SUPPLIER TRADING AGREEMENT

SUPPLIER TRADING AGREEMENT
BETWEEN THE PARTIES
(i) CIT Group (UK) Limited and/or CIT Vendor Finance (UK) Limited whose Company Registration Numbers are 3235845 and 3088213, respectively, and whose registered offices
are at Circa, 2A High Street, Bracknell, Berkshire. RG12 1AA. England., or its successors and assigns (hereinafter jointly and severally referred to herein as “CIT”); AND
(ii) [supplier name] , whose Company Registration Number is [company registration no] and whose registered office is at [registered address] (hereinafter referred to as ‘the
Supplier’).
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF
WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
1.
Definitions
In this Agreement, the following expressions shall, except where the context otherwise
requires (or there is express provision to the contrary) have the meanings set out below:
Access Codes and Procedures
The codes and procedures required from time to time for the purposes of access to and
use of the Services which include without limitation, the User ID and the password.
Application Form
The form (or any amendment, variation, replacement, substitution or document
supplemental thereto) entitled Website Application Form executed by or on behalf of the
Supplier.
CCA
Consumer Credit Act 1974 (as amended or superseded from time to time) and all
regulations made in association therewith.
DPA
Data Protection Act 1998 (as amended or superseded from time to time).
Equipment
New equipment (and such other equipment as we may approve on a case by case basis)
forming the subject matter of a Hire Agreement.
Fair Processing Notice
A data protection notice in the form attached hereto as Schedule 2 or in such other form
as notified to the Supplier by CIT in writing from time to time.
Hire Agreement
A rental agreement in CIT's form (as modified by CIT from time to time) which shall not be
modified or varied by the Supplier without prior written consent by CIT.
Hirer
A person or entity who or which has entered into a Hire Agreement (or other format as
agreed by CIT).
Minimum Term
The initial or minimum period of hire under a Hire Agreement.
MLR
Money Laundering Regulations 2007 (as amended or superseded from time to time).
Non-Regulated Hire Agreement
A Hire Agreement which is not a Regulated Hire Agreement.
Personal Data
Shall have the meaning attributed to it under the DPA.
Regulated Hire Agreement
A Hire Agreement which would fall within the definition of “Consumer Hire Agreement”
within the CCA.
Rentals/Payments
Payments and charges due under the terms of a Hire Agreement, relating to the hire of
the Equipment.
Services
The electronic services made available to the Supplier on the Website.
User ID
The identification codes allocated to Users by CIT.
Users
Each person appointed by the Supplier as a user who is authorised to access and use the
Services.
Website
The website on which the Services are provided
Submission of Hire Agreements
2.1
Subject to Clause 2.2 below, the Supplier may submit for acceptance any Hire
Agreement signed by the proposed Hirer under which CIT is to be the owner of the
Equipment provided that the proposed Hirer and the terms of the proposed Hire
Agreement have been previously approved by CIT in writing. CIT shall evaluate such
Hire Agreements and shall approve or reject the proposed Hire Agreements in its
sole discretion.
Prior to submitting a proposed Hire Agreement to CIT and/or providing to CIT any
other information relating to the proposed Hirer, the Supplier shall first have:
obtained the proposed Hirer’s consent both to the transfer of such information to CIT
and to searches being carried out against the proposed Hirer with licensed credit
references agencies; and
provided such proposed Hirer with a Fair Processing Notice.
Acceptance of any proposed Hire Agreements shall be notified to the Supplier by
CIT, in writing, and shall be conditional upon the terms and conditions specified
within the said acceptance and in any event conditional upon execution of the
proposed Hire Agreement by CIT.
CIT shall not be bound to pay the Supplier’s invoice for the purchase of any
Equipment or otherwise incur any obligation or liability to the Supplier or in respect
of a proposed Hire Agreement unless or until CIT, in its entire discretion, has
executed the said Hire Agreement.
(a)
(b)
2.3
2.4
3.3
(a)
(b)
(c)
4.
On-line Credit Applications
4.1
The Supplier may use the Services, upon acceptance by CIT of the Supplier’s
completed Application Form, a current copy of which is attached as Schedule 2 to
this Agreement, and let the Equipment to Hirers under Hire Agreements, subject to
the conditions set out in this Clause 4.
The Supplier is responsible for:ensuring the integrity and suitability of Users and that Access Codes and
Procedures are kept secure and confidential;
arranging appropriate equipment, support, software and internet access to enable
the Services to be used legally;
keeping the equipment and software used to access and use the Services well
maintained and secure;
notifying CIT by email or phone of the Supplier’s cancellation of a User or should the
Supplier become aware of any breach of security relating to the Access Codes or
Procedures.
notify CIT by email of any change by the Supplier of the nomination and/or
authorisation of a User
CIT will take all reasonable steps to ensure that the Services are provided to the
Supplier in an efficient and timely manner but CIT shall:be entitled (without liability to the Supplier) to suspend provision of and access to the
Services in the event of any breakdown, malfunction or security issue;
not be liable for any loss or damage suffered by the Supplier directly or indirectly in
connection with the use or provision of the Services and makes no express
representations or warranties to the Supplier concerning those Services and hereby
excludes any such representations or warranties which might otherwise be implied.
CIT may immediately terminate provision of the Services or the authority of the
Supplier to use the Access Codes and Procedures at any time, without prior notice
and in its absolute discretion. The Supplier may terminate use of the Services at
any time by notice in writing to CIT.
CIT retains all intellectual property rights in any materials and software to which CIT
gives the Supplier access for the purpose of the Services and the Supplier shall
have a personal, non-exclusive and non-transferable right to use them on the terms
set out above.
4.2
(a)
(b)
(c)
(d)
(e)
4.3
(a)
(b)
4.4
4.5
2.
2.2
3.2
3.
Basis Of Agreement
3.1
In connection with all proposed Hire Agreements approved by CIT, CIT will purchase
the Equipment from the Supplier on the terms and conditions of this Agreement and
its then current standard Purchase Order, a current copy of which is attached as
Schedule 1 hereto, and let the Equipment to Hirers under Hire Agreements.
In the event that there should be any conflict between the terms of this Agreement
and those of the Purchase Order, the terms hereof shall prevail.
CIT will make payment to the Supplier by Electronic Funds Transfer (‘EFT’) for all
Equipment purchased. It will be a pre-condition to payment that the Supplier
includes its bank details in its invoice or else provides CIT with a formal written
authorisation on its letterhead confirming its bank details and duly signed by an
authorised signatory, whereby:
CIT is not obliged to do anything to establish the authority or identity of the person
sending an invoice or EFT communication. CIT is not responsible for errors or
omissions made by the Supplier and may act on any invoice or EFT communication
by reference to an account number only, even if an account name is provided.
CIT may decide not to act on any invoice or EFT communication where it reasonably
doubts its content, authorisation, or origination and will promptly notify the Supplier
(by telephone if appropriate) of its decision.
If CIT acts on any invoice or EFT communication sent by any means requiring
manual intervention (such as post, telephone, telex, telefax, electronic mail or disks
sent by messenger) then the Supplier will be responsible for any loss CIT and/or the
Supplier may incur in connection with such invoice or EFT communication.
5.
Supplier's Representations and Warranties
5.1
The Supplier hereby represents and warrants in respect of any Equipment acquired
by CIT for hire that:the purchase price for the Equipment shall not exceed the manufacturer’s
recommended retail price for such Equipment;
upon payment of the purchase price for the Equipment, title to the Equipment shall
immediately and irrevocably vest in CIT free and clear of all defences, set-offs, liens
and encumbrances of any kind or nature;
unless advised otherwise in its application, the Equipment is new and is the current
model; and
the Supplier has not entered into any agreement that could adversely affect CIT's
rights under the Hire Agreements.
The Supplier further warrants that it will:be in possession of a consumer credit licence of the appropriate categories at the
time of negotiating and entering into Regulated Hire Agreements and will otherwise
comply with the requirements of the CCA;
comply with all necessary requirements of the DPA including the obtaining of the
prior consent of the proposed Hirer for information to be provided to CIT;
provide the proposed Hirer with a Fair Processing Notice in accordance with Clause
(a)
(b)
(c)
(d)
5.2
(a)
(b)
(c)
Page 1 of 4
(v 09/09)
(d)
(e)
2.2 of this Agreement;
provide all necessary documentation required by CIT to enable it to comply with the
MLR whether as to the identity of Hirers or their beneficial ownership or otherwise; (a)
and
ensure that if the Supplier acts as agent for a Hirer it shall disclose the fact of any (b)
receipt of commission from CIT to the Hirer before submitting any proposal and shall
take such further steps as may be necessary to comply with any fiduciary obligations
owed by it to the Hirer whether as to disclosure of commission or otherwise.
(c)
6.
Duration Of Agreement
6.1
This Agreement will commence when both parties have signed it and shall continue
until terminated by either party giving three months’ written notice to the other to that
effect, subject to the provisions of 6.2 below.
If:
the Supplier is in breach of any term, representation or condition of this Agreement
(it being a condition of this Agreement that the Supplier does not so breach any
such term or condition);
the Supplier is unable to pay its debts within the meaning of the Insolvency Act
1986;
a receiver is appointed over all or any of the Supplier’s assets;
an administration order is made or applied for in respect of the Supplier; or
the Supplier goes into voluntary or compulsory liquidation,
then CIT will be entitled to immediately terminate this Agreement.
Termination of this Agreement will not affect any existing or continuing rights,
obligations and liabilities of the parties under this Agreement arising from any Hire
Agreement accepted under the provisions of this Agreement.
6.2
(a)
(b)
(c)
(d)
(e)
6.3
8.2
9.
costs, losses or expenses made or brought against or incurred or suffered by CIT
arising out of or resulting directly or indirectly from
CIT's acquisition of the Equipment, including without limitation the service, repair or
maintenance of the Equipment;
misrepresentation by or negligence or wilful misconduct of the Supplier or breach of
any term, warranty or covenant given by Supplier under this Agreement or
elsewhere in connection with the Hire Agreement or the Equipment; or
incomplete or incorrect documentation or information being submitted by the
Supplier.
The Supplier will at all times maintain an insurance policy in respect of loss or
damage suffered by Hirers or third parties and their respective employees or agents
arising from negligence or wilful default of the Supplier.
Set-Off
CIT shall have the right at any time to set-off any sum owing by it to the Supplier against
any sum owing by the Supplier to it.
10. Settlements
The Supplier understands that prior to the commencement of hire under any Hire
Agreement, CIT may advise the Hirer of any amounts, of which CIT is aware, required to
settle a Hirer’s obligations under a previous agreement.
11. Relationships
Neither party is or shall be construed as a partner, joint venturer, agent or representative
of the other party. Neither party has any authority to bind or speak for the other party.
The parties have entered into this Agreement on an arm's-length basis.
7.
Legal Proceedings and Unwinds
12. Miscellaneous
7.1
If the Hirer fails to make payments in accordance with the terms of any Hire
Agreement, CIT may, at its discretion, ask the Hirer to put in writing the reasons for
non-payment.
If at any time a Hirer advises that he intends to withhold any payment or repudiate,
terminate, rescind or otherwise cancel a Hire Agreement as a result of:
the Equipment not being of satisfactory quality or not being fit for the purposes
intended; or
the Equipment or any term of the Hire Agreement having been mis-described, or
misrepresented (whether negligently or not) to the Hirer by the Supplier; or
the Supplier failing to keep to its obligations under this Agreement;
then CIT will advise the Supplier and the Supplier shall have fourteen (14) business
days to remedy the position to the satisfaction of CIT. If within this time, the
Supplier is unable to remedy the position, then the Supplier will use its best
endeavours to unwind the Hire Agreement within 30 business days on reasonable
terms to be agreed by all parties, and such terms shall include payment by the
Supplier to CIT an administration fee for such unwind at CIT’s then current rate. CIT
will use reasonable endeavours to follow its procedures in a manner that supports
the current relationship between the Supplier and the Hirer.
If the Supplier does not remedy the position to the satisfaction of CIT or unwind the
Hire Agreement in accordance with Clause 7.2 above, and CIT brings legal
proceedings against the Hirer or should the Hirer bring legal proceedings against
CIT, then in the event of any claim or defence to such proceedings identifying one or
more of the issues contained in 7.2, or any other issue which in CIT's opinion
concerns the Supplier, CIT may, at its option, join the Supplier in to such
proceedings, as a second defendant and/or seek indemnity from the Supplier in
such proceedings, as appropriate,
The provisions of this Clause 7 (and Clause 8 below) shall be without prejudice to
and in addition to any other rights and remedies that CIT may have against the
Supplier.
12.1 The Supplier agrees to ensure that each Hire Agreement will be signed by the Hirer
where the Hirer is an individual, by a partner in the Hirer where the Hirer is a
partnership or by a signatory duly authorised to bind it where the Hirer is a corporate
body, or unincorporated association.
12.2 Each of CIT and the Supplier hereby agree that the nature and substance of this
Agreement is confidential as between themselves, their associates and advisors.
CIT and the Supplier also undertake to use all reasonable endeavours to ensure that
all documents, records and other information in their possession relating to the other
party’s activities will be kept confidential, except where disclosure is required by law.
12.3 Any notice to be given under this Agreement shall be given by fax or email,
confirmed by notice sent by regular mail, or by overnight mail and shall be deemed
to have been served upon despatch of the fax, email or overnight mail in question.
12.4 The Supplier will give CIT written authority to operate a VAT self-billing procedure in
respect of any payment due to the Supplier from CIT with the exception of
Equipment purchase.
12.5 This Agreement, together with any Appendices, is the whole, sole and binding
agreement between the parties and supersedes all previous agreements whether
oral or written regarding the subject matter hereof. No amendment hereto shall be
binding on either party unless signed by both parties hereto.
12.6`Neither CIT or the Supplier shall have the right to assign its benefits or burdens
under this Agreement to any third party without the express written consent of the
other, provided that CIT shall have the right without consent to assign its benefits
and interest in the Hire Agreements and related Equipment together with any
associated rights against the Supplier.
12.7`This Agreement is governed by English Law and the parties submit to the sole
jurisdiction of the English Courts.
7.2
(a)
(b)
(c)
7.3
7.4
8.
Indemnity
8.1
The Supplier agrees to indemnify CIT against all claims, demands, proceedings,
SIGNED ON BEHALF OF THE SUPPLIER: [supplier name]
SIGNED ON BEHALF OF CIT: [CIT name]
Signature of
Signature of
Authorised Signatory
Authorised Signatory
Name of Signatory:
Name of Signatory:
Date:
Effective Date:
Page 2 of 4
(v 09/09)
SCHEDULE 1
Purchase Order Terms
1.
You warrant to us (and so that the benefit of the warranties given in
sub-clauses (e) (f) (g) and (h) shall also apply to the customer):
(a)
That the customer has
(i)
Selected the equipment and agreed to accept the same on delivery
which is to be made at the address overleaf.
(ii)
signed our standard form of agreement (or application and agreement,
where applicable) and that the terms and conditions of said document
have been brought to the Customer’s attention and read by him.
(b)
That you have not held yourself out to the Customer as our agent and
that you have not made or given any condition, warranty or
representation to the Customer on our behalf.
That you have obtained the consent of the Customer to our obtaining
and processing any Personal Data we require.
2.
(c)
For reprographic equipment, you have presented to the Customer a
fully completed lease proposal sheet, in a form acceptable to us, prior
to the Customer signing the agreement.
(d)
Unless you earlier advised us otherwise in writing, the Equipment is
new. You have good unencumbered title to same before your sale to
us.
(e)
That the Equipment shall in all respects comply with any and all
warranties, agreements, conditions or representations made by you, or
on your behalf to the Customer as to kind, quality, description, state,
condition or use or suitability or fitness for a particular or any purpose of
the Equipment.
(f)
That any manufacturer warranties supplied with the Equipment are
assignable by us as owner to the Customer, specifically that the rights
of the Customer conferred by the Contracts (Rights of Third Parties) Act
1999 have not been expressly excluded from the ambit of such
warranties.
(g)
That the Equipment is designed and constructed and will be installed so
as to be safe and without risks to health when properly used.
(h)
That, where applicable, you hold the necessary license(s) under the
Consumer Credit Act 1974.
(i)
(j)
a)
If, for whatever reason (unless such non-delivery is a direct result of
any action or omission on CIT’s part), the Equipment shall not have
been delivered to the Customer within three months from the estimated
date of delivery indicated overleaf, you shall notify us in writing of such
non-delivery and we shall become entitled, upon becoming aware of the
fact, whether pursuant to notice from you or otherwise, to rescind the
sale by you to us, by written notice, and this Purchase Order shall be
deemed cancelled, or
b)
Prior to delivery if the Customer’s status changes in any way as a result
of any act of insolvency we shall be entitled to rescind the sale by you to
us, by written notice, and this Purchase Order shall be deemed
cancelled.
3.
You undertake to comply with the obligations imposed upon you by any
appropriate legislation or regulations and in particular Section 6 of the
Health and Safety at Work etc Act 1974.
4.
You indemnify us against all loss costs, damages, fees and/or other
expenses we may suffer as a result of (i) the provisions of the Health
and Safety at Work etc. Act 1974 or any regulations made thereunder
and/or (ii) any claim or counterclaim or any defence raised against us by
the Customer arising directly or indirectly from the use of the
Equipment.
5.
Risk and Title in the equipment remains with you until such time as we
pay the price to you.
6.
The price(s) shown on your invoice (which shall not be sent to us until
delivery of the Equipment to the Customer has been effected) will
conform to the price(s) overleaf without any variation for any cause
whatsoever unless agreed between us in writing, such price(s) being not
greater than your current trading price(s) at the date of our order for
Equipment of a comparable type, and includes any delivery charges.
7.
Where software is included in the price(s) shown on your invoice, you
warrant that the Customer has ensured that the software meets its
specification and is adequate for the intended purpose. You will arrange
for the licence to such software to be granted to the Customer direct.
That, where the Customer has a right of cancellation, either under the
agreement or as defined by the Consumer Credit Act 1974, and
exercises this right, you shall return to us all monies paid for the
Equipment immediately, upon demand, together with any goods taken
in part-exchange (or their value as determined by the amount of the
part exchange), and this Purchase Order is forthwith cancelled.
SCHEDULE 2
Form of Fair Processing Notice
In order to arrange financing, we require your consent to pass information given
by you to financial institutions and credit reference agencies. This will enable us
to make a credit decision on your application and aid in fraud prevention.
In order to use and disclose your information for these purposes we may transfer
this information to countries outside of the EU. Any such transfer will be in
accordance with applicable law
It is important that you understand that information held about you by the credit
reference agencies may be linked to records relating to one or more of your
partners. For the purposes of this application you may be treated as financially
linked as your application will be assessed with reference to any "associated"
records.
The proposed lender and other organisations may access and use from other
countries the information recorded by fraud prevention agencies.
Please contact us at [supplier contact details] if you want to receive details of the
relevant fraud prevention agencies.
It is important that you give us accurate information as we will check your details
with fraud prevention agencies. If false or inaccurate information is provided and
fraud is identified, details will be passed to fraud prevention agencies to prevent
fraud and money laundering. Law enforcement agencies may access and use
this information.
The proposed lender and other organisations may also access and use this
information to prevent fraud and money laundering, for example, when:
• Checking details on applications for credit and credit related or other
facilities
• Managing credit and credit related accounts or facilities
• Recovering debt
• Checking details on proposals and claims for all types of insurance
• Checking details of job applicants and employees
Page 3 of 4
(v 09/09)
SCHEDULE 3
Website Application Form
Business name as it appears on letterhead (the “Supplier”)
applies to use the Website and agrees to be bound by the terms of the Supplier Trading Agreement (the “Agreement”) between the Supplier and CIT Vendor Finance (UK)
Limited and/or CIT Group (UK) Limited. The Supplier acknowledges that this Application Form is part of the Agreement (as amended from time to time).
Words, terms and expressions defined in the Agreement (except where otherwise defined herein) have the same meaning when used in this Application Form.
By submitting this Application Form to CIT, the Supplier:
1.
authorises the following Users to have access to the Website.
Forename
Email
(Mandatory for access)
Surname
Contact Phone
Number
1
2
3
4
5
6
2.
confirms that any changes to the Users will be notified to CIT by email
3.
acknowledges that CIT will be relying on the information provided in processing the application
Correspondence Address
Please return the signed agreement to:
CIT Vendor Finance (UK) Limited* / CIT Group (UK) Limited* *delete as appropriate
Circa, 2a High Street,
Bracknell ,
Berkshire,
RG12 1AA
Data Protection Statement – Use of Information
This Notice explains how CIT Group will use information provided by you.
In order to arrange financing, we require your customer's consent to pass information given by your customer to financial institutions and credit reference agencies.
This will enable us to make a credit decision on your customer's application and aid in fraud prevention. It is important that your customer gives us accurate information. We
will check your customer's details with fraud prevention agencies and if your customer gives us false or inaccurate information and we suspect fraud, we will record this.
We, and other organisations, may use and search these records to:
•
Help make decisions about credit and credit related services, life and other insurance proposals and insurance claims for your customer.
•
Trace debtors, recover debt, prevent fraud and to manage your customer's account or insurance policies.
•
Check your customer's identity to prevent money laundering, unless your customer furnishes us with other satisfactory proof of identity.
•
Complete statistical analysis, research, marketing, administration and business reporting.
Your customer accepts that we may transfer Personal Data relating to this application to countries outside the European Economic Area, including the United States of
America, which may not have laws comparable to those in the European Union to protect such Personal Data. Any such transfer will be in accordance with contractual clauses
approved by the European Commission or in accordance with applicable law.'
You must obtain your customer's consent to process their data in accordance with the provisions of above.
SIGNED ON BEHALF OF THE SUPPLIER: [supplier name]
Signature of
Authorised Signatory
Name of Signatory:
Date:
Page 4 of 4
(v 09/09