1. DEFINITIONS
(a) “Contract” means this Contract between Custom Operators and the Hirer for the hire of Personnel, which incorporates the Offer and the Temporary Worker Terms and is governed by these conditions.
(b) “Hire Period” means the period commencing on the date when the Personnel is required to commence the Work for the Hirer, and concluding on the date on which the Work is completed by the Personnel.
(c) “Hirer” means the hirer more particularly designated in the Offer and includes their successors or personal representatives.
(d) “Custom Operators” means Custom Operators Limited incorporated under the Companies Act (company number SC444458) and having its registered office at 22 Dalgrain Road, Grangemouth FK3 8ET and includes their successors, assignees, or personal representatives.
(e) “Offer” means Custom Operators’ offer to hire the Personnel to the Hirer annexed hereto.
(f) “Personnel” means any personnel provided by Custom Operators for the operation, inspection and/or maintenance of any Plant supplied under the Contract;
(g) “Plant” means the plant, machinery, vehicles, equipment, accessories, and any ancillary items, welfare units, accommodation, vehicles, or equipment therefor, or anything which is supplied by the Hirer for use and/or operation by the Personnel, all as more particularly set out on the Offer.
(h) “Site” means the site set out in the Offer to which the Plant is to be delivered.
(i) “Temporary Worker Terms” means the document titled “Terms of business for the supply of temporary workers” annexed hereto. For the avoidance of doubt, for the purposes of the Contract, the “Employment Business” as defined in the Temporary Worker Terms shall be Custom Operators, and the “Client” as defined in the Temporary Worker Terms shall be the Hirer;
(j) “Work” means the duties to be carried out by the Personnel for and on behalf of the Hirer as set out in the Offer;
(k) “Working Day” means 8.00 am to 4.30 pm, Monday to Thursday, and 8.00 am to 3.30 pm, on Friday allowing a half-hour lunch break each day, unless otherwise specified in the Contract.
(l) “Working Week” means the period from 8.00 am on Monday to 3.30 pm on Friday, unless otherwise specified in the Contract.
2. EXTENT OF CONTRACT
2.1. This Agreement together with the Offer and the Temporary Worker Terms constitutes the Contract and represents the entire agreement between Custom Operators and the Hirer for the supply of Personnel by Custom Operators to the Hirer. The Contract is deemed to be accepted by the Hirer by its signing of the Offer.
2.2. Unless otherwise agreed in writing by Custom Operators, this Agreement shall prevail over any terms of business or purchase conditions (or similar) put forward by the Hirer.
2.3. No variation or alteration to this Agreement shall be valid unless the details of such variation are agreed between Custom Operators and the Hirer and are set out in writing and a copy of such varied terms in writing is given to the Hirer stating the date on or after which the varied terms shall apply.
3. DIRECTION AND CONTROL OF PERSONNEL
3.1 Any Personnel supplied by Custom Operators shall be under the direction and control of the Hirer, in terms of the Temporary Worker Terms. Such Personnel shall for all purposes in connection with their employment by the Hirer be regarded as a Temporary Resource appointed to the Hirer in accordance with the Temporary Worker Terms (but without prejudice to any of the provisions of clause 13) and the Hirer shall be solely responsible for all site costs and claims arising in connection with the operation of any Plant by the Personnel.
3.2 Any Personnel provided by Custom Operators shall carry out no duties other than the Work for which they are supplied by Custom Operators unless previously agreed in writing between Custom Operators and the Hirer. The Hirer shall free, relieve and indemnify Custom Operators against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Custom Operators arising out of or in connection with any breach of this clause 3.
4. LIMITATION OF LIABILITY
Except for liability on the part of Custom Operators which is expressly provided for in the Contract:
4.1 Custom Operators shall have no liability or responsibility for any loss, or damage of whatever nature due to or arising through any cause beyond Custom Operators’ reasonable control in terms of the Copyright Designs and Patents Act 1988;
4.2 Custom Operators shall have no liability or responsibility, whether by way of indemnity or by reason of any breach of the Contract, breach of statutory duty or misrepresentation or by reason of the commission of any delict/tort (including but not limited to negligence) in connection with the hire, for any of the Hirer’s loss of profit, loss of use of Plant or any other asset or facility, loss of production or productivity, loss of contracts with any third party, liabilities of whatever nature to any third party, and/or any other financial or economic loss or indirect or consequential loss or damage of whatever nature; and
4.3 whenever the Contract provides that any allowance is to be made against hire charges, such allowance shall be the Hirer’s sole and exclusive remedy in respect of the circumstances giving rise to the allowance, and such remedy shall be limited to the amount of hire charges which would otherwise be or become due if the allowance in question had not been made.
For the avoidance of doubt, nothing in these conditions limits or seeks to exclude Custom Operators’ liability for claims of death or personal injury caused by Custom Operators’ negligence, fraud or for any other liability for which it is not permitted to seek to limit or exclude by operation of law.
5. NOTICE OF ACCIDENTS
If the Personnel is involved in any accident resulting in injury to persons or damage to property, immediate notification must be given by the Hirer to Custom Operators by telephone and confirmed in writing to Custom Operators 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 Custom Operators, no admission of liability, offer, promise of payment or indemnity shall be made by the Hirer without Custom Operators’ prior written permission.
6. BASIS OF CHARGING
6.1 The Hirer shall sign time record sheets in respect of each member of Personnel supplied. The signature of the Hirer’s representative shall bind the Hirer to accept the hours shown on the time records sheets. Where applicable, any telematics obtainable from any item of Plant may be checked against the Hirer’s statement or signed Personnel timesheet. In the event of any conflict as to the time utilised by any Personnel, then the order of precedence of evidence shall be as follows:
- telematics, where available, will take precedence over all other records;
- Where telematics are not available timesheets signed by the Hirer’s representative shall take precedence over all other records
- Minimum of 3 day hire applies to all contracts
6.2 The Hirer shall be charged for any toolbox talks, briefings, inductions, mandatory training or otherwise which any Personnel provided are required to attend prior to or when working on the Site.
6.3 The Hirer shall pay any Custom Operators invoice within 14 days net unless otherwise agreed.
6.4 Any query with any Custom Operators invoice must be raised in writing by the Hirer within 14 calendar days of receiving the invoice.
6.5 Custom Operators, in their absolute discretion, may agree to accept electronic records and data as an alternative to written statements of the number of hours, time record sheets and other information related to charging that the Hirer is required to provide to Custom Operators. Such electronic records and data may include but is not limited to telematics automatically generated by the Plant and electronic log books.
7. HIRER’S LIABILITY DURING THE NOTICE OF TERMINATION OF CONTRACT
7.1 Where the intended Hire Period of the Personnel is indeterminate or having been defined becomes indeterminate the Contract shall be terminable by 7 working days’ notice in writing given by either party to the other. Oral notice given by the Hirer to Custom Operators Personnel shall not be deemed to constitute compliance with the provisions of this clause.
7.2 If the Hirer terminates the Contract before the Hire Period commences, then the Hirer is liable for all reasonable costs and charges incurred by Custom Operators or to which Custom Operators is committed at the time of termination in arranging for the provision of the Personnel to the Hirer. Where the Hire Period has not commenced but insufficient notice of cancellation is provided by the Hirer to allow Custom Operators to mitigate the effects of late cancellation, Custom Operators reserves the right (at its absolute discretion) to charge the Hirer the full balance of the charges for the Hire Period
7.3 Should the Hirer terminate the Contract once the Hire Period has commenced, Custom Operators reserves the right to charge the Hirer the balance of sums due under the Contract as set out in the Offer.
8. IDLE TIME
When any Personnel is prevented from working for a complete Working Week, for the avoidance of doubt, the full applicable rate will be charged for any Personnel.
9. WAGES AND OTHER CHARGEABLE ITEMS RELATING TO PERSONNEL
All chargeable items in respect of Personnel shall be paid by the Hirer at the rates set out in the Offer and in accordance with the Temporary Worker Terms save that any subsequent increases before and/or during the Hire Period arising from awards under any wage agreements and/or from increases in Custom Operators’ statutory contribution shall be charged as additions at cost by Custom Operators and shall be admitted and paid by the Hirer.
10. TRAVELLING TIME AND FARES
Travelling time, fares and similar expenses for Personnel supplied by Custom Operators, incurred at the beginning and end of the Hire Period and where appropriate return fare of any Personnel supplied by Custom Operators to their home may be chargeable to the Hirer at cost.
11. STATUTORY/REGULATORY COMPLIANCE
11.1 The Hirer shall be responsible for compliance with all relevant legislation, regulations, instructions, or guidance issued by the Government, Government Agencies, Local Authorities, statutory regulators, and Public/Corporate Bodies established by Parliament and/or the Scottish Government including (without limitation) regulations under the Bribery Act, the Civil Aviation Act, the Construction (Design and Management) Regulations, the Environmental Acts, Factories Acts, the General Data Protection Regulation (GDPR), the 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.
11.2 For the avoidance of doubt, the Hirer shall indemnify Custom Operators against any and all charges, fines, or losses that Custom Operators may become liable for as a result of the Hirer utilising the Personnel during the Hire Period.
12. TERMINATION AND SUSPENSION
12.1 Custom Operators may terminate the Contract forthwith by written notice to the Hirer if one or more of the following events occur:
(i) The Hirer defaults in payment of any sum due to Custom Operators for hire of Personnel or other charges payable pursuant to this Contract and fails to remedy such default within 10 working days or such other period as might be considered reasonable under the circumstances upon receiving written notice requiring it to do so;
(ii) The Hirer fails to observe and perform the terms and conditions of the Contract and fails to remedy such default within 10 working days of receiving written notice requiring it to do so;
(iii)The Hirer suffers, or Custom Operators reasonably believes that the Hirer shall suffer, any distress or execution to be levied against them;
(iv)The Hirer makes or proposes to make any arrangement with their creditors or becomes insolvent within the meaning of Section 113 of the Housing Grants, Construction and Regeneration Act 1996 or any amendment or re-enactment thereof for the time being in force; or
(v) The Hirer does or causes to be done or permit or suffer any act or thing whereby Custom Operators’ rights in the Plant may be prejudiced or put into jeopardy.
12.2 In the event of termination Clause 34.1 above, Custom Operators shall be entitled to claim the hire charges outstanding as at the date of termination of the hire under this clause.
12.3 The rights under Clauses 34.1 and 34.2 :
(i) may be exercised notwithstanding that Custom Operators may have waived some previous default or matter of the same or a like nature; and
(ii) shall not affect Custom Operators’ right to claim damages for breach of Contract or recover any sums due under the Contract as a debt.
12.4 If the Hirer does not make payment of a sum by the final date on which payment is due to be made, Custom Operators has the right to suspend performance of its obligations under the Contract. The right to suspend may not be exercised without first giving to the Hirer at least 3 Working Days’ notice in writing of Custom Operators’ intention to suspend performance, stating the ground or grounds on which Custom Operators intends to suspend performance. The right to suspend performance will cease when the Hirer makes payment in full of the amount due.
13. DISPUTE RESOLUTION
The law of this Contract is Scots law and the Scottish courts shall have exclusive jurisdiction with regard to all matters arising therefrom.
14. LATE PAYMENTS
Custom Operators reserves the right to charge the Hirer for the late payment of any outstanding invoices under the Late Payment of Commercial Debts (Interest) Act 1998, or any subsequent equivalent legislation.
15. SEVERABILITY
If any of these clauses are held to be unlawful, void, or unenforceable, then that clause will be deemed severable and will not affect the validity and enforceability of the remaining clauses, to the extent permitted by law.
Address:
Custom Operators
Dalgrain Road
Grangemouth
FK3 8ET
Telephone: 0345 208 4444
Email: info@customoperators.co.uk
Website: www.customoperators.co.uk