plant due to the negligence, misdirection or misuse of the Plant by the Hirer.”
DELETE and INSERT “Not used”.
DELETE and replace with the following:
“The Hirer’s total liability to the Owner shall not exceed the total of the hire charge under the Contract, unless and to the extent caused directly by the negligent actions of the Hirer or breach of the Contract by the Hirer in which case the Hirer’s total liability to the Owner shall not exceed the lower of the cost of repair or replacement of the plant in question”
DELETE and replace with the following:
“13(a) The Owner shall fully and completely indemnify the Hirer against any and all liability, loss, damage, claims, costs, fines and expenses whatsoever which we may incur in respect of (a) physical injury to any person or loss of or damage to any property or any other loss or damage arising out of or connected with any defect whatsoever in the plant supplied to the Hirer by the Owner, or otherwise flowing from any breach by the Owner of any statutory or other legal duty or caused directly, irrespective of whether or not by negligence, by the acts or omissions of the servants, agents or contractors of the Owner, and (b) any failure by the Owner to comply with his obligations as set out in these terms and conditions. For the avoidance of any doubt the indemnity provided by the Owner shall include liability for indirect, consequential or economic loss as incurred by the Hirer on their own part or for which they may be liable to a third party.
13(b) The Hirer is responsible for any damage caused to the Plant whilst it is on site to the extent that the Hirer can recover sums under an insurance policy, save to the extent this is due to the negligence, act or omission of the Owner or those for whom the Owner is responsible.”
DELETE the second sentence.
On line 7 DELETE “Owner” and replace with “Hirer”, and on line 9 DELETE “Hirer and replace with “Owner”.
DELETE from “If such termination” in line 9 to the end of the clause and replace with the following:
“If such termination occurs, the Owner shall remove the Plant from the site as soon as reasonable and the Owner shall be liable to the Hirer for all costs properly incurred by the Hirer as a result of such termination including additional hire charges and costs arising from the delays”
DELETE paragraph (b).
DELETE and INSERT “Not used”.
DELETE and replace with the following:
“The Hirer shall not be liable to pay the hire charges for any period during which the Plant is not operating or not operating properly due to a fault in the Plant. The Hirer may adjust the hire charge to reflect the period of inactivity and/or reduced use”
DELETE from “save that” in line 2 to the end of the clause.
DELETE and replace with the following:
“Unless otherwise agreed in writing, travelling time and/or expenses of operators provided/ supplied by the Owner shall be deemed to be included in the agreed hire rates for the Plant.”
In paragraph (b) insert after “with” the following: “by the Hirer and those for whom they are responsible”.
DELETE and replace with the following:
“The cost of transport of the Plant shall be as set out in the Purchase Order”
DELETE paragraph (b) and INSERT “Not used”.
In paragraph (a)(i) DELETE from “or such period” to “circumstances”
DELETE paragraph (a)(iii) and (v).
Re-number paragraph (b) as (c), (c) as (d) and (d) as (e).
INSERT new paragraph (b) as follows:
“The Hirer may terminate this Contract in whole or part with immediate effect by the service of written notice on the Owner if one or more of the following events occur:
(i) The Owner fails to observe and perform the terms and conditions of the Contract and fails to remedy such default within 10 working days of receiving written notice requiring it to do so;
(ii) If any Plant supplied to the Hirer on hire is in the Hirer’s opinion in any material way unsuitable for any purpose for which it is intended to be used; or
(iii) The Owner makes or proposes to make any arrangement with their 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.”
In paragraph (c) INSERT after “(a)” the following: “or (b)”
DELETE paragraph (c)(ii) and replace with the following:
“(c)(ii) The Owner shall remove the Plant from the Site forthwith.
(c)(iii) The Owner shall be liable and shall fully and completely indemnify the Hirer against any loss or expense incurred by Hirer as a result of termination of the Contract pursuant to this clause 34(b).”
In paragraph (d) DELETE “and (b)” and replace with “(b) and (c)”
In paragraph (d)(i) INSERT after “Owner” the following: “or the Hirer”.
DELETE paragraph (d)(ii).
INSERT new paragraph (f) as follows:
“The Hirer shall not be liable to the Owner for any costs, expenses, disbursements or losses (including indirect losses, consequential losses, loss of profits, loss of fees, loss of chance or other similar losses) arising out of lawful termination of this Contract.”
DELETE paragraph (a) and replace with the following:
“(a) The governing law of the Contract shall be the law of the country where the site is located and the courts of that country shall have jurisdiction.
DELETE and replace with the following:
“if payment is late the Owner is entitled to charge the Hirer interest at 3% over the Base Rate of the Bank of England.”