ELLIOTT GROUP LIMITED
Conditions of Lease
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Conditions Of Lease
- Definition of Terms
(a) The ‘Owner’ is ELLIOTT GROUP LIMITED (company number 147207) whose registered office is at Manor Drive, Peterborough, PE4 7AP and includes its successors and assigns
(b) The ‘Lessee’ is the company, firm, person, corporation or public authority taking the Owner’s equipment on lease and includes their successors, personal representatives and permitted assigns.
(c) ‘Equipment’ means all classes of relocatable buildings, modular buildings, erectable structures and accessories thereon, furniture, fencing and all other plant which the Owner agrees to lease to the Lessee.
(d) ‘Commencement Date’ means the date specified in the Contract
(e) ‘Period of Lease’ means the period specified in the Contract and , where the context permits, any further period during which the Equipment is rented to the Lessee.
(f) 'Lease Charges’ means the amounts set out in the Contract at their full face value without any deduction set off or counterclaim whatsoever.
(g) ‘Contract’ means a contract between the Owner and the Lessee for the lease of a unit of Equipment.
(h) ‘Site’ means the site to which the Equipment is delivered (or to be delivered) on the Lessee’s instructions.
- Extent of Contract
2.1 The Contract and these Conditions of Lease shall be the entire agreement between the parties.
- Period of Lease
3.1 Lease of the Equipment shall commence on the Commencement Date and shall continue for the Period of Lease subject to termination as herein provided.
3.2 Either party may terminate the Contract by giving the other:
(a) In the case of Equipment which comprises modular building system not less than 3 calendar months notice in writing
(b) In the case of Equipment which comprises buildings requiring erection and dismantling not less than 28 days notice in writing
(c) In any other case not less than 7 days notice in writing
3 If the Contract is terminated before the end of the Period of Lease, whether under clause 3.2 or otherwise, the Owner is entitled to and the Lessee will make payment in full of the Lease Charges for the remainder of the Period of Lease.
- Charges for Lease
4.1 The Lessee will pay to the Owner, during the Period of Lease, Lease Charges in the amounts and at the intervals stated in the Contract.
4.2 The Owner reserves the right to review the Lease Charges at the end Period of Lease and at yearly intervals thereafter.
4.3 The Owner shall submit invoices for all charges due under the Contract at the frequency detailed in the Contract. Invoices shall include Value Added Tax where applicable.
4.4 Unless otherwise agreed by the Owner in writing payment shall be made within 28 days of the date of the invoice. Payment shall be made by Direct Debit if so requested by the Owner.
4.5 Where a single payment is made to cover the whole Period of Lease, the amount shall be paid on the Commencement Date.
4.6 If any payment is not made when due the Owner shall be entitled to charge interest on the overdue amount at four per cent above the prevailing base rate of Barclays Bank Plc calculated on a daily basis (‘the Default Rate’). The Lessee shall also be liable to pay any charges incurred by the Owner in the recovery of any overdue amount.
- Delivery and Collection
5.1 Time for delivery is given as accurately as possible but is not guaranteed. The Lessee hereby acknowledges that time shall not be of the essence with regard to the time and date for delivery of the Equipment. The Lessee shall have no right to damages or to cancel the Contract for failure for any cause to meet any delivery time stated. The date of delivery shall in every case be dependant upon prompt receipt by the Owner of any information, final instructions or approvals and delivery details from the Lessee in writing. Alterations by the Lessee in design specifications or requirements may result in delay in delivery and will be at the cost of the Lessee.
5.2 The Owner will endeavour to comply with reasonable requests by the Lessee for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to default by the Owner:-
5.2.1 the Lessee shall remain liable for any Lease Charges payable in accordance with these Conditions
5.2.2 the Lessee shall pay all costs that arise, including but not limited to storage costs; and
5.2.3 the Owner shall be entitled to terminate the Contract upon giving the Lessee three working days notice in writing of its intention to do so.
5.3 The Lessee shall provide adequate and unrestricted access to the proposed Site for delivery, unloading, reloading and recovery of the Equipment.
5.4 The Lessee shall pay all costs (at the Owner’s rates current from time to time) relating to the loading, transporting and unloading of the Equipment upon delivery and collection of the Equipment to/from the Lessee’s Site.
5.5 The Lessee shall, unless otherwise stated in the Contract, in sufficient time and at its own expense provide suitable foundations for the Equipment, such foundations to conform with any instruction, specification and drawing which may be supplied by the Owner.
5.6 The Lessee shall bear the full cost of any plant, lifting gear or special apparatus rented by the Owner for the purpose of siting the Equipment. All such plant is rented under Contractors Plant Association Model Conditions for the Hiring of Plant (‘CPA Model Conditions’). The full cost to the Lessee shall include the cost of any liability under CPA Model Conditions.
5.7 All employees, sub-contractors and agents of the Owner shall be deemed whilst on the Site or other premises of the Lessee or of any third party to be servants or agents of the Lessee who alone shall be responsible for and shall indemnify the Owner against all claims by any person, firm or company (including the the Owner) arising out of or connected with the delivery, collection, movement, loading, unloading, siting or installation of the Equipment.
5.8 Where, in the Owner’s opinion, the ground in and around the Site (including all private roadways, accesses, main pipes, manholes, weighbridges or approaches under, through or over which the Owner, its servants, agents or contractors might have to pass in the performance of any obligation under the Contract) is soft or otherwise unsuitable the Lessee shall in sufficient time and at its own expense supply and lay a suitable surface in a suitable position for the Equipment to travel over or stand on during the loading and unloading at the Site.
5.9 Connection and disconnection of mains services on Site and suitability of those services and connections are the responsibility of the Lessee unless otherwise agreed between the parties in writing.
5.10 The Lessee shall be responsible for obtaining any necessary permission from the owner of the Site for the entry onto the Site and the siting of the Equipment on the Site. The Lessee shall indemnify the Owner against all claims by any person, firm or company (including the Owner) arising out of or connected with the movement, loading, unloading, siting or installation of the Equipment on the Site.
5.11 The Lessee authorises the Owner to accept the signature on delivery and collection of the Equipment
- Acceptance of Equipment
6.1 Acceptance of the Equipment shall be deemed to take place when the Equipment is delivered to the Site.
7.1 If the Lessee:
(a) shall fail to pay any Lease Charges or other sums due and payable under the Contract in full by the due date; or
(b) being a company:
(i) has a petition presented for its winding up; or
(ii) passes a resolution for voluntary winding up (other than for the purposes of a bona fide amalgamation or reconstruction); or
(iii) enters into a voluntary arrangement with its creditors; or
(iv) becomes subject to an administration order; or
(v) has a receiver appointed of all or any of its assets; or
(c) being an individual or partnership, the individual or any partner:
(i) becomes bankrupt or insolvent; or
(ii) enters into voluntary arrangements with his creditors; or
(d) in either case, commits a serious breach of the Contract (and in case of such breach being remediable (other than failure by the Lessee to pay the Lease Charges), fails to remedy it within 7 days after receiving written notice to do so); then, in any such case and without prejudice to any other rights or remedies, the Owner shall be entitled to treat the Contract as being at an end (in which case the provisions of clause 3.3 shall apply) and to suspend any further deliveries under the Contract without liability to the Lessee.
8.1 Quotations are offered subject to availability of the Equipment at the time of hiring, and the Owner reserves the right to offer an alternative item of Equipment should the original quoted not be available.
- Inspection, Servicing and Repairs
9.1 The Lessee shall be responsible to the Owner for the duration of the lease for the safekeeping of the Equipment and for its use in a proper and workmanlike manner. The Lessee shall not use the Equipment for any purpose beyond its capacity or in any manner which, in the Owner’s opinion, is likely to result in undue deterioration or its becoming immobilised, immovable or otherwise inaccessible.
9.2 The Lessee shall keep the Equipment in good and substantial repair and condition at all time during the Period of Lease; the respective responsibilities of the Lessee and the Owner in respect of repairs is set out in the Owner's document headed "Lease Projects Maintenance Responsibility" and the Lessee shall carry out those works that are identified in that document as the responsibility of the Lessee.
9.3 The Lessee shall redecorate and refurbish the Equipment both externally and internally in a manner and to a standard approved by the Owner in the first six months of the fourth year of the Period of Lease (if it extends that long) and again in the first six months of each subsequent fourth year.
9.4 The Lessee shall at all reasonable times permit the Owner and its agents access to the Equipment to inspect, test, adjust, repair, alter or replace it.
9.5 The Lessee shall not (except as required by these Conditions) without the prior written consent of the Owner adjust, repair or alter the Equipment or make any attempt so to do.
9.6 If at any time during the Period of Lease the Equipment or any part thereof is in need of adjustment or repair then:-
(a) the Lessee shall forthwith give written notice of such need to the Owner;
(b) the Owner shall with reasonable diligence either carry out the necessary adjustment or repair on Site or, at its discretion, arrange for the removal of the Equipment or part or parts thereof to the Owner’s works for adjustment or repair;
(c) in the event of the Owner removing the Equipment or any parts thereof the Owner may at its discretion (i) adjust or repair and redeliver the Equipment or such parts or parts with reasonable diligence or (ii) determine the Contract forthwith in relation to the Equipment by giving written notice to the Lessee or (iii) replace the Equipment or such part or parts in which case the Contract shall continue as if the substituted product or such part or parts had been or had been included in the subject matter of the Contract;
(d) in the case of adjustment, repair or substitution the Owner may at its option apply the Owner’s lease rates current at the date of completion of the adjustment, repair or substitution in place of those set out in the Contract in respect of any such adjusted, repaired or substituted Equipment as from such date of completion;
(e) if in the reasonable opinion of the Owner the Equipment’s condition necessitating adjustment or repair arises in whole or in part from any cause other than fair wear and tear then:-
(i) the Lessee shall be liable for all costs of inspection, loading, unloading and transport in connection with the carrying out of the adjustments or repairs, the removal of the Equipment or any part or parts of it and the redelivery of it or of any substitute for it; and,
(ii) the Lease Charges shall continue to be payable as if the Equipment had not been in need of adjustment or repair;
(f) if in the opinion of the Owner the Equipment’s condition necessitating adjustment or repair is solely attributable to fair wear and tear then:-
(i) the Owner shall be liable for all such costs as are mentioned in (e) (i) above.
(ii) if the Owner shall determine the Contract under (c) above within three months of the date of original delivery of the Equipment to the Site the Owner shall be liable for the cost of loading, unloading and transport to and from the Site.
9.7 Upon termination, Equipment will be inspected on Site by the Owner and any charges for damages/repairs excluding fair wear and tear will be chargeable to and payable by the Lessee.
9.8 The Lessee shall be responsible for the Period of Lease for the carrying out of all statutory inspection tests in accordance with the appropriate regulations. This will include but not be exclusive to electrical, gas and water services and electrical appliances. The Lessee shall indemnify the Owner in full for all costs damages or losses howsoever caused arising out of or connected with the failure by the Lessee to comply with any such statutory inspection tests or regulations.
10.1 The Lessee shall throughout the Period of Lease and until collection of the Equipment (without prejudice to any liability of the Lessee to the Owner) at its own expense insure the Equipment with a reputable insurance company against all loss or damage and also against all risks of third party liability arising out of ownership, presence or use of the Equipment in an amount equal to the full new replacement value of the Equipment (such value will be provided by or is available from the Owner on request).
10.2 The Lessee will upon request by the Owner at any time produce to the Owner every such policy of insurance and the receipt for the current year’s premium. If the Lessee shall fail to keep the Equipment insured as aforesaid to the satisfaction of the Owner or to produce any such policy or receipt the Owner shall be entitled, at the expense of the Lessee, to insure the Equipment and keep it so insured and the Lessee will pay to the Owner on demand any sums expended by the Owner for such purpose with interest at the Default Rate until the date of actual repayment.
10.3 The interest of the Owner in the Equipment shall be noted on the policy of insurance which policy shall:
10.3.1 name the owner as loss payee;
10.3.2 not be capable of cancellation by the insurers (at the request of the Lessee or otherwise) other than by 30 days’ prior notice in writing to the Owner;
10.3.3 provide that the insurers shall waive any breach of warranty under the policy of insurance as against the Owner.
10.4 The Lessee shall (so far as necessary) irrevocably authorise the insurers to pay the Owner all monies payable under the said insurance policy in respect of any loss or damage to all or any part of the Equipment. The Lessee hereby irrevocably authorises the Owner:
10.4.1 in the name and on behalf of the Lessee to make any claim or claims against the insurers under the said insurance policy in respect of any loss or damage of the Equipment or any part thereof and to settle or compromise such claim; and
10.4.2 to receive and to give a good discharge to the insurers for any monies payable in respect thereof.
10.5 The Lessee shall not use or allow the Equipment to be used for any purpose not permitted by the terms and conditions of any policy of insurance for the time being relating to the Equipment nor do or allow to be done any act or thing whereby such insurance may be invalidated.
10.6 In the event of any loss or damage to all or any part of the Equipment the Lessee shall give immediate notice to the Owner and shall make or assist in the making of any appropriate claim or claims under the said insurance policy in such manner as the Owner shall require and shall not settle or compromise any such claim without the prior written consent of the Owner.
10.7 The Lessee shall promptly reinstate or repair at its own expense any Equipment which has not become a total loss or a constructive total loss and shall continue to pay Lease Charges in respect of such Equipment during such reinstatement or repair. All insurance monies received in respect of any such loss shall be applied firstly in or towards payment to the Owner of any amounts for the time being due and outstanding from the Lessee to the Owner under the Contract and secondly in or towards reimbursing the Lessee for the costs of such reinstatement or repairs.
10.8 If, during the Period of Lease, any item of the Equipment (‘the Destroyed Equipment’) shall become a total loss or a constructive total loss (whether as a result of its being lost, destroyed, damaged beyond repair, confiscated or otherwise) the lease of that item shall cease. In that event the Owner may apply any insurance proceeds received, at its discretion:
10.8.1 towards a replacement of equivalent size and value which replacement shall be deemed to be included in the Contract for all purposes and the Lessee shall continue to be liable to pay Lease Charges in accordance with the Contract as if such loss had not taken place; or
10.8.2 towards payment to the Owner of:
10.8.2.1 all payments of Lease Charges and all other monies then due or in arrears under the Contract in respect of or attributable to the Destroyed Equipment together with interest thereon at the Default Rate; and
10.8.2.2 all other sums and amounts due under the Contract in respect of the Destroyed Equipment including a sum equal to that payable under clause 3.3 above in respect of the termination of lease of the Destroyed Equipment.
10.9 The Lessee shall remain liable to pay the Owner any shortfall. Until such sums and any shortfall are paid the obligations of the Lessee under the Contract (including those to pay Lease Charges in respect of the Destroyed Equipment) shall continue. Any surplus shall be paid to the Lessee.
- Limitation of Liability
11.1 The Lessee agrees that the Owner will not be liable under the Contract or these Conditions of Lease or any collateral contract for any loss of income, profit, goodwill or contracts or any special, indirect, incidental or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
11.2 Save in respect of death or personal injury caused by the negligence of the Owner, its employees, agents or contractors, the aggregate liability of the Owner under the Contract for any cause, including (but not limited to) breach of contract, negligence and breach of statutory duty shall not exceed the aggregate amount received by the Owner by way of Lease Charges during the 12 months prior to the date of occurrence of such cause.
- Sub Letting
12.1 The Lessee shall not re-lease, sell, mortgage, charge, pledge, part with possession of or otherwise deal with the Equipment or its contents and shall protect the Equipment and its contents against distress, execution or seizure and shall indemnify the Owner against all losses, damages, costs, charges and expenses that may be occasioned by any failure to observe and perform this condition.
12.2 The Lessee shall not assign his rights under the Contract nor sub-let or lend the Equipment or any part thereof to a third party without the prior written consent of the Owner.
- Change of Site
13.1 The Equipment shall not be moved from the Site to which it was delivered or consigned except with the prior consent of the Owner and only by the Owner, at the request and at the cost of the Lessee.
- Identification Marks
14.1 The Owner retains the right to affix a mark or plate on the Equipment identifying it as the Owner’s property and the Lessee shall not remove, deface or cover up the same.
14.2 The Lessee shall not be permitted to affix any mark or plate on the Equipment unless prior written authority has been given by the Owner. The Lessee will be responsible for the cost of rectification or reinstatement at the end of the Period of Lease.
- Specification and Copyright
15.1 Specifications, drawings, data, literature and statements as to dimensions suitability performance or otherwise issued by the Owner in connection with the Equipment are offered in good faith but are intended to be approximate only and the Equipment is supplied subject to no conditions nor shall it carry any guarantee or warranty as to dimensions, quality, fitness performance or suitability.
15.2 Except in any particular case in which the Owner expressly agrees in writing to the contrary the Lessee is responsible for the correct selection of the Equipment and while the Owner may supply drawings make recommendations and give assistance of or relating to the lease product the Lessee shall not be entitled to rely on such drawings, recommendations or assistance and shall rely solely on such expertise as may be available to the Lessee from its own or other technical sources.
15.3 The copyright in drawings, data and literature relating to the Equipment and the Owner’s goods and services shall remain the property of the Owner and where marked as or otherwise indicated to be confidential the Lessee shall not use or disclose such drawings, data and literature or the Owner's manufacturing and operating techniques except as necessary for the use by the Lessee of the Equipment in accordance with the Contract.
- Loss or Damage to Equipment
16.1 The Lessee is responsible for the safe keeping of Equipment during the Period of Lease and for its return to the Owner at the end of the Period of Lease. If the Lessee fails to return the Equipment for any reason (whether as a result of theft, loss, destruction or otherwise, and whether due to negligence on the part of the Lessee, his servants and/or his agents or not) the Lessee shall be liable to the Owner for:
(a) the cost of replacement of the Equipment together with all costs arising therefrom; and
(b) the Owner’s lease charges in respect of the Equipment until payment of the costs under clause 16.1 (a)
- Notice of Accidents
17.1 If the Equipment is involved in any accident resulting in injury to persons or damage to property, the Lessee must give immediate notice to the Owner by telephone and confirmed in writing to the Owner's Office Manager at the Owner’s office, and no admission, offer, promise of payment or indemnity shall be made by the Lessee without the Owner’s prior consent in writing.
- Safety Instructions
18.1 The Lessee must ensure that everyone who uses the Equipment is properly instructed on how to use it safely and correctly, and that they have all the instructions that have been supplied. The Lessee must ensure the Equipment is not misused.
- Force Majeure
19.1 The Owner shall not be under any liability for any consequences or for any delay or failure in carrying out its obligations under the Contract caused by circumstances outside the direct control of the Owner.
- Environment Policy
20.1 The Owner has a strict Environmental Policy. It is the Lessee’s responsibility to ensure that all Equipment are returned clean and free from waste materials, and that effluent tanks are emptied.
20.2 The Owner reserves the right to refuse to collect Equipment off lease that has not so cleaned and/or emptied. Equipment which is returned without being cleaned and/or emptied will be cleaned by a specialist contractor, the cost of which shall be recharged to and payable by the Lessee.
20.3 Any items or materials left in the Equipment after collection shall be disposed of by the Owner. If, in the Owner’s opinion, the items or materials are of a valuable nature the Owner shall hold these items for 28 days and thereafter shall dispose of them.
- Government Regulations
21.1 The Lessee is solely responsible for applying for, obtaining and complying with the obligations imposed by any Act of Parliament, statutory instrument, statutory regulations and all third party rights in relation to the installation, use and removal of the Equipment including, but without prejudice to the generality of the foregoing, planning consents, the Building Regulations Acts and all obligations and third party rights relating to the purposes for which the Equipment is used or to its condition, delivery, siting or removal. The Lessee shall indemnify the Owner in full for all costs, damages or losses howsoever caused arsing out of or connected with the failure by the Lessee to comply with any such statutory or other requirements.
- Rights Reserved
22.1 Any failure by the Owner to enforce any or all of these conditions shall not amount to or be interpreted as a waiver of any of the Owner's rights.
- Interpretation and Law
23.1 These conditions shall be interpreted without reference to their headings.
23.2 The Contract and these Conditions of Lease shall be governed by and construed in accordance with English Law. The Lessee irrevocably submits to the exclusive jurisdiction of the English Courts.