Agreed Terms

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 that the Lessee takes Delivery of the Equipment.
Delivery: the transfer of physical possession of the Equipment to the Lessee at the Site.
Deposit: the deposit amount set out on the front page.
Rental Payments: the payments made by or on behalf of Lessee for hire of the Equipment.
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 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and e-mail.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 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.
1.13 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 The Lessor shall hire one or more units of the Equipment to the Lessee for use at the Site(s) subject to the terms and conditions of this agreement.
2.2 The Lessor shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Lessee’s quiet possession of the Equipment.
The Rental Period in respect of each unit of Equipment starts on the Commencement Date and shall continue for the stated period in respect of each unit of Equipment. After the end of the initial Rental Period (and for each unit of Equipment hired) this agreement shall continue until terminated in accordance with its terms.
4.1 The Lessee shall pay the Rental Payments to the Lessor in accordance with the Payment Schedule. The Rental Payments shall be paid in sterling and shall be made by direct bank transfer. The Lessor reserves the right to increase the Rental Payments in accordance with its pricing structure from time to time after the end of the initial Rental Period in respect of each unit of Equipment.
4.2 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.
4.3 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).
4.4 If the Lessee fails to make any payment due to the Lessor under this agreement by the due date for payment, then, without limiting the Lessor’s remedies under clause 10, the Lessee shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. 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 Lessee shall pay the interest together with the overdue amount.
4.5 The Deposit is a deposit against default by the Lessee of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Lessee shall, on the date of this agreement, pay the Deposit to the Lessor. If the Lessee fails without due cause to make any Rental Payments in accordance with the Payment Schedule, or if there is any loss or damage to the Equipment (in whole or in part), the Lessor shall be entitled to apply the Deposit against such default, loss or damage. The Lessee shall pay to the Lessor any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Rental Period.
5.1 Delivery of the Equipment shall be made by the Lessor. The Lessor shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 of this agreement.
5.2 Provided that the wall interface unit has been installed in accordance with the manufacturer’s instructions and the heating/hot water system is ready and in appropriate condition at the Site, the Lessor shall install the Equipment at the Site. The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the installation of the Equipment Acceptance by such representative of installation shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Lessor, the Lessee’s duly authorised representative shall sign a receipt confirming such acceptance.
5.3 To facilitate Delivery and installation, the Lessee shall at its sole expense provide all requisite facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously. Where the Equipment is to be installed at a height exceeding 5 feet then the Lessee shall provide such equipment and/or scaffolding as is necessary to allow the installer to safely install and/or replace the Equipment in accordance with all relevant laws and regulations.
5.4 The Lessor reserves the right to cancel this agreement (in relation to the relevant unit of Equipment) by written notice to the Lessee if the wall interface unit has not been installed in accordance with the manufacturer’s instructions, the heating/hot water system at the Site is not in good condition and in working order or does not comply with current Gas Safe regulations, British Standards or NHBC Standards. Should the Lessor cancel this agreement, there will be a refund of any monies paid by the Lessee to date less an inspection fee.
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee 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 Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:

  1. 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 Lessor may from time to time nominate in writing;
  2. insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor 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
  3. insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.
6.3 The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee’s possession or use of the Equipment.
6.4 The Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.
7.1 The Lessee shall during the term of this agreement:

  1. 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 in accordance with any operating instructions provided by the Lessor;
  2. make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment and ensure that no work is carried out to the Equipment other than by an approved service agent;
  3. keep the Lessor fully informed of all material matters relating to the Equipment;
  4. 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 Lessor’s prior written consent;
  5. permit the Lessor 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;
  6. not, without the prior written consent of the Lessor, part with control of, 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;
  7. not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor 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 Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment;
  8. 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 Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
  9. not use the Equipment for any unlawful purpose;
  10. ensure that at all times the Equipment remains identifiable as being the Lessor’s property;
  11. deliver up the Equipment at the end of the Rental Period or on earlier termination of this agreement and to allow the Lessor or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
  12. not do or permit to be done anything which could invalidate the insurances referred to in clause 6.
7.2 The Lessee acknowledges that the Lessor 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 Lessee or its officers, employees, tenants, agents and contractors, and the Lessee undertakes to indemnify the Lessor 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 Lessee to comply with the terms of this agreement.
8.1 The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor.
8.2 The Lessor shall replace, free of charge, the Equipment to enable a repair to the Equipment to be performed in accordance with the provisions of clauses 8.3 and 8.4.
8.3 Where the Equipment fails a combustion analysis test or has developed a fault or defect (provided that the failure or fault does not relate to or arise out of an Excluded Fault.) the Equipment shall be replaced free of charge, provided that:

  1. the Lessee notifies the Lessor of any defect in writing within ten Business Days of the defect occurring or of becoming aware of the defect;
  2. the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor’s authorised personnel; and
  3. the defect is directly attributable to defective material, workmanship or design or fair wear and tear.
    In the event that the Equipment is exchanged or replaced and the faults or defect is an Excluded Fault or the provisos at (a) (b) or (c) above are not satisfied then the Lessee shall be charged for labour, call out and parts at the Lessor’s current rates and price list.
8.4 For the purpose of clause 8.3 Excluded Fault shall mean failures or faults relating to:

  • The time and temperature controls.
  • Re-setting or Re-pressuring of a sealed system
  • Replacement of decorative parts.
  • Any domestic water supply from the hot water cylinder or gas appliance to any outlet including taps.
  • Drainage
  • Any defect or inadequacy attributable to the original design of the gas central heating system
  • The fabric of the building or pipe work buried in it
  • Any defect or damage occasioned by fire, lighting, explosion, flood, storm, tempest, frost, impact, or other extraneous causes.
  • Any defect or damage occurring from a failure of the electricity, water supply or gas supply.
  • Descaling and any work arising from hard water scale deposits or from damage caused by aggressive water or system sludge
  • Any galvanized tanks or pipe work
9.1 Without prejudice to clause 9.2, the Lessor’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, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed £5,000,000.
9.2 Nothing in this agreement shall exclude or in any way limit:

  1. either party’s liability for death or personal injury caused by its own negligence;
  2. either party’s liability for fraud or fraudulent misrepresentation; or
  3. any other liability which cannot be excluded by law.
9.3 This agreement sets forth the full extent of the Lessor’s obligations and liabilities in respect of the Equipment and its hiring to the Lessee. 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 Lessor 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:

  1. loss of profit;
  2. loss of revenue
  3. loss of business; or
  4. indirect or consequential loss or damage,

in each case, however caused, even if foreseeable.

10.1 After the expiry of the initial Rental Period in respect of each unit of Equipment the Lessee may bring this agreement to an end in respect of each unit of Equipment hired to the Lessee by serving on the Lessor not less than 3 month’s prior written notice and on the expiry of such a notice this agreement shall terminate in respect of the relevant unit of Equipment. After the expiry of the initial Rental Period in respect of each unit of Equipment the Lessor may bring this agreement to an end in respect of each unit of Equipment hired to the Lessee by serving on the Lessee not less than 3 month’s prior written notice and on the expiry of such a notice this agreement shall terminate in respect of the relevant unit of Equipment.
10.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other if:

  1. the other party fails to pay any amount due under this agreement on the due date for payment;
  2. the other party 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 10 days after being notified in writing to do so;
  3. the other party 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;
  4. the other party 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;
  5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of the other party;
  6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company);
  7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
  8. the holder of a qualifying floating charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
  11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.1 Upon termination of this agreement, however caused:

  1. the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, on giving the Lessee not less than 3 months’ written notice, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
  2. without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor 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;
    (ii) any costs and expenses incurred by the Lessor 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 time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
13.1 Each party undertakes that it shall not at any time 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.
13.2 Each party may disclose the other party’s confidential information:

  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 13; and
  2. 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.
14.1 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.
14.2 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.
14.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
14.4 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).
16.1 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.
16.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
16.3 The Lessee shall not 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.
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
18.1 This agreement may be executed in any number of counterparts, each of which when executed [and delivered] shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
18.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by (a) fax or (b) e-mail (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
18.3 No counterpart shall be effective until each party has executed and delivered at least one counterpart.
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
20.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:

  1. 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
  2. sent by fax to its main fax number;
  3. or by email.
20.2 Any notice shall be deemed to have been received:

  1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
  3. if sent by fax, at 9.00 am on the next Business Day after transmission
  4. if sent by email at 9.00 am on the next Business Day after transmission.
20.3 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.
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.
23.1 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.
23.2 If one party gives notice to the other of the possibility that 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 the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).