Terms and Conditions of Hire for Leisurelend and Event Attractions
Please read these carefully as you will be asked to sign to say you have done so before the booking commences.
1.1 The following definitions and rules of interpretation apply in this agreement.
Application to Book the application form completed and submitted to the Council for the hire of Equipment.
Booking Confirmation: the written confirmation, which may be in the form of email, issued by the Council to the Hirer upon its receipt of the Hirer’s confirmation of acceptance of the Quote.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
Commencement Date: the date that the Hirer takes Delivery of the Equipment. This will be the date given on the Booking application as the first date of hire.
Council: means Aberdeenshire Council
Council Representative: means any employee or representative of the Council who is designated by the Council to remain with the Equipment during the Rental Period and may carry out or oversee the Installation of the Equipment
Delivery: the transfer of physical possession of the Equipment to the Hirer, being either (a) at the point when the Hirer takes the Equipment off the Council’s premises or (b) when the Equipment is delivered to the Site, and where necessary Installed, whichever of (a), or (b) is applicable.
Deposit: the deposit amount set out in the Payment Schedule.
Equipment: the items of equipment listed in 0, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Hirer: the person named on the Application to Book, who is responsible for the Equipment during the period of hire
Insolvency Event: means:
Where the Hirer is a company, a partnership or firm, or a number of persons acting together in any capacity:
a) the making or passing of any resolution, order or petition for the winding up, dissolution, administration or reorganisation of the Hirer, or a declaration of a moratorium in relation to any indebtedness of the Hirer;
b) the making of any composition, compromise, assignation or arrangement with any of the Hirer’s creditors;
c) the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or similar officer in respect of the Hirer; or
d) the occurrence of any similar event under the law of any other jurisdiction,
and shall include the occurrence of any of these events with regard to a parent company of the Hirer.
Where the Hirer is an individual:
b) the making of a criminal bankruptcy order against the Hirer;
c) the making of any composition or arrangement with or for the benefit of the Hirer's creditors, or any conveyance or assignation for the benefit of the Hirer's creditors, or an administrator is appointed to the Hirer's affairs;
d) the apparent insolvency of the Hirer within the meaning of the Bankruptcy (Scotland) Act 1985; or
Install/ Installation: the process carried out by the Council where the Equipment is delivered to the Site and is assembled, ready for appropriate use.
Payment Schedule: Schedule 1 which sets out the sums payable under this agreement.
Site: the Hirer's premises or venue where the Equipment will be used, in accordance with Schedule 3 where the applicable.
Rental Payments: the payments made by or on behalf of Hirer for hire of the Equipment.
Rental Period: the period of hire as set out in clause 3.
Risk Assessment: the document provided by the Council to the Hirer for the safe use of the Equipment on Delivery of the Equipment.
Quote: the figure quoted by Aberdeenshire Council to the Hirer representing the cost of hiring the relevant Equipment.
Total Loss: due to the Hirer's default the Equipment is, in the Council's reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes fax but not e-mail.
1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement and references to paragraphs are to paragraphs of the relevant schedule.
1.11 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 Upon receiving acceptance of the Quote in writing from the Hirer, the Council shall issue a Booking Confirmation.
2.2 By issue of a Booking Confirmation to the Hirer, the Council agrees to hire the Equipment to the Hirer, for use at the Site, subject to the terms and conditions of this agreement.
2.3 The Council shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Hirer's quiet possession of the Equipment.
The Rental Period starts on the Commencement Date and shall continue for the agreed hire period as given on the Booking Application, unless this agreement is terminated earlier in accordance with its terms.
4.1 The Hirer shall pay the Rental Payments to the Council in accordance with the Payment Schedule. The Rental Payments shall be paid in Pounds Sterling and shall be made by cash, cheque or invoice.
4.2 The Rental Payments shall apply to Equipment that is returned late, after the expiry of the Rental Period, on a per item, per (late) day rate, in accordance with the charges detailed in the Payment Schedule.
4.3 The Rental Payments are inclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hirer at the rate and in the manner from time to time prescribed by law.
4.4 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.5 If the Hirer fails to make any payment due to the Council under this agreement by the due date for payment, then, without limiting the Council's remedies under clause 10, the Hirer shall pay interest on the overdue amount at the rate of 3% above the base rate set from time to time by The Royal Bank of Scotland plc. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Hirer shall pay the interest together with the overdue amount.
5.1 Unless otherwise provided in this Agreement, the Hirer shall be responsible for collecting the Equipment from, and returning it to, the Council’s Premises. Title and risk shall transfer in accordance with clause 6 of this agreement.
5.2 Where the Council agrees to Deliver and/or Install the Equipment to the Hirer, the following provisions shall apply:
(a) Delivery of the Equipment shall be at a time and date agreed between the parties;
(b) The Council will collect the Equipment at the expiry of the Rental Period or on earlier termination of this agreement;
(c) The Council shall be entitled to charge the Hirer for costs in connection with the Delivery;
(d) Title and risk shall transfer in accordance with clause 6 of this agreement;
(e) An authorised representative of the Hirer shall be present at the Delivery and, where applicable, Installation of the Equipment. Acceptance of Delivery by the Hirer’s representative shall constitute conclusive evidence that the Hirer has examined the Equipment and has found it to be in good condition, complete and fit for the purpose for which it is intended. If required by the Council, the Hirer's duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery and where applicable, Installation, the Hirer shall provide all requisite personnel, materials, facilities, access, suitable working conditions and a suitable location to enable Delivery and Installation to be carried out safely and expeditiously and shall comply with the conditions specified in Schedule 3 where applicable.
6.1 The Equipment shall at all times remain the property of the Council, and the Hirer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).
6.2 Subject to Clause 6.3, the risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on Delivery, or where appropriate, on Installation. The Equipment shall remain at the sole risk of the Hirer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Hirer (Risk Period) until such time as the Equipment is redelivered to the Council. During the Rental Period and the Risk Period, the Hirer shall, at its own expense, obtain and maintain the following insurances:
(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Council may from time to time nominate in writing;
(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Council may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment;
(c) insurance, including covering towing, in respect of any vehicle or trailer used for the purpose of transporting the Equipment to the Site; and
(d) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Council may from time to time consider reasonably necessary.
6.3 In circumstances where the Council requires and provides to the Hirer, a Council Representative, who remains with the Equipment for the duration of the Rental Period, the risk of loss, theft, damage or destruction of the Equipment shall remain with the Council and the Hirer shall be relieved of its obligation to insure pursuant to Clause 6.2(a). For the avoidance of doubt, where the terms of this Clause 6.3 apply, the Hirer is not relieved of its obligations under Clauses 6.2 (b), (c) and (d).
6.4 All insurance policies procured by the Hirer shall be endorsed to provide the Council with at least twenty (20) Business Days' prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall, if requested by the Council, name the Council on the policies as a loss payee in relation to any claim relating to the Equipment. The Hirer shall be responsible for paying any deductibles due on any claims under such insurance policies.
6.5 The Hirer shall give immediate written notice to the Council in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Hirer's possession or use of the Equipment.
6.6 If the Hirer fails to effect or maintain any of the insurances required under this agreement, the Council shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Hirer.
6.7 The Hirer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Council and proof of premium payment to the Council to confirm the insurance arrangements.
7.1 The Hirer shall during the term of this agreement:
(a) ensure that the Equipment is kept in a suitable environment, which shall as a minimum meet the requirements set out in Schedule 3 and shall ensure the Equipment is only used for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any verbal or written operating instructions in line with the Risk Assessment provided by the Council;
(b) take such steps (including compliance with all safety and usage instructions provided by the Council) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including meeting the costs of replacing worn, damaged or lost parts, and make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Council;
(d) keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without the Council's prior written consent;
(e) permit the Council or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(f) not without the prior written consent of the Council, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Hirer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Council against all losses, costs or expenses incurred as a result of such affixation or removal;
(g) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Council in the Equipment;
(h) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Hirer shall notify the Council and the Hirer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Council on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(i) not use the Equipment for any unlawful purpose;
(j) ensure that at all times the Equipment remains identifiable as being the Council's property [and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment];
(k) deliver up the Equipment at the end of the Rental Period, or on earlier termination of this agreement, in a clean, undamaged condition, packaged as received by the Hirer, to such address as the Council requires, or if necessary allow the Council or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
(l) not do or permit to be done anything which could invalidate the insurances referred to in clause 6.
7.2 The Hirer acknowledges that the Council shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Hirer or its officers, employees, agents and contractors, and the Hirer undertakes to indemnify the Council on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Hirer to comply with the terms of this agreement.
8.1 The Council warrants that the Equipment shall be of satisfactory quality and fit for any purpose held out by the Council. The Council shall use reasonable endeavours to remedy, free of charge, any material defect in the Equipment following Delivery provided that:
(a) the Hirer notifies the Council of any defect as soon as is reasonably practicable after becoming aware of the defect;
(b) the Council is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Council's authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hirer or on its behalf; and
(e) the defect is directly attributable to defective material, workmanship or design.
8.2 In the event of the Equipment having a defect which is not capable of being remedied or repaired, the Council shall be entitled to supply substitution Equipment of a similar type and condition.
8.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Council, the Hirer shall be entitled only to such warranty or other benefit as the Council has received from the manufacturer.
9.1 Without prejudice to clause 9.2, the Council's maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, delict (including negligence), misrepresentation or otherwise, shall in no circumstances exceed £5,000,000.00 [FIVE MILLION] pounds sterling.
(a) either party's liability for death or personal injury caused by its own negligence;
(b) either party's liability for fraud or fraudulent misrepresentation; or
(c) any other liability which cannot be excluded by law.
9.3 This agreement sets forth the full extent of the Council's obligations and liabilities in respect of the Equipment and its hiring to the Hirer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Council except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.
9.4 Without prejudice to clause 9.2, neither party shall be liable under this agreement for any indirect or consequential loss or damage, whether:
(a) loss of profit;
(b) loss of revenue;
(c) loss of business; or
(d) depletion of goodwill,
and any other costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract, however caused, even if foreseeable.
(a) the Hirer fails to pay any amount due under this agreement on the due date for payment;
(b) the Hirer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach upon written request by the Council to do so;
(d) the Hirer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
10.2 For the purposes of clause 10.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Council would otherwise derive from:
(a) a substantial portion of this agreement; or
(b) any of the obligations set out in clause 7,
over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.4 Where the booking of Equipment is confirmed and is subsequently terminated by the Hirer by giving written notice to the Council a full refund of the Rental Payments will be given providing one of the following conditions are met;
10.4.1 where Booking confirmation is made more than four weeks prior to the Commencement Date and is terminated by giving not less than two weeks’ notice; or
10.4.2 where Booking confirmation is made less than four weeks but more than seven days prior to the Commencement Date and is terminated by giving not less than forty-eight hours notice; or
10.4.3 where Booking Confirmation is made less than seven days prior to the Commencement Date and is terminated by giving not less than twenty-four hours notice;
10.5 Any refund given will be processed by the Council within fourteen days through BACS regardless of the method of the original Rental Payment. No refund of Rental Payments shall be made by the Council where the notice provisions detailed in clause 10. are not complied with.
11.1 Upon termination of this agreement, however caused:
(a) the Council's consent to the Hirer's possession of the Equipment shall terminate and the Council may, by its authorised representatives, without notice and at the Hirer's expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.5;
(ii) any costs and expenses incurred by the Council in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues beyond the agreed reasonable extension of time, the party not affected may terminate this agreement by giving written notice to the affected party.
13.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
15.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
15.4 Nothing in this clause shall limit or exclude any liability for fraud.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
No one other than a party to this agreement shall have any right to enforce any of its terms.
19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by fax to its main fax number.
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at the time recorded by the delivery service.
(c) if sent by fax, at 9.00 am on the next Business Day after transmission.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.1 If any provision or part-provision of this agreement 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 this agreement.
22.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law and the Parties irrevocably submit to the exclusive jurisdiction of the Scottish courts.
Schedule 2: Leisurelend Equipment for Hire – see list appended to booking form
Schedule 3 – Event Hire Location Details
These conditions must be observed as minimum requirements for the use of the following equipment;
1. Climbing Wall –
|Minimum area required for safe use of the equipment (metres)||Surface Required|
|20x8 (with an additional 8m turning space required for trailer.)||Level area only, on solid tar or grass/artificial grass.|
2. Body Zorbs –
|Minimum area required for safe use of the equipment (metres)||Surface Required|
|15x15||Level area only, on solid grass/artificial grass only|
3. Street Sport Unit –
|Minimum area required for safe use of the equipment (metres)||Surface Required|
|10x15||Level area only, on solid tar or grass/artificial grass.|
All other equipment listed in Schedule 2 must be used as directed in the Risk Assessment provided by the Council on Delivery or Installation.