Terms and Conditions
The offering of Momentum Hire is to offer goods for sale or rental.
All transactions are subject to the Terms as at the date of the transaction. These Terms and Conditions have been updated on the 16th Feb 2018.
1.1 The following definitions and rules of interpretation apply in this agreement.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Collection: the transfer of physical possession of the Equipment to the Customer at the Site.
Commencement Date: the date that the Customer takes Delivery of the Equipment.
Customer: The person or corporate entity who is hiring the Equipment from the Supplier in accordance with the terms of this agreement.
Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
Delivery: the transfer of physical possession of the Equipment to the Customer at the Site.
Deposit: as defined in clause 4.7 of this agreement.
Equipment: gym fitness equipment.
Order: the Customer’s order for the hire of the Equipment.
Rental Payments: the payments made by or on behalf of Customer for hire of the Equipment which shall be calculated in accordance with the Supplier’s monthly fee rates, as set out in its current price list displayed on its website or as otherwise agreed by the Parties in writing.
Rental Period: the period of hire as set out in clause 3 (Rental Period).
Site: the Customer’s premises details of which are to be provided at the time of the Order.
Supplier: Momentum Fitness Hire Limited whose registered address is 34 Harebell Close Walnut Tree, Milton Keynes, Bucks, United Kingdom, MK7 7BA (Company Number: 10590400)
Total Loss: the Equipment is, in the Supplier’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.10 A reference to writing or written includes fax and e-mail
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 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.
1.13 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.14 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
2.1 The Order constitutes an offer by the Customer to hire the Equipment to the Customer for use at the Site subject to the terms and conditions of this agreement.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date this agreement shall come into existence.
2.3 The Supplier shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Customer’s quiet possession of the Equipment.
3. Rental Period
3.1 The Rental Period starts on the Commencement Date and subject to clause 3.2 shall continue as agreed between the Parties unless terminated earlier in accordance with clause 9 (Cancellation).
3.2 This agreement shall terminate automatically without notice on the third month anniversary of the Commencement Date.
4. Rental Payments
4.1 The first Rental Payment shall be made at the time of the Order and thereafter each subsequent payment shall fall due one month in advance.
4.2 The Rental Payments shall be paid in pounds sterling and shall be made by either debit card, credit card (MasterCard, Visa or American Express) or by direct debit.
4.3 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
4.4 All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.5 If the Customer fails to make any payment due to the Supplier under this agreement by the due date, then, without limiting the Supplier’s remedies under clause 9 (Cancellation), the Customer shall:
a) at the Supplier’s discretion pay an administration fee of £40.00; and
b) pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
4.6 Interest under this clause will accrue each day at 10% a year above the Bank of England’s base rate from time to time, but at 10% a year for any period when that base rate is below 0%.
4.7 The Deposit is a deposit against default by the Customer of payment of any Rental Payments or any loss of or damage caused to the Equipment. The Customer shall, on the date of this agreement, pay a deposit of the amount agreed at the time of the Order to the Supplier. If the Customer fails to make any Rental Payments in accordance with the Payment Schedule, or causes any loss or damage to the Equipment (in whole or in part), the Supplier shall be entitled to apply the Deposit against such default, loss or damage. The Customer shall pay to the Supplier any sums deducted from the Deposit within ten (10) Business Days of a demand for the same. The Deposit (or balance thereof) shall be refundable within five (5) Business Days of the end of the Rental Period.
5. Continuous Payment Authority
5.1 At the time of Delivery, the Customer must sign a ‘Continuous Payment Authority Form’ to allow the Supplier to take payment from a debit, credit card or bank account nominated by the Supplier, as and when payment falls due in accordance with clause 4.1 (Continuous Payment Authority)
5.2 In the event the Supplier defaults on any Rental Payment then the Customer reserves the right to take any outstanding sums owed via such Continuous Payment Authority.
5.3 In the event payment is rejected or declined a fee of £20.00 will be levied per occurrence.
5.4 The Customer may cancel the Continuous Payment Authority by notifying the Supplier in writing subject to alternative payment arrangements being provided to the Supplier.
6. Delivery and Collection
6.1 Delivery of the Equipment shall be made by the Supplier. The Supplier shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties in writing. Title and risk shall transfer in accordance with clause 7 (Title, risk and insurance) of this agreement.
6.2 The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer 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 Supplier, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
6.3 To facilitate Delivery, the Customer shall at its sole expense provide all requisite materials, facilities, access and suitable working conditions to enable Delivery to be carried out safely and expeditiously.
6.4 The Supplier will arrange Collection of the Equipment from the Site within ten days of the end of the Rental Period.
6.5 Delivery and Collection may only take place on a Business Day between the hours of 9.30am and 4.30pm unless otherwise agreed in writing between the parties.
6.6 The parties shall negotiate a time when Delivery/ Collection will occur and the Supplier shall confirm such time in writing to the Customer (Delivery/Collection Time). If within 24 hours prior to the Delivery/Collection Time the Customer varies or cancels the Deliver/Collection or is not present when the Delivery/Collection is made the Supplier may charge a £50.00 fee for a new time for Delivery/ Collection to be arranged.
6.7 The Supplier shall not be liable for failure to Deliver due to inaccessibility or for marks, scratches or damage caused to the Customer’s property, internally or externally, unless such damage is caused by The Supplier’s negligence.
7. Title, risk and insurance
7.1 The Equipment shall at all times remain the property of the Supplier, and the Customer 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).
7.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to the Supplier. During the Rental Period and the Risk Period, the Customer 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 Supplier 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 Supplier 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 Supplier may from time to time consider reasonably necessary and advise to the Customer.
7.3 All insurance policies procured by the Customer shall be endorsed to provide the Supplier 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 Supplier’s request name the Supplier on the policies as a loss payee in relation to any claim relating to the Equipment. The Customer shall be responsible for paying any deductibles due on any claims under such insurance policies.
7.4 The Customer shall give immediate written notice to the Supplier in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
7.5 If the Customer fails to effect or maintain any of the insurances required under this agreement, the Supplier shall be entitled to 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 Customer.
7.6 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Supplier and proof of premium payment to the Supplier to confirm the insurance arrangements.
8. Customer’s responsibilities
8.1 The Customer 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 provided by the Supplier;
(b) take such steps (including compliance with all safety and usage instructions provided by the Supplier) 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) 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;
(d) make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Supplier 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 Supplier immediately upon installation;
(e) keep the Supplier fully informed of all material matters relating to the Equipment;
(f) 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 Supplier’s prior written consent;
(g) permit the Supplier or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(h) maintain operating and maintenance records of the Equipment and make copies of such records readily available to the Supplier, together with such additional information as the Supplier may reasonably require;
(i) not, without the prior written consent of the Supplier, 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;
(j) not without the prior written consent of the Supplier, 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 Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Supplier against all losses, costs or expenses incurred as a result of such affixation or removal;
(k) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of the Supplier in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that the Supplier 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 Supplier of any rights such person may have or acquire in the Equipment and a right for the Supplier to enter onto such land or building to remove the Equipment;
(l) 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 Customer shall notify the Supplier and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Supplier on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(m) not use the Equipment for any unlawful purpose or for any purpose which ;
(n) deliver up the Equipment at the end of the Rental Period or on earlier Cancellation of this agreement at such address as the Supplier requires, or if necessary allow the Supplier or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
(o) not do or permit to be done anything which could invalidate the insurances referred to in clause 7 (Title, risk and insurance).
8.2 The Customer acknowledges that the Supplier 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 Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify the Supplier 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 Customer to comply with the terms of this agreement.
9.1 Without prejudice to clause 9.2, the Supplier’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 value of the Rental Payments.
9.2 Nothing 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; or
(c) any other liability which cannot be excluded by law.
9.3 This agreement sets forth the full extent of the Supplier’s obligations and liabilities in respect of the Equipment and its hiring to the Customer. 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 Supplier 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.
10.1 Without affecting any other right or remedy available to it, the Customer may cancel the Contract by giving the Supplier not less than 14 days written notice expiring on the date when the next Rental Payment falls due unless the Rental Period is due to end in accordance with clause 3.2.
10.2 Without affecting any other right or remedy available to it, the Supplier may Cancel this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment;
(b) the Customer 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 4 days after being notified in writing to do so;
(c) the Customer 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 Customer 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;
(e) the Customer 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;
(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 Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(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 Customer (being a company);
(h) the holder of a qualifying floating charge over the assets of the Customer (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 Customer or a receiver is appointed over all or any of the assets of the Customer;
(j) the Customer (being an individual) is the subject of a bankruptcy petition, application or order;
(k) a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
(l) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 10.2(d) to 10.2(k) (inclusive);
(m) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.3 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11. Consequences of Cancellation
11.1 Upon Cancellation of this agreement, however caused:
(a) the Supplier’s consent to the Customer’s possession of the Equipment shall terminate and the Supplier may, by its authorised representatives, without notice and at the Customer’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 Customer, the Customer shall pay to the Supplier 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 4.5;
(ii) any costs and expenses incurred by the Supplier in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
11.2 Upon Cancellation of this agreement pursuant to clause 10.1, any other repudiation of this agreement by the Customer which is accepted by the Supplier or pursuant to clause 10.3, without prejudice to any other rights or remedies of the Supplier, the Customer shall pay to the Supplier on demand a sum equal to the whole of the Rental Payments that would (but for the Cancellation) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less:
(a) a discount for accelerated payment at the percentage rate set out in the Payment Schedule; and
(b) the Supplier’s reasonable assessment of the market value of the Equipment on sale.
11.3 The sums payable pursuant to clause 11.2 shall be agreed compensation for the Supplier’s loss and shall be payable in addition to the sums payable pursuant to clause 11.1(b).
11.4 Cancellation 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 Cancellation or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of Cancellation or expiry.
12. 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 time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 3 weeks, the party not affected may terminate this agreement by giving 2 days’ written notice to the affected party.
13. Confidential information
13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after Cancellation of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
(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 13.; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
14. Data Protection and Data Processing
15. Assignment and other dealings
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. Entire agreement
16.1 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.
16.2 Each party acknowledges that in entering into this agreement it does not rely on 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 based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18. No partnership or agency
18.1 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.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Further assurance
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
20. Third party rights
20.1 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.
20.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
21.1 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 the following email address email@example.com
21.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(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; 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.
21.3 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.
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.
23. 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.
24.1 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.
24.2 If any provision or part-provision of this agreement is deemed deleted under clause 24.1 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.
25. 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.
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.