TERMS AND CONDITIONS
The terms and conditions set out below, together with any related fee proposal accepted by you (whether or not such fee proposal is attached to these terms and conditions), form the agreement between you and us relating to any equipment and services to be provided by us. If you accept any fee proposal provided by us (whether or not such fee proposal is attached to these terms and conditions) or otherwise ask us to proceed with hiring any equipment to you or delivering any services to you, you will be deemed to have accepted the terms and conditions below (regardless of whether they are signed by you).
Fee Proposal: Unless expressly stated otherwise, our fee proposal is available for acceptance for a period of 30 days but may be withdrawn or amended by us at any time prior to acceptance by you. Prices quoted may be altered by us after you have accepted a fee proposal if anything beyond our control occurs which will affect our costs or ability to deliver the equipment or services as proposed. If we unilaterally amend a fee proposal in any material respect after you have accepted it, you will have the right to terminate the relevant agreement relating to that fee proposal. Clerical errors or omissions, whether in computation or otherwise in any quotation acknowledgements or invoice, shall be subject to correction.
Additional equipment or additional work and variations to agreed scope of services: We will deliver the equipment and services as described in the fee proposal. You may request variations to the equipment or services in writing or may request us to submit proposals for variation to the equipment or services. We do not have to agree to any proposed variation, and any additional equipment or services required or costs incurred as a result of variations requested by you after acceptance of our fee proposal, or because of adverse conditions we could not reasonably foresee at the time of preparing our fee proposal, are subject to additional charges. If after the date of the fee proposal, the cost of the equipment or the cost or duration of the services alter because of changes or additions to any statute, regulation or by-law, or requirements of any authority which has jurisdiction over any of the equipment or any part of the services, the related changes to the cost of the equipment and the cost and duration of the services will be treated as a variation.
Additional charges: If our fee proposal is not a fixed price quote, and we incur additional costs of obtaining additional equipment or services from third parties which are reasonably required for us to deliver the equipment and services, the costs of obtaining such incidental equipment or services shall be payable by you. We shall maintain records, which clearly identify expenses incurred.
You must pay the price as set out in the fee proposal in accordance with any payment times set out therein or otherwise in accordance with these terms and conditions.
Equipment hire charges are calculated daily, with a week being charged as seven days. The day of delivery or collection of the equipment and the day of return of the equipment will both be charged as whole days. There will be no reduction to the charge for weekends, holidays, inclement weather or for any other reason beyond our control including (without limitation) force majeure strikes, lockouts, cessation of labour, transport delays or government interference or control. If we deliver or collect the equipment, then you will pay a delivery or collection charge at our normal transport rates applicable at the date of delivery or collection (as the case may be). This charge will include:
The trip taken by us to your premises to attempt to collect the equipment but subsequently advised by you that you wish to hire the equipment for a longer period (and hence collection does not occur); and
Any other transport costs incurred by us in reasonably attempting to comply with your requests or requirements.
All equipment hire and charges for the provision of services (with the exception of erection/dismantling of scaffolding) will be invoiced monthly. All charges in relation to the erection/dismantling of scaffolding will be separately invoiced upon completion of erection/dismantling of the relevant scaffolding.
Subject to Clause 4(g), you agree to pay for all invoices by automatic payment or direct debit on or before the 20th of the month following the date the relevant invoice was issued to you.
No payment shall be withheld, reduced, set off or deferred on account of any claim, counter-claim, set-off or otherwise.
In the event that your payment is dishonoured for any reason, you will be liable for any dishonour fees incurred by us.
You agree that if we hold an open cheque or a credit card voucher as security for payment in respect of any equipment or services, immediately on invoicing, we may complete and bank the cheque or credit card voucher. We may decline or revoke any credit application at any time and for any reason and may require any further security we deem necessary prior to the granting or reinstatement of any credit account, including where applicable the provision of supporting guarantees.
If you dispute an invoice, or part of an invoice, you must, within 5 working days of receipt of the invoice, give reasons for withholding payment of the disputed amount and pay the undisputed amount. If notice is not given by you within the time frame stipulated, then you shall be deemed to have accepted our invoice.
Time is of the essence for all payments due to us. Late payment shall constitute a default and you shall pay 2.5% interest per month default interest in overdue amounts (including overdue interest, compounded) from the date payment falls due to the date of the payment. Accounts unpaid within 30 days of the date of issue will be regarded as delinquent and the costs of any legal or other debt collecting fees incurred in collecting any delinquent amount will be added to the account.
Where any equipment or services provided by us is a “construction contract” within the meaning of the Construction Contracts Act 2002, there shall be no progress payments and the equipment and services shall be paid for in one sum on the due date.
Without prejudice to any other remedies that we may have (including any right to claim for interest under Clause 4(l) or otherwise under the law), if at any time you are in breach of any obligation (including those relating to payment) we may suspend or terminate the supply of equipment and services to you, cancel all or any part of any delivery of equipment and services which remains unfulfilled, and all amounts owing to us will, whether or not due for payment, become immediately payable in the event that:
Any money payable to us becomes overdue, or in our sole opinion you will be unable to meet your payments as they fall due;
You become insolvent, convene a meeting with your creditors or propose or enter into an arrangement with your creditors, or make an assignment for the benefit of your creditors; or
A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.
We will not be liable to you for any loss or damage suffered by you as a result of us exercising our rights under this Clause 4(k).
Equipment and Services Tax ("GST"): All amounts are (except where expressly stated otherwise) exclusive of GST. You agree to pay us any applicable amounts of GST at the same time and on the same basis as the price set out in the fee proposal.
Payment validity: You acknowledge that we deliver the equipment and services to you on condition that payments received by us from you are valid and made in the ordinary course of your business. You further acknowledge that we receive all payments in the ordinary course of your business, in good faith and in the reasonably held belief as to the validity of those payments unless and until you give notice in writing to us:
Of your then-current inability to pay your due debts; and
Indicating that your intention or purpose in making any such payment is to enable us to receive more towards satisfaction of your debt than we would otherwise have received or have been likely to have received in any liquidation of you,
and until receipt of such notice, we shall be entitled to assume that all payments received from you are made in the ordinary course of your business.
Our obligations: We agree to:
Deliver the equipment and services with reasonable skill, care and diligence;
Ask you for any additional information to avoid any delay in the delivery of the equipment and services;
Promptly notify you of any matter which may cause a delay in the delivery of the equipment and services;
Promptly notify you of any matter which may affect the scope, price or timing of the delivery of the equipment and services; and
Promptly notify you if we consider that an instruction given by you or any other matter is a variation, in which case Clause 2 shall apply.
Your obligations: You agree to:
Pay: Pay us for the equipment and services according to the fee proposal and the provisions of Clause 4;
Provide access: Provide us and our contractors with all reasonably required access needed to deliver the equipment and services, including through safe physical access at reasonable times to the relevant premises. We are not liable for any loss or damage suffered by you if you fail to comply with this Clause 8(b). For the avoidance of doubt, you must provide us with clear unimpeded access to the scaffold face. All costs in relation to the hire of any crane or other lifting equipment required for erection/dismantling of scaffolding will be borne by you;
Provide related utilities and amenities: Arrange and provide (at your own cost) all other services and amenities (e.g. electricity, lighting) we reasonably need at your premises in order to provide the equipment and services (other than anything we have expressly agreed in our fee proposal to arrange/provide), and make sure we are not affected by any failure to have such amenities available at all relevant times;
Provide accurate information: Give us all relevant specifications and other relevant and accurate information and plans, as and when we need it to provide the equipment and services, noting that you assume responsibility for the accuracy of all information you (or your employees, agents or contractors) provide to us. You acknowledge that we may use and rely on your Confidential Information (as defined in Clause 27) and all other information provided by you for the purposes of performing our obligations to you. While we take all reasonable care in delivering the equipment and services, errors and omissions occasionally occur. Accordingly, we rely upon you to check the accuracy of all information provided. We assume no liability for errors and mistakes in the delivery of the equipment and services if you fail to comply with this Clause 8(d);
Comply with fee proposal: Comply with any obligations placed on you in the fee proposal;
Not delay nor cause interruptions: Not unreasonably withhold or delay your approval (where we seek that for any reason), nor cause or allow any unreasonable disruption or obstruction to us and our personnel in the delivery of the equipment and services;
Notify us of changes: Notify us in writing as soon as you become aware of any matter which may materially affect the scope, price or timing of the delivery of the equipment and services;
Ensure only proper and authorised use of equipment and services: At all times use the equipment and services for their proper purpose and in accordance with all applicable laws and our instructions, and not use or allow any use which:
Could damage the equipment or jeopardise or interrupt the services;
Is in any way illegal, abusive, threatening, defamatory, harassing, obscene, or discriminatory; or
Allows other parties not under your control to use the equipment and services;
Insure any equipment: Insure the equipment as directed by us and maintain and keep in force that insurance (and ensure that coverage is in place whilst the equipment is being transported and also throughout the term of hire), not do anything to jeopardise it, and provide evidence of it;
Obtain approvals and consents: Obtain and pay for all consents, certificates, approvals, authorities, licences and permits (including but not limited to any building or resource consents required by any local or territorial authority) required for your purposes, other than those expressly agreed as being obtained by us (at your cost) as part of the services;
Comply with Health and Safety obligations: Notify us of all applicable health and safety procedures and requirements relating to your premises, and ensure you comply with all of your obligations under all applicable Health and Safety legislation and regulations (including but not limited to any code of practice for scaffolding); and
Use and maintenance: Follow any instructions provided by us and/or the manufacturer of the relevant equipment and notify us as soon as possible of any material fault, defect, misuse or unauthorised use of any of the equipment or services.
Use, delivery and acceptance of the equipment and services:
The equipment and services delivered by us should be used solely for the purposes intended or obvious at the time of delivery (or otherwise as directed/instructed by us).
You agree to accept delivery of the equipment and services by instalments if required to do so by us. If a delivery date is specified by you and agreed to by us, we will in no circumstances be liable for any loss or damage of any kind whatsoever suffered or incurred by you as a consequence of part, or late delivery of any equipment or services. Any delay in delivery will not constitute a breach by us of any of these terms and conditions or constitute grounds for you to cancel the order for the equipment and services or this agreement.
You will make all arrangements necessary to take delivery of the equipment whenever they are tendered for delivery. If you are unable to take delivery as arranged, we will be entitled to charge a reasonable fee for redelivery and/or storage.
Unless written notice to the contrary is received by us with 3 days of delivery:
The equipment will be deemed to be in good condition; and
The quantities of the equipment set out in the relevant delivery advice or invoice shall be deemed to be correct.
If any of the equipment are damaged or destroyed following delivery, we are entitled to receive all insurance proceeds payable for the equipment. The production of these terms and conditions by us is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries.
Duration of hire of the equipment:
The hire of the equipment shall commence on the date of delivery by us or collection of the equipment by you from us, and terminate on the date of return of the equipment to us in accordance with Clause 14.
The term of hire shall not be less than 7 days (“Minimum Hire Period”). If the equipment or part thereof is returned to us at a date prior to expiration of the Minimum Hire Period, fees for the Minimum Hire Period will still be paid by you for the equipment.
On the expiry of the initial term of hire, the hire of the equipment shall continue on the same terms as the initial term, until terminated in accordance with Clause 25. A hire is for an agreed inventory of equipment that must be returned in its entirety, and a term of hire is not deemed to have ended until the equipment is returned in its entirety to us in accordance with Clause 14.
Title to equipment:
Title to the equipment hired by you remains with us at all times and you may not sell or otherwise dispose of the equipment in any way.
Without limiting the generality of Clause 8(i), risk of any loss or damage to the equipment due to any cause whatsoever shall be borne by you from the time the equipment leaves our warehouse or depot. You are responsible for ensuring that you have adequate insurance to cover the full replacement cost of the equipment that you hire from us.
You agree as follows:
You will store the equipment safely at your cost so that the equipment can be readily identified as belonging to us and shall not relinquish possession or remove the equipment from your premises;
You will only use the equipment in the ordinary course of business. This authority is revoked immediately if a default occurs;
You must keep full and complete records of the equipment and make such records available to us upon our reasonable request;
You will disclose to us all information reasonably required regarding the equipment;
You will immediately inform us of any attempt by any third party to exercise remedies against the equipment or of any circumstances that might jeopardise our rights or interest in the equipment;
You give us the right to inspect the equipment or any part of them at all reasonable times;
You must not do or allow to be done anything that might contribute to deterioration in the value of the equipment or otherwise adversely affect our rights or interest in the equipment; and
You must immediately return the equipment if requested to do so by us following non-payment of any amount owing by you to us or non-fulfilment of any of your other obligations to us, without limiting any other right we may have.
Security interest in the equipment: You acknowledge and agree that we are entitled to register at your cost any Security Interest that we possess in respect of the equipment and their proceeds on the personal property securities register and that our Security Interest survives for an indeterminate period. You further acknowledge and agree that:
We possess a Purchase Money Security Interest in the equipment;
Following a request from us, you will promptly execute any documents and do anything else required by us to ensure that the Security Interest constitutes and remains a first ranking perfected Security Interest over the equipment including providing any information we may reasonably require to register a financing statement or a financing change statement;
If at any time we have sufficient cause to exercise our rights under Section 10 of the Personal Property Securities Act 1999 ("PPSA"), you irrevocably grant to us (and our agents and contractors) the right and licence to enter upon the your premises, without notice and without liability whatsoever to you, or to any person or company claiming through you, to repossess the equipment. You covenant that you will assist and co-operate with us by completing any documentation and/or providing any information as may be required by us in order for us to achieve and Perfect our desired security position under the PPSA;
You shall immediately notify us in writing of any change in your name (and in any event within 14 days of any such change), and you waive any right to receive a copy of a verification statement under the PPSA;
Your rights as debtor in sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129 and 131, 133 and 134 of the PPSA shall not apply to these terms and conditions; and
The Security Interest has the same priority in relation to all amounts owed by you to us, including future advances.
In this Clause 12, the terms "Proceeds", "Purchase Money Security Interest", "Perfect" and "Security Interest" have the meanings ascribed to them under the PPSA.
Consumer Guarantees Act 1993: You acknowledge that we only deliver the equipment and services for the purposes of assisting with a trade or business, and as such, you acknowledge that the provisions of the Consumer Guarantees Act 1993 do not apply to our delivery of the equipment and services. You confirm and agree that:
Each of us and you are in trade; and
The equipment and services are delivered to, and acquired by, you for a business purpose.
Return of equipment:
Unless we agree otherwise, you will be responsible for returning the equipment to us and for providing us with a delivery note in which all equipment returned is itemised.
You are responsible for returning the equipment in a clean and usable condition.
Return of the equipment must be made during our normal business hours and at least half an hour prior to the end of the normal business day unless prior arrangements have been agreed in writing with us. Our normal business hours are 7:30 am to 5:00 pm, Monday to Friday, inclusive.
If we collect the equipment from you, you will be responsible for, and will provide all assistance required by us (including our right to enter any premise or work site where the equipment may be located) to return the equipment to us. If we are required to collect the equipment, the equipment must have been dismantled by you prior to collection by us. Failure to do so will give us the right to charge you for any labour costs incurred in us doing so.
Upon return of the equipment, whether by collection by us or delivery of the equipment by you to our premises, we will check the quantity and condition of the equipment against the delivery note referred to in Clause 14(a), and will notify you of any discrepancies and give you 3 working days to arrange for an independent party approved by us to check the quantity and condition of the equipment. The independent party’s count and assessment shall be deemed conclusive proof of the quantity of the equipment returned and its condition at the time of return. If you fail to arrange for this reconciliation, then it is deemed that you agree with our account of the quantity and condition of the equipment returned.
Loss or damage to equipment:
You will be responsible for, and are required to insure against, any loss or damage caused to the equipment from the time it leaves our warehouse or depot (or any alternate designated dispatch point) until it is returned to us.
When you return the equipment in a worse condition than can be accounted for by fair wear and tear, we may charge you for cleaning, recondition, renewing or replacing the equipment as we consider necessary.
If you fail to return the equipment to us in accordance with Clause 14, we receive notice that the equipment has been lost, or you are unable to produce the equipment after reasonable notice from us, the equipment will be treated as ‘Lost Equipment”. We may at our sole discretion charge you for any Lost Equipment for a sum equal to the replacement price plus an administration fee of $50.00 per hour or part thereof plus GST to cover office costs in sourcing the replacement equipment. The fees for hiring that equipment will continue to accrue until you pay the charge for the Lost Equipment.
You agree that if any payment is in arrears for 7 days or more or you are in breach of any other provision of these terms and conditions, then without prejudice to any other rights or remedies available to us, we may recover and repossess the equipment without giving you any notice in writing and without prejudice to any monies which may become due to us. For this purpose you irrevocably appoint us as your agent and authorise us to enter on any land or premises owned by you or under your control upon which the equipment is then situated. You agree to indemnify us in respect of any claims, damages or expenses arising out of any action taken in respect of the recovery or repossession of the equipment.
You will pay all costs of recovery or repossession and costs incurred by us in enforcement or attempted enforcement of these terms and conditions including our legal costs on a solicitor/client basis and in the event of legal action, will pay continuing interest at the rate of 2.5% interest per month after the date of judgment order or award until full payment has been received by us. We reserve the right to cancel any credit on overdue accounts.
You acknowledge that:
The quality and performance of the equipment and services depends on a number of factors, not all of which are under our control. We cannot and do not warrant or guarantee that the equipment and services will work at all times or be fault free; and
We may also from time to time need to restrict or suspend a service for technical/operational reasons, and although we will use all reasonable endeavours to give you as much notice as reasonably possible in the circumstances and to ensure that restrictions or suspensions occur outside normal business hours, those matters may be outside our reasonably control at times. We will however use all reasonable endeavours to keep you informed of any circumstances likely to affect the availability of the equipment and services, and to minimise disruption to you where possible.
The equipment and services are only subject to any warranty terms expressly stated by us as applicable to any particular item of equipment or services. All representations, descriptions, warranties or terms (including any condition or warranty expressed or implied by law, statute, trade, TAS or otherwise) not expressly included in these terms and conditions are hereby excluded (to the maximum extent permitted by law, and these terms and conditions are modified to the extent necessary to give effect to that intention).
Without limiting the generality of Clauses 17(a) and 17(b), and subject to our further limitations and exclusions of liability as set out in our fee proposal or these terms and conditions, if you have the benefit of any warranty or condition, to the fullest extent permitted by law, our maximum liability is limited to (at our election):
In the case of equipment:
the replacement of the equipment or the delivery of equivalent equipment;
the repair of the equipment;
the payment of reasonable costs of you replacing the equipment or of you hiring equivalent equipment from a third party; or
the payment of reasonable costs of you having the equipment repaired by a third party; and
In the case of services:
the re-delivery of the services; or
the payment of reasonable costs of you having the services re-delivered by a third party.
Limitation of liability:
Notwithstanding anything to the contrary in these terms and conditions or the fee proposal, you acknowledge that:
Duty of care: The equipment and services are delivered to you only and we have no duty of care or obligations to any other party;
Exclusion and limitation of liability factored into costings: It is commercially necessary and reasonable for us to limit our maximum potential liability and exclude certain types of liability, and that our fee proposal has been prepared in reliance on the ability to do so;
Extent of insurance: We have insurance which covers us for maximum aggregate liability of $10,000,000 ("Insured Sum") and will use all reasonable endeavours to hold the same or similar cover for not less than 1 year after we deliver the equipment and services to you;
Excluded liability: Our insurance does not cover us for, and we will not be liable to you for any claims, losses or damages:
Which are indirect or consequential in nature (including without limitation loss of profits) arising in relation to our equipment or services (including by reason of any delay in the delivery of the equipment and services);
To the extent that you have caused or contributed to those claims, losses or damages;
Which are not notified to us in writing within 1 years of the relevant equipment and services being delivered by us;
Which arise in relation to decisions made by any City, District or Regional Council or other statutory or quasi-judicial body in New Zealand in relation to the granting or refusal of any consent application, permit or approval, and the placement and terms of conditions of such consent in relation to any activity under the Resource Management Act 1991 or under any other applicable New Zealand statute;
Which arise from any suspension or termination of this agreement by us;
Which is caused by any factor beyond our control, including but not limited to:
a Force Majeure (as defined in these terms and conditions);
any loss of supply of any service or amenity not provided by us that the equipment or services may rely on to work properly; and
any changes (not approved by us in advance) which you or a third party make to your premises or the environment to which our equipment or services are provided;
Which is caused by damage from your misuse, accident, neglect or improper testing, operation, storage or maintenance of the equipment and services;
To any of your chattels left within our possession or control for purposes of delivery of the equipment or services (whether such loss or damage results from our negligence or default or otherwise howsoever caused);
To the equipment while in transit arranged by you (whether such loss or damage results from our negligence or default or otherwise howsoever caused);
Which is caused by a deterioration of the equipment as a result of improper exposure to the elements, after delivery;
Which is caused by any act or omission by you (or your subcontractor or any third party), including but not limited to maintenance, installation, modification or adjustments to the equipment or services; or
Which is related to the equipment or services that have been tampered with or modified by you.
Limited Liability: In the event that we are held liable to you for any reason(s) whatsoever, our total liability shall be limited to a maximum cumulative amount equivalent to the lesser of:
The Insured Sum; and
an amount equivalent to 5 times the value of the relevant equipment and services (exclusive of GST and disbursements).
Indemnity for your breaches: You shall indemnify and hold us harmless, and will continue to indemnify and hold us harmless, from and against any liability incurred by us in respect of any action, suit, claim, demand, cost or expense (including legal fees) arising from, as a direct or indirect result of, or in any way connected to, any breach of your obligations to us.
Construction Contracts Act:
For the purposes of this Clause 20, the definition of "payment claim", “payment schedule”, “scheduled amount”, “construction work”, “construction contract” and “adjudicator” are as specified in the Construction Contracts Act 2002.
You acknowledge that:
We have the right to suspend the hire of the equipment to you or provision of the services to you within 5 working days of written notice of our intent to do so if a payment claim is served on you, and:
The payment is not paid in full by the due date for payment and no payment schedule has been given by you;
A scheduled amount stated in a payment schedule issued by you in relation to the payment claim is not paid in full by the due date for its payment; or
We have given written notice to you of our intention to suspend the carrying out of construction work under this agreement.
If we suspend the hire of the equipment to you or provision of the services to you :
We are not in breach of this agreement, and are entitled to an extension of time as necessary to complete this agreement;
That suspension does not affect any rights that would otherwise have been available to us under this agreement, under any applicable legislation, or at law generally;
We may at any time (at our sole discretion) lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with; and
We are not liable for any loss or damage whatsoever suffered, or alleged to be suffered by you or by any person claiming through you in relation to such suspension.
Provision of information: You will provide to us, free of cost and within a reasonable time of request by us, all information in your power to obtain which we may require for purposes relating to the delivery of the equipment and services. We will not, without your prior consent, use information provided by you for purposes unrelated to the delivery of the equipment and services. In providing the information to us, you must ensure compliance with the Copyright Act 1994 and identify and comply with any proprietary rights that any other person may have in any information provided. You shall indemnify us against any claims by other parties relating to our receipt or use of information or material provided to us by you for the delivery of the equipment and services.
Ability to rely on publicly available information: We are entitled to rely on any publicly available information provided by any statutory or regulatory bodies or agencies, including without limitation, Land Information New Zealand and will not be responsible for any errors in such information provided or omitted by them.
Intellectual property: We shall retain all intellectual property rights in all drawings, specifications and other documents prepared by us (if any). Materials owned or provided by us may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any way without our prior written consent. You agree not to modify the name, logo, or otherwise re-brand the equipment or services. The brand will include any trade mark, brand name or trade name which we advertise, sell and market the equipment and services and any improvements thereon. You may only use trademarks, logos or material which are the property of, or licensed to us, if you have written approval from us, and expressly in accordance with any terms or conditions of such approvals. We reserve the right to suspend or refuse the delivery of equipment and services to you if we believe at any time that any of these terms have not been met or if we believe that your promotion or use of the equipment or services will be contrary to our trading policies.
Privacy: You authorise us to:
Collect, enquire, retain and use information about you for the purpose of:
Assessing and monitoring your creditworthiness;
Marketing equipment and services to you from time to time; and
Establishing and maintaining the relationship between you and us; and
Disclose information about you to any other credit provider or credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection services, or notifying a default by you.
We will comply with our obligations under the Privacy Act 1993 at all times, and you will have the right to request a copy of the information about you held by us and to request the correction of any incorrect information we hold.
Term and Suspension/Termination:
This agreement will begin on the date you accept the related fee proposal, and will continue in force until the earlier of:
The termination of the term of hire of the equipment in accordance with Clause 10(a); or
Any other date on which we mutually agree in writing this agreement will terminate.
Either you or us may immediately terminate this agreement upon the occurrence of any of the following events:
If the other party defaults in the performance of its obligations under these terms and conditions (or the related fee proposal) and the default, if capable of being remedied, is not remedied within 5 working days from receipt of a notice specifying the default and requiring remedy;
If the other party defaults in the performance of its obligations under these terms and conditions and the default is incapable of being remedied; or
If the other party enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver or a receiver and manager, or statutory receiver is appointed in respect of it.
Consequences of termination:
Termination of this agreement will not prejudice or affect the rights, remedies and claims and/or any obligations or liabilities of the parties that accrued prior to termination.
Upon termination of this agreement, you will not be entitled to receive a refund or any pre-paid portion of the fee, and subject to any specific payment or remuneration obligation detailed in the fee proposal or otherwise agreed between you and us in writing, you will be liable to pay us for:
The fee for hiring the equipment up to and including the date of termination of this agreement (or, if the date of termination is within the Minimum Hire Period, the fee which would have been payable during the Minimum Hire Period) and not already paid for as at the effective date of termination; and
Any reasonable costs that we have incurred as a result of the early termination.
Upon termination of this agreement, we shall be entitled to recover and repossess the equipment. For this purpose you irrevocably appoint us as your agent and authorise us to enter on any land or premises owned by you or under your control upon which the equipment is then situated. You agree to indemnify us in respect of any claims, damages or expenses arising out of any action taken in respect of the recovery or repossession of the equipment. You will pay all costs of recovery or repossession.
Survival: Any other provisions of our terms and conditions and the related fee proposals which are capable of surviving termination and which may reasonably be considered to have been intended to do so (including without limitation any liability limitation or indemnity provisions, and provisions relating to confidentiality or intellectual property), will survive termination.
Intellectual Property and Confidentiality:
Each party agrees to keep strictly secret and confidential all commercially sensitive information relating to the other party ("Confidential Information") and only use such information for the purposes it was made available. Disclosure of a party’s Confidential Information is only permitted with that party’s written approval, unless such disclosure is necessary for the purposes of the equipment or services or required by law. Information shall cease to be Confidential Information when the information is made publicly available through no unauthorised act of either party.
Marketing and Publicity: You agree that we may refer to and publicise our involvement with you in our advertising or marketing without prior written approval from you, and that without limitation we may (a) display a temporary branding/marketing sign to the front of the site during construction, (b) take and utilise photos and videos of your project/site on our website or any other social media and in our other marketing platforms.
Health and safety: We do not assume any obligation of yours under any applicable health and safety legislation or regulations (including without limitation the Health & Safety in Employment Act 1992 and/or any code of practice for scaffolding), and for the purposes of any such legislation and regulations, you will at all times remain the party who controls the place of work.
In consideration of us entering into these terms and conditions with you, the guarantor(s) (if any under the fee proposal) unconditionally and irrevocably:
Guarantee(s) to us the due, punctual and proper performance and observance by you of all your obligations and warranties under or in relation to these terms and conditions;
Indemnify(ies) us from and against any liability incurred by us in respect of any action, suit, claim, demand, cost or expense (including legal fees) arising from, as a direct or indirect result of, or in any way connected to any breach of your obligations to us.
For the avoidance of doubt, the guarantee(s) and indemnity(ies) extend to the due, punctual and proper performance and observance of all of your obligations under these terms and conditions and the fee proposal, regardless of whether the guarantor(s) has/have signed these terms and conditions or the fee proposal, or has/have agreed to the transaction evidenced thereby.
The liability of the guarantor(s) under this guarantee will constitute a principal obligation of the guarantor(s) and such liability will not be relieved or in any way affected in a manner prejudicial to us by any granting of time, waiver or forbearance to sue by us or by any other act, omission, matter, circumstance or law whereby the guarantor(s) as surety(ies) only would, but for the provisions of this Clause 30, has/have been released from liability.
The guarantee(s) and indemnity(ies) will be in full force and effect until all the obligations now or at any time hereafter liable to be satisfied by you under these terms and conditions and the relevant fee proposal have been fully satisfied, including obligations the satisfaction of which is subsequently avoided or affected in any way, whether under any statutory provision or otherwise, so as to deprive us of the full benefit of such satisfaction.
Security and charge: Notwithstanding any other provision of these terms and conditions or any other rights of ours:
Where you and/or the guarantor(s) (if any) are the owner of land, realty or any other asset capable of being charged, both you and/or the guarantor(s) agree to mortgage and/or charge all your joint and/or several interest in the said land, realty or any other asset to us or our nominee to secure all amounts owing from you to us. You and/or the guarantor(s) acknowledge and agree that we (or our nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all amounts owing from you to us have been paid;
Should we elect to proceed in any manner in accordance with this Clause 31, you and the guarantor(s) (if any) shall indemnify us from and against all of our costs and disbursements including legal costs; and
You and/or the guarantor(s) (if any) agree to irrevocably nominate, constitute and appoint us or our nominee as your and/or the guarantor(s)’ true and lawful attorney to perform all acts and execute such documents as are necessary to give effect to the provisions of this Clause 31.
Currency: All amounts are payable in New Zealand dollars.
Amendment: These terms and conditions and all fee proposals may only be amended with our prior written consent.
Review of terms: We reserve the right to review these terms and conditions at any time and from time to time. If, following any such review, there is any change to these terms and conditions, that change will take effect from the date on which we give notice to you of such change.
Subcontracting and assignment: We may assign, license or subcontract all or any part of our rights and obligations under these terms and conditions. You shall not assign your rights without our prior written consent.
No waiver: Any delay or failure by us in exercising any rights available to us will not constitute a waiver of such rights on that or any subsequent occasion. We shall not be taken to have waived any rights unless such waiver is in writing. Any such waiver will be restricted to the particular matter in respect of which it is specifically expressed to be given. All of our rights, powers, exemptions and remedies will remain in full force and effect notwithstanding any neglect, forbearance or delay in their enforcement.
Relationship between parties: You agree that we are an independent contractor and nothing in any arrangements between you and us shall constitute either you or us as the employer, partner or joint venturer of the other party.
Force majeure: We will not be liable for any default or delay due to any force majeure or cause beyond our reasonable control, and any timeframes applying to our obligations will be extended as reasonably necessary. "Force majeure" means any act of God, fire, earthquake, storm, flood, or landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public mains electrical supply failure, sabotage, riot, civil disturbance, insurrection, epidemic, national emergency (whether in fact or law) or act of war (whether declared or not), requirement or restriction of, or failure to act by, any government semi-governmental or judicial entity, any unavoidable accident or any other similar cause beyond the reasonable control of the party claiming the benefit of this Clause 32 and which that party is unable to overcome by the exercise of reasonable diligence and at a reasonable cost, but does not include any event which the party affected could have prevented or overcome by exercising a standard of reasonable care, or a lack of funds for any reason.
Entire agreement: The fee proposal and these terms and conditions together set out the entire agreement and understanding between you and us in relation to the equipment and services to be delivered by us, and supersede any and all prior discussions, agreements, representations and warranties. Each of you and us acknowledge that, in entering into this agreement, you/we do not rely on any statement, representation, assurance or warranty ("Representation") of any person (whether a party to this agreement or not) other than as expressly set out in the fee proposal or these terms and conditions.
Severability: If any provision in these terms and conditions is held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired. If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
Disputes: Neither party shall disparage the reputation of the other party and the parties agree to use all reasonable endeavours to discuss and resolve in good faith any disputes or differences which may arise between them, and that if such disputes or differences cannot be resolved by the parties themselves within a reasonable period, the parties will then seek to resolve any differences through mediation. Any party who claims that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt of such notice, the parties must:
Co-operate and use reasonable endeavours to resolve the dispute quickly; and
If the dispute is not resolved within 14 days of receiving the notice (or any further period as the parties may agree in writing), refer the dispute to mediation ("mediation").
The mediation shall be conducted in accordance with the LEADR New Zealand Incorporated Standard Mediation Agreement. The mediation shall be conducted by a mediator and at a fee agreed by the parties, failing agreement between the parties, the mediator shall be selected, and the mediator’s fee shall be decided, by the Chair for the time being of LEADR New Zealand Incorporated. Nothing in these terms and conditions shall prevent any party from seeking urgent injunctive relief through the courts.
Notices: Any notice required to be given under this agreement shall be in writing and shall be delivered personally, or sent by email, facsimile, pre-paid post or by commercial courier, to each party required to receive the notice, at the address for the parties set out in the fee proposal or as otherwise specified by the parties. Any notice shall be deemed to have been duly received:
If delivered personally, when left at the address and for the contact person referred to in the fee proposal;
If sent by pre-paid post, at 9.00 am on the second business day after posting;
If delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed;
If delivered by email, when transmitted to the email addresses set out in the fee proposal (except where the notice relates to the service of any proceedings or other documents in any legal action, in which case email service will only be valid if deliberately acknowledged by the recipient); and
If delivered by facsimile, when sent with confirmation of complete transmission.
Governing law and jurisdiction: These terms and conditions (and the fee proposal) are governed by New Zealand law and the New Zealand courts shall have jurisdiction.