Terms and Conditions of Sale and Contract

Tree Clearance and Environmental Contracting

 

 1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this Condition shall apply in these Conditions.

‘Client’ or Hirer means the company, firm, person, or public authority, and includes their successors or personal representatives, who accept a quotation of PBL for the supply of vegetation clearance and environmental contracting services and/ or the hire of plant/machinery.

‘Plant’ means any equipment which PBL has agreed in the Contract to hire to the Client and including any part or parts thereof (which is also referred to as machinery in these Conditions).

‘Services’ means any services to be undertaken under the Contract, including vegetation clearance services.

‘Supplies’ means the Plant and/or the Services, depending on the context.

‘PBL’ or Owner means PRACTICALITY BROWN LIMITED (registered in England and Wales under number 2114017) and includes their successors or assignees.

‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Client and PBL.

‘Contract’ means the contract for the supply of Services and/or the hire of Plant which incorporates the offer made by quotation and is governed by these Conditions.

‘Writing’ includes email, letter, facsimile transmission and comparable means of communication, and receipt of which has been acknowledged in writing by the addressee.

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 Any reference to parties means the parties to the Contract and party shall be construed accordingly.

1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 A reference to one gender includes a reference to the other gender.

1.7 Condition headings do not affect the interpretation of these Conditions.

2. Basis of the supply

2.1  PBL shall supply Plant and/or Services in accordance with any written quotation of PBL which is accepted by the Client, or any written order of the Client which is accepted by PBL, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client. Any quotation of PBL is valid for a period of 30 days only from its date (unless otherwise specified), provided that PBL has not previously withdrawn it.

For the avoidance of doubt, these Conditions are not intended to be used for consumer contracts as PBL’s Tree Clearance and Environmental Contracting Department only offers business to business services.

2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Client and a company director of PBL.

2.3 PBL’s employees or agents are not authorised to make any representations concerning the work unless confirmed by PBL in Writing.  In entering into the Contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Nothing in this Condition 2.3 shall exclude or limit PBL’s liability for fraudulent misrepresentation.

3. Responsibilities

3.1 The Client is responsible for providing unobstructed access and egress from the site to load and unload machinery and staff between 0700 hours and 1800 hours Monday to Friday inclusive, and staff welfare facilities and a safe overnight storage area unless otherwise agreed in writing.

3.2 PBL will either offer a fixed price to carry out work, OR hire machinery and experienced operators on an Operated Day Work basis at the rates set out on PBL’s standard price list or as agreed in advance with the Client.

3.3 Unless a Company Director of PBL has agreed in writing to accept alternative terms, the following special terms apply to all Contracts:
(a) PBL’s operator reserves the right to refuse to negotiate terrain that he considers to be detrimental to his safety or that he considers could endanger PBL’s machinery or other property.  Any resultant downtime, or delays caused to other works, as a result of PBL’s operator’s decision will remain the Client’s responsibility to pay;

(b) vegetation to be removed should be clearly marked by the Client using marking paint prior to commencement on site. No responsibility can be taken for vegetation incorrectly removed if clear marking has not been carried out by the Client or  the Client’s agent;

(c) PBL can take no responsibility for any damage caused to any underground, overhead or surface services and utilities, other obstacles or structures such as ducts, pavements, bridges, tunnels, and roadways. Any such services, utilities, obstacles or structures are the responsibility of the Client to locate, mark clearly, protect, cordon off, brief to PBL’s operators and issue a permit to work in Writing;

(d) the Client is deemed to have knowledge of the site or the property or land where the machinery is to be delivered and the Client warrants that the condition of the site or place of delivery is suitable for the delivery and use of such machinery. If the site conditions are not suitable as aforesaid, then the costs of any additional plant, labour (including extra time), materials and equipment required to fulfil the Contract shall be payable by the Client;

(e)  the Client shall at all reasonable times allow PBL, its agents or its insurers to have access to the Plant to inspect, test, adjust, repair or replace the same. So far as reasonably practicable the Client shall allow such access between 0700 hours and 1800 hours Monday to Friday inclusive;

(f) PBL endeavours to accurately assess the ground before commencing on site although PBL reserves the right to make additional charges to cover any machine damage including teeth, hammers or blades where the material or ground being processed  is contaminated with metal, rock, stone or other unexpected objects;

(g) the Client must hold Hired In Plant Insurance Cover and show proof of such cover to PBL at order stage.

3.4 When working on a Day Work rate basis (as opposed to a Fixed Price Contract), in addition to 3.3 above, unless otherwise agreed in writing:

(a) any punctures or tyre damage that become apparent on site are the responsibility of the Hirer and any resultant downtime whilst repairing the puncture is also the Hirer’s responsibility.  PBL’s operator will call out a tyre company to fix the puncture and the cost will be added to the next account to be submitted to the Client;

(b) any breakdown of PBL’s machinery must be notified immediately to PBL’s office and confirmed in writing, as any claim for breakdown time will only be considered from the time and date that such notification is received and acknowledged by PBL;

(c) Day Work hire is based on a minimum 8 hour charge per day and any additional hours worked will be charged at a pro rata rate;

(d) the Client shall be responsible for all expense involved arising from any breakdown, unsatisfactory working of or damage to any part of the machinery due to the Client’s negligence, misdirection or misuse of the machinery, whether by the Client or his servants, and for the payment of hire at the full hire rate, during the period the machinery is necessarily idle due to such breakdown, unsatisfactory working or damage. The Client is responsible for the cost of spares and / or repairs due to theft, loss or vandalism of the machinery whilst on site. PBL will be responsible for the cost of repairs, inclusive of the cost of spares, to the machinery involved in breakdown from all other causes;

(e) no claims will be admitted (other than those allowed for under breakdown, as per clause (b) , for stoppages through causes outside PBL’s control, including but not limited to bad weather and /or ground conditions nor shall PBL be responsible for the cost or expense of recovering any machinery from soft or unsuitable ground, or a hazardous environment. For the avoidance of doubt, the Client shall be responsible for the cost and expense of recovering any machinery from soft or unsuitable ground or a hazardous environment;

(f) for the duration of the Hire Period (which for the avoidance of doubt includes the time Plant is left on site during a holiday period) the Client shall, subject to the provisions referred to in sub paragraph (a) make good to PBL all loss of or damage to the Plant from whatever cause the same may arise, fair wear and tear excepted, and shall also fully and completely indemnify  PBL and any personnel supplied by  PBL in respect of all claims by any person whatsoever for injury to persons or property caused by or in connection with or arising out of the storage, transit, transport, unloading, loading or use of the Plant during the continuance of the Hire Period, and in connection therewith, whether arising under statute or common law. In the event of loss of or damage to the Plant, hire charges shall be continued until the settlement has been agreed. Payment of the settlement must be made within 21 calendar days of the date of the agreement or idle time charges can be reinstated from the date of that agreement;

(g) notwithstanding the above the Client shall not be responsible for damage, loss or injury:

(i) prior to delivery of any Plant to the site (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving such highway) where the Plant is in transit by transport of PBL or as otherwise arranged by  PBL;

(ii) during the erection and / or dismantling of any Plant where such Plant requires to be completely erected / dismantled on site, provided always that such erection / dismantling  takes place under the exclusive control of  PBL or its agent;

(iii) after the Plant has been removed from the site and is in transit on a highway maintainable at the public expense (or where the site is not immediately adjacent to a highway maintainable at the public expense after it has joined such highway) to PBL by transport of PBL or as otherwise arranged by  PBL;

(iv) where the Plant is travelling to or from a site on a highway maintainable at the public expense (or, where the site is not immediately adjacent to a highway maintainable at the public expense, prior to its leaving or after its joining such highway) under its own power with a driver supplied by PBL.

(h) For the avoidance of doubt, the provisions of clause 3.4 (g) (i), (iii) and (iv) shall not apply where the Plant is not in transit by transport of PBL, nor where the transport of the Plant has not been arranged by PBL, nor where the Plant is not transported using a driver supplied by PBL; in any of those circumstances, the Client shall be wholly liable for any damage, loss or injury occurring to or involving the Plant, howsoever arising.

3.5 If the Plant is involved in any accident resulting in injury to persons or damage to property, immediate notification must be given by the Client to PBL by telephone and confirmed in writing to PBL no later than 24 hours after such telephone notification. In relation to any claim in respect of which the Hirer is not bound to fully indemnify PBL, no admission of liability, offer, promise of payment or indemnity shall be made by the Hirer without the PBL’s prior written permission.

3.6 Neither the Plant nor any part thereof shall be re-hired, sub-let, or lent to any third party without the prior written permission of PBL.

3.7 The Plant shall not be moved from the site to which it was delivered or consigned.

3.8 Government Regulation:

(a) the Client will be responsible for compliance with relevant regulations issued by the Government or Local Authorities, including regulations under the Environmental Acts, Factories Acts, Health and Safety at Work, etc. Act and observance of the Road Traffic Acts should they apply, including the cost of road fund licences and any insurances made necessary thereby, save that if and during such time as the Plant is travelling, whether for full or part journey from PBL to site and site to PBL under its own power with a driver supplied by PBL,  PBL and not the Client shall be responsible as aforesaid;

(b) the Client shall indemnify PBL against any charges or fines that PBL may become liable for as a result of the operation of the Plant during the Hire Period.

3.9 Without limiting any of the foregoing provisions of this Condition 3, the Client shall:

(a) take all steps to ensure the health and safety of PBL’s personnel whilst they are on site and shall be solely responsible for ensuring the safety of any and all other persons who are or may be present on site during the performance of the Services, including restricting access to those areas where the Services are to be performed to those individuals engaged in undertaking the Services, or providing assistance to those so engaged; and

(b) at all times whilst the Services are being performed, ensure, insofar as it is reasonably practicable to do so, that other operations are not undertaken on site, so as to ensure that the Services can be undertaken in one continuous, uninterrupted operation between 0700 hours to 1800 hours, Monday to Friday inclusive.

3.10 The Client shall not, without the prior written consent of PBL, at any time from the first date of supply of the Services to the expiry of 12 months after the last date of supply of the Services solicit or entice away from PBL or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of PBL in the provision of the Services.

3.11 Any consent given by PBL in accordance with Condition 3.10 shall be subject to the Client paying to PBL a sum equivalent to 15 % of the then current annual remuneration of PBL’s employee, consultant or subcontractor.

4. Orders and specifications

4.1 The Client shall be responsible to PBL for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving PBL any necessary information relating to the Contract within a sufficient time to enable PBL to perform the Contract in accordance with its terms.

4.2 No order which has been accepted by PBL may be cancelled, varied or deferred by the Client except with the agreement in Writing of PBL and on terms that the Client shall indemnify PBL in full against all loss (including loss of profit), costs (including the cost of all labour, including management time, and materials used), damages, charges and expenses incurred by PBL as a result of cancellation, variation or deferment.

5. Price of the supplies

5.1 The price shall be PBL’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in PBL’s regular list price current at the date of acceptance of the order.

5.2 PBL reserves the right, by giving notice to the Client at the later of any time before delivery of the Plant or any time before completion of the Services (as applicable),  to increase the price of the Supplies to reflect any increase in the cost to PBL which is due to any factor beyond the control of PBL (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery or performance dates, quantities or specifications which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give PBL adequate information or instructions.

5.3 Unless otherwise agreed in writing by PBL, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the later of the date of delivery of the Plant or completion of the Services (as applicable).

5.4 Unless otherwise agreed in writing by PBL, all transportation, packaging and carriage costs related to the delivery of the Plant  (including the cost of all related insurance coverage and the cost of loading and unloading the Plant) shall be borne by the Client.

6. Terms of Payment

6.1 Unless otherwise agreed in Writing, payment shall be made in advance of delivery by BACs, Debit Card or Cash.  Credit Card payments are not accepted.

6.2 PBL may in its absolute discretion agree to open a credit account for a Client on the basis of references provided.  If such an account is opened the Client shall pay the price of the Supplies within 30 days of the date of PBL’s invoice, notwithstanding that delivery may not have taken place.  The time of payment of the price shall be of the essence of the Contract. Credit accounts are subject to credit limits above which prepayments or interim payments will be payable by the Client and new or dormant accounts may be asked for an advance deposit payment.

6.3 Receipts for payment will be issued only upon request.

6.4 If the Client fails to make any payment on the due date then, without prejudice to any other right or remedy available to PBL, PBL shall be entitled to:

(a) cancel the Contract or suspend any further deliveries to the Client;

(b) appropriate any payment made by the Client to such of the Supplies (or any goods or services supplied under any other contract between the Client and PBL) as PBL may think fit (notwithstanding any purported appropriation by the Client);

(c) charge the Client with any costs incurred by PBL in the course of collecting outstanding monies due to PBL from the Client;

(d) suspend any warranty for the Supplies or any other goods or services supplied by PBL to the Client, whether or not they have been paid for;

(e) set off any amount owed by PBL to the Client against any amount owed by the Client to PBL on any account whatsoever;

(f) charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per cent per annum above National Westminster Bank Plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

(g) In the event of termination under sub-paragraph 6.4 (a) above, The Hirer must give the Owner or his agents, immediate unobstructed access to recover their machinery.

7. Risk and property

Ownership of the Plant shall remain at all times with PBL. Risk of damage to or loss of the Plant shall pass to the Client upon delivery and shall pass back from the Client to PBL upon collection of the Plant by PBL.

8. Liability

8.1 PBL warrants that:

(a) on delivery, the Plant shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

(b) if the Client has made it expressly known to PBL in writing that the Plant shall be suitable for a particular purpose and PBL has expressly stated in writing that it will supply Plant suitable for that purpose, then the Plant shall be reasonably fit for the purpose so stated; and

(c) the Services will be performed with reasonable skill and care.

8.2 PBL’s liability pursuant to Condition 8.1 shall be limited:

(a) For Plant, to the replacement of any Plant found to be defective and notified to PBL within the period set forth in Condition 8.3; and

(b) for Services, to re-performing those Services found not to have been performed with reasonable skill and care and notified to PBL within the period set forth in Condition 8.3.

8.3 Any defect in the Plant shall be notified to PBL within 7 days from delivery of the Plant and any deficiency in the performance of the Services shall be notified to PBL within 7 days of completion of the performance of the Services; otherwise, the Supplies shall be deemed to be satisfactory.

8.4 PBL shall not be liable for any breach of any warranty in Condition 8.1, if:

(a) the defect arises because the Client has repaired, maintained, altered or interfered with the Plant without the written consent of PBL; or

(b) the Customer did not follow the instructions for the use of the Plant; or

(c) the Client makes any further use of any Plant which the Client has alleged to be defective after giving notice of any such defect;

(d) the defect arises because the Client failed to follow any oral or written instructions as to the use, storage, installation or maintenance of the Plant or (if there are none) good trade practice;

(e) the defect arises from wilful damage, negligence, abnormal working conditions, misuse of the Plant or from any other cause which is not due to the neglect or default of PBL;

(f) the full price for the Supplies has not been paid by the time for payment stipulated in Condition 6.2; or

(g) the defect is of a type specifically excluded by PBL by notice in writing.

8.5 The following provisions set out the entire financial liability of PBL (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:

(a) any breach of these Conditions;

(b) any use made by the Client of any of the Plant and/or Services; and

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

8.6 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.

8.7 Nothing in these Conditions excludes or limits the liability of PBL:

(a) for death or personal injury caused by PBL’s negligence; or

(b) under section 2(3), Consumer Protection Act 1987; or

(c) for any matter which it would be illegal for PBL to exclude or attempt to exclude its liability; or

(d) for fraud or fraudulent misrepresentation.

8.8 Subject to Condition 8.6 and Condition 8.7:

(a) PBL’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 Contract price; and

(b) PBL shall not be liable to the Client for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect, special or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

9. Insolvency of Client

9.1 This clause applies if:

(a) the Client makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or

(c) the Client ceases, or threatens to cease, to carry on business; or

(d) PBL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.

9.2 If this clause applies, then, without prejudice to any other right or remedy available to PBL, PBL shall be entitled to cancel the Contract or suspend any further deliveries and/or performance under the Contract without any liability to the Client, and if the Plant has been delivered and /or the Services have been performed but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10. Force Majeure

PBL reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Supplies ordered by the Client (without liability to the Client) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of PBL including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Client shall be entitled to give notice in writing to PBL to terminate the Contract.

11. General

11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice, save that any notice required to be given under Condition 8.3 shall be sent by first class registered post.

11.2 Each right or remedy of PBL under the Contract is without prejudice to any other right or remedy of PBL whether under the Contract or not.

11.3 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.

11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

11.5 Failure or delay by PBL 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.

11.6 Any waiver by PBL of any breach of, or any default under, any provision of the Contract by the Client shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

11.7 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.

11.8 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.