HPIB Terms and Conditions
(Version date 2nd October 2015)
Acceptance and commencement
- This lease (including the attached Schedule, this “Lease”) refers throughout to Lessee as “you” or “your” and to Lessor as “we”, “us” or “our”.
- In consideration of our purchase of the equipment described on the Schedule (the “Equipment”), you hereby lease the Equipment from us for your business purposes only (and not for personal, family or household purposes), subject to all terms and conditions of this Lease. This Lease will be binding on you when you sign the Schedule.
- You acknowledge that you selected the supplier as identified in the Schedule (the “Supplier”) and all such Equipment without our assistance and you authorise us to purchase the Equipment in relianc e solely upon your statements herein.
- Lease payments shall be paid in the amounts and on the dates specified in the Schedule.
- You agree that you will pay, by an increase in the Lease payments or upon our demand, all costs connected with the Lease and the Equipment, such as taxes (e.g. value added tax), shipping and collection costs.
- Adjustments: From time to time, the cost of Equipment delivered for acceptance may differ from that originally specified in the Schedule. This may be due to small price variations from the Equipment quote originally received by you from the Supplier. In the event that such a price variation does occur and so as to avoid any unreasonable delay in funding your equipment needs, you authorise us to adjust your Lease payment by up to a maximum of ten per cent (10%) from that originally specified in the Schedule. For any Lease payment adjustment exceeding ten per cent (10%), we will seek your prior written consent. You also acknowledge that the Equipment described in the Schedule may differ (e.g. due to a change in Equipment type or configuration such as a particular Equipment model not being available) from the description of the Equipment in the Acceptance Certificate executed by you. You hereby authorise us to conform the description of the Equipment in the Schedule to the description thereof in the Acceptance Certificate executed by you. All references in the Schedule to the Equipment shall mean the Equipment described therein, as conformed to the Acceptance Certificate pursuant to this paragraph.
- End-of-Term Options
If you have on a timely basis fully complied with all the terms and conditions of the Lease, you may choose to exercise either of the following options upon the expiration of the initial term or any renewal term, provided however, you must give us written notice not less than ninety (90) days before expiration of the relevant term:
(a) Lease Renewal Option: You may renew the Lease at the then Fair Rental Value.
“Fair Rental Value” means the amount of periodic rent that would be payable for the Equipment in an arm’s length transaction between an informed and willing lessee and an informed and willing lessor, neither under compulsion to lease. Such amount will not be reduced by the costs of removing any Equipment from its current location or moving it to a new location. If we and you cannot agree on a Fair Rental Value, you must return the Equipment to us in accordance with paragraph 6 of this Lease.
In the event of such an election, you shall enter into a mutually agreeable renewal agreement with us on or before the last day of the then applicable term confirming the period for which the Lease is to be renewed (the “Renewal Term”),
and the amount of rent and the times at which such rent is to be payable during the Renewal Term.
(b) Equipment Return Option: You may return the Equipment to a location designated by us on or before the last day of the Lease term, in accordance with the Lease.
If you do not elect to either renew the Lease or return the Equipment by the end of the Lease term in accordance with the terms of the Schedule, or you fail to comply with your obligations arising from the election, you will continue to pay the original Lease payments for any full or partial month that you keep the Equipment. Your election will apply to all and no less than all of the Equipment.
- We will have no obligation to purchase the Equipment until we have (a) received the Schedule and, if requested by us, the Acceptance Certificate for it duly executed by you, (b) completed all of our usual pre-settlement checks (including, without limitation, ensuring that the Lease is correctly priced, documentation is correctly prepared and United States restricted party lists searches are completed) and (c) signed the Schedule.
- If you transmit a manually signed copy of the Schedule or any associated Acceptance Certificate to us by facsimile or as an electronically scanned document (the “Scanned Agreement”), you acknowledge that (a) the Scanned Agreement will be binding on you and (b) when printed, signed by us and stamped “original”, will constitute an original document.
- By signing the Schedule you will be deemed to have unconditionally irrevocably accepted the Equipment 10 business days after shipment of the Equipment to you unless we receive your written rejection prior to the end of the 10 day period. However, you agree to execute and deliver to us an Acceptance Certificate upon our request.
- ““Acceptance Date” means the 1st business day following the expiration of the above referenced 10 day period or the Acceptance Date specified in an Acceptance Certificate requested by us.
- The term of this Lease shall begin on the Acceptance Date.
- Except as to quiet enjoyment, we make absolutely no representations or warranties, expressed or implied, including no warranty of merchantability or of fitness for a particular purpose.
- You agree to make payments to us when due, unconditionally, without abatement or set-off for any cause and you waive any claim or defence to any Lease payment.
- You can only make any claim relating to the Equipment against the Supplier or manufacturer, and you waive any such claim against us. We hereby assign any Equipment warranties to which we are entitled during the Lease term to you for your exercise at your expense. On the expiry of this Lease, you assign any Equipment warranties to us. You acknowledge that neither any Supplier nor any Equipment salesperson is an agent of ours nor are they authorised to waive or alter the terms of this Lease. Their representations in no way affect any of our rights and obligations as herein set forth.
- We will not be liable for damages save in the case of our gross negligence. You agree to indemnify us against third party claims or other loss or damages, including reasonable legal fees, arising directly or indirectly out of Equipment defects, use or operation, and whether arising out of breach of contract, tort or strict or product liability.
- With the exception of portable equipment such as laptops and notebooks, you agree not to move the Equipment from the Equipment Location specified in the Schedule or to transfer, sell, sublease or encumber either the Equipment or any rights under this Lease without our prior written consent.
- We own the Equipment and we retain all benefits of ownership and you agree not to take any action inconsistent with our ownership. We may inspect the Equipment during the Lease term.
- You are solely responsible for the installation, operation and maintenance of the Equipment, will keep it in good condition, will use it in compliance with applicable law and will not attach it to building fixtures.
- You shall make no alterations or additions to the Equipment, except those that will not void any warranty made by the Supplier of the Equipment, result in the creation of any security interest or lien on the Equipment or impair the value or use of the Equipment (“Optional Additions”). Optional Additions shall be subject to the terms and conditions of this Lease. Optional Additions which have not been removed prior to the return of the Equipment shall become Lessor’s property upon such return.
- The Equipment shall be returned to us at your expense, and must be in the same condition as when you first received it (excepting only reasonable wear and tear) and include all original parts, attachments and accessories. You must also return to us all copies of any operating system software (including any certificate of authenticity, end user license agreement, any CD-ROM, diskettes or other media relating to such software and any other materials delivered with such software) you received with the Equipment.
- You represent, warrant and covenant that you are familiar with the provisions of all applicable Anti-Corruption Laws, and shall not in connection with this Lease: (I) make any improper payment or transfer anything of value, offer, promise or give a financial or other advantage or request, agree to receive or accept a financial or other advantage either directly or indirectly to any government official or government employee (including employees of a government corporation or public international organization) or to any political party or candidate for public office or to any other person or entity with an intent to obtain or retain business or otherwise gain an improper business advantage; or (II) take any action which would cause us to be in violation of any Anti-Corruption Laws. You agree to promptly notify us if you become aware of any violation of the representations and covenants set forth in this clause. “AntiCorruption Laws” means the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and other analogous anti-corruption legislation in other jurisdictions in which you conduct business or which otherwise apply to you (collectively, and with related regulations).
- You bear all risk of loss or damage to or from the Equipment arising prior to its return to us, and will provide to us on request a certificate showing that the Equipment is insured against all risks of loss from any cause whatsoever, including without limitation, loss and damage, and adequate liability insurance cover for the Equipment.
- Upon the occurrence of any loss or damage to the Equipment, you agree to immediately pay us the present value of all payments provided under this Lease plus the then fair market value (as defined below) of the Equipment or, at our option, repair or substitute the Equipment to our satisfaction. Any payments that you make to us under this paragraph 7.2 shall be offset against the insurance proceeds that we receive under paragraph 7.1.
- “Fair Market Value” means the price that would be paid for the Equipment in an arm's length transaction between an informed and willing buyer (other than a used equipment dealer) under no compulsion to buy and an informed and willing seller under no compulsion to sell. Such price shall not be reduced by the costs of removing the Equipment from its current location or moving it to a new location. If you and we are unable at any relevant time to agree on the Fair Market Value of the Equipment, we will appoint an independent appraiser (reasonably acceptable to you) to determine the Fair Market Value and such appraiser’s determination will be final, binding and conclusive. You will bear all costs associated with any such appraisal.
- If you do not pay or perform any obligation under this Lease within 15 days of when such payment or performance is due, or you or any guarantor (i) die, become insolvent or unable to pay debts when due; (ii) stop doing business as a going concern; (iii) merge, consolidate, transfer all or substantially all of your assets; (iv) enter into discussions with creditors generally regarding rescheduling your debts, appoint a trustee or receiver or (v) undergo a material deterioration of financial health or any guarantee becomes ineffective, we can do any or all of the following: (a) terminate this Lease and without notice declare all amounts due and to become due under this Lease or any other agreement between you and us to be immediately due and payable; (b) immediately repossess the Equipment; (c) collect all costs of collection, including reasonable legal fees; (d) collect all unpaid amounts due hereunder; (e) sell or relet the Equipment; and (f) exercise all other remedies at law or equity.
- If we do not receive any payment when due, you will pay interest on the overdue payment at the rate of 1% of the late payment for every month after the first month in which the payment is late, but in any case, never to exceed more than the maximum charge allowed by law.
- Our action or failure to act on any one remedy shall not constitute an election of such as our sole remedy or a waiver of any of our rights.
- You agree to sign such other documents and take such other actions as we may require to accomplish the intent and purpose of this Lease
- All of your representations, warranties and obligations hereunder shall survive the termination of this Lease.
- All notices, demands and other communications required to be given under this Lease shall be in writing or by e-mail and shall be deemed to have been given if delivered personally, sent by registered post with receipt acknowledged, sent by a nationally recognised overnight courier service, or if sent by e-mail, when such e-mail has been delivered to the recipient.
- Time is of the essence. Any provision of this Lease is severable if unenforceable.
- This lease shall be governed by and construed in accordance with the laws of England and Wales. We and you consent to the jurisdiction of the courts of England and waive any objection relating to improper venue or inconvenient forum to the conduct of any proceedings in any such court.
- We may freely assign our rights and interests under this Lease without notice, unless required by law, to you or your consent. You agree that our assignee will have the same rights and remedies as we do and that our assignee’s rights will not be subject to any claims you may have against us. You may not assign any of your rights under this Lease without our prior written consent.
- This Lease shall become effective upon our signature of the Schedule but we will have no obligation to purchase the Equipment until you have accepted it in accordance with paragraph 5.
- This Lease is non-cancellable and is our full and final agreement, merging all prior understandings, whether written or oral, and cannot be modified or terminated except by a written agreement signed by you and us