PLEASE NOTE THAT THESE TERMS ARE USED WITH CONSUMERS AND IN CERTAIN AREAS DIFFERENT PROVISIONS APPLY TO EACH AS FOLLOWS:
- Part A: General Terms applying to Consumer;
- Part B: Terms applying only to Consumers;
“Consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
Before placing an order, the Hirer should read these Terms carefully as they contain important information about BRAKE & GO and the Contract.
WHERE THE HIRER IS A CONSUMER, THE HIRER’S ATTENTION IS DRAWN IN PARTICULAR TO THE SECTIONS CONCERNING BRAKE & GO’ LIABILITY TO THE HIRER SET OUT IN PART B.
PART A: GENERAL TERMS APPLYING TO CONSUMERS
- DEFINITIONS
1.1 In these Terms:
the following words and expressions shall, unless the context or circumstances require otherwise, have the meanings assigned to them below:
“Additional Charges” means charges applicable to the provision of the Equipment which are charged in addition to the Charges including those additional costs and expenses referred to in these Terms;
“Charges” means the charges set out in the Contract or if no charges are detailed in the Contract, BRAKE & GO standard charges for the relevant Equipment in force on the date BRAKE & GO issues a written acceptance of the Order to the Hirer;
“Commencement Date” means the date on which the relevant Contract is formed in accordance with clause 3.2;
“Contract” means the contract between BRAKE & GO and the Hirer formed in accordance with clause 3.2;
“Deposit” has the meaning given in clause 6.3;
“Equipment” means the items of equipment to be hired by the Hirer as listed in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for the equipment;
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company;
“Hire Period” means the period of hire of the Equipment as set out in the Contract, unless the Contract is terminated earlier in accordance with these Terms or extended by agreement between BRAKE & GO and the Hirer;
“Hirer” means the Consumer set out as such in the Contract;
“BRAKE & GO” means the relevant BRAKE & GO company set out in the Contract;
“Order” means the individual orders for the hire of Equipment placed by the Hirer from time to time in a branch, over the telephone, via our website or the BRAKE & GO app in accordance with these Terms;
“Replacement Cost” means the cost of replacing with new any item of Equipment or part of it including but not limited to the cost of the item or part of it, any unpaid Charges that would otherwise have been paid by the Hirer were it not for such replacement, and a reasonable administrative charge to be determined by BRAKE & GO covering the cost to BRAKE & GO of administering the replacement;
“Site” means any premises or location at which the Equipment is to be delivered to or collected from or is otherwise located;
“Terms” means these terms and conditions.
1.2 references to the singular include the plural and vice versa and references to any gender include every gender;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 in the event that there is a conflict between Part A and Part B, Part A shall prevail and then Part B in the case of a Consumer and
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions shall be construed without limitation and accordingly shall not limit the meaning of the words preceding them.
- INFORMATION ABOUT BRAKE & GO AND CONTACTING BRAKE & GO
2.1 Who is BRAKE & GO. The name, company registration number, registered office address and VAT number of the relevant BRAKE & GO company from which the Equipment will be hired is set out in the Contract.
2.2 How to contact BRAKE & GO. If the Hirer has any questions or if the Hirer has any complaints, the Hirer should contact BRAKE & GO via any of the methods available at www.learnerbrake.co.uk
2.3 How BRAKE & GO may contact the Hirer. If BRAKE & GO has to contact the Hirer, BRAKE & GO will do so by telephone or by writing to the Hirer at the email address or postal address the Hirer provides to BRAKE & GO in the Order.
- FORMATION OF CONTRACT AND ORDERS
3.1 The Hirer’s Order is an offer to hire from BRAKE & GO. Each Order placed by the Hirer will be an offer by the Hirer to hire the Equipment on these Terms. The Hirer will ensure that each Order is accurate and complete and that the Equipment is suitable for the Hirer’s requirements.
3.2 How we, BRAKE & GO, accept the Order. A Contract will be formed between BRAKE & GO and the Hirer for the provision of the Equipment set out in the Order, when BRAKE & GO issues a written acceptance (including by email) of the Order to the Hirer.
3.3 BRAKE & GO may not accept your Order. If BRAKE & GO is unable to accept an Order for any reason, BRAKE & GO will inform the Hirer of this and will not charge for the Equipment.
3.4 When will the Contract commence. The Contract shall commence on the Commencement Date and shall continue for the Hire Period unless terminated earlier in accordance with these Terms.
3.5 BRAKE & GO hires Equipment in the UK only. BRAKE & GO’ website is solely for the promotion of BRAKE & GO’ equipment in the UK.
3.6 Minimum Hire Period. A minimum hire period may apply to the Equipment. The Hirer may not terminate any Contract in respect of the hire of Equipment prior to the expiry of any minimum Hire Period. Where the Hirer purports to cancel or terminate the Contract where BRAKE & GO is not at fault prior to the expiry of any minimum Hire Period, the full charges for the Equipment shall continue to be chargeable for the remainder of the minimum Hire Period.
- THE EQUIPMENT
4.1 BRAKE & GO retains ownership of the Equipment. The Hirer acknowledges that the Equipment remains at all times the property of BRAKE & GO or the Supplier (as applicable). The Hirer has no right, title or interest in the Equipment except that it is hired to the Hirer in accordance with the terms of the Contract.
4.2 The Hirer will have quiet possession of the Equipment. BRAKE & GO shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Hirer’s quiet possession of the Equipment during any Hire Period.
4.3 Hirer to notify BRAKE & GO of issues with, or caused by the Equipment. The Hirer shall immediately notify BRAKE & GO of any loss, accident, damage or defect in the Equipment or if the Hirer considers that the Equipment may cause damage to the Hirer’s property.
4.4 BRAKE & GO may access a Site to inspect and repair the Equipment. The Hirer shall grant (or shall procure that BRAKE & GO, the Supplier or their authorised representatives are granted) access to the Site at all such reasonable times on reasonable notice to:
4.4.1 inspect the Equipment and ensure the Hirer’s compliance with its obligations under the Contract; and/or
4.4.2 carry out any inspections or repairs of the Equipment.
4.5 Use and storage of the Equipment by Hirer. The Hirer:
4.5.1 shall keep the Equipment in good repair and condition, (fair wear and tear only excepted) but the Hirer shall not repair or allow any third party (other than the Supplier and only where directed by BRAKE & GO) to repair the Equipment and shall notify BRAKE & GO immediately if any repair is necessary;
4.5.2 shall not sell, licence or create any security interest or type of preferential arrangement on or over the Equipment;
4.5.3 shall use the Equipment in compliance with all laws and applicable regulations including any health and safety legislation which relates to the use of the Equipment and in accordance with any operating and/or safety instructions provided to or supplied to the Hirer by BRAKE & GO;
4.5.4 shall not make any alteration to the Equipment (including defacing or covering up any name plate or mark);
4.5.5 shall not, without the prior written consent of BRAKE & GO, part with control of the Equipment;
4.5.6 shall not do or permit to be done anything which could invalidate BRAKE & GO’ or the Supplier’s insurances;
4.5.7 is responsible for the security of the Equipment whilst in the Hirer’s possession; and
4.5.8 will take all appropriate measures to secure the Equipment at the Site, including when not in use.
4.6 Damage to or loss of Equipment. Subject to clause 7, the Hirer shall pay BRAKE & GO:
4.6.1 all costs and expenses in respect of: (i) rectifying any damage to the Equipment (fair wear and tear excepted) which occurred during the period in which the Equipment was at the Hirer’s risk; and (ii) cleaning the Equipment following collection of the Equipment, in each case to return the Equipment to a condition fit for rehire. Such costs and expenses shall be confirmed to the Hirer by BRAKE & GO, subject to supporting documentation. In addition, the Hirer will continue to pay the Charges until any repairs and or cleaning have been completed; and
4.6.2 the Replacement Cost in respect of lost or stolen Equipment and/or Equipment which is beyond economic repair and the Hirer will continue to pay the Charges, until the Replacement Cost has been received by BRAKE & GO.
4.7 Consequences of expiry or cancellation of the Contract. On expiry or cancellation of the Contract for whatever reason all Equipment at such time in the possession of the Hirer shall immediately become due for return to BRAKE & GO.
- DELIVERY AND COLLECTION
5.1 When BRAKE & GO will provide the Equipment. During the order process BRAKE & GO will let the Hirer know when BRAKE & GO will provide the Equipment.
5.2 BRAKE & GO is not responsible for delays outside of BRAKE & GO’ control. If the supply of the Equipment is delayed by an event outside BRAKE & GO’ control (including but not limited to any disruption or delay to BRAKE & GO’ business or supply chains arising as a result of the United Kingdom’s exit from the European Union or any form of health epidemic) then BRAKE & GO will contact the Hirer as soon as possible to let the Hirer know and BRAKE & GO will take steps to minimise the effect of the delay. BRAKE & GO will not be liable for delays caused by any event outside BRAKE & GO’ control, but if there is a risk of substantial delay the Hirer may contact BRAKE & GO to end the Contract and receive a refund for any Equipment paid for but not received.
BRAKE & GO shall have no liability for damage to Site or delayed or failed delivery and the Hirer shall be liable for any related charges, including redelivery charges.
5.3 When the Hirer becomes responsible for the Equipment. Delivery will occur when the Equipment is made available to the Hirer at the delivery address (whether at BRAKE & GO’ premises or at the Site). Unless otherwise agreed by the parties in writing, risk of loss, theft, damage or destruction of the Equipment shall pass to the Hirer on delivery in accordance with this clause and will return to BRAKE & GO once loading of the Equipment onto the collection vehicle is complete.
5.4 What will happen if the Hirer does not give required information to BRAKE & GO. BRAKE & GO may need certain information from the Hirer so that BRAKE & GO can supply or arrange the supply of the Equipment, for example, delivery details. BRAKE & GO will contact the Hirer to ask for this information. If the Hirer does not give BRAKE & GO this information within a reasonable time of BRAKE & GO asking for it, or if the Hirer gives BRAKE & GO incomplete or incorrect information, BRAKE & GO may either end the Contract or make an additional charge of a reasonable sum to compensate BRAKE & GO for any extra work that is required as a result. BRAKE & GO will not be responsible for supplying the Equipment late or not supplying any part of it if this is caused by the Hirer not giving BRAKE & GO the information BRAKE & GO needs within a reasonable time of BRAKE & GO asking for it.
5.5 Branch collections and returns. When a Hirer wishes to collect or return BRAKE & GO owned Equipment from or to an BRAKE & GO branch or place of business, it shall be the Hirer’s responsibility to prepare its vehicle so that the collection/return can be carried out without damage being caused to such vehicle or injuries being sustained by the Hirer or by BRAKE & GO staff and the Hirer shall hold BRAKE & GO harmless in the event of contravention of this. Should the Hirer have any doubt as to whether this can be complied with, it should ask BRAKE & GO to arrange a collection/delivery, subject to Charges (as applicable).
- CHARGES AND PAYMENT
6.1 Where to find the Charges. The Charges (which includes VAT) will be the price indicated on the order pages (or otherwise notified to the Hirer) when the Hirer places the Order.
6.2 Variation of the Charges. BRAKE & GO will be entitled to vary the Charges and any Additional Charges at any time by giving written notice to the Hirer to reflect any variation in the cost of supplying the Equipment which arises as a consequence of:
6.2.1 any variation in the Hirer’s requirements for the Equipment;
6.2.2 any increase in the costs payable to the Supplier;
6.2.3 any information provided by the Hirer being inaccurate or incomplete; or
6.2.4 any failure or delay by the Hirer in providing information.
6.3 A deposit or other payment information may also be required. At the time the Equipment is ordered, BRAKE & GO may also require the Hirer to pay a deposit and/or require the Hirer to provide details of a valid credit or debit card and allow BRAKE & GO to take a deposit (“Deposit”).
6.4 Status of the Deposit. The Deposit shall be a deposit against default by the Hirer of payment of any Charges or any Additional Charges or any loss of or damage caused to the Equipment.
6.5 BRAKE & GO may off-set the Deposit against amounts owed by the Hirer to BRAKE & GO. If the Hirer fails without due cause to make any payment of the Charges or any Additional Charges or any Replacement Cost or causes any loss or damage to the Equipment (in whole or in part), BRAKE & GO shall be entitled to apply the Deposit in part or in whole against any such costs and by providing the Deposit the Hirer specifically consents to this.
6.6 Return of Deposit. Unless BRAKE & GO is entitled to make a deduction from the Deposit in accordance with clause 6.5, the full amount of the Deposit will be returned to the Hirer at the end of the Hire Period.
6.7 When the Hirer must pay and how. The Hirer must pay the Charges at the time agreed in the Contract. Unless otherwise agreed by the parties in writing or in the Contract, any invoices submitted by BRAKE & GO shall be paid by the Hirer within a period of thirty (30) days from the end of the month in which the relevant invoice is issued.
6.8 BRAKE & GO will pass on changes in the rate of VAT. If the rate of VAT changes between the Order date and the date BRAKE & GO supplies the Equipment, BRAKE & GO will adjust the rate of VAT that the Hirer pays, unless the Hirer has already paid for the Equipment in full before the change in the rate of VAT takes effect.
6.9 BRAKE & GO can charge interest if the Hirer pays late. If the Hirer is a Consumer, the provisions of clause B 15 shall apply.
6.10 Other remedies of BRAKE & GO for late payment. Should any portion of an account fall overdue then the total account will become due on demand. The Hirer will be responsible for reasonable legal charges incurred by BRAKE & GO in the recovery of amounts due or the recovery of the Equipment. In addition BRAKE & GO is entitled to suspend further services to the Hirer.
- ENDING THE CONTRACT
7.1 Automatic termination at day 88 of the Contract term. Where the hire is to a Hirer who is an “individual” (which includes without limitation a sole trader or partnership) under the Consumer Credit Act 1974, the Hire Period shall not exceed 88 days, after which time the relevant Contract shall be deemed to have automatically terminated.
7.2 Grounds for mutual termination. Either party may, immediately on giving written notice to the other party, terminate the Contract and/or the relevant Contract without payment of compensation if the other party:
7.2.1 commits a material breach of the Contract which is incapable of remedy;
7.2.2 commits a material breach of the Contract which can be remedied but fails to remedy that breach within seven (7) days of a written notice setting out the breach and requiring it to be remedied being given by the other party; and/or
7.2.3 becomes Insolvent and each party shall notify the other party immediately upon becoming Insolvent.
7.3 Termination on Notice. Subject to clause 3.8, either party may terminate the Contract on giving the other party not less than five (5) days’ notice in writing.
7.4 BRAKE & GO’ rights to terminate. BRAKE & GO may terminate the Contract immediately on giving written notice to the Hirer if:
7.4.1 the Hirer does not, within a reasonable time of us asking for it, provide BRAKE & GO with information that is necessary for BRAKE & GO to provide the Equipment;
7.4.2 the Hirer does not, within a reasonable time, allow BRAKE & GO or its courier to deliver or collect the Equipment to the Hirer or the Hirer does not collect them from BRAKE & GO;
7.4.3 the Equipment is lost, stolen, seized, confiscated or in BRAKE & GO’ reasonable opinion or the opinion of its insurer(s), damaged beyond repair;
7.4.4 the Hirer fails to pay any of BRAKE & GO’ invoices within thirty (30) days from the due date for payment; or
7.4.7 the Hirer otherwise breaks these Terms.
7.5 The Hirer’s right to the Equipment ends when the Contract ends. Without prejudice to the remainder of these Terms, on the termination or expiry of the Contract BRAKE & GO’ consent to the Hirer’s possession of the Equipment shall terminate and BRAKE & GO or the Supplier may take possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located.
7.6 Accrued rights and remedies will not be prejudiced by termination or expiry. The termination of the Contract (or any part of it) shall be without prejudice to the rights and remedies of either party which may have accrued up to the date on which the Contract expires or is cancelled for whatever reason.
7.7 Consequences of termination or expiry. Upon the termination or expiry of the Contract, howsoever caused, without prejudice to any other rights or remedies of BRAKE & GO:
7.7.1 BRAKE & GO shall be entitled to invoice all Charges and Additional Charges incurred which have not yet been invoiced;
7.7.2 the Hirer shall pay on demand all Charges and Additional Charges which are due but are unpaid at the date of demand, together with any interest accrued; and
7.7.3 the Hirer shall pay on demand all costs and expenses incurred by BRAKE & GO in recovering the Equipment and/or in collecting any sum due under the Contract (including any storage, transport, insurance, repair, legal and remarketing costs).
7.8 Definition of Insolvent. “Insolvent” means where a person ceases to trade, is unable to pay its debts as they fall due or where a person becomes, or is likely to become, insolvent or bankrupt including where a person has a receiver, administrative receiver, administrator or provisional liquidator appointed; is subject to a notice of intention to appoint an administrator; passes a resolution for its winding-up has a winding up order made by a court in respect of it; enters into any composition or arrangement with creditors (save in respect of a solvent restructuring) or has any steps or actions taken in connection with any of these procedures in any jurisdiction.
- HOW TO END THE CONTRACT WITH BRAKE & GO
8.1 Telling BRAKE & GO. To exercise the right to terminate, the Hirer must inform BRAKE & GO by a clear statement (e.g. a letter sent by post or e-mail), using the information above under “How to contact BRAKE & GO”.
8.2 Returning Equipment after ending the Contract. If the Hirer ends the Contract for any reason after Equipment has been dispatched or delivered to the Hirer, the Hirer must return it to BRAKE & GO. Please contact us using the information above under “How to contact BRAKE & GO” in clause 2.2.
8.3 What BRAKE & GO charges for collection. If the Hirer is responsible for the costs of return , BRAKE & GO will charge the Hirer the direct cost to BRAKE & GO of collection.
- VARIATION
9.1 Which version of our Terms apply to your order. BRAKE & GO amends these Terms from time to time. Every time a Hirer orders Equipment from us, the terms in force at the time of the Order and available at www.learnerbrake.co.uk will apply to the Contract between the Hirer and BRAKE & GO.
9.2 Amending the Terms applicable to your Order. BRAKE & GO may revise these Terms as they apply to an Order from time to time to reflect the following circumstances:
9.2.1 changes in relevant laws and regulatory requirement; and
9.2.2 changes to BRAKE & GO’ processes and procedures.
If BRAKE & GO have to revise these Terms as they apply to an Order, BRAKE & GO will contact the Hirer to give the Hirer reasonable advance notice of the changes and let the Hirer know how to cancel the Contract if the Hirer is not happy with the changes. The Hirer may cancel either in respect of all the affected Equipment or only for any Equipment the Hirer has yet to receive. If the Hirer opts to cancel, the Hirer will have to return (at BRAKE & GO’ cost) any relevant Equipment already received and BRAKE & GO will arrange a full refund of the price paid by the Hirer.
- HOW BRAKE & GO WILL USE A HIRER’S PERSONAL INFORMATION
BRAKE & GO is the data controller of any personal information a Hirer provides to us. BRAKE & GO will collect and process such information in order to process and fulfil an Order.
If the Hirer is an individual providing BRAKE & GO with its own personal information, please see BRAKE & GO’s privacy policy which is available on our website for further information on how personal information is used and rights in relation to that information.
If the Hirer is providing personal data of another individual to BRAKE & GO, the Hirer must tell that individual that the Hirer is providing their information to BRAKE & GO and show them a copy of this notice.
- GENERAL
11.1 Even if BRAKE & GO delays in enforcing a Contract, BRAKE & GO can still enforce it later. If BRAKE & GO fails to insist that the Hirer performs any of its obligations under a Contract or if BRAKE & GO does not enforce its rights against the Hirer, or if BRAKE & GO delays doing so, that will not mean that BRAKE & GO has agreed not to enforce its rights against the Hirer and will not mean that the Hirer does not have to comply with those obligations. If BRAKE & GO does waive a default by the Hirer, BRAKE & GO will only do so in writing, and that will not mean that BRAKE & GO will automatically waive any later default by the Hirer.
11.2 If a court finds part of the Terms illegal, the rest will continue in force. Each of the paragraphs of these Terms operates separately. If any court or relevant authority decides that any term is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
11.3 Nobody else has any rights under a Contract. The Contract is between the Hirer and BRAKE & GO. No other person shall have any rights to enforce any of its terms.
11.4 Transfer of rights to someone else. The Contract is personal to the Hirer and the Hirer shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of BRAKE & GO. BRAKE & GO may assign or transfer any or all of its rights and obligations under the Contract to any member of its Group and shall give written notice to the Hirer on or after such event.
- GOVERNING LAW AND JURISDICTION
12.1 Which laws apply. Subject to clause 13.2, these Terms and any and all Contracts and any non-contractual obligations arising out of or in connection with them will be governed by English law.
12.2 Where you may bring legal proceedings. BRAKE & GO and the Hirer both agree that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with these Terms and any and all Contracts (including in relation to any non-contractual obligations), except if the Hirer is a resident of or has its registered office in Scotland, either party may bring proceedings in Scotland in accordance with Scottish law.
PART B: TERMS APPLYING ONLY TO CONSUMERS
- LIABILITY
13.1 BRAKE & GO is responsible to the Hirer for foreseeable loss and damage caused by BRAKE & GO. If BRAKE & GO fails to comply with the Contract, BRAKE & GO is responsible for loss or damage the Hirer suffers that is a foreseeable result of BRAKE & GO breaking the Contract or failing to use reasonable care and skill. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both the Hirer and BRAKE & GO knew it might happen, for example, if you specifically drew it to our attention during the sales process.
13.2 BRAKE & GO does not exclude or limit in any way BRAKE & GO’ liability where it would be unlawful to do so. This includes liability for:
13.2.1 death or personal injury caused by BRAKE & GO’ negligence or the negligence of BRAKE & GO’ employees, agents or subcontractors;
13.2.2 for fraud or fraudulent misrepresentation;
13.2.3 for breach of the Hirer’s legal rights in relation to the Equipment including the right to receive the Equipment; and
13.2.4 for any matter for which BRAKE & GO is not permitted by law to exclude or limit, or to attempt to exclude or limit, liability
13.3 BRAKE & GO is not liable for business losses. BRAKE & GO only supplies the Equipment for domestic and private use. If the Hirer uses the Equipment for any commercial, business or re-sale purpose BRAKE & GO will have no liability to the Hirer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
13.4 BRAKE & GO’ aggregate liability. Subject to clause 14.2, BRAKE & GO’ liability for loss, destruction or damage to goods or property is limited to a total of £1 million whether due to our breach of contract, negligence or otherwise. If you think that there is a possibility that goods or property could be damaged which have a higher value, then you must notify us in writing before the Equipment is delivered to the Site. On receipt of such notification, we may choose to make additional coverage available and this will involve an increase in the Charges.
13.5 AS A CONSUMER, THE HIRER HAS LEGAL RIGHTS AND REMEDIES IN RELATION TO THE PROVISION OF THE EQUIPMENT. ADVICE ABOUT THE HIRER’S LEGAL RIGHTS AND REMEDIES IS AVAILABLE FROM THE CITIZENS’ ADVICE BUREAU. NOTHING IN THESE TERMS WILL AFFECT THE HIRER’S LEGAL RIGHTS AND REMEDIES.
- LATE PAYMENT
14.1 If the Hirer does not make any payment to BRAKE & GO by the due date, BRAKE & GO may charge interest to the Hirer on the overdue amount at the rate of 4% per annum above the base lending rate from time to time of Barclays Bank plc. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Hirer must pay BRAKE & GO interest together with any overdue amount.
Version: February 2022