- (a) "the Owner” is Finning Power Rental LP.
- (b) The "Hirer" is the Company, firm or person taking the Owner's Equipment on hire and this expression includes its successors or personal representatives.
- (c) "Equipment" shall include any machine or part thereof, any attachments or fittings or replacements or any other item hired under the Agreement.
- (d) “Force Majeure Event” means any circumstance beyond the reasonable control of either party, whether affecting such party or its agents, subcontractors, or suppliers, including a strike, lockout, material shortage, utility outage, fire, flood, earthquake, severe weather, act of God, accident, trade sanction, embargo, act of war, national emergency, or new or changed law;
- (e) “Quotation” means the quotation supplied to the Hirer by the Owner in respect of the proposed hire of the Equipment.
- (f) "Regulations" means any act of parliament, order, regulation, bye-law or other similar instrument whether national or local, including any amendment thereto or re-enactment or replacement thereof.
- (g) "Hire Rate" shall be the rate of hire for the Equipment as provided in the Agreement.
- (h) “Hire Term” means the duration of the hire of the Equipment as stated in the Quotation.
- (f) "Week" means a period of seven (7) consecutive days.
- (g) "Site" means the site to which the Equipment is delivered on the Hirer's instructions.
- (h) The "Parties" are the Owner and the Hirer.
- (i) The “Agreement” means these General Terms and Conditions of Hire incorporating the Quotation.
- (a) The Hirer's written order for the supply of Equipment shall be construed as an expressed acceptance of these General Terms and Conditions of Hire, and so far as any provision of the Hirer's said order be inconsistent therewith, these General Terms and Conditions of Hire shall be deemed to prevail.
- (b) These General Terms and Conditions apply to every offer and every Agreement between the parties concerning the hire and supply of Equipment for which the Owner has stated these General Terms and Conditions are applicable, insofar as the parties have not agreed derogations to these General Terms and Conditions in writing.
- (c) Any variations to the Agreement shall be in writing.
- (d) The Hirer warrants to the Owner that no representations have been made to him concerning the Equipment and in particular concerning its suitability for any particular purpose or for work in any particular place and that in entering into the Agreement, the Hirer does not rely upon any such representation and has satisfied himself independently upon all such matters; and accordingly the Hirer shall seek no relief in respect of any such representation and in particular shall bring no proceedings for Misrepresentation whether under the Misrepresentation Act 1967 or otherwise.
3. COMMENCEMENT OF HIRE
- (a) Subject to the other provisions of the Agreement, the Owner shall supply the Equipment at the Site. The Hire Term shall start upon delivery of the Equipment.
- (b) Should the Owner for any reason whatsoever not be able to deliver the Equipment on the delivery date stated in the Quotation, the Owner assumes no liability for loss or damages arising from any delay.
- (c) Should the Hirer notify the Owner that it wishes to defer the delivery date stated in the Quotation, the Owner reserves the right to charge a fee equal to 10% of the weekly Hire Rate for each week or part week of delay. Where the Hirer defers delivery by more than 2 weeks the Owner in addition reserves the right to terminate the Agreement on written notice.
- (d) The Hirer shall not hold the Owner liable for any damage consequent upon the delay, excepting if the delayed delivery resulted from the Owner's wilful intent or negligence and the Owner failed to inform the Hirer of the delay as soon as reasonably possible.
- (e) Hire charges shall commence on delivery unless otherwise stated in the Agreement.
- (f) Responsibility for loss or damage to the Equipment is accepted by the Hirer from when the Equipment is delivered to the site until it is removed from the site by, or on the instructions of the Owner. This responsibility will also apply whilst the Equipment is on site during any period prior to the Commencement of Hire or after its termination whilst the Equipment is awaiting collection.
- (a) Unless otherwise agreed, the Equipment will be delivered with a full fuel tank and the Hirer shall return it at the end of the Hire Term with a full fuel tank. Where the Hirer fails to return the Equipment at the end of hire with a full fuel tank the Owner will charge the Hirer for any shortfall at the prevailing market rate on the day the Equipment is returned.
- (b) The Hirer shall be responsible for any damage to the Equipment caused by the use of unsuitable or contaminated fuel, save where such fuel was supplied by Owner.
5. MAINTENANCE AND REPAIR
- (a) The Hirer shall obtain and maintain all permits and licences required for the siting, possession, use, operation, maintenance, storage, installation, dismantling and servicing of the Equipment. The Owner shall be not liable if any authorisation for any permits or licensing is delayed, denied, revoked, restricted or not renewed, and the Hirer shall not be relieved of his obligations to pay the Hire Charges to the Owner.
- (b) The Owner shall ensure that at the commencement of the Hire Term, the Equipment shall be of sound construction, in good operating order and properly maintained.
The Equipment shall be deemed to have been delivered in good operating order, unless notification to the contrary is received from the Hirer in writing within 48 hours of commencement of the Hire Term. After that, any subsequent claim that the Equipment was not provided in good operating order will not be considered.
- (c) The Owner shall be liable for the normal wear and tear of the parts of the Equipment.
- (d) The Owner shall be liable for the maintenance, repairs and replacements that are required as a result of structural defects of the Equipment. The Owner reserves the right to replace the Equipment if it is necessary and shall not be liable for the consequences of the breakdown.
- (e) The Hirer shall be obliged to use the Equipment in accordance with its purpose and with due diligence and to comply strictly with any instructions, manufacturer's guidelines and directions for use given by or on behalf of the Owner. Any damages resulting from the Hirer's misuse of the Equipment will be repaired at the Hirer's expense.
- (f) It is the Hirer's responsibility to maintain strictest safety standards. This may require posting warning notices, cordoning of operations area and/or providing security personnel if there is any reasonable expectation that unauthorised persons, children, animals or other individuals may accidentally come into contact with engines or electrical Equipment during the Hire Term.
- (g) The Owner shall (save as hereinafter provided or otherwise agreed) carry out and provide all necessary repairs and replacements as quickly as reasonably possible and (so far as reasonably possible and during normal working hours – 9am to 5pm Monday to Friday, excluding public holidays) at times to suit the convenience of the Hirer.
- (h) The Hirer shall not repair the Equipment or make replacements or alterations unless upon the written acceptance of the Owner. Any replacements by the Hirer shall forthwith become the property of the Owner, and part of the Equipment unless otherwise agreed in writing.
- (i) The Hirer shall forthwith notify the Owner if the Equipment breaks down or fails to start properly, or if any repairs or replacements are necessary.
- (j) The Hirer shall at all reasonable times allow the Owner or its accredited representatives or its insurer's representatives to have access to the Equipment to inspect, test, adjust, repair or replace the same. If the inspection shows any damage or defects attributable to the Hirer, the Hirer shall pay the inspection and repair cost.
- (k) The Hirer shall check lubricating oil and coolant levels in the Equipment daily and ensure that lubricating oil and coolant are kept at the level required for the proper operation of the Equipment. The Hirer shall keep himself acquainted with the condition of the Equipment and shall not operate it after it has become defective, damaged or in a dangerous state or in a state which results in a breach of any applicable law or regulation and, if the Hirer or any employee or agent of the Hirer does operate the Equipment in such condition, the Hirer shall be solely responsible for any damage, loss or accidents resulting therefrom. Should breakdown or damage occur to the Equipment due to failure to observe any term of the Agreement, due to negligence or misuse by the Hirer or its employees or agents or to wilful or accidental damage however occurring or due to damage caused by salt-laden air or other corrosive gases, the Hirer shall be liable to the Owner.
- (I) The Owner reserves the right to replace the Equipment or cause the same to be replaced for the duration of the Agreement by a set of the similar capacity and suitability if the Owner should deem this desirable or required.
- (m) When performing maintenance or repair work, the Owner shall seek to minimise any hindrance to the Hirer's use of the Equipment.
6. HIRER'S LIABILITY FOR LOSS OR DAMAGE
- (a) The Hirer accepts full liability to the Owner for loss of, or damage to, or destruction of the Equipment suffered during the Hire Term from whatever cause, (fair wear and tear excepted) and is fully liable to the Owner for the safekeeping of the Equipment and its return in the same or better condition to the Owner (fair wear and tear excepted) at the expiry or termination of the Hire Term.
- (b) The Hirer accepts all liability in respect of, and shall fully and completely indemnify the Owner against all third party claims and losses howsoever arising in respect of damage to, or loss or destruction of any property or in respect of the personal injury or death of anybody in any way caused by or relating to the Equipment or its use (including but not limited to the payment of all damages, costs and charges in connection therewith) except insofar as any such damage, loss, destruction, injury or death results directly from the negligence or willful default of the Owner, its employees or agents.
- (c) The Owner shall not be liable to the Hirer in respect of any damage to or loss or destruction of the property of the Hirer nor in respect of the personal injury or death of the Hirer or its employees or contractors or other persons in any way caused by or relating to the Equipment or its use, save where such damage, loss, destruction, injury or death shall be caused by the negligence or willful default of the Owner, its employees or agents.
- (d) The Equipment shall remain the property of the Owner but shall at all times after delivery to the Site be under the direction or control of the Hirer only. The Hirer shall not permit nor suffer any lien, claim, mortgage or encumbrance against the Owner to attach to the Equipment during the hire. The Hirer shall indemnify the Owner for any damages and losses suffered by the Owner, including costs and expenses incident thereto, occurring as a result of the Hirer's failure to perform said undertaking. The Hirer is fully responsible for ensuring the use of the Equipment is only for purposes and in places for which it is suitable and for its own business and in a skilful safe and workmanlike manner and in accordance with Regulations.
- (e) The Hirer shall notify the Owner immediately in the event of any accident, loss or damage arising and in any way caused by or relating to the use of the Equipment howsoever caused. Verbal notification shall be confirmed in writing to the Owner within 48 hours.
- (f) In the event of any accident, loss, theft, damage or destruction, the Equipment remains on hire and Hire Charges continue to be payable.
- (g) If the Equipment becomes the subject matter of legal proceedings, or if the Hirer loses or may lose possession of the Equipment, the Hirer must forthwith inform the Owner, and take all reasonable steps to protect the Owner's position, including cooperating fully with the reasonable instructions of the Owner.
- (h) That the Owner takes back the Equipment from the Hirer at the end of the Hire Term does not imply acceptance of the Equipment in good condition and does not exclude any claim for losses or damages by the Owner arising from this clause 6. The Owner shall have a period of 48 hours upon taking back of the Equipment, Saturday, Sunday and bank holidays not included, to communicate any loss or damage to the Hirer. This loss or damage will be notified to the Hirer by email.
- (i) The Owner is entitled to charge to the Hirer the reasonable cost of repair or substitution of the Equipment arising from any breach by the Hirer of its obligations under clause 6.
- (a) Unless otherwise set out on the face of the Agreement, the Owner shall render invoices every 28 days. Unless otherwise explicitly provided in the Agreement, the Hirer shall pay all invoices made out in the name of the Owner under this Agreement within 30 days from the date of the invoice; this due date constitutes an absolute deadline. If the Hirer fails to fulfil its payment obligations, or has not fulfilled them on the due date, the Hirer shall in addition owe the Owner, without any summons and/or notice of default being required, an interest on the amounts not paid of 1.5% per month The Hirer shall also owe the Owner any debt-collecting costs incurred by the Owner, including but not limited to legal fees.
- (b) Immediately upon the termination of t h e Hire Term in accordance with sub-clause 13
- (c) hereof the Hirer shall pay to the Owner (in addition to any compensation payable hereunder) all monies then accrued due under the Agreement and any monies which the Owner may be liable to pay to any third party by reason of any seizure and removal.
8. VARIATION IN HIRE RATES
- (a) Effective from each anniversary of the commencement of the Hire Term the Owner reserves the right to increase the Hire Rate by the proportional difference between the Retail Price Index most recently published by the Department of Trade and Industry (or any successor, Ministries or Departments) prior to that anniversary and the Retail Price Index published twelve months prior to such anniversary.
- (b) Unless specified otherwise in the Agreement, the Hire Rate is based on the following maximum hours of operation: 8 hours per day, 40 hours per Week and 160 hours per month. The Hire Rate shall be doubled for any operation equal to or exceeding twice the maximum hours. The Hire Rate shall be increased by 50% for each hour of operation falling between the maximum and twice the maximum.
9. SUB-LETTING AND OWNERSHIP
- (a) The Hirer shall not without the consent of the Owner assign, sub-let, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment.
- (b) The Hirer acquires no right, title or interest in the Equipment except the right to use it so long as the Hirer is not in default under the Agreement. The Hirer shall not regard it as part of a fixed installation or immovable asset. The Owner shall have the right to protect his security interest in the Equipment at all the times, and the Hirer shall cooperate as requested by the Owner.
10. INTELLECTUAL PROPERTY
The Hirer shall not infringe any intellectual property rights including, without limitation, copyright, registered design, or patent, which the Owner may have by seeking to copy any goods or components, supplied by the Owner.
11. CHANGES OF SITE
The Hirer shall not move nor permit the Equipment to be moved from the Site without the Owner's prior consent in writing. Any consent given by the Owner is without prejudice to all the other obligations of the Hirer under the Agreement.
12. OWNER'S PLATES/LOGO
Any mark of identification or branding of the Equipment by the Owner shall not, without the Owner's prior consent, be removed, mutilated or obliterated by the Hirer.
13. TERMINATION OF HIRE
- (a) Except where separately agreed in writing between the parties and except where otherwise determined by operation of this clause 13, the hire of the Equipment shall terminate on expiry of the Hire Term.
- (b) Where a Hire Term is not stated, the termination of hire shall occur either:
- I. Seven days after notification by either party to the other party of its requirement to terminate the Agreement; or
- II. A date as agreed in writing between the parties.
- (c) Without prejudice to the other provisions of the Agreement should the Hirer:
- I. Withhold payment of the hire charges for fourteen days after due date, or
- II. Fail to observe and perform any of the other Terms and Conditions of the Agreement, or
- Ill. Do or cause to be done or permit or suffer anything whereby the Owner's rights in the Equipment are prejudiced or put into jeopardy, or
- IV. Commit any act of bankruptcy or have a receiver appointed or make any arrangement or composition with its creditors, or being a company go into liquidation whether compulsory or voluntary (except for reconstruction or amalgamation only), or
- V. Suffer any distress or execution upon its property; then and in any such case the Owner may terminate the hiring and seize and remove the Equipment, for which purpose it shall be lawful for the Owner to enter into or upon any premises or site where the Equipment may be,
- VI. The Hirer suspends or ceases, or threatens to suspend or cease, the carrying on of all or a substantial part of its business, or the Owner is may forthwith terminate the Agreement, and to take back the Equipment, with the continued obligation of the Hirer to compensate any damages suffered by the Owner, and without prejudice to any other rights of the Owner. The Hirer shall co-operate fully with the recovery of the Equipment by the Owner.
- (d) On the date of expiry or earlier termination of hire, risk in the Equipment shall remain with the Hirer until the earlier of collection of the Equipment by the Owner, return of the equipment by the Hirer to the Owner’s designated premises, or 5 days after the date of expiry or earlier termination of hire. When the hire is terminated, unless otherwise agreed it shall be the liability of the Hirer and at his cost to arrange the collection of the Equipment from the Site;.
- (e) The Agreement may be cancelled by the Hirer prior to delivery of the Equipment if the Owner has agreed in writing. If the Hirer cancels the Agreement at least 7 days before delivery, the Hirer shall pay a cancellation charge of 25% of hire charges payable had the Equipment been hired for the full agreed Hire Term. If the cancellation occurs after this period of time then the Hirer shall pay a cancellation charge of 40% of the hire charges for the full Hire Term. Given the nature of the Equipment and the restricted markets within which it can be hired out, the parties agree that these cancellation charges represent a fair and reasonable estimate of the likely loss to be incurred by the Owner as a result of any cancellation.
14. RIGHTS ON DEFAULT
- (a) If the Hirer is in default under the Agreement, without notice to or demand on the Hirer, the Owner may take possession of the Equipment as provided by law, deduct the costs of recovery (including legal fees and legal costs), repair, and related costs, and hold the Hirer responsible for all associated costs incurred.
- (b) Should the Hirer fail to return the Equipment, the Owner maintains the right to enter upon the premises where the Equipment may be, without notice, and take possession of and remove it at the Hirer's expense, all without legal process, the Hirer hereby waiving any claims for damages from any such entry, taking, or removal.
- (c) In the event of a voluntary or involuntary petition for bankruptcy or receivership filed by or against the Hirer, the Equipment shall be returned to the Owner, and all unpaid rent charges, fines, and fees shall be paid by the Hirer.
- (d) Upon the Hirer's default. the Owner may do any or all of the following:
- (e) -Sell, hire, or otherwise dispose of the Equipment.
- (f) -Correct the default on behalf of and at the expense of the Hirer.
- (g) -Terminate the Agreement, whereupon the Hirer shall pay to the Owner as liquidated damages and not as a penalty, an amount equal to all accrued and unpaid hire charges plus all other amounts owed to the Owner hereunder.
- (h) -Exercise any other right or remedy, including specific performance or damages for the breach hereof, including attorney's fees and court costs.
- (i) Each remedy shall be cumulative and in addition to any other remedy referred to above or otherwise available to the Owner at law or in equity.
- (j) (f) No express or implied waiver of any default shall constitute a waiver of any of the Owner's rights.
The Hirer certifies that the application, statements, trade references, and financial reports submitted to the Owner are true and correct and any material misrepresentation will constitute default under the Agreement
16. ALLOWANCES AND LIABILITY
- (a) Without prejudice to the provisions for payment herein-before set out, the Hirer shall be fully liable to the Owner for damages for any breach of the Agreement.
- (b) The Owner shall not be liable to the Hirer for any consequential, special, incidental or indirect loss or damage (whether or not loss of profits) arising from or caused by any breach of the Agreement.
- (c) The Owner shall not be liable to the Hirer for any loss or damage caused by delay in delivery or non-delivery of the Equipment or by delay in repairing or replacing the Equipment.
- (a) The Hirer shall at the Hirer's expense fully insure with a reputable insurance company the Equipment for the value shown against fire, theft, collision, earthquake, flood, hail, storm and vandalism. A copy of the insurance certificate shall be provided to the Owner prior to the commencement of the Hire Term. The validity of the insurance must be for the entire period of the hire.
- (b) The Hirer shall
- I. Produce the policy or policies effected hereunder for inspection by the Owner on demand; and
- II. Hold the process of any claim related to the Equipment in trust for the Owner.
18. TIME OR INDULGENCE
Any time or other indulgence granted by the Owner shall not affect the strict rights of the Owner under the Agreement.
19. EXCLUSION OF WARRANTIES
Save as explicitly set out in this Agreement, the Owner makes no representations and gives no statutory warranties implied or other as to the Equipment itself, nor as to the quality and condition of the Equipment, nor as to its suitability for any particular or general purpose.
The parties agree to maintain that all information obtained by one party concerning the operations of the other confidential and shall not divulge it to third parties either during the period of the Agreement or any time thereafter.
Save as otherwise expressly provided in the Agreement, every notice, request, demand or other communication under the Agreement shall be in writing, delivered personally or by first-class prepaid letter, facsimile or email to the Owner at the above address, or e-mail address.
22. NET OF TAXES
All sums payable under the Agreement are exclusive of any value added tax or other applicable rental tax, which shall be added to the sums in question.
The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of the Agreement.
24. ENTIRE AGREEMENT
The Agreement constitutes the Entire Agreement between the Parties. In the case that a clause of the Agreement shall be cancelled to the terms of the law or declared null by judicial decision, the other clauses will not change and will remain in force. The Agreement replaces all verbal or written Agreements or commitments preceding the Agreement.
The Hirer represents and warrants that execution, delivery and performance of the Agreement by the Owner have been duly authorised by all necessary corporate action; that the individual executing such was duly authorised to do so; and the Agreement constitutes a legal, valid and binding obligation of the Hirer enforceable in accordance with its respective terms.
Neither party has the right to transfer or assign the Agreement or portions thereof to anyone else without the other party's written consent.
27. APPLICABLE LAW
- (a) The Agreement shall be governed by and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the courts of England.
28. FORCE MAJEURE
Neither party shall have any liability whatsoever to the other under this Agreement in respect of any failure to perform obligations as a result of a Force Majeure Event. If any Force Majeure Event continues for more than 3 months either party may terminate the Agreement, on written notice without either party having any liability to the other save for the Hirer’s continued obligations under clauses 4 and 6.
Orbital 5B I Orbital Way I Cannock I Staffordshire WS11 8XW I United Kingdom Tel. +44 (0)1902 797 000 I Tel. +44 (0)845 769 7450