AGREED TERMS
1. Interpretation
1.1 The following definitions and rules of interpretation apply in this agreement.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date of this agreement.
Delivery: the transfer of physical possession of the Equipment to the Hiree at the Site.
Delivery Date:
Equipment: merchant services payment terminal(s) as listed in Error! Reference source not found., all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Equipment Charges: applicable charges as set out under Schedule 1.
Payment Schedule: Error! Reference source not found., which sets out the sums payable under this agreement.
Membership Payments: the monthly membership fee made by the Hiree to the Hirer for hire of the Equipment; set out under Schedule 1.
Joining Fee: upfront fee for hire of the Equipment payable to the Hirer prior to the Delivery Date; as set out under Schedule 1.
Commission Payments: the commission payments made by the Hiree to the Hirer relating to transactions generated by the Equipment; as set out under Schedule 1.
Hire Period: the period of hire as set out in clause 3.
Risk Period: the period during which the Equipment is at the sole of the risk of the Hiree as set out in clause 6.2.
Site:
Total Loss: due to the Hiree’s default the Equipment is, in the Hirer’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK.
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).
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 in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as it is in force as at the date of this agreement.
1.9 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made as at the date of this agreement under that legislation or legislative provisions.
1.10 A reference to writing or written includes fax and email.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.
1.13 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.
1.14 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. Equipment hire
2.1 The Hirer shall hire the Equipment to the Hiree for use at the Site subject to the terms and conditions of this agreement.
2.2 The Hirer shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Hiree’s quiet possession of the Equipment.
3. Hire Period
The Hire Period starts on the Delivery Date and shall continue for an initial period of no less than [30/60/90 calendar days] (Initial Term) and continue thereafter unless and until this agreement is terminated earlier in accordance with its terms.
4. Payments
4.1 The Hiree shall pay the Joining Fee, the Membership Payments, Commission Payments and Equipment Charges to the Hirer in accordance with the Payment Schedule (collectively the “Payments”) and shall be applicable unless and until this agreement is terminated in accordance with its terms. The Payments shall be paid in British Pound sterling (£/GBP) and shall be made by BACS for first Payment and by Direct Debit thereafter. The Payments shall be reviewed every three years by the Hirer.
4.2 The Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Hiree at the rate and in the manner from time to time prescribed by law and exclude any applicable interchange charges and banks charges.
4.3 All amounts due under this agreement shall be paid in full without any set-off (other than specified in this agreement by the Hirer), counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.4 If the Hiree fails to make a payment due to the Hirer under this agreement by the due date, then, the Hirer will have the right to switch off the Equipment without notice and terminate the agreement with immediate effect by giving 7 calendar days’ notice and apply the an early termination fee of £175 in accordance with clause 10 and without limiting the Hirer’s remedies under clause 10, the Hiree shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5. Delivery and installation
5.1 Delivery of the Equipment shall be made by the Hirer via Service Logistics Ltd. The Hirer shall use all reasonable endeavors to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 6 of this agreement.
5.2 The Hiree shall install the Equipment at the Site in accordance with instructions provided by the Hirer via Service Logistics Ltd or request to the Hirer that installation is required and pay a sum of £150 to the Hirer. Where installation is carried out by Service Logistics Ltd, the Hiree shall procure that a duly authorised representative of the Hiree shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Hiree has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Hirer, the Hiree’s duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery and installation if applicable, the Hiree shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously including the materials, facilities, access and working conditions.
5.4 If the Hiree fails to accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by the Hirer’s failure to comply with its obligations under this agreement:
(a) the Equipment shall be deemed to have been delivered at 9.00 am on the Delivery Date; and
(b) the Hirer shall store the Equipment until delivery takes place, and charge the Hiree for all related costs and expenses (including insurance).
6. Title, risk and insurance
6.1 The Equipment shall at all times remain the property of the Hirer, and the Hiree 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 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Hiree on Delivery. The Equipment shall remain at the sole risk of the Hiree during the Hire Period and any further term during which the Equipment is in the possession, custody or control of the Hiree (Risk Period) until such time as the Equipment is redelivered to the Hirer. During the Hire Period and the Risk Period, the Hiree 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 Hirer 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 Hirer 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; and
(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Hirer may from time to time consider reasonably necessary and advise to the Hiree in writing.
6.3 The Hiree shall give immediate written notice to the Hirer in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Hiree’s possession or use of the Equipment.
6.4 If the Hiree fails to effect or maintain any of the insurances required under this agreement, the Hirer 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 Hiree.
6.5 The Hiree shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Hirer and proof of premium payment to the Hirer to confirm the insurance arrangements.
7. Hiree’s responsibilities
7.1 The Hiree shall during the term of this agreement:
(a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Hirer via Service Logistics Ltd;
(b) take such steps (including compliance with all safety and usage instructions provided by the Hirer) 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 Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment, up to a maximum of £150 or £200 on current Equipment and in any case shall not exceed 66% of replacement value. Should the equipment be beyond economical repair a replacement charge will be made of £250;
(d) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of the Hirer [unless to comply with any mandatory modifications required by law or any regulatory authority or unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Hirer immediately on installation;
(e) keep the Hirer fully informed of all material matters relating to the Equipment;
(f) at all times keep the Equipment in the possession or control of the Hiree and keep the Hirer informed of its location;
(g) permit the Hirer or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(h) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Hirer, together with such additional information as the Hirer may reasonably require;
(i) not, without the prior written consent of the Hirer, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not without the prior written consent of the Hirer, 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 Hiree shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Hirer against all losses, costs or expenses incurred as a result of such affixation or removal;
(k) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Hirer in the Equipment and, where the Equipment has become affixed to any land or building, the Hiree must take all necessary steps to ensure that the Hirer may enter such land or building and recover the Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Hirer of any rights such person may have or acquire in the Equipment and a right for the Hirer to enter onto such land or building to remove the Equipment;
(l) 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 Hiree shall notify the Hirer and the Hiree shall at its sole expense use its best endeavors to procure an immediate release of the Equipment and shall indemnify the Hirer on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(m) not use the Equipment for any unlawful purpose;
(n) ensure that at all times the Equipment remains identifiable as being the Hirer’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
(o) deliver up the Equipment at the end of the Hire Period at such address as the Hirer requires, or if necessary allow the Hirer or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
(p) not do or permit to be done anything which could invalidate the insurances referred to in clause 6.
7.2 The Hiree acknowledges that the Hirer 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 Hiree or its officers, employees, agents and contractors, and the Hiree shall indemnify the Hirer in full against all liabilities, costs, expenses, damages and losses (including 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 reasonable professional costs and expenses) suffered or incurred by the Hirer arising out of, or in connection with any failure by the Hiree to comply with the terms of this agreement.
8. Warranty
8.1 The Hirer warrants that the Equipment shall substantially conform to its specification and be of satisfactory quality and fit for any purpose in accordance with the manufacturer’s guarantee. The Hirer shall remedy, free of charge, any material defect in the Equipment which manifests itself provided that:
(a) the Hiree notifies the Service Logistics Limited of any defect as soon as possible;
(b) the Hirer and Service Logistics Limited are 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 Hirer’s authorised personnel;
(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Hiree or on its behalf; and
(e) the defect is directly attributable to defective material, craftship or design.
8.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Hirer, the Hiree shall be entitled only to such warranty or other benefit as the Hirer has received from the manufacturer.
8.3 If the Hirer fails to remedy any material defect in the Equipment in accordance with clause 8.1, the Hirer shall, at the Hiree’s request, accept the return of part or all of the Equipment.
9. Limitation of liability
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in this agreement limits any liability which cannot legally be limited including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973;
(d) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
9.3 Subject to clause 9.2, the Hirer’s total liability to the Hiree shall not exceed £200
9.4 Subject to clause 9.2, the Hirer shall not be liable under this agreement for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.5 Subject to clause 9.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this agreement are, to the fullest extent permitted by law, excluded from this agreement.
10. Termination
10.1 Without affecting any other right or remedy available to it, the Hirer may terminate this agreement with immediate effect by giving notice if:
(a) the Hiree terminates the agreement earlier than the Initial Term and an early termination charge of £175 which shall be payable to the Hirer within 30 calendar days from the date of notice;
(b) the Hiree fails to pay any amount due under this agreement on the due date for payment and where any Equipment is in possession of the Hiree the Hirer reserves the right to disconnect the Equipment;
(c) the Hiree 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 within a period of 7 days after being notified to do so;
(d) the Hiree repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(e) the Hiree suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(f) there is a change of control of the Hiree (within the meaning of section 1124 of the Corporation Tax Act 2010).
10.2 For the purposes of clause 10.1(c), 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 Hirer 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.
10.3 The Hiree shall be entitled to cancel or terminate their Membership by notifying the Hirer by email in accordance with the Notices clause 20 of this agreement and such notice being received by the Hirer at least 5 Business Days prior to the end of the final month and the Equipment must be returned in accordance with the terms of this agreement before close of business on the 7th calendar day of the following month.
11. Consequences of termination or expiry
11.1 On expiry or termination of this agreement, however caused:
(a) the Hirer’s consent to the Hiree’s possession of the Equipment shall terminate and will be required to make any outstanding Payments or monies owed to the Hirer and return the Equipment within 7 calendar days of termination to the Hirer at its company registered address if agreed with the Hirer, or return to Service Logistics Ltd at Unit 15, Fleming Close, Park Farm North, Wellingborough, Northants, NN6 6UF; or arrange pick up from the Site by Service Logistics Ltd, failure to return all Equipment shall result in an additional cost of £250, plus the monthly charge until it is returned or £250 is paid, payable to the Hirer by the Hiree immediately upon expiry of the 7 calendar days following termination.
(b) All Payments shall continue to be payable by the Hiree to the Hirer until all Equipment is returned to the Hirer in accordance with the terms of this agreement; for the avoidance of doubt, this applies in addition to any other monies or Payments owed by the Hiree to the Hirer under this agreement;
(c) the Hirer may, by its authorised representatives, without notice and at the Hiree’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
(d) without prejudice to any other rights or remedies of the Hiree, the Hiree shall pay to the Hirer on demand:
(i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4; and
(ii) any costs and expenses incurred by the Hirer in recovering the Equipment or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 The sums payable pursuant to clause Error! Reference source not found. shall be agreed compensation for the Hirer’s loss and shall be payable in addition to the sums payable pursuant to clause 11.1(d). Such sums.
11.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.4 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.
12. Force majeure
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, other than payment, if such delay or failure results 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 for 30 days, the party not affected may terminate this agreement by giving 10 calendar days’ written notice to the affected party.
13. Confidential information
13.1 Each party undertakes that it shall not at any time and for a period of two years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14. Assignment and other dealings
The Hiree shall not have the right under this agreement to assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15. Entire 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, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
16. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17. No partnership or agency
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.
18. Further assurance
At its own expense, each party shall, and shall use all reasonable endeavors to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
19. Third party rights
19.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
20. Notices
20.1 Any notice given to a party under or in connection with this agreement 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 email to the address below .
20.2 Any notice or communication 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 email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, where business hours resume. In this clause 20.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
20.3 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.
21. Waiver
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.
22. Rights and remedies
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.
23. Severance
23.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
23.2 If any provision or part-provision of this agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
24. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
25. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.