These terms and conditions shall be deemed to be incorporated in any contract, agreement or Order Form between the Sub-Contractor and the Hirer and shall be in substitution for any other terms and conditions introduced before or after the date of the Order Form (unless expressly identified and agreed to in writing by the Sub-Contractor). Furthermore, any action undertaken by the Hirer in pursuit of their obligations under the Contract will be deemed an explicit agreement to the terms of the Contract and cannot be rescinded, altered or amended in any way without mutual agreement by the Parties. These terms and conditions take precedence over any other terms contained in the Contract Documents that may diverge from, conflict with, or otherwise contradict these terms and conditions.
The Contract Documents, the Contract Price, Extra Hire, the Contract Works, the Site, the Commencement Date, the Completion Date, the Payment Dates, the Hirer, and the Sub-Contractor have the meanings shown in the Order Form.
In these terms and conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Contract” means the Order Form, these terms and conditions and the Contract Documents;
“Due Date” has the meaning given in clause 5.1;
“Insolvent” has the meaning given in section 113(2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended);
“Order Form” means the Sub-Contractor’s completed order form, issued to the Hirer, and which order form incorporates these terms and conditions by reference and/or attachment thereto;
“Parties” means the parties to the Contract, namely the Sub-Contractor and the Hirer;
“Period of Hire” means the time between the Commencement Date and the Completion Date;
“Scaffolding Equipment” means the equipment supplied by the Sub-Contractor to the Hirer;
“Snagging List” means the list of snagging items to be issued by the Hirer at the time of practical completion; and
“Statutory Requirements” means the notices required by any statute, any statutory instrument, rule or order or any regulation or bylaw applicable to the Contract Works, including the Construction, Design and Management Regulations 2015.
Unless the context otherwise requires, each reference in these Terms and Conditions to:
“writing”, includes a reference to any communication effected by electronic transmission;
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time; and
a clause or paragraph is a reference to a clause of these terms and conditions.
The headings used in these terms and conditions are for convenience only and shall have no effect upon the interpretation of these terms and conditions.
Words imparting the singular number shall include the plural and vice versa.
The Sub-Contractor shall carry out the Contract Works in a good and workmanlike manner. The Scaffolding Equipment shall be as herein specified or, otherwise, of a satisfactory standard and not generally regarded as deleterious.
The Sub-Contractor shall use reasonable endeavours to complete its obligations under these terms and conditions at the times required by the Contract, but time will not be of the essence in the performance of these obligations.
Unless the Hirer accepts any quotation for extra work that the Sub-Contractor has supplied at the Hirer’s request, the Hirer shall pay for any additional works done by the Sub-Contractor at the Sub-Contractor’s standard rates for specific items or otherwise on a day works basis using the Sub-Contractor’s usual time rates from time to time, including adjusting the Scaffolding Equipment where the adjustment is required due to matters beyond the Sub-Contractor’s control. Details of the Sub-Contractor’s standard rates for specific items and usual time rates are available on request.
The Hirer is responsible for obtaining any permits, licences, consents or other documents necessary to facilitate the completion of the Contract Works including but not limited to obtaining all necessary pavement and hoarding licences, permissions (including any relevant Party Wall Agreements) for the Scaffolding Equipment to encroach upon, across or take any bearing from any adjoining, adjacent or neighbouring property and/or to span the highway or otherwise. The Hirer is responsible for the attaching of any necessary signage or lighting to the Scaffolding Equipment that the Statutory Requirements or good practice necessitates.
The Scaffolding Equipment must be maintained in a safe condition and tied to the permanent structure at the recommended intervals in accordance with all relevant legislation and/or industry codes; the Hirer is responsible for obtaining any necessary permission to drill holes into the face of any permanent structure for the insertion of expanding anchorages and for any costs associated with making good damaged caused in the making of such holes.
The Hirer shall ensure sufficient parking is available at the Site (in pre-allocated parking bays, or by way of a reasonable off-road option) for the Sub-Contractor’s vehicles to allow the erection, dismantling and/or adjustments or inspections of the Scaffolding Equipment to be carried out as and when required under the Contract. The Hirer hereby agrees to indemnify the Sub-Contractor in respect of any costs and or other losses incurred as a consequence of its failure to comply with this clause including but not limited to any parking fines issued to the Sub-Contractor or its employees or agents.
The Hirer is responsible for any necessary temporary re-positioning of satellite dishes or other similar equipment in respect of which signals may be interrupted during the during the Period of Hire.
If the Hirer has its employment under any contract with a third party terminated, or if the Hirer leaves the Site, the Sub-Contractor will be entitled to payment for all Contract Works carried out to the date of termination, its costs of and associated with dismantling and removing the Scaffolding Equipment and loss of profit on the remaining Contract Works.
The Hirer agrees to pay the Contract Price in consideration of the Sub-Contractor’s carrying out the Contract Works at the times and in the manner specified in the Contract.
Unless expressly agreed to the contrary, the Contract Price is agreed on the basis that:
The Contract Works shall be continuous and done within normal working hours (Monday – Friday 8am – 4pm);
through any relevant property) when erecting and dismantling the Scaffolding Equipment; and
The Sub-Contractor will be permitted to dismantle the entirety of the Scaffolding Equipment in one continuous process; and
If any of these matters prove not to be the case, or if the cost of labour and materials has increased to the Sub-Contractor since the date of their quotation, the Sub-Contractor is entitled to be paid an additional sum in the amount of its increased costs plus a reasonable amount for overheads and profit thereon.
The Period of Hire is as specified within the Contract. The Hirer shall pay Extra Hire for any Scaffolding Equipment that remains erected beyond the Completion Date at the rate specified in the Contract on a weekly basis. Should the Scaffolding Equipment be dismantled part way through a 7-day period, the amount charged for Extra Hire shall be rounded up to the nearest full week.
Unless expressly agreed otherwise, the Contract Price excludes:
Any or all protection fans, hoardings, cladding, sheeting, debris netting, edge protection and/or safety netting;
Attendance by the Sub-Contractor to reinstate, repair or re-fix sheeting, cladding or any other part of the Scaffolding Equipment and/or replacing or repositioning scaffold boards after inclement weather, high winds or interference by others;
Testing, examination and the issue of any necessary testing certificates; and
Provision and/or maintenance of any security requirements including protective screens, electronic alarms and/or any other system designed to deter unauthorised access (which provision and maintenance is an express obligation of the Hirer).
Should the Hirer wish to cancel within 48 hours of work commencing there will be a call-out charge of £650+vat.
The Sub-Contractor shall be entitled to interim payments. Unless otherwise agreed between the Parties, the due dates for such interim payments shall be the Payment Dates (each being a “Due Date”).
The Sub-Contractor shall submit an invoice for payment on or before each Due Date stating the amount due up to the relevant Due Date.
Subject to any alternative payment terms as may be set out on the Order Form, the final date for payment shall be 7 days after the Due Date.
Subject to clause 5.5, the amount of the interim payment to be made by the Hirer shall be the sum stated as due in the invoice issued by the Sub-Contractor in accordance with clause 5.2.
If the Hirer intends to pay less than the amount stated as due in the Sub-Contractor’s invoice the Hirer shall serve a pay less notice at least 5 days before the final date for payment expressly stating both the sum to be paid and the sum withheld and the basis of calculation. It is a condition precedent to the validity of the pay less notice that any pay less notice is delivered to the Sub-Contractor by email at no****@qs**********.com (with the subject heading clearly marked: “Urgent: – Do Not Ignore – Payless Notice”). If the Hirer fails to clearly and fully comply with the above condition precedent the amount of the interim payment to be made by the Hirer shall be the sum stated as due in the invoice issued by the Sub-Contractor in accordance with clause 5.2.
If any sum payable under the Contract is not paid by the final date for payment then, without prejudice to the Sub-Contractor’s other rights under the Contract, that sum shall bear interest from the final date for payment until payment is made in full, both before and after any judgment, at eight per cent per annum in excess of the rate set from time to time by the Bank of England’s monetary policy committee or any successor of it.
Should the Hirer fail to pay any sum due pursuant to the Contract by the final date for payment the Sub-Contractor may following seven days’ notice in writing, suspend all or part of the Contract Works. Upon the ending of any period of suspension the Hirer shall pay the Sub-Contractor’s reasonable costs of and associated with the suspension and shall grant the Sub-Contractor an extension of time for the period of the suspension.
The Sub-Contractor will not be obliged to comply with any instruction to dismantle the scaffolding unless and until payment of all sums due under the Contract have been paid in full.
Unless otherwise agreed between the Parties, no retention shall be deducted from any payment to the Sub-Contractor.
A variation shall be any change to the scope of the Contract Works, including, but not limited to, additions or omissions. If the Hirer verbally instructs a variation, then it shall have accepted the cost of such variation on the giving of any instruction.
The Sub-Contractor shall not be obliged to undertake any variation to the Contract Works until such time the Hirer has confirmed in writing that the additional cost of the variation has been agreed.
Should any variation alter the Completion Date of the Contract Works the Hirer shall, on the giving of that instruction, provide an extension of time to the Completion Date. Should the Hirer fail to do so, the giving of that instruction shall automatically extend the Completion Date by the period specified by the Sub-Contractor.
The Hirer shall pay the Sub-Contractor Extra Hire for such extended period and shall further pay the Sub-Contractor for their direct loss and expense, including an amount for reasonable overheads and profit, occasioned by the extension of time and such sum shall be added to the Contract Price.The Sub-Contractor shall not be required to comply with a variation request until such time as the relevant time and price adjustment have been agreed.
The Hirer shall not be entitled to omit any part of the Contract Works without the Sub-Contractor’s written consent.
For the avoidance of doubt, where the Sub-Contractor consents to the omission of any part of the Contract Works, there will be no reduction in the Contract Price.
The Sub-Contractor may terminate the agreement immediately if:
the Hirer is in breach of any of his obligations hereunder;
the Hirer has become Insolvent;
the Hirer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or make a proposal for or enters into any compromise arrangement with its creditors;
(being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Hirer;
(being an individual) the Hirer is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the Hirer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Hirer;
(being a company) a floating charge holder over the Hirer’s assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the Hirer’s assets or a receiver is appointed over the Hirer’s assets; or8.1.10 any circumstances whatsoever beyond the reasonable control of the Sub-Contractor that arise and require for any reason the termination of the Contract.
In the event of termination under clause 8.1:
the Hirer shall pay to the Sub-Contractor the value of the Contract Works executed, based upon the Sub-Contractor’s rates and prices, materials on the Site and the cost of removal of its plant, tools and equipment by the Sub-Contractor and shall allow the Sub-Contractor its direct loss and expense and loss of profit. Such payment shall be made in accordance with clause 5 hereof following an application for payment by the Sub-Contractor; and
the Sub-Contractor shall have no liability to the Hirer howsoever arising, even if the liability would otherwise have arisen before the Completion Date.
Without affecting any other right or remedy available to it, the Sub-Contractor may terminate the Contract at will on giving not less than 7 days’ notice to the Hirer.
The Sub-Contractor may assign, transfer, charge or sub-contract any or all of its rights and obligations under the Contract without the consent of the Hirer.
The Hirer shall not assign, transfer, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the Sub-Contractor and it may not use the Scaffolding Equipment for any purpose not specified in the Contract or move it to any location other than the Site.
The Sub-Contractor’s liability under or in connection with the Contract shall be limited to the Contract Price. This limit shall apply however that liability arises, including, without limitation, a liability arising by breach of contract, arising by tort (including, without limitation, the tort of negligence) or arising by breach of statutory duty. This clause shall not exclude or limit the Sub-Contractor’s liability for death or personal injury caused by the Sub-Contractor’s negligence.
Where the Sub-Contractor has provided any sketches, plans or other similar drawings, it shall not be liable for any losses whatsoever or howsoever arising from the use of such documents other than their proper use by Hirer in relation to the Contract Works.
Subject to and without prejudice to clause 10.1 and 10.2 the Sub-Contractor shall not be liable to the Hirer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of or damage to goodwill;
any indirect, special or consequential losses; and
in all circumstances, any claims that the Hirer does not notify the Sub-Contractor of within seven days of the event occurring that gives rise to a claim. For the avoidance of any doubt, it shall be a condition precedent to any claim that the Hirer notifies the Sub-Contractor within the seven day period specified.
The Hirer shall indemnify the Sub-Contractor against all damages, costs, claims and expenses suffered by the Sub-Contractor arising from loss or damage to any equipment (including that of third parties) during the Period of Hire whether caused by the Hirer, or his agents or employees, or not.
The Sub-Contractor shall not be liable to the Hirer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Sub-Contractor’s obligations if the delay or failure was due to any cause beyond the Sub-Contractor’s reasonable control.
The Sub-Contractor shall not be liable to the Hirer for matters arising out of or in connection with:
the Hirer’s or their agent’s supplying the Sub-Contractor with information regarding the Site that is inaccurate or incomplete;
the incompatibility of the Scaffolding Equipment with any existing structures or buildings;
the Hirer’s or a third party’s misuse of the Scaffolding Equipment (which misuse includes but is not limited to any erection of, installation or attachment to, or alteration, adaptation, dismantling and/or re-erection of, the Scaffolding Equipment including but not limited to the interference with or removal of tie-ons) ; and
any late delivery, installation, dismantling or taking away of the Scaffolding Equipment.
Unless the Hirer is a consumer, the Sub-Contractor excludes any warranties as to quality or fitness for purposes implied by statute or other legislation.
The Scaffolding Equipment remains the property of the Sub-Contractor at all times.
The Hirer shall maintain on an each and every claim basis during the Period of Hire adequate insurance to compensate the Sub-Contractor in the event of damage or a total loss of the Scaffolding Equipment and provide proof of the same upon receiving a request from the Sub-Contractor.
The Sub-Contractor (subject to it remaining available at reasonable commercial rates) and the Hirer shall both maintain public liability insurance in an amount of no less than £10,000,000 (ten million pounds). The Sub-Contractor’s insurance will terminate when the Scaffolding Equipment is dismantled.
The Sub-Contractor is to commence the Contract Works on the Commencement Date. The Contract Works shall be deemed completed on the Completion Date or when notified by the Sub-Contractor.
It is a condition precedent that the Hirer must provide not less than 7 days’ written notice to the Sub-Contractor of its instruction to dismantle the Scaffolding Equipment and that such notice must be issued to the Sub-Contractor by email, with the subject line “Important – Notice to Dismantle Scaffolding”, at di*******@qs**********.com. In the absence of such written notice, the Period of Hire shall automatically be extended until the provision, and expiry, of such notice, and the Hirer shall pay the Sub-Contractor Extra Hire for such extended period and shall further pay the Sub-Contractor for their direct loss and expense, including an amount for reasonable overheads and profit, occasioned by the extension of time and such sum shall be added to the Contract Price.
If it becomes apparent that the Contract Works will not be completed by the Completion Date (or any later date fixed under this clause from time to time) for any other reasons beyond the control of the Sub-Contractor, including (without limitation), adverse weather conditions, the Site conditions including the ground conditions and the presence or state of existing man-made structures, compliance with any instruction of the Hirer that is not due to the default of the Sub-Contractor and/or any impediment to the Contract Works caused by the Hirer or third parties whom the Sub-Contractor has employed or contracted with, then the Sub-Contractor shall notify the Hirer in writing confirming that the Completion Date has been amended to a date to be ascertained by the Sub-Contractor, as soon as practicable. The Hirer shall also pay the Sub-Contractor Extra Hire for such extended period and shall further pay the Sub-Contractor for their direct loss and expense, including an amount for reasonable overheads and profit, occasioned by the extension of time and such sum shall be added to the Contract Price.
If any dispute or difference concerning the Contract Works shall arise between the Hirer and the Sub-Contractor, such dispute or difference may be referred to adjudication to be conducted in accordance with the Scheme for Construction Contracts Regulations (England and Wales) 1998 (as amended) subject, if applicable, to the modifications below.
Where the Hirer refers a dispute to Adjudication, it must, when serving the Notice of Adjudication on the Sub-Contractor, also serve a copy of the Referral on the Sub-Contractor;
Where the Hirer refers a dispute to Adjudication, the Sub-Contractor will be permitted a period of not less than 14 days from the date on which the adjudicator first contacts the Parties to confirm his appointment, within which to issue its Response, and the Hirer will have a period of not more than 48 hours from the time the Sub-Contractor’s Response is issued within which to serve any Reply. No further submissions will be permitted without the consent of the Sub-Contractor.
Without prejudice to the adjudicator’s power to allocate his fees and expenses as between the parties, the Hirer hereby expressly agrees to fully and immediately indemnify the Sub-Contractor in respect of any fees or expenses that the adjudicator decides, when exercising that power, that the Sub-Contractor should pay.
The Sub-Contractor shall not be liable for any failure or delay in performing its obligations under these terms and conditions where such failure or delay results from any cause that is beyond the reasonable control of the Parties. Such causes include, but are not limited to: adverse weather conditions, adverse ground conditions or manmade structures on site, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action and epidemic, pandemic or other outbreaks of disease.
No failure or delay by the Sub-Contractor to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of these terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these terms and conditions.
The Sub-Contractor reserves all copyright and any other rights (if any) that may subsist in the products of, or in connection with, the provision of the Contract Works. The Sub-Contractor reserves the right to take such actions as may be appropriate to restrain or prevent infringement of such copyright. The Sub-Contractor grants the Hirer a royalty free licence to use and reproduce any copyrighted material belonging to the Sub-Contractor for the purposes of building or maintaining the works for which the Scaffolding Equipment was used.
expressly provided otherwise, be in writing and shall be delivered by hand, post or email to the Sub-Contractor or Hirer at the address set out in the Order Form or at such other address or number as the relevant party may specify from time to time by notice in writing to the other.
Notices shall be deemed to have been received:
in the case of delivery by hand, when delivered;
in the case of pre-paid first class post, two days after the date of posting; and
in the case of email, the time is was sent.
Clause 18.2.3 shall not apply in respect of any notice issued under clause 5.5. Notices issued under clause 5.5 will be deemed served at the time of transmission by email unless such transmission is later than 7:00 am, in which case it will be deemed served 24 hours after the time of transmission by email. This clause applies irrespective of any earlier receipt of actual notice by the Sub-Contractor.
The Hirer, its servant and agents and all those present on Site shall comply with the Statutory Requirements germane to the Site and the Contract Works. In particular, the Hirer shall ensure that the base for the Scaffolding Equipment is suitable, sturdy and secure and able to take the load of the Scaffolding Equipment, that the working platforms are appropriate and safe, anyone on Site is properly trained and inducted and that the relevant inspections and records are made and kept.
The Sub-Contractor and its agents are entitled periodically to inspect, test and/or adjust the Scaffolding Equipment and the Hirer shall allow full access and reasonable facilities for this purpose.
Without prejudice to clause 3.1, and unless agreed otherwise, the Hirer must satisfy itself that the Scaffolding Equipment is sound and sufficient for its purpose, both before use and from time to time during the Period of Hire. The Sub-Contractor does not guarantee such continued soundness and sufficiency; after erection or adjustment of the Scaffolding Equipment by the Sub-Contractor, the Hirer shall be responsible for carrying out periodic weekly and/or other inspections required by law. The Sub-Contractor can organise such inspections on behalf of the Hirer but, for the avoidance of doubt, any such inspections will constitute variations under the Contract.
The Hirer will at all times keep the Sub-Contractor indemnified against all claims, damages and/or costs or losses arising out of the Hirer’s failure to comply with its obligations under clause 19.3.
Any use of the Scaffolding Equipment by the Hirer or any third party is strictly prohibited once dismantling has commenced; the Hirer accepts full responsibility for, and will indemnify the Sub-Contractor against all claims, damages and/or costs or losses arising out of, any failure to comply with and/or enforce this clause.
The governing law of the Contract shall be the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
If the Hirer has entered the Contract for purposes which are wholly our mainly outside its trade, business, craft or profession, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply.
If those regulations apply, the Hirer will have the right to cancel the Contract within 14 days if the Parties have:
The Parties have concluded the Contract under an organised distance sales or service-provision scheme without the simultaneous physical presence of both Parties, with the exclusive use of one or more means of distance communication up to and including the time at which the Contract is concluded;
The Parties have concluded the Contract in the simultaneous physical presence of both Parties, in a place which is not the Sub-Contractor’s business premises;
The Sub-Contractor has made the Hirer an offer to enter into the Contract in the simultaneous physical presence of both Parties at a place which is not the Sub-Contractor’s business premises;
The Parties have concluded the Contract either:
The Parties have concluded this contract during an excursion organised by the Sub-Contractor with the aim or effect of promoting and selling of its services to the Hirer.
If the right to cancel applies, the Hirer may cancel by giving the Sub-Contractor written notice within the 14-day cancellation period. If the Hirer exercises that right, the Sub-Contractor will reimburse all payments received, unless the Hirer has asked the Sub-Contractor to commence work within the cancellation period.
The Sub-Contractor will not start work within the cancellation period unless the Hirer asks it to. The right to cancel within the cancellation period will not be lost but, if the Hirer cancels the Contract within that period the Sub-Contractor will be entitled to be paid such part of the Contract Price is proportionate to any part(s) of the Contract Works that have been carried out.