SITE MANAGEMENT SERVICES (CENTRAL) LTD
Ivy House, High Street, Halesowen, West Midlands, B63 3BD,
Company Reg 03967873, Waste Licence CBDU107843
These Conditions apply to all contracts for services supplied by Site Management Services
(Central) Limited, Company Number 3967873 (“SMS”)
Definitions and Interpretation
In these conditions the following words shall have the following meaning:
Business Day means any day (other than Saturday or Sunday) on which clearing banks are open for normal banking business in sterling in the City of London;
Hired Item means any Skip, Plant Machinery, Tooling, Welfare, Hired Items or any other items ordered by the Customer and supplied by SMS;
Contract means the contract made between SMS and the Customer for the provision and collection of the Hired Item which are subject to these Conditions;
Customer means the party with whom SMS contracts;
Driver means the driver of the Vehicle;
Hire Charges means the amount charged by SMS for the hire of the Hired Item;
Hire Period means the time from when the Hired Item is deposited on Site to the time it is removed in accordance with the Contract;
Insolvency Event means any one or more of: (1) a notice being issued to propose a resolution for winding up or dissolution, or such a resolution being passed; (2) a petition for a winding up or an administration or bankruptcy order being presented, or such an order being made; (3) any steps being taken with a view to a voluntary arrangement or other assignment, composition or arrangement with all or any creditors or any moratorium, readjustment, rescheduling, forgiveness or deferral of all or any indebtedness; (4) suspension of payments to all or any creditors and/or ceasing business; (5) an encumbrancer taking possession of all or any assets of a party; (6) an administrator or receiver being appointed over a party or all or any of its assets; (7) any action anywhere similar or analogous to any of the foregoing; (8) the other party having reasonable grounds for believing that any of the foregoing is imminent;
For the avoidance of doubt if any of the foregoing occur in relation to a partner in any of the parties hereto it shall be deemed to occur in relation to that party.
Minimum Hire Charge means a sum equivalent to the Hire Charge for four week’s hire or such sum as SMS may notify to the Customer in writing;
Owner means the owner of the Hired Item;
Services means any of the services to be performed by or on behalf of SMS;
Site means the place where the Hired Item is deposited at the request of and as directed by the Customer;
Vehicle means the vehicle used to deliver the Hired Item.
Any reference to legislation shall be construed as any relevant legislation as amended, replaced, consolidated or re-enacted from time to time.
The headings in these Conditions are for convenience only and shall not affect the interpretation of these Conditions.
Basis of contract
2.1 Any quotation shall remain open for a maximum period of 30 days from its date.
Quotations are not binding and shall not be open for acceptance by the Customer.
2.2 These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or conditions whether put forward by or on behalf of the
Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
2.3 The placing by the Customer of any order shall constitute an offer by the Customer. No contract shall come into existence unless SMS accepts the Customer’s order in writing.
Any order placed by the Customer with any of SMS’s salesperson or other employees or representatives shall be subject to written acceptance by SMS.
No alteration to these Conditions shall be effective unless agreed to in writing by a director of SMS.
Use of Equipment
4.1 With respect to each Hired Item the Customer warrants that during the Hire Period it shall:
4.1.1 Obtain and maintain all permissions required before the Hired Item can lawfully be deposited on Site, including but not limited to the permission required under section 139 of the Highways Act 1980;
4.1.2 Comply with all applicable legislation, code of practice and guidance including but not limited to those relating to lighting, the use of cones and reflective paint;
4.1.3 Keep the said permissions in force until the Hired Item is removed from the Site in accordance with the Contract or until the expiry of ten Business days of receipt by SMS of a notice given in accordance with clause 4.1.14 of these Conditions;
4.1.4 Not move the Hired Item within the Site or remove it from the Site by any means whatsoever;
4.1.5 Not charge, pledge, sell or otherwise part with possession and/or control of the Hired Item and shall remain at all times responsible for its safekeeping;
4.1.6 Comply, in relation to the material deposited in the Hired Item, with all relevant legislation including but not limited to Section 34 of The Environmental Protection Act 1990;
4.1.7 Not place in the Hired Item any dangerous, illegal or otherwise unsuitable or inappropriate substances, materials or items including but not limited to the following: bonded asbestos, car/lorry batteries, gas bottles, tyres, paint tins, fridge/freezers, aerosol cans, plasterboard, mastic tubes, fluorescent tubes, TVs/monitors, oils, medical/clinical waste. SMS reserves the right to make an additional charge if any dangerous, illegal or otherwise unsuitable or inappropriate substances, materials or items are found in the Hired Item;
4.1.8 Not fill the Hired Item any higher than the top of its sides;
4.1.9 Ensure no fires are lit in the Hired Item;
4.1.10 not cause or permit the Hired Item to suffer any damage save for reasonable wear and tear;
4.1.11 Have in place and maintain with a respectable insurance company all reasonable insurance, in accordance with clause 8 below including third party liability cover against loss or damage to the Hired Item;
4.1.12 not attach or permit to be attached to the Hired Item any sign-writing; lettering; advertising; painting or other such marking other than those already appearing on the Hired Item on delivery;
4.1.13 not remove, deface or conceal any marks on the Hired Item indicating information about the Owner and it shall afford at all reasonable times access to SMS, the Owner or any duly authorised authority to inspect the Hired Item; and
4.1.14 Give a minimum of three Business days’ notice to SMS of the Hired Item’s readiness for collection or replacement unless otherwise agreed in writing by SMS.
Delivery and Risk
5.1 Any time quoted by SMS for delivery of a Hired Item and/or performance of all or any of the Services is an estimate only and time shall not be of the essence. SMS shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly therefrom.
5.2 SMS reserves the right to deliver the Hired Item in advance of the delivery date stated on the relevant order or otherwise notified by SMS to the Customer.
5.3 The Customer shall direct the Driver where to place the Hired Item and shall be entirely responsible for the choice of Site.
5.4 Risk in relation to the Hired Item shall pass to the Customer immediately on delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
5.5 Unless agreed in writing by SMS that a specific person will sign for the Hired Item on delivery, the person signing for the Hired Item has authority to act on behalf of the Customer.
5.6 The Customer or a representative of the Customer shall be responsible for directing the Hired Item from the Vehicle and placing it onto Site and directing the Hired Item from the Site onto the Vehicle. The Customer shall be responsible for all instructions given to the Driver in relation to loading and unloading of the Hired Item. If the Customer or a representative of the Customer is not on Site when the Hired Item is delivered, SMS shall not be responsible for the positioning of the Hired Item or any damage that is caused to Site unless the Customer can prove to SMS that SMS deliberately damaged the Site.
5.7 The Customer shall notify the Driver on delivery if the Hired Item is damaged, is not of the correct size or otherwise does not conform to the specification agreed by SMS and set out in the relevant order. If the Customer fails to so inspect and so notify the Customer, the Hired Item shall be deemed to comply with the Contract in all respects. 5.8 If the Hired Item is stolen, the Customer shall immediately report the theft to the police and SMS. The Hire Period shall continue notwithstanding the theft of the Hired Item. Any loss of, damage to or theft of the Hired Item shall be the responsibility of the Customer.
5.9 Notwithstanding delivery and the passing of risk in the Hired Item, property in and title to the Hired Item shall at all times remain in the Owner.
5.10 The Customer shall keep the Hired Item properly protected and insured in accordance with the Contract for the Hire Period.
Charges and Payment
6.1 Subject to prior written agreement to the contrary and to condition 6.6, SMS shall be entitled to invoice the Customer for the Hire Charges at any time after delivery of the Hired Item.
6.2 Any Hire Charge quoted by SMS is based upon costs current as at the date of quotation. The Hire Charge made to the Customer under the Contract may be changed to take account of costs current at the date of invoice.
6.3 All prices are exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.
6.4 The Customer shall make payment in full within 30 days following the date appearing on SMS’s invoice notwithstanding that the delivery may not have taken place. Interest at the annual rate of 4% over the base rate of Barclays Bank Plc will be charged on a daily basis on all monies outstanding after the due date of payment (both before and after judgment) and any cash discount will not be allowed to the Customer.
6.5 Hire Charges, unless specified otherwise, will include carriage from, delivery to and collection from the Site. The time for depositing a Hired Item on the Site is approximately ten minutes If the Driver is kept waiting for longer than ten minutes after arrival or remains at the Site for more than 10 minutes for whatever reason, the
Customer shall pay to SMS reasonable demurrage at SMS’s sole discretion in such amount as may be notified to the Customer by SMS. SMS may in its absolute discretion waive any such charge.
6.6 Where the Customer’s instructions have been followed by SMS but delivery has not been possible, the Minimum Hire Charge may be payable by the Customer at SMS’s discretion
6.7 In the event of the Customer cancelling an order at least twenty-four hours written notice is required prior to delivery of the Hired Item otherwise the Customer will be charged the Minimum Hire Charge.
Termination and suspension
7.1 Without prejudice to any rights and remedies available to it, SMS shall be entitled forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with SMS or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to SMS shall become immediately due and payable) if:
7.1.1 Any sum owing to SMS from the Customer on any account whatsoever shall be unpaid after the due date for payment in which event SMS shall have a general lien for any such sum on all and any property of the Customer in its possession;
7.1.2 An Insolvency Event shall occur in respect of the Customer;
7.1.3 The Customer shall commit any breach of any contract (including without limitation the Contract) with SMS.
7.2 In the event of a suspension of performance SMS shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
7.3 Upon termination of the Contract for whatever reason, the Customer shall place the
Hired Item at the disposal of SMS and SMS and its servants and agents are hereby irrevocably authorised without the need for consent of any third party but using only such force as may be necessary, to enter at any time upon the Site, any premises of the Customer or any third party where the Hired Item is situated for the purpose of removing the Hired Item.
8.1 The Customer shall throughout the Hire Period and until collection of the Hired Item (without prejudice to the liability of the Customer to SMS) at its own expense insure the Hired Item with a reputable insurance company against all loss or damage and also against all risks of third party liability arising out of the presence, storage or use of the Hired Item, in an amount equal to the full new replacement value of the Hired Item.
8.2 The Customer will on request by SMS at any time produce to SMS every such policy of insurance and the receipt for the current year’s premium. If the Customer shall fail to keep the Hired Item insured as required by this clause to the satisfaction of SMS or to produce any such policy or receipt SMS shall be entitled at the expense of the Customer to insure the Hired Item and keep it so insured during the period mentioned above and the Customer shall pay to SMS on demand any sums expended by SMS for such purpose with interest at the rate specified in clause 6.4 from the time of the sums having been expended until the date of actual repayment.
8.3 The interest of SMS in the Hired Item shall be noted on the policy of insurance, which policy shall:
8.3.1 Name SMS as loss payee;
8.3.2 Not be capable of cancellation by the insurers (at the request of the Customer or otherwise) other than by 30 days’ prior notice in writing to SMS;
8.3.3 Provide that the insurers shall waive any breach of warranty under the policy of insurance as against SMS.
8.4 The Customer shall (so far as necessary) irrevocably authorise the insurers to pay to SMS all monies payable under the said insurance policy in respect of any loss or damage to all or any part of the Hired Item. The Customer hereby irrevocably authorises SMS:
8.4.1 in the name and on behalf of the Customer to make any claim or claims against the insurers under the said insurance policy in respect of any loss or damage to the Hired Item or any part thereof and to settle or compromise any such claim; and
8.4.2 To receive and to give a good discharge to the insurers in respect thereof.
8.5 The Customer shall not use or allow the Hired Item to be used for any purpose not permitted by the terms and conditions of any policy of insurance for the time being relating to the Hired Item nor do or allow to be done any act or thing whereby such insurance may be invalidated.
8.6 In the event of any loss of or damage to all or any part of the Hired Item, the Customer shall give immediate notice to SMS and shall make or assist in the making of any appropriate claim or claims under the said insurance policy in such manner as SMS shall require and shall not in any manner settle or compromise any such claim without the prior written agreement of SMS.
8.7 The Customer shall promptly reinstate or repair at its own expense any Hired Item which has not become a total loss or a constructive total loss and shall continue to pay the Hire Charges of such Hired Item during such reinstatement or repair. All insurance monies received in respect of any such loss shall be applied firstly in or towards payment to SMS of any amounts for the time being due and outstanding from the Customer to SMS under this Contract and secondly in or towards reimbursing the Customer for the costs of such reinstatement or repairs.
8.8 In the event that during the Hire Period any Hired Item shall become a total loss or a constructive total loss (the Destroyed Hired Item) (whether as a result of its being lost, destroyed, damaged beyond repair, confiscated or otherwise) the hire of the Destroyed Hired Item shall cease. In that event SMS may apply any insurance proceeds received by it at its option:
8.8.1 towards a replacement of an equivalent size and value which replacement shall be deemed included in this Contract for all purposes and the Customer shall continue to be liable to pay hire charges in accordance with this Contract as if such loss had not taken place; or
8.8.2 towards payment to SMS of:
(a) all payments of Hire Charges and all other monies then due or in arrears under this Contract in respect of or attributable to the Destroyed Hired Item together with interest thereon at the rate specified in clause 6.4; and
(b) all other sums and amounts due under this Contract in respect of the Destroyed Hired Item in question.
8.9 The Customer shall remain liable to pay SMS any shortfall. Until such sums due under this clause and any shortfall are paid the obligations of SMS under the Contract (including those to pay Hire Charges in respect of the Destroyed Equipment) shall continue. Any surplus shall be paid to the Customer.
Liability and Indemnity
9.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.2 Provided that nothing in this Condition shall operate so as:
9.2.1 to exclude SMS’s non-excludable liability in respect of death or personal
injury caused by the negligence of SMS its servants or agents;
9.2.2 to affect the statutory rights of the Customer where Services are supplied to
a Customer dealing as a consumer within the meaning of Unfair Contract
Terms Act; or
9.2.3 To exclude the application of Section 12 of the Sale of Goods Act 1979
9.2.4 To exclude liability for fraudulent misrepresentation.
9.3 SMS shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by SMS its servants or agents, in a sum which is greater than the Hire Charge.
9.4 SMS shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or loss of production or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by SMS, its servants or agents.
9.5 The Customer shall indemnify SMS in full against all liability, loss including loss of profit, damage, costs and expenses (including legal expenses) awarded against or incurred by or paid by SMS as a result of or in connection with any death, personal injury or damage to property arising from any act, default or omission of the Customer or any third party in relation to the Hired Item including loss of or damage to the Hired Item save and to the extent that such liability, loss or damage is caused by the negligence of SMS its servants or agents.
10.1 Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of SMS or any other party), failure of a utility or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
10.2 The rights and remedies of the Customer in respect of the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by SMS to the Customer nor by any failure of or delay by SMS in ascertaining or exercising any such rights or remedies. Any release, waiver or compromise or any other arrangement of any kind (a release) by SMS shall not affect its rights and remedies as regards any other party nor its rights and remedies against the Customer in whose favour it is granted or made except to the extent of the express terms of the release and no such release shall have effect unless granted or made in writing. The rights and remedies in this Contract are cumulative and not exclusive of any rights and/or remedies provided by law.
10.3 The Contract is personal to the Customer. The Customer shall not assign, transfer or charge its rights and responsibilities under this Contract or any of them, nor appoint any sub-contractor or agent without the prior written consent of SMS.
10.4 The provisions of these Conditions are severable and distinct from one another, and, if at any time any provision is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions shall not in any way be affected or impaired.
10.5 The Contract shall be governed by and construed in accordance with the laws of England and Wales.
10.6 Any dispute arising under or in connection with the Contract shall be subject to the exclusive jurisdiction of the English courts and the parties irrevocably waive any right to object to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
10.7 All notices under the Contract shall be in writing and may be served by post or facsimile transmission addressed to the other party at the address given in the Contract or at such other address as a party shall from time to time by notice in writing give to the other party for the purpose of service of notices under the Contract and every such notice shall be deemed to have been served by post at the expiration of 2 Business Days after despatch of the same or if sent by facsimile
transmission at ten hours local time on the next normal Business Day of the recipient following despatch and in proving service it shall be sufficient to show in the case of a letter that the same was duly addressed prepaid and posted in the manner provided and in the case of a facsimile transmission a transmission report that it was transmitted to the correct telephone number. Saturdays, Sundays and Bank Holidays shall not in any event be treated as days on which service is effected, and service shall be deemed to take place on the next normal Business Day of the recipient.
10.8 For the avoidance of doubt nothing in these Conditions shall confer on any third party any benefit or the right to enforce any provision of these Conditions.