T&C for plant hire with operators

VGC Group terms and conditions for plant hire with operators

Introduction

These terms and conditions apply to any order issued by VG Clements (Contractors) Ltd, VG Clements Ltd or VGC Construction Ltd, hereafter referred to as ‘VGC’.

1 Interpretation

In these terms and conditions the following expressions shall have the meanings shown:

‘conditions’ – the terms and conditions of hire set out herein which shall supersede any previous agreement between the company and the supplier in relation to the matters dealt with in the contract;
‘contract’ – the order and the conditions, any documents which are attached or referred to in the order or documents and any quality programme of the supplier;
‘documents’ – plans, photographs, models, patterns, samples, specifications, data and technical information and any other documents relating to the plant and operators whether written, oral or three-dimensional;
‘order’ – the company’s order including all related documents.

2 Basis of hire

2.1 The order constitutes an offer by VGC (the company) to hire the plant and ancillary equipment (plant) and employees, agents, staff, sub-contractors or other personnel of the supplier to operate the plant (operators) both as specified on the company’s order from the person, firm or company to whom the order is addressed (the supplier) for the hire period as specified on the company’s order, subject to the terms of the contract.

2.2 The conditions shall govern and be incorporated in the contract to the exclusion of any other express or implied terms and conditions on which any quotation has been given to the company or subject to which the order is accepted or purported to be accepted by the supplier, and any similar provision in the supplier’s terms and conditions shall be of no effect.

2.3 The contract may only be modified in writing signed on behalf of the company by an authorised person and no other action on the part of the company, whether by accepting the plant and /or operator hire or otherwise, shall be a variation of the contract.

3 Ordering procedure and orders

3.1 Any forecast of the company’s likely requirements, dates or frequency of plant or operator hire shall not be binding.

3.2 No order shall be binding on the company unless and until it has been accepted in writing by the supplier and bears the company’s order reference number. This order shall be automatically withdrawn if the supplier has not accepted it within 30 days of the date shown on the company’s order.

3.3 The supplier shall immediately inform the company if the supplier knows or believes that any plant or operator is not available, or is not likely to be available during all the hire period as specified on the company’s order. If the plant or operator required is not available the company shall be entitled to cancel any order placed without liability and without prejudice to any other right or remedy.

3.4 The supplier shall quote the company’s order reference number on all despatch or consignment notes, advice notes, invoices and any other documentation related to the contract.

4 Deliveries

4.1 All plant and operators shall be delivered to the premises at the date and time all as stated on the company’s order unless different details are notified to the supplier and time shall be of the essence in respect of the supplier’s obligations. The price (as defined in condition 6) shall include delivery, carriage, dismantling and assembly costs as necessary and insurance to the address stated on the order or otherwise notified to the supplier.

4.2 The plant shall be at the risk of the party noted on the company’s order from the time the company signs a delivery note in respect of it until the plant is made available for collection by the supplier and the party at whose risk the plant is held shall insure the plant to its full replacement value during such period. As between the company and the supplier, the plant shall be at the supplier’s risk at all times. The company accepts no responsibility for plant delivered outside the arranged times.

4.3 Each item of plant ordered by the company shall be delivered by the due date stipulated by the company and time shall be of the essence as regards delivery. If any order is only partially fulfilled by the agreed date, then the company reserves the right, without prejudice to any other remedy, either to accept or reject the plant delivered and, in either case, to cancel the order in respect of the plant that has not been delivered on time and to apportion the price accordingly.

4.3 All plant and operators delivered must be accompanied by a despatch or consignment note quoting the order reference number. A duplicate must be sent to the company’s address set out in the order at the same time the plant and/or operators are delivered. Any indication by the company on delivery that a consignment accords with the consignment note shall not indicate that the company has accepted the plant or the operators.

4.4 If the plant or operators are to be delivered by instalments, the contract will be treated as a single contract and not severable.

4.5 The company shall be entitled to reject without charge any plant or operators not in accordance with the contract.

4.6 The supplier shall provide the plant and operators in accordance with the contract.

5 The plant, operators, liability and indemnity

5.1 The supplier shall:

(i) ensure that the operators possess all necessary qualifications, licenses, permits, protective clothing and equipment in order to operate the plant safely and in accordance with all legal requirements and good industry practice

(ii) comply with and procure that the operators comply with all instructions given by the company’s representatives from time to time and with the company’s drugs and alcohol policy

(iii) advise the company if any plant requires the company to take any special step or make any special provision in order for it to comply with any statutory requirements

(iv) replace any operator or item of plant within 24 hours of a request to do so by the company provided that the company shall not request such replacement vexatiously and in the event of a failure to do so, the company may at the supplier’s cost obtain replacement plant or operators from elsewhere, and

(v) provide all information necessary to ensure that the plant can be operated and used in a safe manner, to include without limitation a risk assessment, the manufacturer’s recommended application, symptoms associated with effects of over-use and hazard data sheets, all at regular intervals and when reasonably requested to do so by the company.

5.2 The supplier shall ensure that the plant shall:

(i) correspond as to description, specifications, quality, quantity and condition with the contract

(ii) conform with any sample, specification, pattern, drawing or design approved or supplied by the company

(ii) be capable of and meet any standard of inspection or performance specified in the contract or the main contract

iii) be of satisfactory quality and free from defects in design, materials and workmanship

(iv) be at all times safe to operate when properly used by the company in a good state of repair and suitable for the express and implied purposes and/or tasks for which it is supplied

(v) at all times conform with all relevant statutory, regulatory and legal requirements (including but not limited to all applicable safety and handling legislation) and any relevant British standards and codes of practice

(vi) be inspected and serviced at times convenient to the company in a proper and workmanlike manner and in accordance with the instructions of the manufacturer

(vii) be fully compatible with any goods, material and equipment to which the company proposes to use with such plant

and

(viii) be to the reasonable satisfaction of the company and/or any person appointed in connection with the main contract.

5.3 The supplier shall

(i) When required by the company, provide all test certificates, logs and service schedules in respect of the plant and

(ii) In respect of hire of cranes and compressors, provide the latest copy of the test certificate or inspection report to the company at the premises specified on the company’s order, copied to the company’s head office prior to delivery.

5.4 The supplier shall account to the operators and the appropriate authorities for all the employment costs of the operators including, but not limited to salary, national insurance contributions, income tax, sick pay, holiday entitlement and other employee benefits.

5.5 The supplier shall be responsible for the acts and omissions of the operators for the duration of the contract and shall take out and maintain appropriate liability insurance to cover such acts and omissions (a copy of such insurance policy to be available to the company on request). The company’s liability to the supplier shall be limited to the level of the company’s insurance cover.

5.6 The supplier will indemnify and keep indemnified the company on demand against all claims, loss, costs, damage and expenses which it incurs or which are brought against the company directly or indirectly as a result of or arising in connection with

(a) the operators or plant not being delivered in accordance with and/or not being or performing in accordance with the contract including but not limited to any sums paid under any contract under which the company is engaged to execute or procure plant and/or works and/or any specifications, conditions of contract and documents of a similar nature prepared for any such plant and/or works (‘main contract’) which main contract may be inspected on reasonable notice at the address specified on the company’s order subject to the company’s right to withhold details of prices or any other confidential information and the supplier shall be deemed to have read and understood the main contract and the company’s obligations under the main contract

(b) any employment costs of the operators

(c) loss of or damage to the information (as defined in condition 10) which is at any time in the supplier’s possession or control.

6 Price

6.1 The hire charges for the plant and operators shall be as stated on the company’s order (the “price”) and, unless otherwise stated shall be

(i) exclusive of any applicable vat (which shall be payable by the company subject to receipt of a vat invoice); and

(ii) inclusive of all charges for packaging, delivery, collection, loading, unloading, carriage, insurance, all duties, taxes or levies (except vat), dismantling and assembly required by the company.

6.2 The company shall be entitled to the benefit of any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the supplier, whether or not shown on its own terms and conditions of sale.

7 Payment

7.1 The supplier may invoice the company with the price either pro rata in arrears on the last day of each calendar month or at the end of the hire period as stated on the company’s order and each invoice shall quote the order reference number accompanied by a full detailed statement of the plant and operators and period of hire to which the same relates.

7.2 The company shall pay the price of the hire within the time as stated on the company’s order.

7.3 The company shall be entitled to set off against the price of the hire any sums owed to the company by the supplier.

8 Termination

8.1 The company shall be entitled to cancel the contract in respect of all or part of the order by giving written notice to the supplier at any time. If the company exercises this right of termination, the company’s sole liability shall be to pay the supplier the reasonable direct costs incurred in connection with the cancellation of the order and the company shall not be liable to the supplier for any loss of profit, business, contracts or revenues whether directly or indirectly arising from such termination.

8.2 The company shall have the right at any time by giving notice in writing to the supplier to terminate the contract in full or part if:

(a) the supplier commits a material breach of any of the terms and conditions of the contract and in the case of a breach which is capable of remedy, fails to remedy the same within 30 days of a request to do so by the company or

(b) the requirements of the main contract are varied or reduced such that the company’s requirement for the contract is removed or becomes fundamentally different or if the main contract is terminated, or

(d) the supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the supplier or notice of intention to appoint an administrator is given by the supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the supplier or for the granting of an administration order in respect of the supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the supplier, or

(e) the supplier ceases or threatens to cease to carry on its business, or

(f) the financial position of the supplier deteriorates to such an extent that in the opinion of the company the capability of the supplier adequately to fulfil its obligations under the contract has been placed in jeopardy.

The company shall be entitled to terminate all or part of the contract with immediate effect by written notice if

(a) the supplier becomes unable to pay its debts within the meaning of sections 123 or 268 of the Insolvency Act 1986 (as amended or re-enacted) passes a resolution for winding-up or has a petition for a winding-up or administration order presented in relation to it, or has a receiver, liquidator or administrator appointed over all or any part of its property or makes a proposal for a voluntary arrangement with its creditors or if any event analogous to any listed in this condition 8.2(a) or if the company reasonably apprehends that any of the events listed in this condition 8.2(a) or similar thereto is about to occur in relation to the supplier or

(b) if the supplier commits a material breach of the contract or any other contract between the company and the supplier and in the case of a breach which is capable of remedy, fails to remedy the same within 30 days of a request to do so by the company

8 3 In the event of termination pursuant to condition 8.2, the company shall not be liable to the supplier for any costs or damages as a result of such termination. If part only of the contract is terminated, there shall be a pro rata reduction in the price.

8.4 The termination of the contract, however arising, shall be without prejudice to the rights and duties of the company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

9 Progress, inspection and testing

9.1 The representative(s) of the company shall at all reasonable times be granted access to the premises of the supplier for the purpose of inspecting the plant and (where possible) witnessing or carrying out tests. Such representative shall have no authority to accept the plant and any inspection shall not be an acceptance of the plant. The exercise by the company of its rights hereunder shall not absolve the supplier from its obligations under the contract.

10 Ownership of property

10.1 During the term of the contract and after termination, except as required by law or by any relevant national or supranational regulatory authority, or to the extent that information has come into the public domain through no fault of the supplier, the supplier shall treat as strictly confidential all information and intellectual property rights provided by the company to the supplier (‘information’).

11 General

11.1 Any notice given under the contract shall be in writing addressed to the other party at its registered office, principal place of business or other address as may at the relevant time be notified.

11.2 No waiver by the company of any breach of the contract by the supplier shall be considered as a waiver of any subsequent breach or any other provision.

11.3 The supplier shall not assign, hold on trust or sub-contract any part of the contract.

11.4 If any provision of these conditions is held to be invalid or unenforceable in whole or in part, the validity of the other provisions of the contract shall not be affected.

11.5 If any dispute between the company and the supplier cannot be resolved amicably, at the company’s option, the matter shall be referred to r adjudication in accordance with version 1.3 of the tecsa rules for adjudication as such rules may be amended from time to time. If any dispute arises under the contract concerning the same or substantially the same facts and matters as any dispute between the company and any other person which has been referred to adjudication pursuant to section 108 of the housing grants construction and regeneration act 1996, the company and the supplier agree that such dispute may be dealt within the same adjudication proceedings.

11.6 Neither party shall be liable to the other for any default under the contract caused by war, fire, flood, riot, drought, governmental action or act of God or any other event beyond the reasonable control of the defaulting party (‘force majeure event’). The supplier shall immediately inform the company of the existence of any force majeure event. Where a force majeure event subsists for a period of 10 days or more, the company shall be entitled to cancel the contract (or any part of it) without liability and without prejudice to its other rights and obligations.

11.7 The supplier shall not without the prior written permission of the company advertise or announce that it supplies plant to the company and shall discontinue any advertisement or announcement on demand.

11.8 The supplier will at all times insure and keep itself insured with a reputable insurance company in respect of all liability which it may incur to the company under the contract and in connection with the plant and operators and shall produce on request by the company the policy of such insurance and the premium receipts.

11.9 The supplier shall at all times comply with the VGC Group code of business ethics.

11.10 The contract shall be governed by and construed in accordance with the laws of England and subject to the provisions of condition 11.5 the parties submit to the exclusive jurisdiction of the English courts.

11.11 Unless expressly provided, no express term of the contract or any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

11.12 If there is any conflict between the provisions of the documents comprising the contract, the following shall prevail, in descending order of priority

(i) the company’s order

(ii) the documents

(iii) the conditions.

11.13 All rights and obligations of the parties shall cease to have effect on termination of the contract except where otherwise stated and provided that terminations shall not affect any accrued rights, remedies and obligations of the parties at the date of termination.

11.14 These conditions may be updated or modified by the company from time to time by notification to the supplier in writing signed by an authorised person.