Rental Terms and Conditions

Zip Smart Terms and Conditions – Operating Rental

1. Acceptance:  Completion of this Agreement by the Renter constitutes an offer by the Renter to rent the Equipment on the terms and conditions of this Agreement.  The Owner shall have complete discretion whether to accept that offer.  The delivery of the Equipment by the Owner constitutes acceptance of such offer and the formation of a binding contract upon these terms between the Renter and the Owner without further notice to the Renter.  

2. Rental Payments:  The Renter shall pay the Rental Payments, the first of which shall be due on the Commencement Date, and each subsequent payment shall be due on the same day of each month thereafter unless agreed otherwise in writing by the Owner.  Rental Payment shall be due whether or not the Renter has received demand for payment.  All payments shall be paid to the Owner or as otherwise directed by the Owner in writing.  The Renter shall notify the Owner immediately in writing of any change in Renter’s address.  All payments to be made by the Renter shall be made without withholding or set-off whether on account of disputes, counterclaims or for any other reason whatsoever.  The Renter shall (a) pay interest at a rate of 5% above the Bank of England base rate on all amounts payable under this Agreement more than seven days overdue, from and including this due date of payment up to the actual date of payment, whether before or after judgement (b) pay to the Owner any expenses which the Owner may incur by reason of the Owner attempting to retake possession of the Equipment.

3. Delivery

(a) Delivery of the Equipment shall be made by the Owner. The Owner shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. 
(b) The Owner shall at the Renter's expense install the Equipment at the Site. The Renter shall procure that a duly authorised representative of the Renter shall be present at the installation of the Equipment. Acceptance by such representative of installation shall constitute conclusive evidence that the Renter 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 (save as regards any latent defects not reasonably apparent on inspection). If required by the Owner, the Renter's duly authorised representative shall sign a receipt confirming such acceptance.

4. Service Cover: Service Cover shall be provided by the Owner as indicated in the contract documents and in accordance with the Owner’s standard terms and conditions for the supply of services, as amended from time to time and available to the Renter upon request. 

5. Use of Equipment:  The Renter agrees, 

(a) to keep the Equipment in good order and repair and properly operational and serviced so that the Equipment shall at all times be in first class condition;
(b) not to alter or make an addition to the equipment without the previous consent in writing of the Owner and not to alter any identifying mark or number thereon;
(c) to keep the Equipment in the control of the Renter and to keep the Owner informed of its location and not to attempt to purport to lend, sell, dispose or encumber the Equipment in any way; 
(d) not to 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;
(e) not to assign this Agreement or Renter’s rights hereunder without the prior written consent of the Owner;
(f) to permit the use of the Equipment only in accordance with the manufacturer’s instructions and by trained competent staff;
(g) to give immediate written notice to the Owner of any loss or damage to the Equipment;
(h) not without the prior written consent of the Owner, 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 Renter shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Owner against all losses, costs or expenses incurred as a result of such affixation or removal; and
(i) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Owner in the Equipment;

6. Title, Risk and Insurance:  The Equipment shall at all times remain the property of the Owner and the Renter shall have no right, title or interest in the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this Agreement). The risk of loss, theft, damage or destruction of the Equipment shall pass to the Renter on Delivery of the Equipment. The Equipment shall remain at the sole risk of the Renter during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Renter (“Risk Period”) until such time as the Equipment is redelivered to the Owner. During the Rental Period and the Risk Period, the Renter agrees to insure the Equipment against any loss, theft or damage.  The Renter will pay insurance excess on any claim.  The Renter agrees to keep the Equipment comprehensively insured against fire accident and theft or other such risks which the Owner may reasonably request during the Risk Period with a reputable insurer for its full replacement value and to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment. The Renter agrees to provide copies of all insurance policies to the Owner and to pay promptly all premiums and maintain such policy throughout term of the Agreement.  The Renter shall procure that upon the Owner’s request the Owner’s name is endorsed on the policies as a loss payee in relation to any claim relating to the Equipment. 

7. Equipment Warranty:  Subject to clause (8) below, the Owner warrants that the Equipment will be free from defects in materials and workmanship and shall function as indicated in its accompanying instruction manual. During the warranty period the Owner will, as at its sole discretion as it considers appropriate (a) replace the Equipment, (b) supply equivalent Equipment, (c) pay the cost of replacing the Equipment, (d) pay the cost of acquiring equivalent equipment, (e) repair the Equipment, or (f) pay the cost of having the Equipment repaired and this shall be the sole remedy of the Renter in relation to damage or defects to the Equipment whether apparent on Delivery or before or after installation. The Renter shall not return any damaged or defective Equipment to the Owner without the Owner’s consent. 

The Owner shall be under no liability under the above warranty or any other warranty, term condition or guarantee in relation to any piece of Equipment if: 

(a) the defect is not notified to the Owner within 3 working days of delivery of the Equipment in respect of Equipment damaged at the time of delivery or otherwise within 7 days of such defect becoming apparent; 
(b) any damage or defect is due to the condition of the water used in the Equipment and the appropriate treatment of certain types of water recommended in the instructions issued with each piece of Equipment was not followed; 
(c) the damage or defect is caused by misuse of the Equipment, or 
(d) the damage is as a result of the Renter’s failure to operate the Equipment in accordance with instructions. 

Save as expressly provided in this Agreement all warranties, conditions or terms implied by statute or common law are excluded to the fullest extent permitted by law. The Owner shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Renter's right of quiet possession of the Equipment.

8. Liability: Save for liability for death or personal injury, fraud or as otherwise not permitted to be excluded by law, the Owner’s total liability to the Renter (including any liability for the acts or omissions of its employees, agents and subcontractors) under this Agreement shall be as set out under Equipment Warranty at condition 7, or, in relation to any other act or omission (whether in contract, tort (including negligence) or otherwise) shall not in any circumstances exceed the sum of £100,000 in respect of any one incident or series of incidents attributable to the same cause. 

In no event shall the Seller be liable for any special, indirect or consequential loss or damage whatsoever and howsoever caused, even if foreseeable, which arises out of, or in connection with, the supply of the Equipment or its use. 

The Renter will indemnify the Owner against any loss or damage (including costs and management time) in respect of a claim by any third party that it has been damaged or caused by loss by any of the Equipment where such damage or loss or alleged damage or loss arises from the wrongful or negligent act or omission of the Renter. 

9. Default:  If during this Agreement (a) the Owner ascertains that the Renter has made a false statement in relation to this Agreement, (b) the Renter does not pay within seven days of the applicable due date of any payment, (c) the Renter shall commit any breach of the terms, conditions and provisions herein contained and fail to rectify within 14 days after notice by the Owner to do so, (d) the Renter shall commit or suffer an act of bankruptcy or being a company shall go into liquidation, administration or receivership or a similar analogous event, (e) the Renter’s assets, business or financial position, adversely changes so that the Owner is of a reasonable opinion that the Renter will be unable to comply with its obligations under the Agreement, (f) the Renter is unable to obtain adequate insurance cover for the Equipment, (g) the Renter, being an individual dies or is convicted of an indictable offence or is imprisoned, then in any such case the Owner can treat this Agreement as fundamentally breached and with or without notice terminate this Agreement.

10. Repudiation:  It is hereby expressly agreed and declared that failure by the Renter to pay rent or any other amounts payable under this agreement within 7 days of the due date may be treated by the Owner as a repudiation of the Agreement by the Renter, entitling the Owner to terminate this Agreement.  The occurrence of any event of default under this Agreement (expressed or implied) shall be deemed to be a breach of an essential term of this Agreement and be treated as a repudiation of this Agreement by the Renter and the Owner will be entitled to accept such repudiation and terminate this Agreement.

11. Effect of Termination:  In the event that the Owner terminates this Agreement following a breach of an essential term hereof, upon repudiation of this Agreement by the Renter or the Renter requests an early termination of the Agreement and the Owner, at its discretion, consents (without prejudice to any other rights or remedies of the Owner herein contained or implied at general law) then the Renter shall pay to the Owner upon demand, whether the Owner has taken possession of the equipment or not, immediately the aggregate of (a) all unpaid rent to the date of termination of this Agreement together with any monies which may be payable to the Owner pursuant to the terms and conditions hereof and (b) the balance of the all unpaid Rental Payments for the remainder of the Initial Rental Period or Extended Term applying a discount rate 4% or the Owners then current expected rate of return from a similar transaction.

Upon termination of this Agreement, howsoever caused the Owner's consent to the Renter's possession of the Equipment shall terminate whereupon the Renter shall immediately deliver the Equipment in good order and repair and condition to the Owner’s address or such other place that the Owner may direct in writing or if necessary allow the Owner; and  if the Renter does not deliver the Equipment up the Owner may, by its authorised representatives, without notice and at the Renters expense, retake possession of the Equipment and for this purpose may enter any premises at which the Equipment is located. 

12. Waiver:  The Owner may elect at any time to waive its rights in respect to any breach or repudiation by the Renter but not such waiver in respect of any breach or act of repudiation shall affect The Owner’s rights in respect of any further, other, continuing or recurring breach of act of repudiation.

13. Severable:  In the event that any provision (or part thereof) contained in this Agreement is rendered void, invalid, or unenforceable, then such provision or part thereof shall be severed from this Agreement without affecting the remaining provisions hereof.

14. Options after the Initial Rental Period:

The Renter may following the expiration of the Initial Rental Period:
(a) Continue to retain the use of the Equipment for a further period of 12 months with no change to the rental amount or initial terms;
(b) Request the asset is de commissioned and removed by the Owner – Note if rectification work is requested this will always be at an additional charge;
(c) Replace the Equipment with new product and enter a new agreement. This new agreement may be subject to revised pricing and terms and conditions.

15. Automatic Renewal:  Unless the Renter notifies the Owner in writing at least three months prior to the expiration of the Initial Rental Period referred in the Order Form that it will be delivering up the Equipment at the expiration of the Initial Rental Period the period of this Agreement shall be automatically extended for the period of twelve months (the Extended Term) at the same rental and otherwise on the same terms and conditions as set out in this Agreement.  All other options available to the Renter are detailed in the offer summary.

16. Assign:  (a) The Owner may, without prior notice to the Renter, but subject always to the rights of the Renter hereunder, sell or assign, either absolutely or by way of security, its rights or interests in this Agreement.  (b) The Renter shall not assign this Agreement without the consent of the Owner.  For the purposes of this clause a transfer of the majority of shares in the Renter or a change in the managerial control of the Renter shall be deemed an assignment.

17. Trust Provisions:  Where the Renter has executed this Agreement in its capacity as trustee of a trust (‘the Trustee’), whether or not the Trustee is a trustee disclosed to the Owner and whether or not the Trustee is expressed in this Agreement to be a trustee, the Trustee warrants and agrees, (a) it is the sole trustee of the trust and has the necessary power to enter into the Agreement and enters into it with the consent and for the benefit of the beneficiaries of the trust and both in its personal capacity and as Trustee, (b) it has the right to seek recourse or indemnification from the trust’s assets for the obligations incurred by it in this Agreement, and (c) will not, without the Owner’s consent, resign or be removed as Trustee, terminate the trust or permit the trust deed to be changed.

18. Time of the essence:  In respect of any provision herein requiring the Renter to act within a stipulated time or address any obligation owed to the Owner, time is of the essence.

19. Blanks and corrections:  The Renter herby irrevocably authorises the Owner to complete any blank spaces appearing in the Order Form and in particular to insert the serial numbers and other identification data of the Equipment. 

20. Notice:  Any notice to be given by the Owner or its agent, shall without prejudice to any other method of giving the same, be deemed to have been given if posted to the Renters address as set out in the Order Form (or at such other address notified in writing by the Renter).  Any such notice or demand shall be deemed to have been received on the second business day following such posting.

21. Indemnities:  (a) The Renter agrees to indemnify the Owner against any liabilities, claims and costs whatsoever arising out of the Renter’s operation, use or keeping of the Equipment and any loss or damage to the Equipment howsoever caused.  

22. Variation:  In the event that the Renter requests a variation of the Initial Rental Period or of the Equipment rented under this Agreement the Owner may in its absolute discretion and subject to the payment of a variation fee determined by the Owner and any reasonable conditions the Owner deems fit, consent to such variation and forward an acknowledgment in writing of the variation to the Renter setting out the details of any such change.  Such variation shall be effective from the date specified therein and shall be binding on the Renter upon the signing of an acknowledgement by the Renter.  

In the event that the Owner does not receive a copy of the acknowledgement signed by the Renter within seven days of the date of written notice of the variation, the Owner may elect not to be bound by such variation.

23. Certificates:  A certificate given by the Owner or any person duly authorised by the Owner shall be prima facie evidence of the amount of monies due, owing or recoverable from the Renter hereunder.

24. Miscellaneous:  This instrument constitutes the entire Agreement between the Owner and the Renter and it shall not be amended, altered or changed except by written notice as described in this Agreement.  The Renter shall provide the Owner with such corporate resolutions, opinions of counsel, financial statements and other documents as the Owner shall request from time to time.  If more than one Renter is named in this Agreement, the liability of each shall be joint and several.  This Agreement shall bind the Renter, its successors, executors and assigns and shall ensure to be benefit of the Owner, its successors and assigns.  The Renter acknowledges that no representations and warranties have been given by the Owner other than what appears in the Agreement.  The Renter represents and warrants that all credit and financial information submitted to the Owner herewith or at any time is true and correct.  The Owner’s rights under this Agreement may be exercised by its nominees.  This Agreement does not confer any option to purchase on the Renter.  The Renter has no authority to involve the Owner in liability or create any lien over the equipment for repairs or otherwise.  The Owner is irrevocably authorised, in its absolute discretion to, (a) use the Renter’s name and to act on the Renter’s behalf in exercising any rights or instituting any actions or demands which it thinks desirable, (b) enter any premises where the Owner believes the Equipment may be located for the purpose of inspecting or testing the Equipment.  Any reference in this Agreement to the singular shall include the plural and vice versa, any reference to a person includes a corporation and any other legal entity, any reference to the Equipment shall include any attachments to the Equipment or any parts or accessories from time to time in addition to or in replacement of any part of the Equipment referred to in the schedule hereto.

25. Taxes:  Any VAT or any other applicable taxes and duties or similar charges applicable to this Agreement or the payments to be made under this agreement or in connection with this agreement shall be payable by the Renter in addition to the Rent at the rate and in the manner from time to time prescribed by law. This amount must be paid at the same time as the minimum monthly amounts are payable, whether or not the liability relates to those amounts.

26. Solvency:  The Renter warrants that at the date of this Agreement it has reasonable grounds to believe that it is able to pay its debts as they fall due.

27. Force Majeure:  In this Agreement, “force majeure” shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to either acts, events, omissions or accidents beyond the reasonable control of the party so prevented including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the party so prevented or of any other party), act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood,  storm or default of suppliers or sub-contractors or war, civil war, armed conflict or terrorist attack, nuclear, chemical or biological contami¬nation or sonic boom.

28. 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, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for eight weeks, the party not affected may terminate this agreement by giving 10 (ten) Business Days' written notice to other party.

29. Third Party Rights:  No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement and nothing in this Agreement shall be deemed to confer rights upon any person not a party to this Agreement.

30. Governing Law: This Agreement shall be construed and governed in all respects in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts as regards any claim, matter or dispute arising in relation to this Agreement.

31. Forbearance: No forbearance indulgence or relaxation on the part of the Owner shown or granted to the Renter in respect of the terms and conditions shall in any way affect diminish restrict or prejudice the rights or powers of the Owner under the terms and conditions or operate as, or be deemed to be a waiver, of any breach by the Renter of the terms and conditions.

32. Concurrent Remedies:  No right or remedy herein conferred upon or reserved to the Owner is exclusive of any other right or remedy herein or by law or equity provided or permitted but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing and may be enforced concurrently therewith or from time to time.

33. Definitions

(a) Equipment means the equipment supplied under this agreement as listed in Order Form and all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it
(b) Agreement means these terms and conditions, the Order Form and any special terms agreed in writing with the Renter
(c) Delivery: the transfer of physical possession of the Equipment to the Renter at the Site.