P. B. Donoghue (Construction) Limited
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
Terms & Conditions for Skip
Hire, Rolonoff Hire, Grab Hire, Tipper Hire and Cage vehicle
service.
The Customer's attention is in particular drawn to the provisions of
condition 10.4. and 17.
1
Interpretation
1.1
The definitions and rules of interpretation in this condition apply
in these conditions.
(a)
"Customer" means the person, firm or company who hires Equipment
from and/or disposes of Waste at the premises of, the Company;
(b)
"Company" means P B Donoghue (Construction) Ltd (as such name may
be changed from time to time), a company incorporated and registered in England
and Wales with company number 1848478 whose registered office is at 3 Shannon
Close, Claremont Road, Cricklewood, London NW2 1RR
(c)
"Contract" means any contract between the Company and the Customer
for the hiring of Equipment and/or disposing of Waste, incorporating these
conditions;
(d)
"Contract Price" means the price paid by the Customer under the terms
of the Contract;
(e)
"Delivery Address" means the place where delivery and collection
(as relevant) of the Equipment is to take place under condition 3;
(f)
"Equipment" means any goods agreed in the Contract to be hired to
the Customer by the Company (including any part or parts of them);
(g)
"Waste" means all waste as described by the Customer and as agreed
by the Company and the Customer to be disposed of at the Company’s premises
but in each case (at the Company’s discretion) excluding the following:-
i.
substances hazardous to health such as toxic or corrosive materials
or liquids;
ii.
any liquids of any kind whether contained or not;
iii.
cans, drums or other containers of any kind unless they are empty and
crushed (so incapable of carrying liquid)
iv.
medical waste or animal carcasses of any kind or quantity;
v.
any other material not listed above not within the Company’s waste
licence or however considered unsuitable for containment eg malodorous
waste.
1.2
A reference to a particular law is a reference to it as it is in force
for the time being taking account of any amendment, extension, application
or re-enactment and includes any subordinate legislation for the time
being in force made under it.
1.3
Words in the singular include the plural and vice versa and a reference
to one gender includes a reference to the other gender.
1.4
Condition headings do not affect the interpretation of these conditions.
2
Application of Terms
2.1
The Contract shall be on these conditions to the exclusion of all other
terms and conditions (including any terms or conditions which the Customer
purports to apply under any purchase order, confirmation of order, specification
or other document).
2.2
These conditions apply to all the Company's sales and any variation
to these conditions and any representations about the Equipment or the
disposal of Waste shall have no effect unless expressly agreed in writing
and signed by the Chairman of the Company. The Customer acknowledges and
agrees that it has not relied on any undertaking, promise, assurance,
statement, representation, warranty or understanding (whether in writing
or not) made or given by or on behalf of the Company which is not set
out in the Contract. Nothing in this condition shall exclude or limit
the Company's liability for fraudulent misrepresentation.
2.3
Each order or acceptance of a quotation for Equipment hire, Waste disposal
or other services or goods by the Customer from the Company shall be deemed
to be an offer by the Customer to buy such services or goods solely and
exclusively upon and subject to these conditions.
2.4
No order placed by the Customer shall be deemed to be accepted by the
Company until a written acknowledgement of order is issued by the Company
or (if earlier) the Company delivers the Equipment to the Customer or
permits Waste to be disposed of at the Company’s premises.
2.5
The Customer shall ensure that it complies with s34(1) Environment
Protection Act 1990 in ensuring the description of the Customer’s Waste
is complete and accurate.
2.6
Cancellations of orders for goods or services may only be accepted
on such terms as the Company may deem fit.
3
Delivery of Equipment
3.1
Unless otherwise agreed in writing by the Company, delivery of the
Equipment shall take place at the Delivery Address.
3.2
The Customer warrants that the person signing for the Customer at delivery
shall be authorised to do so and to contractually bind the Customer.
3.3
Any dates and times specified by the Company for delivery of Equipment
are intended to be an estimate and time for delivery shall not be of the
essence. If no dates or times are specified, delivery shall be within
a reasonable time.
3.4
Save as expressly provided to the contrary in these conditions, the
Company shall not be liable for any direct, indirect or consequential
loss (all three of which terms include, without limitation, pure economic
loss, loss of profits, loss of business, depletion of goodwill and similar
loss), costs, damages, charges or expenses caused directly or indirectly
by any delay in the delivery of the Equipment (even if caused by the Company's
negligence), nor shall any delay entitle the Customer to terminate or
rescind the Contract unless such delay exceeds 30 days.
3.5
If for any reason the Customer fails to accept delivery of any Equipment
when it is ready for delivery, or the Company is unable to deliver Equipment
on time because the Customer has not provided appropriate instructions,
documents, licences or authorisations:
(a)
the Equipment shall be deemed to have been delivered; and
(b)
the Company may either take the Equipment back to its premises and
store the Equipment until delivery or hire the Equipment to a third person,
whereupon the Customer shall be liable for all related costs and expenses
and shall indemnify the Company from any liability in respect of the same.
3.6
The Customer shall provide at the Delivery Address and at its expense
adequate and appropriate equipment and manual labour for loading and/or
unloading the Equipment, and any operative of the Company engaged in loading
and unloading the Equipment shall in so doing be deemed to be under the
control and care of the Customer.
3.7
The Customer shall ensure free and suitable access to and from the
Delivery Address and for ensuring suitable ground conditions for the delivery
of Equipment. No responsibility will be accepted for damage to any surface
over which the Equipment is moved to reach its destination and the Customer
should therefore take steps to protect surfaces (paving, soft ground and
the like) before delivery of Equipment.
3.8
If the Customer requires the Company’s driver to deliver Equipment
off of the public highway then he shall do so entirely within his discretion,
but if he does so this shall be entirely at the Customer’s risk and the
Customer shall indemnity and hold the Company harmless against associated
loss and damage.
3.9
The Company may deliver Equipment at separate intervals. Each separate
interval shall be invoiced and paid for in accordance with the provisions
of the Contract. Each interval shall be a separate Contract and no valid
cancellation or termination of any one Contract relating to an instalment
shall entitle the Customer to repudiate or cancel any other Contract or
instalment.
4
Non-delivery
4.1
The quantity of any consignment of Equipment as recorded by the Company
upon despatch from the Company's place of business shall be conclusive
evidence of the quantity received by the Customer on delivery unless the
Customer can provide conclusive evidence proving the contrary.
4.2
The Company shall not be liable for any non-delivery of Equipment (even
if caused by the Company's negligence) unless the Customer gives written
notice to the Company of the non-delivery within 3 days of the date when
the Equipment would in the ordinary course of events have been received.
4.3
Any liability of the Company for non-delivery of Equipment shall be
limited to replacing Equipment delivery within a reasonable time or issuing
a credit note at the pro rata Contract Price rate against any invoice
raised for such Equipment.
5
Use of Equipment/Legal Compliance5.1
The Customer warrants that with respect to each item of Equipment ordered:
(a)
the permission of the Highway Authority has been duly obtained under
s139 Highways Act 1980 (skip permit);
(b)
the said permission will be kept in force by the extension or renewal
as necessary until either the Equipment is removed or until the expiry
of three working days after notice is given for Company to remove the
Equipment;
(c)
the Customer will ensure the observation and performance at all times
of all the conditions subject to which the aforesaid permission is granted
and in particular will ensure that the Equipment is properly lit in hours
of darkness;
(d)
the Customer will not remove the Equipment from the place where it
was deposited without first obtaining both the written permission of the
Company and the Highways Authority; and
(e)
unless specifically otherwise agreed in writing the Customer shall
provide three marker cones by day and three marker cones plus six yellow
lights on the Equipment during darkness as required by the Highways Act
1980 if the same is placed on the public highway (including grass verges
and footpaths and pavements) or anywhere else where damage to property
or injury to third parties is reasonably foreseeable.
5.2
The waste material to be placed in Equipment and/or disposed of at
the Company’s premises is Waste and specifically falls within the meaning
of "prescribed cases" under section 3 of the Control of Pollution
Act 1974 and Regulation 4 of the Control of Pollution (Licensing of Waste
Disposal) Regulation 1976, or that the requisite licence has been issued
under section 5 of the 1974 Act, and that the Waste does not come within
the definition of "Special Waste" contained in the Control
of Pollution (Special Waste) Regulations 1980.
5.3
All activities undertaken by the Customer which may be subject to regulation
under the Section 34 Environmental Protection Act 1990, Environmental
Protection (Duty of Care) Regulations 1991, the Control of Pollution (Amendment)
Act 1989 and the Controlled Waste (Registration of Carriers and Seizure
of Vehicles) Regulations 1991 are fully compliant with the legislation
and do not detrimentally affect the compliance of the Company with the
same legislation.
5.4
The Customer shall comply with all relevant laws, regulations, ordinances,
byelaws, licences, consents which shall be applicable and indemnify the
Company against any loss or damage the Company may incur as a result of
the Customer’s non-compliance or otherwise associated with the Customer’s
custody of the Equipment or disposal of Waste.
5.5
Specifically the Customer shall not without the Company’s prior written
consent:-
(a)
overload the Equipment;
(b)
set fire to any contents of the Equipment;
(c)
interfere with any mechanism of or otherwise modify or work on the
Equipment; and
(d)
add, remove or disguise any sign, name plate or advertising on the
Equipment.
6
Risk/title
6.1
The Equipment is and shall remain within the exclusive ownership of
the Company and the Customer shall not sell, charge, sub-contract, rehire,
lend, assign or part with possession of the Equipment at any time.
6.2
The Customer shall whilst Equipment is in its possession:-
(a)
hold the Equipment on a fiduciary basis as the Company's bailee and
as such in a reasonably secure location
(b)
maintain the Equipment in satisfactory and serviceable condition and
keep it insured on the Company's behalf for the full replacement value
against all risks to the reasonable satisfaction of the Company. On request
the Customer shall produce the policy of insurance to the Company; and
(c)
promptly notify the Company of the loss, damage, theft or breakdown
of any Equipment or of any accident or injury involving the Equipment.
6.3
The Customer's right to possession of the Equipment shall terminate
immediately if:
(a)
the Customer has a bankruptcy order made against it or makes an arrangement
or composition with its 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 and/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 Customer or notice of intention to appoint an administrator is
given by the Customer 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 Customer or for the granting of an administration
order in respect of the Customer, or any proceedings are commenced relating
to the insolvency or possible insolvency of the Customer; or
(b)
the Customer suffers or allows any execution, whether legal or equitable,
to be levied on its property or obtained against it, or fails to observe
or perform any of its obligations under the Contract or any other contract
between the Company and the Customer, or is unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986 or the Customer
ceases or threatens to cease trading; or
(c)
the Customer encumbers or in any way charges any of the Equipment without
the prior written consent of the Company; or
(d)
the Customer materially breaches the Contract and does not rectify
such breach to the satisfaction of the Company within seven (7) days'
notice from the Company specifying the relevant breach.
6.4
The Customer grants the Company, its agents and employees an irrevocable
licence at any time to enter any premises and/or property (including,
without limitation, the Delivery Address) where the Equipment is or may
be stored and/or installed in order to inspect it, or, where the Customer's
right to possession has terminated, to recover them.
6.5
On termination of the Contract, howsoever caused, the Company's (but
not the Customer's) rights contained in this condition 6 shall remain
in full force and effect.
7
Price
7.1
Unless otherwise agreed by the Company in writing, the price for the
Equipment or disposing of Waste shall be the Contract Price or, where
no price is specified in the Contract, the price set out in the Company's
price list published on the date of delivery or disposal.
7.2
The price for the Equipment or disposing of Waste shall (unless expressly
stated to the contrary in the Contract or otherwise in writing by the
Company) be inclusive of all costs or charges in relation to loading,
unloading, carriage, servicing, processing but exclusive of any valued
added tax or other taxes.
8
Payment
8.1
Subject to condition 8.4, payment of the Contract Price is due in pounds
sterling and shall be paid by the Customer as follows (unless alternative
payment terms are agreed in writing by the Company):
(a)
in advance of Contract where determined by the Company and communicated
to the Customer; and
(b)
in all other cases within thirty (30) days of the date of an invoice.
8.2
Time for payment shall be of the essence.
8.3
No payment shall be deemed to have been received until the Company
has received cleared funds.
8.4
All payments payable to the Company under the Contract shall become
due immediately on its termination despite any other provision.
8.5
The Customer shall make all payments due under the Contract in full
without any deduction whether by way of set-off, counterclaim, discount,
abatement or otherwise unless the Customer has a valid court order requiring
an amount equal to such deduction to be paid by the Company to the Customer.
8.6
If the Customer fails to pay the Company any sum due pursuant to the
Contract, the Customer shall, at the sole discretion of the Company, be
liable to pay interest to the Company on such sum from the due date for
payment at the annual rate of 4% above the base lending rate from time
to time of National Westminster Bank plc, accruing on a daily basis until
payment is made, whether before or after any judgment. The Company reserves
the right to claim interest under the Late Payment of Commercial Debts
(Interest) Act 1998.
8.7
Where an approved credit or debit card transaction has taken place
and subsequent events create a payment shortfall then the Company may
process the same card for the balance due.
9
Specific Waste Disposal Terms
9.1
All drivers and personnel of the Customer or its agents shall:-
(a)
report to the Company’s site office weighbridge on arrival prior to
disposing of Waste;
(b)
send in a completed Conveyance Note and shall complete all documentation
required by the Company before proceeding to the tipping area for disposing
of Waste;
(c)
operate under the direction of the site personnel and comply with their
directions at all times Provided such directions shall not relieve the
Customer of any other obligations under the Contract (including but not
limited to those in conditions 5.2, 5.3 and 5.4;
(d)
comply with all Health and Safety rules and regulations. Those persons
breaching the same may be banned from the site.
9.2
It is the responsibility of the drivers of vehicles delivering Waste
to satisfy themselves that access to the tipping area is in a suitable
condition for the relevant vehicle. The Company gives no warranty that
access is in a suitable condition and accordingly shall be under no liability
in respect of any damage caused to delivery vehicles or any losses resulting
from such damage or any losses whatsoever due to the condition of the
tipping area.
9.3
The vehicles and personnel of the Customer shall not at any time stray
off of the access roads and pathways on site and shall follow relevant
signs.
9.4
Without prejudice to the Customer’s legal responsibilities in relation
to the same, all Waste disposed of at the Company’s premises shall become
the Company’s property.
10
Limitation of Liability
10.1
Subject to inconsistent earlier conditions, the following provisions
set out the entire financial liability of the Company (including any liability
for the acts or omissions of its employees, agents and sub-contractors)
to the Customer in respect of:
(a)
any breach of these conditions;
(b)
any use made by the Customer of the Equipment, or the disposal of Waste
at the Company’s premises; and
(c)
any representation, statement or tortuous act or omission including
negligence arising under or in connection with the Contract.
10.2
All warranties, conditions and other terms implied by statute or common
law are, to the fullest extent permitted by law, excluded from the Contract.
10.3
Nothing in these conditions excludes or limits the liability of the
Company:
(a)
for death or personal injury caused by the Company's negligence; or
(b)
for any matter which it would be illegal for the Company to exclude
or attempt to exclude its liability; or
(c)
for fraud or fraudulent misrepresentation by the Company.
10.4
Subject to condition 10.2 and condition 10.3:
(a)
the Company's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation, restitution or otherwise,
arising in connection with the performance or contemplated performance
of the Contract shall be limited to the lower of the Contract Price or
the sum of one hundred thousand pounds sterling (£100,000); and
(b)
the Company shall not be liable to the Customer for any pure economic
loss, loss of profit, loss of business, depletion of goodwill or otherwise,
in each case whether direct, indirect or consequential, or any claims
for consequential compensation whatsoever (howsoever caused) which arise
out of or in connection with the Contract.
11
Assignment
11.1
The Company may assign the Contract or any part of it to any person,
firm or company.
11.2
The Customer shall not be entitled to assign the Contract or any part
of it without the prior written consent of the Company.
12
Force Majeure
The Company reserves the right to defer the date of delivery or to
cancel the Contract or reduce the volume of the Equipment ordered by the
Customer or to prevent Waste disposal (without liability to the Customer)
if it is prevented from or delayed in the carrying on of its business
due to circumstances beyond the reasonable control of the Company including,
without limitation, acts of God, governmental actions, war or national
emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion,
flood, epidemic, lock-outs, strikes or other labour disputes (whether
or not relating to either party's workforce), or restraints or delays
affecting carriers or inability or delay in obtaining supplies of adequate
or suitable materials, provided that, if the event in question continues
for a continuous period in excess of six (6) months, the Customer shall
be entitled to give thirty (30) days notice in writing to the Company
to terminate the Contract.
13
General
13.1
Each right or remedy of the Company under the Contract is without prejudice
to any other right or remedy of the Company whether under the Contract
or not.
13.2
If any provision of the Contract is found by any court, tribunal or
administrative body of competent jurisdiction to be wholly or partly illegal,
invalid, void, voidable, unenforceable or unreasonable it shall to the
extent of such illegality, invalidity, voidness, voidability, unenforceability
or unreasonableness be deemed severable and the remaining provisions of
the Contract and the remainder of such provision shall continue in full
force and effect.
13.3
Failure or delay by the Company in enforcing or partially enforcing
any provision of the Contract shall not be construed as a waiver of any
of its rights under the Contract.
13.4
Any waiver by the Company of any breach of, or any default under, any
provision of the Contract by the Customer shall not be deemed a waiver
of any subsequent breach or default and shall in no way affect the other
terms of the Contract.
13.5
The parties to the Contract do not intend that any term of the Contract
shall be enforceable by virtue of the Contracts (Rights of Third Parties)
Act 1999 by any person that is not a party to it.
13.6
The formation, existence, construction, performance, validity and all
aspects of the Contract shall be governed by English law and the parties
submit to the exclusive jurisdiction of the English courts.
14
Data Protection
14.1
Under the Data Protection Act 1998, we must tell you that we hold your
details on our database. We may, from time to time, use these details
to send you information which we think might interest you. If you do not
want to receive information from us, please write to the Chairman of the
Company.
15
Intellectual Property
15.1
All intellectual property rights in or associated with the Company’s
Equipment, sites, methods, processes, names and business reputation are
specifically retained by the Company and the Customer shall acquire no
right or licence in the same by virtue of the Contract or otherwise.
16
Communications
16.1
All communications between the parties about the Contract shall be
in writing and delivered by hand or sent by pre-paid first class post
or sent by fax:
(a)
(in case of communications to the Company) to its registered office
or such changed address as shall be notified to the Customer by the Company;
or
(b)
(in the case of the communications to the Customer) to the registered
office of the addressee (if it is a company) or (in any other case) to
any address of the Customer set out in any document which forms part of
the Contract or such other address as shall be notified to the Company
by the Customer.
16.2
Communications shall be deemed to have been received:
(a)
if sent by pre-paid first class post, two business days (excluding
Saturdays, Sundays and bank and public holidays) after posting (exclusive
of the day of posting); or
(b)
if delivered by hand, on the day of delivery; or
(c)
if sent by fax on a working day prior to 4.00 pm, at the time of transmission.
Communications addressed to the Company shall be marked for the attention
of the Chairman.
17
Standard additional charges (Skips, Rollonoffs and
Cage lorries)
Waiting time
All skip, rollonoff, and prices include 30 minutes statutory waiting
time. Any additional time will incur a cost of £45.00 per hour or part
thereof.
Wasted Journeys - Additional charges
Skip and cage lorry: £50 per wasted journey
Rollonoff and compactor vehicle: £100 per wasted journey
Out of hours - Additional charges for Skip and Rollonoff
5pm - Midnight: £50 per container
Midnight - 6am: £100 per container
Sat 12am - Sunday Midnight: £100 per container
Out of hours - Additional charges for Cage Lorry
5pm - Midnight: £50 per visit Midnight - 6am: £100 per visit
Sat 12am - Sunday Midnight: £100 per visit
Time Critical Services - Additional charges for all vehicles
Requests for AM or PM with no specifed time are Free of additional
charge If a service is required at a specified time, an additional £50
will be incurred
Crane Rated - Additional charges for Skip
Crane rated skips carry an additional £10 surcharge