1. Interpretation

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.

Commencement Date: the date that the Customer takes delivery of the Tuffit.

Customer: the person(s) hiring the Tuffit under this Agreement.

Fit for Keeps: means Fit for Keeps Limited, company number 08892068 at Fair View, Goldsborough, Knaresborough, HG5 8NL.

Rental Payments: the payments made by the Customer for hire of the Tuffit.

Rental Period: the period of hire as set out in clause 3.

Total Loss: the Tuffit is, in Fit for Keeps’ reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.

Tuffit: the piece of equipment known as the Tuffit.

  1. Tuffit hire

2.1            Fit for Keeps shall hire the Tuffit to the Customer subject to the terms and conditions of this agreement.

  1. Rental Period

The Rental Period starts on the Commencement Date. The Customer is deemed to have chosen to continue the rental of the Tuffit after the initial free trial, and this agreement will continue unless this agreement is terminated earlier in accordance with its terms. If the Customer wishes not to continue after the 21 days free trial, the Customer must notify Fit for Keeps at least two Business Days before the end of the 21 day free trial period and any later notice will incur fees in accordance with this agreement. Please note that the 21 day free trial period includes up to five Business Days build and delivery time (in accordance with clause 4.1(a)).

  1. Rental Payments and Deposit

4.1            Customers shall pay the Rental Payment to Fit for Keeps as follows:

(a)         FREE for the first 21 days (including delivery time)

(b)         after the initial FREE period, £12.50 per week, £45 per month or £99 per quarter depending on the customer’s preferred rental plan. All such payments are non-refundable in accordance with clause 4.3.

4.3            Rental Payments shall be paid by the Customer to Fit for Keeps until termination of this agreement in accordance with clause 9 and Fit for Keeps is expressly authorised to deduct the Rental Payments from the credit/debit card details provided by the Customer. No refunds will be made for any payments already taken, even if the full Rental Period has not finished.

4.4            Upon termination of this agreement in accordance with clause 9, Customers shall pay to Fit for Keeps a fee of £25 if Fit for Keeps are unable to collect the Tuffit for return on the first attempt.

4.5            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).

4.6            If the Customer fails to make any payment due to Fit for Keeps under this agreement by the due date for payment, then, without limiting Fit for Keeps’ remedies under these terms, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. In addition, Fit for Keeps may charge an administration fee of £10 for processing such late payment.

  1. Title and risk

5.1            The Tuffit shall at all times remain the property of Fit for Keeps, and the Customer shall have no right, title or interest in or to the Tuffit (save the right to possession and use of the Tuffit subject to the terms and conditions of this agreement).

5.2            The risk of loss, theft, damage or destruction of the Tuffit shall pass to the Customer on receipt of the Tuffit by it. The Tuffit shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Tuffit is in the possession, custody or control of the Customer (Risk Period) until such time as the Tuffit is redelivered to Fit for Keeps.

5.3            The Customer shall give immediate written notice to Fit for Keeps in the event of any loss, accident or damage to the Tuffit arising out of or in connection with the Customer’s possession or use of the Tuffit.

  1. Customer’s responsibilities

6.1            The Customer shall during the term of this agreement:

(a)         maintain at its own expense the Tuffit 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) and shall pay on demand all reasonable costs and expenses incurred by Fit for Keeps to make good any damage to the Tuffit;

(b)         make no alteration or repair to the Tuffit and shall not remove any existing component(s) from the Tuffit without the prior written consent of Fit for Keeps;

(c)         permit Fit for Keeps or its duly authorised representative to inspect the Tuffit at all reasonable times;

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

(e)         ensure that at all times the Tuffit remains identifiable as being Fit for Keeps’ property; and

(f)          retain all packaging received with the Tuffit and deliver up the Tuffit with all packaging at the end of the Rental Period or on earlier termination of this agreement at such address as Fit for Keeps requires. If new packaging is required, Fit For Keeps will charge the Customer £30 (£16 courier fee plus £14 packaging and administration costs) to deliver replacement packaging. The Customer agrees that this payment will be taken from the card on which the Rental Payments are made.

6.2            The Customer acknowledges that Fit for Keeps shall not be responsible for any loss of or damage to the Tuffit arising out of or in connection with any negligence, misuse, mishandling of the Tuffit or otherwise caused by the Customer.

6.3        The Customer will follow the instructions of Fit for Keeps to correctly package the Tuffit for return. The Customer will indemnify Fit for Keeps for any costs, loss of use or damage to the Tuffit caused by the Customer not adhering to the instructions.

  1. Warranty

7.1            Fit for Keeps warrant that the Tuffit shall substantially conform to its specification (as made available by Fit for Keeps), be of satisfactory quality and fit for any purpose held out by Fit for Keeps.

  1. Liability

8.1            Without prejudice to this clause, Fit for Keeps’ 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 Rental Payments.

8.2            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; or

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

8.3            This agreement sets forth the full extent of Fit for Keeps’ obligations and liabilities in respect of the Tuffit and its hiring.

8.4            Without prejudice to this clause, 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.

  1. Termination

9.1            Without affecting any other right or remedy available to it, Fit for Keeps may terminate this agreement with immediate effect by giving notice to the Customer if:

(a)         the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 5 days after being notified to make such payment;

(b)         the Customer commits a material breach of any other term of this agreement which breach is irremediable;

(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 is deemed either unable to pay their debts or as having no reasonable prospect of so doing;

(e)         the Customer is the subject of a bankruptcy petition or order; or

(f)          the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

9.2            For the purposes of clause 9.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which Fit for Keeps would otherwise derive from:

(a)         a substantial portion of this agreement; or

(b)         any of the obligations set out in clause 6,

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.

9.3            This agreement shall automatically terminate if a Total Loss occurs in relation to the Tuffit.

9.4            Alternatively, the Customer may return the Tuffit with all packaging to Fit for Keeps at any time after the initial 21 day free trial period or if Fit for Keeps requires the Customer to do so.

9.5        Termination only occurs in accordance with clause 9.4 once the Tuffit has been collected by Fit for Keeps or its nominated courier and until it is collected, all Rental Payment will continue to be due.

9.6        Before or on termination, Fit for Keeps will notify the Customer of the date on which its nominated courier will collect the Tuffit. The courier will not be able to specify a specific time for collection, however.

  1. Consequences of termination

10.1         Upon termination of this agreement, however caused:

(a)         Fit for Keeps’ consent to the Customer’s possession of the Tuffit shall terminate and Fit for Keeps may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Tuffit and for this purpose may enter any premises at which the Tuffit is located; and

(b)         without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Fit for Keeps 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 4.6;

(ii)        any costs and expenses incurred by Fit for Keeps in recovering the Tuffit and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

10.2         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.

  1. 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 6 weeks, the party not affected may terminate this agreement by giving 10 Business Days’ written notice to the affected party.

  1. Assignment and other dealings

This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

  1. Entire agreement

13.1         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.

13.2         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.

13.3         Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

  1. Variation

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

  1. Third party rights

No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

  1. Notices

16.1         Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be 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 or at the Customer’s home address.

16.2         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.

16.3         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.

  1. 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.

  1. 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.

  1. Severance

19.1         If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

  1. Governing law

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

  1. Jurisdiction

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

Version 1.2 02/07/17