eps event ltd

IT IS AGREED THAT:

1 INTERPRETATION

1.1 The following definitions and rules of interpretation apply in this agreement.

“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Collection” means the transfer of physical possession of the Equipment by the Lessor from the Site.

“Commencement Date” means the date that the Lessee takes Delivery of the Equipment.

“Delivery” means the transfer of physical possession of the Equipment to the Lessee at the Site.

“Dry Hire Equipment” means any Equipment hired without any accompanying operators from the Lessor.

“Equipment” means all items of equipment specified in the Order from time to time.

“Group” means in relation to a company, that company, any subsidiary or holding company of that company as defined in section 1159 of the Companies Act 2006.

“Lessee” means the company, firm, person, corporation, or public authority taking the Lessor’s Equipment on hire and includes their successors or personal representatives.

“Lessor” means EPS Event Limited (Company Number 10533866 and whose registered office is at Granville Hall, Granville Road, Leicester, Leicestershire, LE1 7RU) or its successors or assigns.

“Normal Business Hours” means commencing at 9.00am and ending at 5.00pm, Monday to Friday.

“Order” means an order for Equipment (including the period for hire and the sums payable for such Equipment) incorporating the terms of this agreement, submitted by the Lessee to the Lessor, and accepted by the Lessor.

“Prepayment” means any amount the Lessor deems payable by the Lessee in respect of the hired Equipment in advance of Delivery, as specified in the Order or otherwise by the Lessor in writing from time to time.

“Quotation” means the written Quotation supplied by the Lessor to the Lessee incorporating the terms of this agreement.

“Site” means the Lessee’s premises as agreed in writing from time to time.

“Rental Payments” means the payments made by or on behalf of the Lessee for hire of the Equipment.

“Rental Period” means the period of hire as set out in clause 3.

“Total Loss” means due to the Lessee’s default the Equipment is, in the Lessor’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.

“VAT” means value added tax chargeable in the UK.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 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. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision. A reference to writing or written includes fax and e-mail. Any obligation on a party not to do something includes an obligation not to allow that thing to be done. A reference to this agreement or to any other agreement or document referred to in this agreement is a reference to this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time. 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. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2 EQUIPMENT HIRE

The Lessor shall hire the Equipment to the Lessee for use at the Site subject to the terms and conditions of this agreement.

3 RENTAL PERIOD

The Rental Period starts on the Commencement Date and shall continue for a period as specified in the Order from time to time unless this agreement is terminated earlier in accordance with its terms.

4 RENTAL PAYMENTS AND PREPAYMENT

4.1 The Lessee shall pay the Rental Payments to the Lessor within 14 days following receipt of an applicable invoice unless otherwise communicated by the Lessor to the Lessee from time to time. The Rental Payments shall be paid in pounds sterling and shall be made by such payments method as determined in advance by the Lessor.

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), unless otherwise communicated by the Lessor to the Lessee from time to time.

4.4 If the Lessee fails to make a payment due to the Lessor under this agreement by the due date, then, without limiting the Lessor’s remedies under clause 11 (Termination) and at the sole discretion of the Lessor, the Lessor may, immediately and without notice to the Lessee, enter the Site and recover the Equipment. The Lessee shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.

4.5 Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

4.6 In the event that the Lessor determines, in its sole discretion, that the Lessee may default on any payment due under this agreement, the Lessee shall pay a Prepayment to the Lessor in the amount and on the date as communicated in writing by the Lessor to the Lessee from time to time.

5 DELIVERY, INSTALLATION AND COLLECTION

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.

5.2 Delivery and Collection dates or times quoted are estimates only and not guaranteed, and time shall not be of the essence for Delivery.

5.3 Should the Lessee for any reason not be able to receive the Equipment immediately upon its arrival at the Site, then the Lessee shall be responsible for any delay and abortive transport or demurrage charges or any other consequential loss or expense howsoever arising, which is incurred by the Lessor.

5.4 Should any delivery vehicle supplied by the Lessor be required to leave the public highway for the purpose of Delivery or Collection, then the Lessee shall be responsible for all injury, loss and damage, howsoever caused, whether negligently, or otherwise, to the Lessor’s vehicle, employee, Equipment, the Site and anything on, beneath or affixed to the Site, and the Lessee shall fully and effectually indemnify the Lessor on demand against any and all such injury, loss or damage provided that nothing in this clause shall exclude liability of the Lessor for death or personal injury caused as a result of the negligence of the Lessor or its servants.

5.5 Should any vehicle supplied by the Lessor for the purpose of Collection or Delivery of Equipment encounter any rough or soft ground, access restrictions, obstructions or otherwise prior to reaching the Site, then the Lessee shall be responsible for making good the access so as to ensure that the vehicle can enter and/or leave the Site and will be responsible for the cost of any damage to the vehicle, howsoever caused along with any aborted or demurrage charges or other loss.

5.6 Equipment supplied on a hire only basis will be delivered to one central depot or site, as agreed between the parties, in such cases it is the Lessee’s responsibility to unload / reload the Equipment from one such central point. Should it be necessary to collect the Equipment on a hire only basis from more than one location, then such activities will be charged extra by the Lessor.

5.7 Should Collection or Delivery be delayed or have to be aborted, once commenced, because the Lessee cannot return the Equipment, or because of conditions on Site, access restrictions or any other reason, then the Lessee shall be responsible for both the cost of continued hire charges for the Equipment remaining until a time that a successful recovery may be achieved, plus the Lessor’s costs associated with any delayed or aborted visit. Prior to installation of the Equipment, the Lessor reserves the right to visit the Site on one or more occasions by providing reasonable notice to the Lessee, which shall use reasonable endeavours to make itself available to accompany the Lessor on such a visit. The purpose of each such visit is to assess the suitability of the Site for use of the Equipment, to confirm the layout required for the Equipment, and the access route to the Site. On each such visit, the Lessor’s representative may prepare a Site plan detailing the location of the Site, access to it and the layout requirements, which will be tendered to the Lessee for signature to confirm agreement. If this Site plan is prepared and tendered to the Lessee on-Site, the Lessee must draw any discrepancies to the Lessor’s representative’s attention at the time of that tender, and otherwise within 5 working days of being tendered to the Lessee, and failure to do so or if the Lessee shall have no person on Site to approve the Site plan (where the plan is prepared and tendered on-Site), the Lessor’s representative’s signature shall be conclusive evidence of accuracy of the Site plan. For the avoidance of doubt, the Lessor owns all intellectual property rights, however subsisting, in the Site Plan.

5.8 Where the Lessor has submitted a Quotation prior to a Site inspection, the Lessor reserves the right to withdraw from and/or amend any Quotation or other responsibility if, in the Lessor’s sole opinion, access to the Site or the Site condition are unsuitable for the passage of vehicles or the installing of Equipment or that the quantity of Equipment ordered is insufficient for the purposes required. The Lessor shall not be under any liability should the Lessor decide to proceed with this agreement following a Site inspection and it subsequently transpires that the Site conditions are unsuitable for Equipment. The Lessor reserves the right to attend the Site at all times throughout the Rental Period to assess and confirm the suitability of the Site conditions for Equipment.

5.9 The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the installation of the Equipment. On Delivery and installation of the Equipment, the Lessor’s authorised representative will tender a receipt to the Lessee confirming that the Equipment has been received in good condition and installed in accordance with the Lessee’s requirements. The Lessee must draw any discrepancy to the Lessor’s authorised representative’s attention at this time and failure to do so, or if the Lessee shall have no person on Site to sign the receipt, the Lessor’s authorised representative’s signature, shall be conclusive evidence of satisfactory receipt and installation of Equipment.

5.10 To facilitate Delivery and installation, the Lessee shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery and installation to be carried out safely and expeditiously.

5.11 The Lessee may be charged additional costs, charges or expenses to be determined at the sole discretion of the Lessor acting reasonably, in the event that Delivery and installation of the Equipment takes place outside Normal Business Hours.

5.12 Upon Collection or return of the Equipment, the Lessor’s representative shall tender to a representative of the Lessee a form for signature confirming the quantities of Equipment recovered and that the Site has been left in a satisfactory condition. The Lessee must draw any discrepancy to the Lessor’s representative’s attention at this time and failure to do so, or if the Lessee shall have no person on Site to sign this form, the Lessor’s representative’s signature, shall be conclusive evidence of the quantity of Equipment recovered and the condition of the Site.

5.13 Equipment is recovered from the Site and returned to the Lessor’s depot or other location unexamined. Full inspection will be made at the Lessor’s depot or other location and details of any missing or damaged items will be notified to the Lessee within 20 Business Days from the date that the Equipment is recovered.

5.14 The Lessee shall ensure that Dry Hire Equipment is returned to the Lessor in the same condition and configuration as at Delivery. The Lessee shall be charged for all reasonable and necessary costs incurred in restoring any damaged Dry Hire Equipment to its original condition. The Lessor reserves the right to attend any strike and/or load out or otherwise inspect the Dry Hire Equipment at the Site to ensure that correct procedures are followed.

5.15 Demurrage will be charged at the Lessor’s current stand-by rate or as the Lessor shall reasonably determine.

5.16 The Lessor shall use reasonable endeavours to collect the Equipment within seven Business Days from the date following the end of the Rental Period. The Lessee accepts full responsibility for and risk in all Equipment until Collection.

6 TITLE, RISK AND INSURANCE

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 returned to the Lessor. During the Rental Period and the Risk Period, the Lessee shall, at its own expense, obtain and maintain the following insurances:

(a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Lessor may from time to time nominate in writing;

(b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the 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

(c) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee.

6.3 For the avoidance of doubt, all straps, pallets and stillages shall remain the sole responsibility of the Lessee during the Rental Period. The Lessee shall be charged the full amount of such items (to be determined at the sole discretion of the Lessor acting reasonably) in the event that any loss of or damage to such items occurs during the Rental Period irrespective of any substitutions made in respect of such items.

6.4 All insurance policies procured by the Lessee shall be endorsed to provide the Lessor with at least twenty (20) Business Days’ prior written notice of cancellation or material change (including any reduction in coverage or policy amount) and shall upon the Lessor’s request name the Lessor on the policies as a loss payee in relation to any claim relating to the Equipment. The Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies.

6.5 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.

6.6 If the Lessee fails to effect or maintain any of the insurances required under this agreement, the Lessor may at its sole discretion, effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee, or, immediately and without notice to the Lessee, enter the Site and recover the Equipment.

6.7 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 LESSEE’S RESPONSIBILITIES

7.1 Unless notification to the contrary is received by the Lessor from the Lessee immediately on Delivery in accordance with clause 5.8 above, with confirmation in writing, the Equipment shall be deemed to be in good order in accordance with the terms of this agreement and to the Lessee’s satisfaction.

7.2 The Lessee must satisfy itself as to the suitability of the Equipment and that its requirements will be fulfilled prior to acceptance and use and the Lessor shall not be responsible for any failure by the Lessee so to do.

7.3 The Lessee shall during the term of this agreement:

(a) ensure that the Equipment is kept and operated in a suitable environment, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions;

(b) take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;

(c) ensure that vehicles using the Equipment do not exceed 5 miles per hour or any lower speed stipulated by any Site signs. The Lessor may specify to the Lessee which vehicles and loads are suitable and unsuitable for use on Equipment once installed. In any event, tracked vehicles must not use the Equipment; although the Lessee may obtain prior written permission from the Lessor to operate specific tracked vehicles to the Lessor’s stipulated conditions. If necessitated by the Site conditions, special restrictions on the type of vehicle used and the load it carries will be laid down by the Lessor, in which case, the Lessee will be notified in writing of any restrictions placed upon the use of the Equipment by the Lessee. The Lessee shall be responsible for providing adequate hardstanding where vehicles enter the Site and leave the Equipment. The Lessor accepts no responsibility for damage to vehicles or plant or any other loss or damage howsoever arising as a result of their using Equipment, subject to clause 10.2 below;

(d) ensure that the Equipment is clean and free from foreign matter and obstructions prior to placing the Equipment off hire and that it remains in that condition until the Lessor’s representatives attend the Site for the purpose of Collection. The Lessee shall pay any costs incurred by the Lessor in clearing the Equipment for recovery;

(e) if the Lessor considers that cleaning, repair or replacement of Equipment is necessary, the Lessor will notify the Lessee orally and in writing, and the Lessee shall have the right to inspect such Equipment at the Lessor’s depot or other location as notified to the Lessee by the Lessor and make representations as to the necessity of the cleaning, repairs, or replacements relating thereto, within 5 working days of written notification. Following any representations the Lessor’s decision will be final. If the Lessee fails to inspect or make representations within the timescale specified, he will be deemed to accept the necessity for any cleaning, repair or replacement and the charges relating thereto;

(f) if required by the Lessor or his representative, provide twenty four (24) hour security patrols, in addition to insurance cover, and at his own cost, to the Lessor’s satisfaction;

(g) maintain his security and insurance arrangements during any holiday or shut-down period and until the Equipment is collected by the Lessor;

(h) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Commencement Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;

(i) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Lessor unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Lessor immediately upon installation;

(j) keep the Lessor fully informed of all material matters relating to the Equipment;

(k) 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;

(l) permit the Lessor or its duly authorised representative to inspect and, if it deems it necessary, repair 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;

(m) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Lessor, together with such additional information as the Lessor may reasonably require;

(n) not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

(o) not without the prior written consent of the Lessor, 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 Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Lessor against all losses, costs or expenses incurred as a result of such affixation or removal;

(p) 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;

(q) 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 immediately 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;

(r) not use the Equipment for any unlawful purpose;

(s) ensure that at all times the Equipment remains identifiable as being the Lessor’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;

(t) deliver up the Equipment at the end of the Rental Period or on earlier termination of this agreement at such address as the Lessor requires, or if necessary 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

(u) not do or permit to be done anything which could invalidate the insurances referred to in clause 6 (Title, risk and insurance).

7.4 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, 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, or in connection with or arising under statute or common law. In the event of loss or damage to the Equipment, hire charges shall continue until settlement has been effected.

8 WARRANTY

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. The Lessor shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment provided that:

(a) the Lessee notifies the Lessor of any defect in writing within one (1) Business Day of the defect occurring;

(b) the Lessor is permitted to make a full examination of the alleged defect;

(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor’s authorised personnel;

(d) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Lessee or on its behalf; and

(e) the defect is directly attributable to defective material, workmanship or design.

8.2 If the Lessor fails to remedy any material defect in the Equipment in accordance with clause 8.1 the Lessor shall, at the Lessee’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement.

9 PUBLICITY

Unless and until the Lessee communicates in writing to the Lessor that the Lessee’s express consent is required, the Lessor reserves the right at any time to publicise, via any media, the purpose for which the Lessee has hired the Equipment from (and the role undertaken by) the Lessor.

10 LIABILITY

10.1 Without prejudice to clause 10.2, 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 the total sums paid by the Lessee to the Lessor during the Rental Period.

10.2 Nothing in this agreement shall exclude or in any way limit:

(a) either party’s liability for death or personal injury caused by its own negligence;

(b) either party’s liability for fraud or fraudulent misrepresentation

(c) either party’s liability for the wilful misconduct of that party, its employees, agents, or subcontractors; or

(d) any other liability which cannot be excluded by law.

10.3 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.

10.4 Without prejudice to clause 10.2, neither party shall be liable under this agreement for any:

(a) loss of profit;

(b) loss of revenue

(c) loss of business; or

(d) indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.

11 TERMINATION

11.1 Without affecting any other right or remedy available to it, the Lessor may terminate this agreement with immediate effect by giving written notice to the Lessee if:
(a) the Lessee fails to pay any amount due under this agreement on the due date for payment and remains in default not less than ten (10) days after being notified in writing to make such payment;

(b) the Lessee 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 twenty (20) days after being notified in writing to do so;

(c) the Lessee 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;

(d) the Lessee 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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

(e) the Lessee 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 Lessee with one or more other companies or the solvent reconstruction of the Lessee;

(f) 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 Lessee (being a company, limited liability partnership or partnership) 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;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Lessee (being a company);

(h) the holder of a qualifying floating charge over the assets of the Lessee (being a company) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes 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;

(j) the Lessee (being an individual) is the subject of a bankruptcy petition, application or order;

(k) a creditor or encumbrancer of the Lessee 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 Lessee’s assets and such attachment or process is not discharged within fourteen (14) days;

(l) any event occurs, or proceeding is 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 clauses

11.1(d) to 11.1(k) (inclusive);

(m) the Lessee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(n) the Lessee (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their affairs or becomes a patient under any mental health legislation.

11.2 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.

12 CONSEQUENCES OF TERMINATION

12.1 Upon termination of this agreement, however caused:

(a) the Lessor’s consent to the Lessee’s possession of the Equipment shall terminate and the Lessor may, by its authorised representatives, without notice and at the Lessee’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and

(b) 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).

12.2 Upon termination of this agreement pursuant to clause 11.1, any other repudiation of this agreement by the Lessee which is accepted by the Lessor or pursuant to clause 10.2, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less a discount for accelerated payment at the percentage rate agreed in writing between the parties.

12.3 The sums payable pursuant to clause 12.2 shall be agreed compensation for the Lessor’s loss and shall be payable in addition to the sums payable pursuant to clause 12.1(b).

12.4 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.

13 FORCE MAJEURE

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this agreement by giving thirty (30) days’ written notice to the affected party.

14 OTHER STOPPAGES

14.1 In the event of Site conditions deteriorating to the extent that, in the sole opinion of the Lessor, the Equipment is no longer fit for use, the Lessor reserves the right to decide to suspend use of the Equipment. A standing charge will be made for such periods or until the Equipment is received back at the Lessor’s depot or other agreed location.

14.2 The Lessee shall be obliged to pay the charges included in the Order or as otherwise communicated by the Lessor to the Lessee from time to time, for stoppages through causes outside the Lessor’s reasonable control, including bad weather or adverse ground conditions and shall also be responsible for the cost or expense of recovering the Equipment from soft ground.

15 CONFIDENTIAL INFORMATION

15.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.

15.2 Each party may disclose the other party’s confidential information:

(a) 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 15; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.

16 ASSIGNMENT AND OTHER DEALINGS

16.1 Save as set out in Clause 16.2 this agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

16.2 The Lessor may at any time assign or subcontract any of its rights and obligations under this agreement to a member of its Group.

17 ENTIRE AGREEMENT

17.1 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.

17.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

18 VARIATION

No variation of this agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).

19 NO PARTNERSHIP OR AGENCY

19.1 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.

19.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

20 FURTHER ASSURANCE

Each party 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.

21 COUNTERPARTS

21.1 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.

21.2 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.

22 THIRD PARTY RIGHTS

22.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

22.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

23 NOTICES

23.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to such email address as agreed between the parties.

23.2 Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt;

(b) 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; and

(c) if sent by email, at the time of transmission, of this time falls outside Business Hours at 9.00 am on the next Business Day after transmission.

23.3 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. For the purposes of this clause, “writing” shall not include e-mail.

24 WAIVER

No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

25 RIGHTS AND REMEDIES

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

26 SEVERANCE

26.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

26.2 If any provision or part-provision of this agreement is deemed deleted under clause 26.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

27 GOVERNING LAW

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

28 JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.