1 Definitions and Interpretation
1.1 The following definitions and rules of interpretation apply to the Agreement:
“Agreement”: the agreement to hire the Vehicle(s) as more particularly set out in the Rental Agreement and subject to these Conditions.
"Business Day": a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“BVRLA”; the British Vehicle Rental & Leasing Association which is the UK trade body for companies engaged in vehicle rental and leasing.
“Charges”: the hire charges for the Vehicle(s) and any additional charges made by the Lessor for the Services, in each case as set out in the Rental Agreement.
“Commencement Date”: the date provided as the start date in the Rental Agreement.
“Conditions”: the terms and conditions set out in this document as varied by the Lessor from time to time.
“Default Charges”: the charges set out in clauses 9.8 to 9.11.
“Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
“Delivery Location”: the Lessor’s premises or such other location as agreed by the Lessor in writing.
“Detriments”: losses, damages, claims, costs, fees, charges, fines, penalties, expenses and other detriments whatsoever (to include but not limited to reasonable professional fees and expenses incurred whether or not any mediation, arbitration or litigation is involved).
“Excess Kilometre Charges”: charges made by the Lessor for the number of kilometres which exceed the Maximum Annual Distance.
“Hire Period” the period set out in the Rental Agreement (subject to earlier termination under clause 12).
“Maximum Annual Distance”: the figure set out in the Rental Agreement as being the maximum number of kilometres the Lessee is permitted to drive the Vehicle(s) during each year of the Hire Period.
"Purchase Option": the Lessee's option to purchase the Vehicle(s) as described in clause 15 (Purchase Option) and the terms of which are set out in the Rental Agreement.
"Purchase Option Price”: the price of the Purchase Option as set out in the Rental Agreement.
“Rental Agreement”: the Lessor’s written confirmation of the Lessee’s hire of the Vehicle(s) (including any relevant Vehicle Inspection Form) as set out overleaf.
“Services”: the additional services to be provided in relation to the Vehicle(s) (including maintenance, repairs, breakdown services, tyres (excluding damage and punctures to tyres), MOT services and windscreen repair or replacement) as set out in the Rental Agreement.
“Vehicle(s)”: the truck(s) (mounted or unmounted) and/or vans described in the Rental Agreement and any replacement truck(s) and/or vans made available by the Lessee including any parts or equipment ancillary thereto and otherwise as specified and including wheels, tyres, accessories, tools, fittings and all additions and renewals made thereto during the Hire Period.
“Vehicle Charge” has the meaning given in clause 8.1.
“Vehicle Inspection Form” the form recording the condition of the Vehicle(s) immediately prior to the Lessee being provided with the Vehicle(s) (agreed by both the Lessor and Lessee).
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 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.
1.2.5 A reference to writing or written includes fax and email.
2 Basis of Agreement
The Lessee warrants and represents that it is entering into this Agreement in the course of a business.
3 Leasing of the Vehicle
3.1 The leasing of the Vehicle(s) under this Agreement shall commence on the Commencement Date and shall continue for the Hire Period, on and subject to these Conditions.
3.2 It is agreed that the leasing of the Vehicle(s) shall not constitute a sale of the Vehicle(s) or confer upon the Lessee a right of ownership in the Vehicle(s). Save as set out in clause 15 and the Rental Agreement nothing in this Agreement obliges the Lessor to transfer the Vehicle(s) to the Lessee.
3.3 The Lessee represents and undertakes that it will use the Vehicle(s) strictly in accordance with the terms of the Agreement.
3.4 The Lessor and the Lessee will agree the Delivery Location in writing. The Lessee must accept delivery of the Vehicle(s) at the Delivery Location.
3.5 The Lessee agrees that the physical condition of the Vehicle(s) at the point of handover shall be as shown on the applicable Vehicle Inspection Form, a copy of which will be left with the Vehicle. If there is any additional damage to the Vehicle(s) which is not shown on the Vehicle(s) Inspection Form then the Lessee must ensure that it notifies the Lessor prior to the removal of the Vehicle(s) from the Delivery Location.
3.6 If no such notification is made then the Lessee shall be deemed to have examined and accepted the Vehicle(s) and found them to be in good condition and shall be liable for any repair, administration, lost revenue or other costs which the Lessor incurs in relation to the Vehicle(s) following such acceptance. The Lessee further agrees that the physical condition of the Vehicle(s) at the point of collection or delivery at the end of the Hire Period shall be inspected by the Lessor.
3.7 The Lessor will keep the Vehicle's Registration Certificate (VC5 or any similar document).
3.8 The Vehicle(s) shall at all times remain the property of the Lessor and the Lessee shall have no right, title or interest in the Vehicle(s) (save the right to possession and use in accordance with these Conditions) except where the Lessee purchases the Vehicle(s) pursuant to clause 16.
4 Lessee’s obligations
4.1 The Lessee must before delivery or collection of the Vehicle(s) from the Delivery Location provide to the Lessor:
4.1.1 the Lessee’s operator’s licence number;
4.1.2 a full legible copy of the Lessee’s operator’s licence showing the available margin;
4.1.3 a full legible copy of the operator’s licence disc;
4.1.4 the date the Lessee’s operator’s licence is to be renewed; and
4.1.5 details of the Lessee’s insurance policy.
4.2 The Lessee must supply the following immediately upon request during the term of the Hire Period to the Lessor:
4.2.1 details of the condition or location of the Vehicle(s);
4.2.2 the Lessee's operator compliance risk score (OCRS) from time to time;
4.2.3 the Lessee's roadside encounter history concerning the Vehicle(s) or otherwise;
4.2.4 any correspondence passing between the Lessee and the traffic commissioner relating to the Lessee’s operator’s licence, in particular relating to its validity and renewal;
4.2.5 if they exist, any preventative maintenance inspection sheets, records or history concerning the Vehicle(s);
4.2.6 any information concerning traffic offences that relate to the use of the Vehicle(s) (including but not limited to) congestion charges, speeding, bus lane, or parking; and
4.2.7 any other information concerning the Lessee or the Vehicle(s) (or the extent necessary or useful in verifying the extent of the Lessee's compliance with this Agreement or for the Lessor to comply with this Agreement or the law).
5 Use of the Vehicle
5.1 The risk of loss, damage or destruction of the Vehicle(s) shall pass to the Lessee on delivery and shall remain with the Lessee throughout the Hire Period and any further term during which the Vehicle(s) is/are in the possession, custody or control of the Lessee and the Lessee shall:
5.1.1 ensure that the Vehicle(s) always prominently display the relevant licence disc and any necessary permits;
5.1.2 if any Vehicle’s kilometre fails, as soon as reasonably practicable, notify the Lessor and make the Vehicle available so that the Lessor may have it repaired or replaced and inform the Lessor of the dates when it was not working (and for the purpose of calculating any Excess Kilometre Charges, the Lessor may calculate an average number of kilometres for this period, based upon the recorded number of kilometres at the time of failure, or if unavailable, a Vehicle's service history);
5.1.3 take all necessary precautions, steps and measures so that the Vehicle(s) is/are and remain specified in and covered by a valid operator’s licence, ensure any Vehicle is not impounded, does not become the subject of any prohibition notice or any VOSA or police or Traffic Commissioner investigation or inquiry, is not written off and is not stolen;
5.1.4 keep the Vehicle(s) in the Lessee’s possession and under the Lessee’s control, safe and secure and in good and substantial repair and not sell or dispose of it or them or attempt to do so or allow it or them to be seized, confiscated or taken;
5.1.5 not park the Vehicle(s) at any operating centre not specified on the Lessee’s operator’s licence and/or outside the traffic area(s) for which the Lessee holds an operator’s licence covering the Vehicle(s) when not in use;
5.1.6 allow the Lessor or any of its agents or representatives to inspect and test the Vehicle(s) at all reasonable times and grant permission for the Lessor to enter any premises where the Vehicle(s) are kept for this purpose; and
5.1.7 make the Vehicle(s) available to the Lessor to enable the Lessor to carry out the Services.
5.2 The Lessee shall not:
5.2.1 use the Vehicle(s) for the carriage of loads in excess of its or their load carrying capacity and the Lessee shall ensure that all loads are evenly distributed to prevent axle overloads;
5.2.2 carry on the Vehicle(s) any goods which may damage it or them or render it or them unfit to carry other goods;
5.2.3 keep or operate the Vehicle(s) in an unsuitable environment;
5.2.4 without the written authority of the Lessor permit the Vehicle(s) to be taken to any country outside the United Kingdom (and if the Lessor does give such authority the Lessee must provide the Lessor with a copy of an international operator’s licence);
5.2.5 sell, assign, mortgage, pledge, underlet, let on hire or dispose of or part with possession of the Vehicle(s) or any part of it or them or charge the benefit of this Agreement or attempt to do any of these things;
5.2.6 use the Vehicle(s) as security for a loan, debt or other obligation or liability (and not to allow anyone to have any other rights over it or them) and inform the Lessor as soon as possible in writing if any attempt to seize or claim the Vehicle(s) is made by any person for any reason;
5.2.7 remove or change any name, nameplate, identification number, trade mark or any other mark on the Vehicle(s) or any part thereof or change any detail on any statutory certificate relating to the Vehicle(s), use or allow the Vehicle(s) to be used for any purpose for which it is not designed or suitable or for professional driving instruction or motor sports;
5.2.8 make any modification or alteration to the manufacturer's design and specification of the Vehicle(s) or alter the engine, transmission or bodywork or add, substitute or modify any equipment or component parts without the previous written authority of the Lessor and if the Lessor does consent, (where applicable) the Lessee must restore the Vehicle(s) to its original condition (at the Lessee’s cost) before returning the Vehicle(s) to the Lessor. Title and property in all substitutions and replacements to the Vehicle(s) shall vest in the Lessor immediately upon installation;
5.2.9 drive the Vehicle(s) (or allow it or them to be driven) if the Lessee becomes aware that any defect or damage makes a Vehicle’s continued use inadvisable and/or unlawful, until the defect or damage has been repaired;
5.2.10 drive the Vehicle(s) (or allow it or them to be driven) negligently, recklessly or when it is dangerous or unlawful to do so (to include, but not limited to, when the Lessee ceases to hold an operator's licence for any Vehicle or is not compliant with the conditions regarding that operator's licence or any undertakings given to any Traffic Commissioner); or
5.2.11 use or permit the Vehicle(s) to be used in contravention of law.
5.3 The Lessee shall not allow the Vehicle(s) to be driven or operated by any person:
5.3.1 other than the Lessee’s qualified and trained, competent employee drivers (except by any driver involved in the maintenance of the Vehicle(s) or any other driver expressly permitted in writing by the Lessor to drive the Vehicle(s));
5.3.2 who has ever been convicted of driving whilst under the influence of drink or drugs, driving or being in charge of a vehicle with their blood/alcohol concentration above the prescribed limit, or convicted of careless or inconsiderate driving (if more than two endorsements) or who has caused death by reckless or dangerous driving;
5.3.3 who is under the influence of alcohol, hallucinatory drugs, narcotics or barbiturates;
5.3.4 who has within the preceding period of three years been convicted of any motoring offence or involved in any accident unless details have been disclosed to the Lessor and the Lessor has provided written consent to such person driving or operating the Vehicle(s). If any motoring offences are recorded against any authorised driver or drivers or if any authorised driver is involved in an accident during the Hire Period the Lessor may require that any such person is removed from the list of authorised drivers; or
5.3.5 who does not hold or who has not held a full United Kingdom driving licence (and where appropriate a heavy goods vehicle licence for the class of the Vehicle to be driven) for more than twelve months prior to the date on which this Agreement was commenced and the Lessee will forthwith inform the Lessor if during the Hire Period any authorised driver ceases for any reason whatsoever to hold such driving or heavy goods vehicle licence as the case may be;
5.3.6 who is below the age of 21 or above the age of 65; or
5.3.7 in any manner which will render any applicable insurance policy void.
5.4 The Lessee shall immediately, at the request of the Lessor, do all that is required by the Lessor for the enforcement of any rights or remedies against other parties in connection with the Vehicle(s).
6 Vehicle Services
6.1 If the Lessor has agreed to provide Services, where appropriate, the Lessee must:
6.1.1 notify the Lessor immediately in writing of any breakdown or the unsatisfactory working of any part or parts (including tyres) of the Vehicle(s);
6.1.2 in relation to any maintenance, repairs required, or damage to the Vehicle(s), immediately notify the Lessor and make the Vehicle(s) immediately available to allow the Lessor to undertake (or nominate and instruct a repairer in its sole discretion to undertake) any maintenance or repairs required.
6.2 In addition whether or not the Lessor has agreed to provide the Services, the Lessee must:
6.2.1 be fully responsible for the cleaning of the Vehicle(s) including cleaning and decontamination of the cargo pump, compressor and associated pipework cargo tanks and cargo area;
6.2.2 check the Vehicle's tyres daily to make sure they comply with the current legal requirements and the recommendations of the BVRLA and the tyre pressures conform with the levels shown in the manufacturer's handbook; and
6.2.3 check daily the levels of oil lubricants, anti-freeze and other such consumables/liquids and replenish at the Lessee's cost.
6.3 Where the tread depth of a tyre is above the number of millimetres recommended by the BVRLA in relation to the Vehicle(s) from time to time, the Lessee is responsible for all the costs and expenses incurred as a result of punctures or damage to tyres beyond reasonable wear and tear (“Severe Damage”). Should Severe Damage occur during the Hire Period the Lessee must notify the Lessor immediately. Upon a notification of Severe Damage by the Lessee, the Lessor will at its sole discretion either arrange for a mobile service provider to attend to the Vehicle and effect any repairs/replacement of tyres or inform the Lessee that the Vehicle is to be taken to an approved tyre specialist (“Approved Providers”) for repair/replacement. The Lessor will advise the Lessee whether they are required to pay the Approved Provider direct for any repair/replacement (in this case a valid receipt/invoice must be obtained by the Lessee and be presented to the Lessor at the end of the Hire Period for the Lessor’s records). Alternatively, the Lessor may elect to make a payment to the Approved Provider and will inform the Lessee if this option is chosen, the Lessee will then be charged by the Lessor for the costs of any repair/replacement tyres.
6.4 The Lessor will be responsible for the cost and replacement of tyres where such replacement is due to reasonable wear and tear (as determined by the BVRLA) or if the tread depth is below the millimetres recommended by the BVRLA for those Vehicle(s). The Lessee must call and notify the Lessor immediately when the tread depth of the tyres on a Vehicle are at the millimetres recommended by the BVRLA which should be apparent during daily safety checks of the Vehicle. Upon notification from the Lessee, the Lessor will at its sole discretion either arrange for the tyres to be repaired/replaced as necessary or advise the Lessee to have the tyres replaced/repaired at its cost (subject to reimbursement by the Lessor). The Lessor will not reimburse the cost of any replacement tyres beyond the cost of those that are supplied by the Approved Providers.
The Rental Agreement will record the level of fuel in the Vehicle(s) immediately before the Lessee the collection or delivery of the Vehicle(s). The Lessee must return the Vehicle(s) to the Lessor with the same level of fuel as recorded on the Rental Agreement. Any difference in fuel will be charged at the average local market rate plus a fee as communicated by the Lessor to the Lessee in writing.
8 Vehicle Charges
8.1 Except only for vehicle excise licence fees (which may, with prior agreement, be paid by the Lessor), it is the Lessee’s responsibility to pay all parking fines, charges, fees, speeding fines, congestion charges, impounding related charges (to include, but not limited to, release fees) and all other fines, charges, fees, duties, tolls and penalties whatsoever that become payable to or are imposed by VOSA, the police, any regulator, any traffic commissioner, any court or tribunal of competent jurisdiction or the police, authority or other organisation in respect of the use of and/or condition of and/or road-worthiness of the Vehicle(s) and the Lessor’s legal expenses, costs and any administration fees incurred in respect of these matters ( each a “Vehicle Charge” and together “Vehicle Charges”). By signing the Rental Agreement, the Lessee acknowledges and agrees that it is its responsibility, and it is therefore fully liable to pay all Vehicle Charges.
8.2 If the Lessor receives notice of a Vehicle Charge from an organisation, the Lessor may either (at its discretion) and without prejudice to the Lessor’s rights and remedies: (i) pay it on the Lessee's behalf, without giving the Lessee any prior notice, and recharge it in full to the Lessee, or (ii) provide the organisation making the charge with the Lessee's details for payment. In each case the Lessor may also charge the Lessee all its cost and expenses incurred in dealing with each Vehicle Charge). Without prejudice to the rights set out in this clause, the Lessor reserves the right not to pay the Vehicle Charge if it relates to an endorseable offence.
8.3 In order to ensure that the Lessor is able to enforce the provisions of this clause 8 in relation to all and any Vehicle Charges, the Lessee agrees that it will (at its own cost) do all such acts and things, provide such information and evidence and sign all documents, which the Lessor deems necessary or desirable to demonstrate that the Lessee is fully liable for all and Vehicle Charges.
8.4 The Lessor will pay vehicle excise licence fees for the Vehicle(s) unless otherwise agreed with the Lessee.
9.1 The Lessee must pay all Charges to the Lessor in pounds sterling when they are due. If the Lessee fails to pay Charges in full when due, the Lessor may charge the Lessee interest on the overdue amount as set out in clause 9.8 and/or be entitled to terminate this Agreement.
9.2 All Charges are shown exclusive of value added tax (‘VAT’) and any other applicable taxes and duties or similar charges which will be charged to the Lessee in addition to the Charges at the rate in force from time to time prescribed by law.
9.3 The Lessor will apply the Lessee's payments to sums in the order in which they fall due.
9.4 The Lessor may change the amount of any administration fees payable under this Agreement. The Lessor will notify the Lessee in writing before the Lessor makes any such change.
9.5 The Lessor's preferred method of payment is payment monthly in advance for Lessees that do not hold a hire account with the Lessor. For Lessees that hold a hire account with the Lessor, payment will be invoiced monthly and payment shall be due on the 26th of the month of the invoice. The Lessor will take payment for account holders via direct debit or standing order unless the Lessor in its sole discretion agrees to another form of payment method. Irrespective of the payment method it will be the Lessee's responsibility to ensure that the Lessor receives the applicable payment in full by the due date and, if necessary, to prove that the Lessor has received such a payment. The Lessee will not, during the Hire Period, without the express prior written consent of the Lessor: (i) cancel any direct debit or standing order; and/or (ii) request a “charge back” or repayment by any similar method.
9.6 Subject to clause 9.7, the Lessor shall invoice for excess kilometres used over and above the Maximum Annual Distance at the end of each anniversary of the Commencement Date or the expiry of the Hire Period, whichever is the sooner and the Lessee agrees to pay the charges on receipt of such invoice. Any final charges at the end of the Hire Period will be made on the return of the Vehicle(s) to the Lessor. The number of kilometres over which each Vehicle has been driven pursuant to this Agreement shall be determined by reading the standard kilometre recording device attached to the Vehicle by the manufacturers or the Lessor.
9.7 The Lessor reserves the right, upon reasonable notice, at any time during the Hire Period, to inspect the kilometer recording devices attached to the Vehicle(s) to check the kilometres and the Lessor will ensure the Vehicle(s) are available for this purpose. If, in the reasonable opinion of the Lessor following such inspection, the excess kilometres used over and above the Maximum Annual Distance are much higher than expected, it reserves the right to invoice for those excess kilometres as soon as practicable following the inspection of the kilometre recording devices.
9.8 If the Lessee fails to pay any sum when it is due under this Agreement, the Lessor shall have the right to charge interest on such overdue sum. Interest shall 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% or, at the discretion of the Lessor, at the rate for the time being under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue from the date it is due until its received by the Lessor, such interest to accrue from day to day and after as well as before any judgment.
9.9 If the Lessee breaches (or does not comply with) this Agreement for any reason, the Lessor may charge the Lessee all its costs, claims, losses and expenses that the Lessor reasonably incurs enforcing the Lessor's rights (including, but not limited to, legal costs, court fees and costs incurred locating and communicating with the Lessee and in locating, recovering, storing and insuring the Vehicle(s)).
9.10 At the end of this Agreement if the Lessee returns all or any of the Vehicle(s) in less than good repair and condition (allowing for fair wear and tear) in accordance with Clause 14, or the Lessor does not return all or any of the Vehicle(s) documents or items referred to in the definition of Vehicle(s), the Lessor may charge the Lessee the resulting reduction in that Vehicle's value and/or the cost of replacement documents or items.
9.11 Subject always to clause 15 If the Lessee does not return all or any of the Vehicle(s) to the Lessor at the end of the Hire Period and/or when the Lessee is required to do so under this Agreement, the Lessor may charge the Lessee the Charges on the same basis as throughout the Hire Period until the Lessee returns it to the Lessor.
10 Insurance by Lessee
10.1 During this Agreement (from when the Lessee receives the Vehicle(s) until the Lessor receives it or them back at the end of this Agreement) where the Lessor and Lessee have agreed that the Lessee will insure the Vehicle(s):
10.1.1 the Lessee will be responsible for any loss or damage to the Vehicle(s), even if this happens without the Lessee's fault unless caused as a result of the Lessor's negligence or the Lessor's breach of this Agreement;
10.1.2 the Lessee must, no later than the Commencement Date, have in place, pay for and maintain valid and adequate comprehensive insurance cover for each Vehicle's full replacement value against all insurable risks (including fire, theft, damage, accident, loss in transit, seizure and the cost of repatriation if the Vehicle is taken outside the United Kingdom) with a reputable insurance company and ensure it covers any third party risks or other risks relating to the Vehicle(s) as may be required by law;
10.1.3 the Lessee shall not cancel or materially change the insurance (including any reduction in coverage or policy amount) without the prior written consent of the Lessor;
10.1.4 the Lessee must inform the insurer of the Lessor's interest in the Vehicle(s);
10.1.5 the Lessee must upon demand produce copies of the full insurance policy documents to the Lessor (and evidence of insurance premiums having been paid in full) if the Lessor requests this;
10.1.6 the Lessee must ensure the Vehicle(s) is/are used within the terms of the insurance policy;
10.1.7 drivers engaged by the Lessee in any capacity must be lawfully entitled to work in the United Kingdom, have valid driving licences and be covered by the policy to drive the Vehicle(s);
10.1.8 the Lessee must inform the Lessor immediately if the Lessee or its engaged drivers become disqualified from driving or for any other reason becomes no longer insured under the policy to drive any Vehicle;
10.1.9 if any Vehicle is damaged or in an accident, the Lessee must make and pursue any claim against the applicable insurer with all due diligence, skill and care and use any insurance money the Lessee receives for the damage to repair the Vehicle.
10.1.10 If any Vehicle is declared a total loss by the insurer or is stolen:
10.1.10.1 the Lessee must inform the Lessor immediately without any delay;
10.1.10.2 the Lessee must with all due diligence, skill and care make and pursue a claim under the Lessee's vehicle insurance policy for the loss of the Vehicle and ask the insurer to pay the insurance money direct to the Lessor (and if the insurer pays the insurance money to the Lessee for the Vehicle, the insurance money will be held on trust for the Lessor until paid to the Lessor and the Lessee must promptly pay it to the Lessor);
10.1.10.3 the Lessor may (but is not obliged to) negotiate and agree the insurance claim for the Vehicle with the insurer (and, if the Lessor decides to do this, the Lessor will tell the Lessee, and the Lessor will accept the best insurance payment the Lessor can reasonably negotiate with the insurer, and the Lessee will be bound by this and must still pay the Lessor any shortfall owing under this Agreement (see clause 10.2 below)); and
10.1.10.4 this Agreement will not end, and the Lessee must continue to pay the Charges, until the Lessor receives full payment of the sums set out in Clause 10.2 below (and if the insurer does not pay these sums in full or at all, the Lessee must pay the Lessor the shortfall on demand (taking into account the Charges the Lessee has paid after the date of the total loss or theft) and the Lessor will pay to the Lessee any surplus the Lessor receives over the sums due to the Lessor).
10.2 The sums referred to in clause 10.1.10.4 are:
10.2.1 all unpaid Charges and any other sums which were due before the date of the total loss or theft, plus any Excess Kilometre Charges payable after reducing the Maximum Annual Distance pro rata to the reduced Hire Period; and
10.2.2 the Charges payable from the date of the loss or theft to the end of the Hire Period, less the VAT included in such Charges; and
10.2.3 a sum equal to the value of the Vehicle at the end of the Hire Period.
10.3 The Lessee acknowledges that by signing this Agreement the Lessor is authorised to contact the Lessee’s insurance provider and/or broker to verify the insurance coverage in place and the Lessee irrevocably authorises its insurer and insurance brokers to disclose any information requested from them by the Lessor.
11 Termination Events of Default
11.1 In the event of:
11.1.1 the Lessee failing to pay any sum within seven days of its due date for payment;
11.1.2 a material breach of the terms of this Agreement by the Lessee;
11.1.3 the Lessee repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify that its conduct is inconsistent with having the intention or ability to give effect to the terms of this Agreement;
11.1.4 any of the Lessee's representations or the particulars in the Rental Agreement proving to be incorrect;
11.1.5 the abandonment of any Vehicle by the Lessee; or
11.1.6 the Lessee suspending, or threatening to suspend, payment of its debts or being unable to pay its debts as they fall due or admitting inability to pay its debts or it being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 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 Insolvency Act 1986;
11.1.7 the Lessee commencing negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or making a proposal for or entering into any compromise or arrangement with its creditors (other than for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee);
11.1.8 a petition being filed, a notice being given, a resolution being passed, or an order being made, for or in connection with the winding up of the Lessee (other than for the sole purpose of a scheme for a solvent amalgamation of the Lessee with one or more other companies or the solvent reconstruction of the Lessee);
11.1.9 an application being made to court, or an order being made, for the appointment of an administrator, or a notice of intention to appoint an administrator being given or an administrator being appointed, over the Lessee;
11.1.10 the holder of a qualifying floating charge over the assets of the Lessee becoming entitled to appoint or has appointed an administrative receiver;
11.1.11 a person becoming entitled to appoint a receiver over all or any of the assets of the Lessee or a receiver is appointed over all or any of the assets of the Lessee;
11.1.12 a creditor or encumbrancer of the Lessee attaching or taking possession of, or a distress, execution, sequestration or other such process being levied or enforced on or sued against, the whole or any part of the Lessee's assets and such attachment or process is not discharged within 14 days;
11.1.13 any event occurring, or proceeding being taken, with respect to the Lessee in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1.6 to clause 12.1.12(inclusive); or
11.1.14 the Lessee suspending or ceasing, or threatening to suspend or cease, carrying on all or a substantial part of its business;
the Lessor shall be entitled to treat this Agreement as having been repudiated by the Lessee and at any time thereafter it shall be entitled to serve written notice (which may subsequently be revoked) on the Lessee to the effect that the repudiation is accepted and that this Agreement has been terminated by the Lessee.
11.2 If the Agreement is ended as set out in clause 11.1, without prejudice to any other rights and remedies of the Lessor, the Lessee must pay the Lessor on demand:
11.2.1 all unpaid Charges and Vehicle Charges and other sums which were due before this Agreement ends;
11.2.2 any Excess Kilometre Charges payable after reducing the Maximum Annual Distance pro rata to the reduced Hire Period;
11.2.3 to compensate the Lessor for this Agreement ending early, all the Charges (in each case excluding VAT) which (but for the termination) would have been payable from the date this Agreement ends to the end of the Hire Period; and
11.2.4 without prejudice to the right to claim Default Charges, any other costs and expenses incurred by the Lessor in recovering and collecting any sum due under this Agreement.
11.3 Upon termination of this Agreement and without prejudice to clause 11.2, the Lessor’s consent to the Lessee’s possession of the Vehicle(s) shall terminate and the Lessor may, without notice, whether by itself or through its representatives, retake possession of the Vehicle(s).
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 this Agreement, which existed at or before the date of termination or expiry.
12 Lessee’s liability
12.1 The Lessee shall:
12.1.1 indemnify the Lessor for all loss or damage of whatever nature to any Vehicle or any part thereof;
12.1.2 indemnify the Lessor against any liability, loss, damage or injury to third parties or to third party property arising out of the Lessee's use of the Vehicle(s);
12.1.3 indemnify the Lessor for loss of revenue due to all and any Vehicle(s) being unfit to rent as a result of the Lessee’s use. For the purposes of this indemnity the Lessee’s liability shall extend for such a period as shall be reasonable to effect any repairs necessary and shall be calculated at the Lessor's daily rate of rental for each such Vehicle;
12.1.4 indemnify the Lessor against all and any Vehicle Charges;
12.1.5 indemnify the Lessor for all Detriments incurred as a result of a breach of this Agreement by the Lessee; and
12.1.6 repay to the Lessor on demand all costs, charges and expenses incurred in any way by reason of any breach of this Agreement by the Lessee including all costs, charges and expenses incurred by the Lessor in preparing or attempting to exercise any of its rights under the Agreement and in ascertaining the whereabouts of any Vehicle and/or the Lessee.
13 Lessor’s liability
13.1 If the Lessor breaches this Agreement or is negligent, the Lessor will not be liable for any loss or damage which is not reasonably foreseeable to the Lessee and the Lessor when this Agreement is made.
13.2 On the basis that the Lessee entered into this Agreement in the course of a business, the express terms and conditions of this Agreement are in lieu of all warranties, conditions, terms, representations, statements, undertakings and obligations, whether express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, all of which are hereby excluded, except for the terms implied by Sections 7 (title), 8 (hiring by description) and 9 (quality and fitness) of the Supply of Goods and Services Act 1982 to the extent that they cannot be contractually excluded.
13.3 If the Lessor breaches this Agreement or is negligent or breaches any other legal duty of care owed by it to the Lessee:
13.3.1 the Lessor will not be liable for any loss of profit, loss of business, loss of revenue or other economic loss (in each case whether direct or indirect loss) or for any indirect or consequential loss or damage which arises out of or in connection with this Agreement;
13.3.2 the Lessor will not be liable more than once for all claims or entitlements arising from the same event or series of connected events;
13.3.3 the Lessor's total aggregate liability per event or series of connected events in connection with this Agreement shall not exceed the aggregate of the Charges payable under this Agreement; and
13.3.4 the Lessee must not set-off (against the money payable under this Agreement) any money the Lessee claims against the Lessor.
13.4 The Lessor will not be liable for any breach or delay in performing or failure to perform its obligations under this Agreement if such delay or failure results from events, circumstances or causes outside the Lessor's reasonable control, such as (but not limited to) office computer system or telecommunication failures outside the Lessor's reasonable control, industrial action or strikes or acts of God, natural disasters, acts of government authorities or acts of terrorism.
13.5 Nothing in this Agreement will exclude or restrict any liability the Lessor may have for death or personal injury caused by the Lessor’s negligence, or for any fraud by the Lessor, or for any other liability to the extent that it cannot be contractually excluded and/or limited under the law.
14 Return of Vehicle
14.1 When this Agreement ends under Clause 11 and/or the Hire Period expires, if the Lessee does not wish to purchase the Vehicle(s) in accordance with clause 15, the Lessee will no longer have any right to keep the Vehicle(s) and the Lessee must return it or them to the Lessor by making it available for the Lessor to collect from the Lessee or, only with the Lessor’s prior Agreement, return it to the Lessor at the Lessee's expense at the location in the United Kingdom which the Lessor reasonably specifies.
14.2 If the Lessee fails to return the Vehicle(s) to the Lessor in accordance with Clause 14.1 above, or fails to comply with this Agreement the Lessor will be entitled to repossess it or them. The Lessee acknowledges that additional Charges may be payable until the Lessor receives the Vehicle(s) and if the Lessee continues to operate the Vehicle(s) in contravention of this Agreement or, after the Lessee’s rights have been terminated, the Lessor will be entitled to report the Vehicle(s) as stolen to the police or any other law enforcement agency.
14.3 The Lessee must return the Vehicle(s) in good repair and condition (allowing for fair wear and tear) and the Lessee must return with the Vehicle(s) together with all documents relating to the Vehicle(s), including (but not limited to) the service record, vehicle manual, the current MOT Certificate (if applicable), radio codes and any satellite navigation disc. The Lessee's obligations under this Agreement continue until the Lessor receives the Vehicle(s) and all documents relating to the Vehicle(s).
14.4 If the returned Vehicle(s) contain personal effects, the Lessor will (at the Lessor’s discretion) either return these to the Lessee and charge the Lessee the Lessor's delivery costs or ask the Lessee to collect them by arrangement with the Lessor. In each case an administration fee that the Lessor considers reasonable may also be payable. If the Lessor asks the Lessee to collect the personal effects and the Lessee fails to do so within 30 days of the Lessor’s request, the Lessor will be entitled to dispose of them in a manner the Lessor reasonably decides without further notice to the Lessee (which may include, at the Lessor's discretion, selling them, handing them to the police or giving them to any charity). If the Lessor sells the personal effects, the Lessor will credit any sale proceeds towards any money the Lessee owes the Lessor and pay any balance left over to the Lessee (less any reasonable sale costs).
14.5 Upon return of each Vehicle Excess Kilometre Charges will be made where the kilometres travelled by the Vehicle exceeds the Maximum Annual Distance, and will be invoiced and payable in accordance with clause 9.
14.6 The Lessor may claim such Default Charges as it deems are due and payable.
15 Purchase Option
15.1 The Lessor may in the Rental Agreement agree with the Lessee that it shall, subject to clause 15.2, have the right to purchase all or any of the Vehicle(s) on the last Business Day of the Hire Period at the Purchase Option Price.
15.2 The Purchase Option may only be completed in accordance with the Rental Agreement if all amounts due to the Lessor under this Agreement up to the last Business Day of the Hire Period have been paid in full by the Lessee and the Lessor has received, in cleared funds the full amount of the Purchase Option Price
15.3 Upon completion of the purchase of the Vehicle(s) under this clause 15, such title to the Vehicle(s) as the Lessor had on the Commencement Date shall transfer to the Lessee. The Vehicle(s) shall transfer to the Lessee in the condition and at the location in which it is found on the date of transfer.
16.1 The person(s) who signs this Agreement on behalf of the Lessee warrant(s) that they have the appropriate and necessary authority to do so on behalf of the Lessee.
16.2 Where two (2) or more persons are named as the Lessee, their liability shall be joint and several.
16.3 This Agreement and any dispute or claim arising out of this Agreement shall be governed and construed in all respects in accordance with English law. The parties agree to submit to the exclusive jurisdiction of the English courts.
16.4 The Lessor has the right to, (but the Lessee may not without the written consent of the Lessor in writing) assign, transfer, change or subcontract or deal in any other way with its rights arising under the Agreement in whole or in part, without the Agreement of the Lessee.
16.5 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address or, as the case may be, fax number or email address as that party may have specified to the other party in writing in accordance with this clause 16.5 , and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
16.6 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.5; if sent by pre-paid first class post or recorded delivery, at 9:00am on the second working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, at 9am on the working day after transmission.
16.7 If any court or competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected.
16.8 A waiver of a right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
16.9 A person who is not a party to the Agreement shall not have any rights under or in connection with it and shall not have any rights to enforce its terms.
16.10 No variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Lessor.
17 Data Protection and Processing of Data
17.1 The Lessor and the Lessee shall comply with all applicable requirements of the Data Protection Legislation. This clause 17 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
17.2 It is acknowledged that for the purposes of the Data Protection Legislation, the Lessee and the Lessor are both Data Controllers (where Data Controller has the meaning as defined in the Data Protection Legislation).
17.4 Without prejudice to the generality of clause 17.1, where applicable the Lessee will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Lessor for the duration and purposes of this Agreement.
17.5 Without prejudice to the generality of clause 17.1, the Lessor shall, in relation to any Personal Data where it is a Data Controller:
17.5.1 comply with its obligations under Data Protection Legislation in its collection, processing and provision of Personal Data in connection with this Agreement;
17.5.2 comply with all the internal policies and procedures that it has in place to deal with the collection, use and processing of Personal Data;
17.5.3 provide the Lessee with such co-operation and information as it may reasonably request to fulfil the Lessee’s rights under Data Protection Legislation;
17.5.4 promptly, and at the option of the Lessee, return to the Lessee or delete all materials and Personal Data of the Lessee following termination of expiry of this Agreement, other than to the extent its retention is required by relevant laws;
17.5.5 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
17.5.6 notify the Lessee as soon as practicable on becoming aware of a Personal Data breach;
17.5.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 17.5.
17.6 The Lessee will:
17.6.1 comply with its obligations under applicable Data Protection Legislation in relation to its collection, processing and provision of Personal Data to the Lessor in connection with this Agreement, including that its processing of Personal Data is lawful and is undertaken in accordance with the principles relating to the processing of Personal Data set out in Data Protection Legislation;
17.6.2 ensure there is no prohibition or restriction in place which would prevent or restrict the Lessee from disclosing or transferring the Personal Data to Lessor;
17.6.3 not permit the Lessor to process any Personal Data, in breach or contravention of any order issued to, or limitation of processing imposed on, the Lessee by any supervisory authority; and
17.6.4 provide the Lessor with such co-operation and information as the Lessor may reasonably request from time to time to permit the Lessor to comply with its obligations under Data Protection Legislation.
18 Confidential Information
18.1 The Lessor and the Lessee shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other except as permitted by clause 18.2.
18.2 Each party may disclose the other party's confidential information:
18.2.1 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 18; and
18.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 Neither the Lessor nor the Lessee shall use the other’s confidential information for any purpose other than to perform its obligations under this agreement.
1 Definitions and Interpretation