THIS AGREEMENT IS MADE ON [Insert Date]
BETWEEN
(1) Bike2Work Exclusive Limited, with registered office at 116 Duke Street, Liverpool, Merseyside L1 5JW and company number 11535434 (“Bike 2 Work”); and
(2) [Insert name of business, address and company number] (the “Employer”).
1. INTRODUCTION
1.1 This agreement sets out the terms and conditions on which Bike 2 Work will facilitate the provision of a “Cycle to Work” scheme for the benefit of the Employer and its employees (the “Agreement”).
1.2 The “Cycle to Work” scheme (the “Scheme”) is promoted by the Department for Transport under which an Employee may be able to take advantage of the tax exemption offered by s.244 of the Income Tax (Earnings and Pensions) Act 2003, as amended, through hiring via Bike 2 Work bicycles and related safety equipment (together the “Bike Equipment”) from his or her employer under a salary sacrifice arrangement (“Salary Sacrifice Agreement”), provided that the Bike Equipment is used mainly for commuting to and from, or between, that employee’s workplace(s).
1.3 Bike 2 Work’s appointment under this Agreement is made on an exclusive basis and accordingly, for the duration of this Agreement, the Employer shall not use or contract with any person or entity other than Bike 2 Work in relation to the provision of the Scheme, or otherwise seek to source the Bike Equipment (or any similar equipment) from any person or entity other than Bike 2 Work.
2. PROVISION OF THE SCHEME
2.1 For the duration of this Agreement, Bike 2 Work agrees to facilitate the provision of the Scheme for the benefit of the Employer’s eligible employees (as approved by the Employer) (“Employee”), where the Scheme is to operate as follows:
2.1.1 once an Employer has approved an Employee as being eligible to participate in the Scheme, the Employee will be able to visit a partnered bike shop who has contracted with Bike 2 Work to supply Bike Equipment under the Scheme (“Bike Shop”) in order to request a written quotation (“Quote”) in relation to any Bike Equipment he or she would like to have use of pursuant to the Scheme;
2.1.2 the Employee will then apply to their Employer for authorisation of the Quote issued by the Bike Shop via Bike 2 Work’s online portal. Bike 2 Work will monitor the progress of Quotes issued by the Bike Shop;
2.1.3 following authorisation being given by the Employer:
2.1.3.1 the Employer will enter into a hire agreement with the Employee setting out the terms on which the Employee will hire the Bike Equipment (the “Hire Agreement”) together with a Salary Sacrifice Agreement; or
2.1.3.2 for Bike Equipment with a value exceeding £1,000, the Employee will enter into: (i) a Hire Agreement with Bike 2 Work; and (ii) a Salary Sacrifice Agreement with the Employer.
2.1.4 following the Employer’s authorisation being submitted via Bike 2 Work’s online portal, Bike 2 Work will raise an invoice (including VAT) to the Employer in respect of the retail price of the relevant Bike Equipment (as per the value of the Quote) and the Employer will pay such invoice in accordance with clause 5 below. Bike 2 Work will not release a Voucher (as defined below) until full payment from the Employer has been received in cleared funds, meaning that any delays in payment will result in a delay to the Employee receiving their Voucher;
2.1.5 (subject to clause 2.2 below) once the Employer has settled Bike 2 Work’s invoice in full and cleared funds for the Bike Equipment, Bike 2 Work will issue a Voucher (“Voucher”) to the Employee, or if requested, the Employer directly. The Voucher shall expire 12 months from the date of issue (the “Expiry Date”) and must be used at a Bike Shop within such timeframe; and
2.1.6 the Employee will collect the Bike Equipment from the Bike Shop and when doing so will be required to present the Voucher (together with such valid photographic evidence of identity as may reasonably be specified by Bike 2 Work or the Bike Shop from time to time), following which the Bike Shop shall release the Bike Equipment to the Employee.
2.2 In the event that the Voucher is presented to the Bike Shop after the Expiry Date:
2.2.1 the Voucher shall be deemed invalid and will not be paid; and
2.2.2 the Bike Shop is not permitted to accept the Voucher or supply the Bike Equipment.
2.3 If an Employee wishes to redeem their Voucher against alternative Bike Equipment with a lower price than the value of the Voucher, Bike 2 Work will have no obligation to provide a refund in respect of the difference in price, either to the Employer or the Employee. In this instance and where permitted, the Employee will be required to cancel their original Voucher and re-apply for the required lower value.
3. BIKE 2 WORK’S RESPONSIBILITIES
3.1 Bike 2 Work will use reasonable endeavours to maintain a network of Bike Shops throughout the UK, although Bike 2 Work cannot and does not guarantee that any particular shop will be or remain a Bike Shop for the duration of this Agreement. Bike 2 Work will provide a list of its partner Bike Shops on request.
3.2 Bike 2 Work will provide an extranet web facility through which Employees are able to request a Voucher under the Scheme. Bike 2 Work will use its reasonable endeavours to ensure the availability of this web facility at the times reasonably required by Employees although it cannot and does not guarantee that access to the extranet web facility will be uninterrupted or free of errors, bugs, viruses or any other malicious software.
3.3 Bike 2 Work will provide the Employer with a precedent hire agreement which must be used with Employees in connection with the Scheme. Bike 2 Work’s precedent agreement is in a form that Bike 2 Work believes to be suitable for the purposes of documenting the arrangement between the Employer and its Employees under the Scheme, however the provision by Bike 2 Work of this and any other documentation or commentary (whether verbal or written and whether as to the terms of any contractual documents (including the Salary Sacrifice Agreement), the Scheme, or any salary sacrifice schemes generally) does not constitute legal, tax or National Insurance advice from Bike 2 Work to the Employer generally, or advice that the Scheme should be structured as set out in the contractual documentation or in any particular way, and should not be relied on as such by the Employer. If the Employer has any queries or issues with the legal effect of any term of the precedent hire agreement (including, but not limited to, its compliance with consumer credit legislation) and/or as to the legal requirements of any other element of the Scheme generally, it should take independent legal advice.
3.4 Bike 2 Work will use reasonable endeavours to ensure, through management of its relationship with the Bike Shops, that:
3.4.1 the Bike Equipment selected by the Employee and notified to Bike 2 Work under the arrangements described above is made available by the relevant Bike Shop to the Employee within a reasonable time. This is subject at all times to the Employee producing to the Bike Shop the relevant Voucher and applicable proof of identity. For the avoidance of doubt, delivery dates for Bike Equipment cannot be and are not guaranteed and time is not of the essence in relation to the date of supply of such Bike Equipment; and
3.4.2 in relation to all Bike Equipment supplied to an Employee, the relevant Bike Shop shall carry out any repairs or provide any replacements which the Bike Shop would be under a legal obligation to carry out or otherwise provide if the Employee had purchased the relevant items directly from the Bike Shop.
4. EMPLOYER RESPONSIBILITIES
4.1 The Employer will use reasonable endeavours to publicise the Scheme widely and effectively amongst its employees.
4.2 The Employer is responsible for ensuring that its participation in the Scheme is at all times in accordance with all applicable laws and regulations and that it has all necessary licences and permissions in place, in particular in respect of the following:
4.2.1 complying with any Consumer Credit Act 1974 and/or the Financial Services and Markets Act 2000 (Exemption) Order 2001 requirements (for Bike Equipment with a value not exceeding £1,000);
4.2.2 complying with or procuring the compliance of any third party in respect of any Financial Conduct Authority requirements (for Bike Equipment with a value exceeding £1,000);
4.2.3 ensuring that it only enters into a Salary Sacrifice Agreement under the Scheme with those Employees who, after application of the Salary Sacrifice Agreement envisaged by the Scheme, earn at least the National Living Wage or National Minimum Wage (as applicable) and are aged 18 or over; and
4.2.4 adjusting Employees' salary payments in accordance with the Salary Sacrifice Agreement and the treatment of the provision of the Equipment in accordance with the relevant Cycle to Work scheme guidance.
4.3 The Employer shall not market, promote or make or give any representations, warranties or other promises concerning the Scheme and shall have no authority, and shall not hold itself out, or permit any person to hold itself out as being authorised to bind Bike 2 Work in any way, and shall not do any act which might reasonably create the impression that Employer is authorised to do so.
4.4 The Employer will pay any sums due for the hire of the Bike Equipment to Bike 2 Work in full, in advance and will then recover the price paid from the Employee by way of the relevant Salary Sacrifice Agreement.
5. PAYMENT TERMS
5.1 For each participating Employee:
5.1.1 the charge by Bike 2 Work to the Employer for Bike Equipment with a value exceeding £1,000 will be a single upfront sum which is typically based on a 12 / 18-month payment period under the relevant Salary Sacrifice Agreement by the Employee to the Employer, but a longer payment period can be chosen with Bike 2 Work’s approval; or
5.1.2 the charge by Bike 2 Work to the Employer for Bike Equipment with a value not exceeding £1,000 will be a single upfront amount and based on a =payment period up to 48 months under the Salary Sacrifice Agreement by the Employee to the Employer.
5.2 The Employer will ensure that each invoice raised by Bike 2 Work under this Agreement is settled in full and in cleared funds within 14 days of receipt.
5.3 If any amount owing under this Agreement is not paid by the due date for payment, Bike 2 Work will be entitled to suspend the issue of any further Vouchers and/or instruct Bike Shops not to release any further Bike Equipment to Employees, in either case until the relevant amount has been settled in full.
5.4 It is hereby agreed that:
5.4.1 as soon as the Employer has communicated its authorisation to Bike 2 Work for the issue of the Voucher to an Employee, a binding contractual commitment will be created for the purchase of the relevant Bike Equipment and the Employer will have no right to subsequently cancel that purchase without the specific written agreement of Bike 2 Work (including where the Employee concerned changes his or her mind and expresses a wish to withdraw from the relevant Hire Agreement). In the event that any such cancellation is approved in writing by Bike 2 Work, the full value of the Voucher shall be credited to the Employer’s account and such credit will be applied towards any subsequent Vouchers issued. If, after a period of one (1) year the credit has not been applied to the value of any subsequent Vouchers authorised by the Employer, the credit shall automatically expire;
5.4.2 Bike 2 Work will be under no obligation to issue a Voucher to an Employee until it has received from the Employer the full amount of the retail price in cleared funds for the Bike Equipment; and
5.4.3 if an Employee elects, with the agreement of the Bike Shop, to redeem his Voucher against alternative Bike Equipment with a lower price than the value of the Voucher, it is acknowledged that there will be no obligation on Bike 2 Work to make any refund in respect of the difference, either to the Employer or the Employee.
5.5 For the avoidance of doubt, the parties acknowledge that Employees have a statutory right to cancel their participation in the Scheme at any time and for any reason within 15 days from entering into the their participation in the Scheme at no cost except for: (a) any enhanced delivery cost in excess of standard delivery costs; (b) any amount by which the value of the Bike Equipment is diminished as a result of the Employee handling the goods beyond what is necessary to establish their nature, characteristics and functioning; (c) costs of return of any Bike Equipment unless it was delivered to the Employee's home; and (d) a pro-rated use of any Bike 2 Work services up to and including the date of cancellation
6. OWNERSHIP OF BIKE EQUIPMENT
6.1 Subject to clause 6.2. once Bike 2 Work have received the full price for the Bike Equipment in question in cleared funds, title and risk to the Bike Equipment shall be as follows:
6.1.1 for Bike Equipment with a value exceeding £1,000:
6.1.1.1 ownership of the Bike Equipment shall pass to Bike 2 Work upon delivery of that Bike Equipment to the Employee, and
6.1.1.2 risk in the Bike Equipment shall pass to the Employee upon delivery for the duration of the Hire Agreement; and
6.1.2 for Bike Equipment with a value not exceeding £1,000:
6.1.2.1 ownership of the Bike Equipment shall initially pass to the Employer upon delivery of that Bike Equipment to the Employee, with ownership subsequently transferring from the Employer to Bike 2 Work at the end of the Hire Agreement, in consideration for the provision of certain administration services by Bike 2 Work Scheme (including but not limited to the collection of the Bike Equipment in accordance with clause 7 below, if required); and
6.1.2.2 risk in the Bike Equipment shall pass to the Employee upon delivery for the duration of the Hire Agreement.
6.2 If Bike Equipment is released to the Employer or an Employee prior to Bike 2 Work being paid in full, then title to the Bike Equipment will not pass to the Employer until Bike 2 Work has received the full price of the Bike Equipment in cleared funds.
7. DISPOSAL OF BIKE EQUIPMENT
7.1 On expiry or earlier termination of each Hire Agreement, irrespective of whether or not this Agreement has come to an end by such time, Bike 2 Work will assist the Employer with the disposal of the relevant Bike Equipment in accordance with clauses 7.2 to 7.3 below.
7.2 Following the transfer of Bike Equipment ownership under clause 6.1.2.1 above, Bike 2 Work will offer to sell the relevant Bike Equipment to the relevant Employee (or to such other person as the Employer may direct) at a price not exceeding the fair market value of the Bike Equipment at the time, as reasonably determined by Bike 2 Work. Any such offer will be made by Bike 2 Work in its own capacity as owner of the Bike Equipment and will not be made on behalf of the Employer and, consequently, if any such offer is subsequently accepted, then all proceeds from that sale will belong exclusively to Bike 2 Work with the Employer having no claim in relation to such amounts.
7.3 If after the expiry of 90 days from the date on which a transfer of ownership occurs under clause 6.1.2.1 above, the Employer has not issued any request to Bike 2 Work under clause 7.2 or the Employer has issued such a request, but the person to whom the Bike Equipment was offered by Bike 2 Work has not accepted the relevant offer, then Bike 2 Work will be free to dispose of the relevant Bike Equipment in such manner as Bike 2 Work reasonably thinks fit.
8. DATA PROTECTION
8.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.
8.2 Bike 2 Work shall process personal data in accordance with its privacy policy, which can be found here: http://www.bike2workscheme.co.uk/privacy.
9. CONFIDENTIALITY
9.1 Each party agrees to handle all information received under this Agreement as strictly private and confidential and to use it solely for the purposes of complying with its obligations under this Agreement. Each party further undertakes to ensure that its employees are made aware of its obligations pursuant to this clause and comply with its terms as if they were a party to this Agreement.
10. LIABILITY
10.1 Nothing in this Agreement limits any liability which cannot be limited by law including liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
10.2 Subject to clause 10.1, neither party shall be liable to the other for any indirect or consequential loss or damage, or for any loss of revenue, loss of opportunity, loss of business, loss of or damage to goodwill, claims by third parties or loss of anticipated savings (in each case whether direct or indirect) howsoever caused. For the avoidance of doubt, nothing in this clause shall limit or exclude any liability that the Employer may have for non-payment of any sums payable to Bike 2 Work under or in connection with this Agreement.
10.3 Subject to clause 10.1, the aggregate liability (inclusive of interest and legal and other costs) of Bike 2 Work to the Employer in each contract year (being the date on which the Agreement is entered into and each 12-month anniversary thereafter) in respect of all claims arising under or in connection with this Agreement (whether for breach of contract, negligence or otherwise) will not exceed the total price of all Bike Equipment supplied under this Agreement by Bike 2 Work during the relevant contract year in which the claim arose.
11. TERM AND TERMINATION
11.1 Unless terminated earlier under clause 11.2 below, this Agreement will have an initial duration of 12 months and will continue in force thereafter unless and until either party gives to the other not less than 3 months’ prior written notice.
11.2 Either party may terminate this Agreement immediately by serving written notice to that effect on the other party if at any time any one or more of the following events occur:
11.2.1 the other party commits a material breach of any of the provisions of this Agreement and in the case of a breach capable of remedy, fails to remedy that breach within 30 days after being served with a written notice specifying the breach and requiring it to be remedied; and/or
11.2.2 the other party has a winding up petition presented or enters into any form of liquidation (otherwise than for the purposes of reconstruction without insolvency) or administration or analogous proceedings or becomes unable to pay its debts.
11.3 Bike 2 Work may terminate this Agreement immediately upon providing written notice to the Employer in the event that any sum due to Bike 2 Work under this Agreement is not paid by the due date and remains unpaid for a period of 7 days following written notification by Bike 2 Work.
12. GENERAL
12.1 Any notice that may be served under this Agreement is duly served if left at, or sent by recorded delivery, to the other party’s registered address or such other address as shall be notified by either party in writing.
12.2 Neither party will be liable for, or be deemed to be in breach of this Agreement as a result of, any delay in performing or failure to perform any of its obligations under this Agreement where that delay or failure is caused by any circumstances beyond the reasonable control of that party (including but not limited to any shortages in the supply or availability of Bike Equipment).
12.3 The parties agree that no third party shall have any rights under or in connection with this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
12.4 This Agreement constitutes the entire agreement between the parties. It also supersedes all previous agreements between the parties relating to its subject matter.
12.5 By entering into this Agreement, each party acknowledges that it has not relied on (and shall have no right or remedy in respect of) any statement, representation, assurance or warranty other than as expressly set out in this Agreement.
12.6 No variation to this Agreement shall be effective unless it is in writing and signed by, or on behalf of, both parties.
12.7 This Agreement may be executed in two counterparts and the two executed counterparts together shall have the same effect as if both parties had executed the same document.
12.8 Neither party will be entitled to assign any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. For the avoidance of doubt it will be reasonable for Bike 2 Work to take into account the relative financial standing of any proposed assignee in relation to any proposed assignment of the Employer’s payment obligations under this Agreement.
12.9 A failure or delay by either party to exercise any right or remedy does not mean that that party waives that right or any other right or remedy it may have.
12.10 If a provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the legality, validity and enforceability of the remainder of this Agreement shall not be effected.
12.11 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 is governed by English law and any dispute or claim arising (including non-contractual disputes or claims) shall be dealt with in the exclusive jurisdiction of the English Courts.
This Agreement has been entered into on the date at the beginning of it.
Signed by: …………………………………………………………
On behalf of Bike2Work Exclusive Limited
Dated: ……………………………………………………………
Signed by: ……………………………………………………………
On behalf of [insert]
Dated: ……………………………………………………………