The terms and conditions (“the Terms and Conditions”) set out in this document apply to all services provided or to be provided by Commhoist Limited (“Commhoist”) to the person, firm or company that has requested them (“the Client”).
- 1.1 In these Terms and Conditions:-
“Carrier” a carrier contracted to carry the Goods;
“Contract” means a contract entered into on the acceptance by Commhoist of an Order;
“Goods” the Clients goods to be Lifted;
“Hiring” the hiring of Plant;
“Hookup” means when the Goods are hooked up at the Lifting Points by Commhoist;
“Job Date” the date appointed for the provision of the Services by Commhoist;
“Lift” means moved;
“Lifting Points” the points on the Goods at which they may be hooked up and Lifted;
“Lifting Gear” means nylon straps, lifting chains, wire strings, shackles and other separate implements required to Lift the Goods;
“Loading” loading of the Goods onto the Carrier or Commhoist;
“Order” an order placed by the Client pursuant to a Quotation;
“Plant” means all classes of plant, machinery, vehicles, equipment and accessories therefor;
“Price” means the price charged by Commhoist for the Services;
“Quotation” a quotation for the Services provided by Commhoist to the Client to which these Terms and Conditions are appended;
“Road Closure” the closing of a road or roads on or near the Site for the purpose of Commhoist providing the Services;
“Road Closure Charges” all charges, costs and expenses payable for a Road Closure;
“Services” those services set out in the Quotation;
“Site” the site at which the Services are to be provided;
“Specification” means the Specifications of the Services as set out in the Quotation;
“Unloading” means the unloading of the Goods from the Carrier or Commhoist.
- 1.2 Any reference in these Terms and Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
- 1.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
- Quotations and Formation
- 2.1 All Quotations, Orders placed by the Client with Commhoist and Contracts are on the basis of these Terms and Conditions.
- 2.2 The Specifications may be modified or varied by Commhoist without notice to the Client provided that such modification or variation does not materially affect the Services. For the avoidance of doubt, Commhoist shall be entitled to modify or vary the Plant to be used to provide the Services without notice to the Client.
- 2.3 All Orders shall be deemed to be an offer and no contract is created before Commhoist accepts an Order.
- 2.4 Orders accepted by Commhoist may only be cancelled or varied by the Client with the prior written consent of Commhoist, and subject to the Client providing at least 24 hours prior written notice if the Job Date is on a Monday to Saturday, or at least 48 hours prior written notice if the Job Date is on a Sunday.
- 2.5 In the event of cancellation in accordance with clause 2.4, the Client shall be liable to Commhoist for:-
- (i) all charges, costs and expenses including Road Closure Charges incurred by Commhoist which shall be payable in full the day following the Job Date;
- (ii) 67% of the Price which shall be payable in full the day following the Job Date.
- 2.6 In the event of variation in accordance with clause 2.4, the Client shall be liable to Commhoist for all extra charges, costs and expenses, including Road Closure Charges, incurred by Commhoist as a result of such variation and such sums shall be payable in full the day following the Job Date.
- 2.7 The Price is based on costs and information available to Commhoist at the time of providing the Quotation and in the event of any change in costs, information and/or any other details of the Services prior to completion of the Services then Commhoist shall be entitled to adjust the Price accordingly.
- 2.8 The Price is exclusive of VAT and other duties and taxes which shall be payable in addition to the Price.
- 3.1 Performance times and dates given by Commhoist are estimates only and failure to comply with such performance times and dates shall not amount to breach of contract by Commhoist.
- 3.2 The Services shall be provided by Commhoist as stated in the Quotation or as otherwise agreed by Commhoist.
- 3.3. Commhoist shall be entitled to perform the Services in such manner it deems reasonably appropriate.
- 3.4 If Commhoist’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees (including but not limited to failure to comply with the Client’s obligations under clause 6 and clause 7) then, without prejudice to any other right or remedy it may have, Commhoist shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client and to amend the Price.
- Terms of Payment
- 4.1 Unless otherwise agreed in writing between Commhoist and the Client, Commhoist shall invoice the Client for the Price on or at any time after completion of the Services or in any event as soon as is practicable.
- 4.2 Commhoist shall invoice the Client for Road Closure Charges upon payment by Commhoist of the Road Closure Charges.
- 4.3 The Price shall be payable by the Client within 30 days of completion of the Services.
- 4.4 The Road Closure Charges shall be payable by the Client in full within 30 days of the date of payment by Commhoist of the Road Closure Charges unless otherwise agreed in writing between Commhoist.
- 4.5 The Client shall be liable for all Road Closure Charges which shall be invoiced in accordance with this clause 4 regardless of whether or not the provision of the Services proceed on the Job Date, and regardless of whether or not any cancellation or variation in the Job Date is as a result of the acts or omissions of the Client or a third party or due to inappropriate conditions.
- 4.6 In the event of failure by the Client to make payment of any sums payable by the due date then without prejudice to any other right or remedy available to Commhoist, Commhoist shall be entitled to:-
- (i) cancel the Contract and suspend any further provision of the Services;
- (ii) charge the Client interest (both before and after any judgment) on the amount unpaid at the rate of 2% above the base rate of the Bank of Scotland from time to time in force until payment in full.
- The Goods
- 5.1 The Client warrants that the Client is the owner or authorised agent of the owner of the Goods and is authorised to accept and does accept these Terms and Conditions.
- 5.2 The Client warrants that the Goods are in good working order and suitable for the purposes for which they are used and conform to all relevant United Kingdom standards or requirements and any other specification or requirement set out in the Order.
- Information and Access
- 6.1 The Client shall provide Commhoist with all necessary information to enable Commhoist to provide the Quotation and Services including without limit the details of the Site (including but not limited to the condition of the ground and any underground spaces or utility pipes, cables etc.) and the Goods, and any special requirements relating to the movement, storage and/or handling of the Goods.
- 6.2 The Client shall provide Commhoist, as soon as practicable, with all relevant new information which comes to the attention of the Client, including but not limited to information about the Site or changes to the ground at the Site, at any time during the period of the Contract. In the event of the Client providing new information, Commhoist reserves the right to amend the Price in accordance with clause 2.7.
- 6.3 The Client warrants that all information provided by the Client is complete, true and accurate.
- 6.4 The Client authorises Commhoist to assume overall control of the provision of the Services, to provide the person appointed and to plan, supervise, carry out and complete the provision of the Services, including to control and instruct the Client’s personnel involved in the Services.
- 6.5 The Client authorises Commhoist to have free access to, and free movement on, the Site and to clear the Site of all vehicles and persons not directly involved in the Contract and, for that purpose, to set up barricades, tapes or cones, to the extent that Commhoist may at its discretion require for the performance of the Contract unless otherwise agreed in the Order or by Commhoist in writing.
- 6.6. Commhoist shall be entitled to arrange for the Services, or any part of the Services, to be carried out by agents, sub-contractors or independent contractors who, for the purposes of the Contract shall be regarded as Commhoist and whose rights against and duties and liabilities to, the Client shall be the same as those of Commhoist under these Terms and Conditions.
- 6.7 Unless otherwise agreed, the Client warrants that all necessary consents, wayleaves and approvals have been obtained, clear access is available and suitable conditions are in place (including without limit surfaces, roads and removal of obstacles) such that the Services can be performed without hindrance or interruption.
- Safety and Compliance
- 7.1 The Client shall, prior to Commhoist agreeing to perform the Services, promptly notify Commhoist of all information held by or reasonably available to the Client regarding any potential hazards known or believed to exist which may affect the provision of the Services including without limit any hazards at the Site and/or in the transport, handling or use of any of the Goods.
- 7.2 The Client shall comply with all relevant laws, codes of practice and requirements of any competent authority applicable in the classification, packing and labelling of the Goods and ensure that where appropriate they are accompanied by the required emergency information.
- 7.3 The Client shall be responsible for the provision of safe working conditions and practices for Commhoist workers whilst they are operating on the Site and the Client shall ensure that all the Goods are in a fit and safe state for Commhoist to perform the Services.
- Transportation of the Goods
- 8.1 Commhoist is not a common carrier.
- 8.2 In the event the Goods require transportation by air, sea, road or rail, and Commhoist is required to transport the Goods then Commhoist may undertake the transportation itself or arrange for transportation by a third party and to charge for these activities as part of the Price.
- Risk and damage to Goods
- 9.1 Subject to 9.2 and 9.3 below, risk of damage to or loss of the Goods shall remain with the Client.
- 9.2 In the event Commhoist arranges the transportation of the Goods either by a Carrier or itself, the risk of damage to or loss of the Goods shall pass to Commhoist upon Loading and such risk shall remain with Commhoist until Unloading at which time the risk shall revert to the Client. Commhoist may organise relevant insurance for the Goods and charge for such as part of the Price. The Client shall inspect the Goods on arrival and provide all necessary cooperation in respect of the transportation.
- 9.3 In the event the Client arranges the transportation of the Goods either by a Carrier or itself, the risk of the damage to or loss of the Goods shall pass to Commhoist upon Hookup and such risk shall remain with Commhoist until Unloading at which time the risk shall revert to the Client. The Client shall inspect the Goods on Unloading.
- 10.1. Commhoist shall be entitled to:-
- (i) employ the use of any Plant it deems appropriate for the purpose of providing the Services;
- (ii) hire third party Plant for the purpose of providing the Services.
- 10.2 In the event the Specifications specify a particular type of Plant, Commhoist shall be entitled to use a suitable alternative to the Plant in the Specification provided always that the Services are not materially affected.
- 10.3 In the event the Client requests specific or other specialised certified Lifting Gear in addition to the Plant provided, Commhoist shall provide such Lifting Gear subject to the Client bearing any additional costs incurred.
- 10.4 The Client shall keep, maintain and insure the Plant in accordance with Commhoist’s instructions from time to time and shall not dispose of or use the Plant other than in accordance with Commhoist’s instructions or authorisation.
- 10.1. Commhoist shall be entitled to:-
- Handling of Plant and Personnel
- 11.1 Commhoist shall supply suitably qualified personnel for the provision of the Services including personnel competent in operating the Plant who shall have appropriate qualifications, training and experience in the operation of the Plant.
- 12.1 Nothing in these Terms and Conditions shall exclude or limit the liability of Commhoist for death or personal injury caused by Commhoist’s negligence.
- 12.2 Commhoist’s liability (if any) in contract, tort or otherwise arising from the provision of the Services shall be limited to the greater of:-
- (i) the Price payable for the Services by the Client; or
- (ii) the amount recoverable by Commhoist under any insurance policy it may have arranged to cover such risks provided that nothing under these Terms and Conditions shall oblige Commhoist to obtain insurance or to claim under any insurance policy it may have arranged;
unless, in either case, a different amount is agreed by Commhoist and the Client prior to the acceptance of the Order.
- 12.3 Commhoist shall not be liable to the Client or be deemed to be in breach of Contract by reason of any delay in performing, or any failure to perform, any of its obligations under the Contract, if the delay or failure was due to any cause beyond Commhoist’s control. Without limiting the foregoing, the following shall be regarded as causes beyond Commhoist’s reasonable control:
- (i) Act of God, explosion, flood, snow, tempest, fire or accident;
- (ii) Epidemic or pandemic;
- (iii) War or threat of war, sabotage, insurrection, civil disturbance or requisition;
- (iv) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- (v) Import or export regulations or embargoes;
- (vi) Strikes, lock-outs or other industrial actions or trade disputes (whether involving the employees of Commhoist or of a third party);
- (vii) Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
- (viii) Power failure or breakdown in machinery.
- 12.4 Where Commhoist are delayed in performing any of its obligations under the Contract for any cause beyond Commhoist’s control, the Client shall cooperate with Commhoist to minimise any delay and to rearrange the dates for performance of the Services.
- 12.5 Commhoist shall not be liable for any loss, damage or injury caused or arising from:-
- (i) any defect in the Goods including design defects and any defects in respect of the Lifting Points on the Goods unless otherwise agreed by Commhoist;
- (ii) inaccurate or incomplete information provided by the Client;
- (iii) any written instructions provided by the Client to any of Commhoist’s employees, agents or other representatives unless such written instructions have first been approved by Commhoist;
- (iv) any defects in any Plant provided by the Client;
- (v) any act or omission of the Client, any personnel provided by the Client, or any other body or person contracted to the Client in respect of the Goods;
- (vi) any act or omission of any third party personnel, or any other body or person.
- 12.6 Commhoist shall not be liable to the Client in contract, tort or otherwise howsoever caused for any consequential loss including loss of profit, business contracts, revenues or anticipated savings, damage to Client’s reputation or goodwill, or any other special, indirect or consequential loss.
- 12.7 The Client shall perform a full inspection of the Site within 48 hours of completion of the Services, and shall notify Commhoist of completion of this inspection and any defect in the Services identified.
- 12.8 Any claims by the Client must be notified to Commhoist in writing within 14 days of the date of completion of the Services or, where the defect in quality or condition of Services or matter complained of was not apparent on reasonable inspection, within 14 days of the date of discovery of the defect or condition or matter, together with full details including nature of claim and loss, damage and injury.
- 12.9 If the Client does not notify Commhoist in accordance with clause 12.8, the Client shall not be entitled to claim against Commhoist and Commhoist shall have no liability for such claim, and the Client shall be bound to pay the Price and all other sums owing to Commhoist in accordance with the Contract.
- Insurance and Indemnity
- 13.1 Commhoist shall maintain appropriate policies of insurance to cover its potential liability arising from the provision of the Services in the following amounts:-
- (i) In respect of Plant – £3,000,000;
- (ii) In respect of the Goods – £3,000,000;
- (iii) In respect of Public Liability – £30,000,000;
- (iv) In respect of liability to Client – £30,000,000.
- 13.2 Commhoist shall be entitled to exclude the provision of the Services from cover under its existing policies and take out a specific insurance policy to cover the provision of the Services in the joint names of Commhoist and the Client at the expense of the Client.
- 13.3 In the event the value of the Goods exceeds the limit referred to in clause 13.1, the Client shall provide Commhoist with notice of this and provide sufficient details of the value of the Goods to enable Commhoist to arrange appropriate insurance cover at the expense of the Client.
- 13.4 The Client shall be entitled to request other specific insurance cover and Commhoist shall endeavour to arrange any such insurance cover at the expense of the Client.
- 13.5 The Client shall indemify and keep indemnified Commhoist against:-
- (i) any claim arising from or connected with Commhoist’s work on the Site, in preparing the Site or providing the Services or the Goods including claims in nuisance and claims of trespass to persons, property, land or air space;
- (ii) all other losses, damages or claims in respect of any matter arising from or in connection with the provision of the Services and for which under these Terms and Conditions, the Client is liable or for which Commhoist is not liable.
- 14.1 The Client shall not be entitled to assign any of its rights or obligations under the Contract without the prior written consent of Commhoist.
- 14.2 The Contract and these Terms and Conditions contain the whole agreement between the parties and supersedes all previous agreements.
- 14.3 No failure or delay by Commhoist in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver thereof or prejudice any other or further exercise by Commhoist of any of its rights or remedies under these Terms and Conditions.
- 14.4 The rights and remedies in these Terms and Conditions are cumulative and not exclusive of any right or remedies provided by law.
- 14.5 These Terms and Conditions shall not be varied except with Commhoist’s prior written consent.
- 14.6 A notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to the 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.
- 14.7 If a provision of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:-
- (i) the validity or enforceability in that jurisdiction of any other provision of these Terms and Conditions; or
- (ii) the validity or enforceability in any other jurisdiction of that or any other provision of these Terms and Conditions.
- 14.8 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Terms and Conditions and the Contract and no person other than the parties to the Contract shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.
- 14.9 The Contract and these Terms and Conditions shall be construed in accordance with the Laws of England and the parties submit to the non-exclusive jurisdiction of the English Courts.