Terms of Trade

  1. Definitions
    1. “Supplier” shall mean NC Equipment Limited its successors and assigns or any person acting on behalf of and with the authority of NC Equipment Limited.
    2. “Client” means the person/s hiring the Equipment (and/or purchasing the Equipment) or any person acting on behalf of and with the authority the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      3. includes the Client’s executors, administrators, successors and permitted assigns.
    3. “Equipment” means all Equipment supplied either by sale or by hire to the Client by the Supplier, at the Client’s request from time to time, and:
      1. includes any erection, dismantling and transport of the Equipment, “Goods” or Services, any parts, accessories and/or consumables supplied by the Supplier to the Client, either separately or deposited incidentally by the Supplier in the course of it conducting, or supplying to the Client, the Equipment; and
      2. where the context so permits the terms ‘Equipment’ “Goods” or ‘Services’ shall be interchangeable for the other.
    4. “Minimum Hire Period” shall mean the Minimum Hire Period as described in this Contract, on the invoices, quotation, authority to hire, or any other forms as provided by the Supplier to the Client.
    5. “Damage Waiver Fee” means the cost paid by the Client to limit the liability to the Client, to that of the excess amount in the event of the Supplier’s insurance claim being wholly accepted and deemed successful, by their insurer.
    6. “Damage Waiver Excess” means the amount payable to the Supplier for any costs not covered by the Suppliers insurer in the event a claim is made for damage to the Equipment, while on hire or in the possession of the Client. (refer clause 16).
    7. “Consequential Loss” means any loss or potential loss incurred by the Supplier in the event that the equipment is not immediately available for hire by the Supplier at the end of the hire period or if the equipment is returned to the supplier and is not immediately available for on-hire.(refer clause 8.3).
    8. “Trade Clients” are only those Client’s whom the Supplier has agreed is currently entitled to trade credit terms.
    9. “Charges” shall mean the cost payable (plus any GST) for the hire or purchase of the Equipment as agreed between the Supplier and the Client subject to clause 7 of this contract.
    10. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client-information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), pervious credit applications, credit history) and pricing details.
    11. “Contract” means the terms and conditions contained herein, together with any Price, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    12. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable provided on the website, prior to ordering Goods via the website.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions upon written acceptance from the Client at the time of placing an order and/or accepts delivery of any Equipment.
    2. These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Supplier.
    3. The Client acknowledges and accepts that the supply of Goods on credit shall not take place until he Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account and in the event that the supply of Goods requested exceeds the Client credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery, request an alternative payment method or halt the supply of Goods to the Client, until such time as the amount in excess of the credit limit has been paid, in accordance with normal terms.
    4. Where the Client requesting or organising the Supplier to provide Services is acting on behalf of any third party and that third party is intended to be responsible for the payment of the Charges then in the event that the third party does not pay for the Services when due, the Client acknowledges that they shall be liable for the payment of the Charges as if they had contracted the Services on their own behalf.
    5. Any advice (including verbal), recommendation, information, assistance or service provided by the Supplier in relation to Equipment supplied is given in good faith, is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Equipment.
    6. None of the Equipment shall be sublet or cross-hired by the Client. The Client shall not assign or transfer its interest in the contract, or part with possession of all, or any portion, of the Equipment, without the prior written consent of the Supplier, which may be arbitrarily withheld.
    7. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    8. All equipment is cleaned upon return to the Supplier by undertaking a fifteen (15) minute cleaning process offered free of charge by the Supplier. Equipment that requires extra cleaning in addition to this process, will incur additional hourly costs per hour of additional cleaning required on a pro rata basis.
    9. The Client agrees to accurately complete and sign the Credit Card Authorisation Form when required, the contents of which shall form part of this agreement, thereby, consenting to the Supplier, that in the event that the Client becomes in default of payment for any reason, then the Supplier reserves the right to automatically debit the Client’s credit card.
    10. An environmental levy is charged at the completion of each hire period as detailed in the hire contract, other charges may also apply (E.g. refueling charges), if applicable.
    11. The Client acknowledges:
      1. “good working order” means, in respect to the Equipment, that:
        1. the Equipment is in good condition and good appearance throughout; and
        2. the Equipment has been properly maintained and serviced in accordance with the original manufacturer’s recommendations and requirements.
    12. The Supplier will:
      1. provide the Equipment in good working order; and
      2. allow the Client exclusive use of the Equipment during the Hire Term unless the equipment is accepted as stood down.
  3. Trade Ins
    1. The Client agrees that in the event they are trading any chattels for replacement Equipment that the chattel is traded in with the same equipment and in as good a condition as when the chattel was appraised by the Supplier and warrant that it is the Clients unencumbered property.
  4. Errors & Omissions
    1. The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this contract; and/or
      2. contained/omitted in/from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.
    2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
  5. Authorised Representatives
    1. Unless otherwise limited as per clause 5.2, the Client agrees that should the Client introduce any third party to the Supplier as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Equipment, and/or to request any variation thereto, on the Client’s behalf (such authority to continue until all requested Equipment has been returned to the Supplier, or the Client otherwise notifies the Supplier in writing that said person is no longer the Client’s duly authorised representative).
    2. In the event that the Client’s duly authorised representative as per clause 5.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to their representative.
    3. The Client specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Equipment, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 5.2 (if any)).
  6. Change in Control
    1. The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
  7. Charges And Payment
    1. At the Supplier’s sole discretion the Charges shall be either;
      1. as indicated on invoices provided by the Supplier to the Client in respect of Equipment supplied; or
      2. the Charges as at the date of delivery of the Equipment according to the Supplier’s current Charges list; or
      3. the Supplier’s quoted Charges (subject to clause 7.3) which is subject to a site inspection, and shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within thirty (30) days.
    2. The Supplier reserves the right to change the Hire Charges:
      1. if a variation to the Equipment which is to be supplied is requested; or
      2. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, incorrect or unclear Client instructions, limitations to accessing the site, availability of Equipment, safety considerations etc) which are only discovered on commencement of the Services;
      3. in the event of increases to the Supplier in the cost of labour or materials, or fluctuations in currency exchange rates, which are beyond the Supplier’s control.
    3. Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Charges. Payment for all variations must be made in full at the time of their completion.
    4. At the Supplier’s sole discretion, a non-refundable deposit may be required upon request.
    5. Time for payment for the hire of the Equipment being of the essence, the Charges will be payable by the Client on the date/s determined by the Supplier, which may be:
      1. by way of instalments/progress payments in accordance with the Supplier’s payment schedule; or
      2. for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted or emailed to the Client’s address or address for notices; or
      3. the date specified on any invoice or other form as being the date for payment; or
      4. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
    6. With respect to non Trade Clients time for payment shall be made on the date when the Equipment is returned, or within seven (7) days of the commencement of the hire period, whichever is earlier. Where the hire period is extended to more than seven (7) days then the hire charge shall be payable at the end of each seven (7) day period in respect of the prior seven (7) days and at the end of the term of hire in respect of the hire period not previously paid for.
    7. Payment will be made by electronic/on-line banking, credit card (plus a surcharge may apply per transaction) or by any other method as agreed to between the Client and the Supplier.
    8. The Supplier will keep the Client’s personal details, including credit card details in accordance with the guidelines set out in the NC Equipment Limited’s Privacy Policy.
    9. The Client expressly agrees that the Supplier is entitled to immediately charge the Client’s nominated credit card for all outstanding amounts owing and is irrevocably authorized to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Agreement, should the Client have:
      1. any unpaid charges; or
      2. other amounts due and outstanding by the Client; or
      3. any Equipment (or any part thereof) supplied on hire that are lost or damaged; and
      4. any other additional charges that become due from the Client, which were not known at the time of the return of the Equipment.
    10. The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
    11. The Client acknowledges and agrees that the Client’s obligations to the Supplier for the supply of Equipment on hire shall not cease until:
      1. the Client has paid the Supplier all amounts owing for the hire of the Equipment; and
      2. the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.
    12. Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership or rights in respect of this contract shall continue.
    13. If this Contract is conditional upon the Client obtaining a loan from a financial institution then they must provide the Supplier with written confirmation of the loan approval within five (5) working days of the date of signing this Contract before the Supplier will proceed with the supply of any Goods.
    14. Unless otherwise stated the Charges does not include GST. In addition to the Charges the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other contract of the Equipment on hire. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
  8. Damage Waiver
    1. The Hire charge will include a charge for the Damage Waiver Fee.
    2. The Client shall pay for the damage waiver unless written confirmation of suitable insurance cover is provided to the supplier and such confirmation has been accepted and approved in writing by the Supplier (at its sole discretion), prior to the client taking possession of the Equipment. The Client is not entering into a Contract for insurance with the Supplier by paying the damage waiver.
    3. Subject to receipt by the Supplier of the Damage Waiver Excess and acceptance of any insurance claim (refer clause 16) by the Suppliers insurer the Client will then only be liable for any Consequential Loss costs (refer also clause 9).
    4. For additional clarification, clause 8.3 will only apply in the event of the Supplier’s insurance claim be wholly accepted by the insurer.
  9. Consequential Loss
    1. In the event that Equipment is damaged or not able to be made available for Hire because of the actions of the Client while in possession of the Equipment while on hire to the Client, the Supplier is able to charge the Client for the Consequential Loss arising until the Equipment is either repaired or replaced and made available for Hire.
    2. Charges for Consequential Loss shall be calculated based on the time taken to repair or replace the equipment in accordance with standard hire rates,(refer clause 11).
    3. Consequential loss is deemed to include all recovery / transport costs or any statutory costs (e.g. government fines) incurred by the Supplier.
    4. Consequential Loss does not apply to any costs of routine or scheduled maintenance or any delays arising from the inability of the Supplier to have this work completed in a timely manner.
  10. Provision of the Services
    1. Delivery of the Equipment and/or Services (“Delivery”) is taken to occur at the time that the Supplier (or the Supplier’s nominated carrier) delivers the Equipment and/or Services to the Client’s nominated address, even if the Client is not present at the address. In the event the Client (or a representative thereof) is not present at the time of Delivery, the Supplier’s delivery docket remains prima facie evidence of such.
    2. Return of the Equipment (“Return”) will be completed when the Equipment has been accepted by the Supplier, by their off-hire docket. Where the Equipment is returned by the Client’s transport, the Equipment returned shall be counted in the Supplier’s yard and the off-hire docket issued to the Client shall be conclusive proof of the Return of the quantities of Equipment listed thereon, but not of its condition at the time of Return. If the Client collects the Equipment, it will be checked on arrival in the Supplier’s yard for quantity and condition. In both cases the check in the Supplier’s yard for quantity and condition will be the only legal proof of the quantity and condition of Equipment returned.
    3. The cost of Delivery is in addition to the Hire Charges, unless otherwise specified by the Supplier.
    4. The Supplier may deliver the Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    5. Any time specified by the Supplier for Delivery is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Equipment to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Equipment as agreed solely due to any action or inaction of the Client then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date.
    6. The Supplier shall not be responsible for delay or non-completion of the job for which the Equipment are purchased/hired resulting from an act beyond the reasonable control of the Supplier, including but not limited to, industrial action, strikes, pandemics, ,lockouts, epidemics, fire, war, government actions, commotion, riot, floods or inclement weather.
    7. The Client shall ensure that the Supplier has clear and free access to the nominated address at all times to enable them to make Delivery. The Supplier shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas or enforcing Client instruction), unless due to the negligence of the Supplier.
  11. Use, Operation and Maintenance of the Hire Equipment
    1. Hire Period:
      1. The Hire Period shall:
        1. commence from the time the Equipment depart from the Suppliers premises, and will continue until the return of the Equipment to the Supplier’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs, unless by other arrangement with the Supplier that has been confirmed in writing. Additional charges will apply in the event that the Client requests an extension of the Hire Period.
        2. be based on a standard daily hire rate or a weekly (being five (5) working days) cycle.
      2. The date upon which the Client advises of termination /off-hire of the hire period, the Supplier must be notified by 9.00am of the initial off-hire day in writing, either via email or text message notice to be considered
      3. No allowance whatever can be made for time during which the Equipment are not in use for any reason, unless the Supplier confirms special prior arrangements in writing. In the event of breakdown of the Equipment, provided the Client notifies the Supplier immediately, hire charges will not be payable during the time the Equipment is not functional, unless the condition is due to negligence or misuse on the part of or attributable to the Client;
    2. Client’s Obligations:
      1. The Client shall:
        1. satisfy itself on Delivery that the Equipment are suitable for its purposes;
        2. maintain the Equipment as is required by the Supplier;
        3. notify the Supplier immediately by telephone of the full circumstances of any mechanical malfunction, damage, loss, destruction or accident in connection with the Equipment. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification.
        4. use the Equipment safely, strictly in accordance with the law (in full compliance with all health and safety regulations relating to their use and any other relevant laws and regulations), only for their intended use, and in accordance with any manufacturer’s instruction, whether supplied by the Supplier or posted on the Equipment;
        5. ensure the security and safekeeping of the Equipment whilst being used, and that all persons who use the Equipment are competent and qualified to use the Equipment as required by current Occupational Safety and Health Guidelines;
        6. keep the Equipment in their own possession and control and shall not assign the benefit of this hire contract nor be entitled to take a lien, or grant any encumbrance over the Equipment. This does not prevent the employees of the Client using the Equipment;
        7. not alter or make any additions to the Equipment (including, but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or number on the Equipment), or in any other manner interfere with the Equipment, as doing so may undermine the structure and safety of the Equipment. the Supplier will photograph, in detail, the Equipment once erected as proof of this;
        8. employ the Equipment solely in their own work and not permit the Equipment (or any part thereof) to be used by any other party for any other work;
        9. not exceed the recommended or legal load and capacity limits of the Equipment;
        10. not use or place any illegal, prohibited or dangerous substance on the Equipment;
        11. not fix the Equipment (or any part thereof) in such a manner as to make them legal fixtures forming part of any freehold;
        12. on termination of the hire, deliver up the Equipment, complete with all parts and accessories, clean and in good order, as delivered, fair wear and tear accepted, to the Supplier. At the time of return of the Equipment additional Charges will apply where there are any issues raised that do not comply with the Supplier’s checklist (including but not limited to, an environmental levy where cleaning is required and disposal of spoil is necessary etc).
      2. Immediately on request by the Supplier the Client will pay:
        1. the new list Charges of any Equipment (or any part thereof) that are, for whatever reason, destroyed, irrecoverable, or not returned to the Supplier; all costs incurred in cleaning the Equipment (including removing plaster, mortar, cement and/or concrete from the Equipment) if the Equipment are deemed by the Supplier (at their sole discretion) to be excessively dirty;
        2. all costs of repairing any damage to the Equipment caused by:
          1. the ordinary use of the Equipment up to an amount equal to 10% of the new list Charges of the Equipment;
          2. caused by the negligence of the Client or the Client’s agent;
          3. caused by vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
      3. any lost hire charges the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire contract;
      4. the cost of fuels and consumables provided by the Supplier and used by the Client.
    3. Only to the extent that the hire of the Equipment exceeds a twelve (12) month hire period (or a six (6) month hire period with the right of renewal) shall clause 9 apply, and this contract a security agreement for the purposes of PPSA generally, and in particular Section 36.
    4. No warranty is given by the Supplier as to the quality or suitability of the Equipment for any purpose, and any implied warranty is expressly excluded. The Client shall indemnify and hold harmless the Supplier in respect of all claims arising out of the use of the Equipment.
    5. Standown Policy
      1. All Standown notifications must be received by the Supplier before 9am of the initial Standown day.
      2. There is no Standown available on attachments and equipment that are not GPS equipped.
      3. The Client may only apply for Standown if the equipment is available to be returned or collected by the Supplier, any freight charges incurred will be charged to the Client
      4. A Standown rate of 50% may apply subject to the equipment being made available to the Supplier for rehire.
      5. A Standown rate of 100% is only applicable in the circumstance of breakdown/mechanical failure, a public holiday or circumstances of extreme weather.
      6. Please note that equipment on rent-to-purchase agreements is not applicable for Standown.
      7. All Standown equipment must record zero activity on their GPS, if the Supplier discovers that the equipment has been used, the Supplier reserves the right to void the Standown period.
  12. Inspection of Equipment
    1. The Client hereby grants the Supplier (including its employees, duly authorised agents or representatives) the right, at all times, upon the Supplier giving to the Client reasonable notice and without unduly interfering with the Client’s business or operations, to:
      1. enter onto the site(s) where the Equipment or any part thereof may be located;
      2. inspect the state of repair or condition of the Equipment;
      3. carry out any such tests on the Equipment as may be reasonably necessary including but not limited to, health and safety tests or inspections;
      4. observe the use of the Equipment by the Client; and
      5. do any act, matter or thing which may be required at law or to otherwise protect the Supplier’s rights or interests in the Equipment.
  13. Lease to Own
    1. Upon expiry of the Hire Period, provided the Client has made full payment of all monies payable and fulfilled their obligations under this agreement, the Client may enter into a separate agreement to acquire ownership of the Equipment by payment to the Supplier of the specified amount, and in this case clauses (title to goods, delivery, risk, returns and warranty) shall be applicable.
  14. Testing of Machinery
    1. The Supplier or its employees may test drive or carry out demonstrations on the machinery at the Supplier’s discretion and may if requested by the Client collect or re-deliver the machinery when nominated by the Client. The Supplier will not be liable for (and the Client indemnifies the Supplier against) any damages caused to, or by, the machinery during such tests, collection or delivery unless it arises from the recklessness or wilful misconduct of the Supplier or its employee.
  15. Title
    1. Where is this a contract for the purchase of the Equipment:
      1. the Supplier and the Client agree that ownership of the Equipment shall not pass until:
        1. the Client has paid the Supplier all amounts owing to the Supplier; and
        2. the Client has met all of its other obligations to the Supplier.
      2. It is further agreed that:
        1. until ownership of the Equipment passes to the Client in accordance with clause (a) that the Client is only a bailee of the Equipment and must return the Equipment to the Supplier on request.
        2. the Client holds the benefit of the Client’s insurance of the Equipment on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Equipment being lost, damaged or destroyed.
        3. the Client must not sell, dispose, or otherwise part with possession of the Equipment other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Equipment then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
        4. the Client should not convert or process the Equipment or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
        5. the Supplier may recover possession of any Equipment in transit whether or not delivery has occurred.
        6. the Client shall not charge or grant an encumbrance over the Equipment nor grant nor otherwise give away any interest in the Equipment while they remain the property of the Supplier.
    2. Where this is a hire contract:
      1. the Equipment is and will at all times remain the absolute property of the Supplier, however the Client accepts full responsibility for:
        1. the safekeeping of the Equipment and indemnifies the Supplier for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
        2. shall keep the Supplier indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.
      2. the Client will insure, or self-insure, the Supplier’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment, and if called upon the Client, shall produce evidence of such insurance to the Supplier. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
      3. the Client is not authorised to pledge the Supplier’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
    3. The Supplier may commence proceedings to recover the Charges of the Equipment sold notwithstanding that ownership of the Equipment has not passed to the Client. If the Client fails to return the Equipment to the Supplier then the Supplier or the Supplier’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment.
  16. Insurance
    1. The Client hires the Equipment at the Client’s own risk and indemnifies the Supplier against any and all loss in respect of or damage to the Equipment, including any Consequential Loss.
    2. Damage Waiver is not insurance, but is an agreement by the Supplier that the Client’s liability for damage to the Equipment can be limited except for the exclusions scheduled below (clauses16.4 to 16.6), to an amount called the Damage Waiver Excess. The Client is not entering into a contract of insurance with the Supplier by paying for the Damage Waiver.
    3. The Client agrees with the Supplier that the use of Equipment carries with it dangers and risks of injury, and the Client agrees to accept all dangers and risks.
    4. The Supplier will maintain current insurance policies in respect of the Equipment to its full insurable value. The Client agrees that the following exclusions scheduled below (clauses 16.4(a) - 16.6) apply to the Suppliers insurance policies and the Client will:
      1. act at all times with reasonable care;
      2. deliver to the Supplier a detailed report on the events giving rise to the loss and/or damage of the hired Equipment, including the extent if any of criminal act, police report and acknowledgement. The report and/or supporting documentation to be received by the Supplier within twenty four hours of the Client becoming aware of the loss and/or damage; and
      3. undertake such action as the Supplier would have reasonably expected to enable the Supplier to recover such loss from any potentially responsible third parties.
    5. The Suppliers insurance policies do NOT cover:
      1. theft or criminal damage to Equipment unless reasonably secured;
      2. damage or loss due to misuse, abuse or non-adherence to accepted load or towing tolerances;
      3. damage resulting from overloading of electrical and/or motor capacity;
      4. damage to tyres or tubes howsoever caused during the term of the hire;
      5. damage resulting from inadequate provision of lubricants or other servicing of the Equipment;
      6. damage or loss to any of the accessories forming part of the hired Equipment including but not limited to tools, electrical cords, grease guns, hoses, welding cables, oxygen and/or acetylene bottles, and pneumatic tools;
      7. damage or loss arising from water (including, but not limited to partial or full immersion of the Equipment not specifically designed for immersion);
      8. damage or loss arising from impact and environment underground affecting the Equipment’s condition,
      9. damage or loss arising from breach by the Client of the conditions of the Hire agreement;
      10. damage or loss from use of the Equipment in contravention of any Statute or By Law.
    6. Special conditions or exclusions may also apply, details of which will be provided by the Supplier prior to the commencement of the hire. A breach of these special conditions will be considered a breach of the Contract.
    7. The Supplier and Client agree and acknowledge that Section 11 of the Insurance Law Reform Act 1977 will apply with respect to the exclusions in clauses 16.4(a) - 16.5 inclusive as if clause 16 constituted a contract of insurance (not withstanding that clause 16 is NOT a contract of insurance).
    8. In the event that the Equipment provided by the Supplier is the subject of an insurance claim made by the Supplier, as a result of any action or inaction of the Client, then the Client accepts full liability for the value of Equipment (or part thereof) that is lost, stolen or damaged in any way any during the entire rental term, irrespective of whether the insurance claim is successful.
  17. Defects
    1. The Client shall inspect the Equipment on delivery and shall within seven (7) days notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Equipment within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to replacing the Equipment.
    2. Goods will not be accepted for return for any reason other than those specified in clause 17.1 above (or in the case of Goods on hire, normal termination of Goods hire in accordance with the full terms and conditions herein) and provided that:
      1. the Client has complied with the provisions of clause 17.1; and
      2. the Supplier has agreed in writing to accept the return of the Goods; and
      3. the Goods are returned at the Client’s cost within seven (7) days of the Delivery date; and
      4. the Supplier will not be liable for Goods which have not been stored or used in a proper manner; and
      5. the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
    3. The Supplier may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty percent (20%) of the value of the returned Goods plus any freight.
    4. Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
  18. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies the Supplier may have under this contract, if a Client has made payment to the Supplier and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 18, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
    4. Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
      1. any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
      2. the Client has exceeded any applicable credit limit provided by the Supplier;
      3. the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  19. Security and Charge
    1. In consideration of the Supplier agreeing to supply the Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
    3. The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 19 including, but not limited to, signing any document on the Client’s behalf.
  20. Cancellation
    1. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Equipment to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
    2. The Supplier reserves the absolute right to:
      1. cancel, terminate, or determine this contract;
      2. immediately repossess the Equipment; at any time before or during the hire period, without reason, without prior notice, without payment of compensation and without prejudice to any other rights which the Supplier may have against the Client. The Supplier or its agents may enter any property, premises or vehicle where the Equipment may be kept, for this purpose.
    3. In addition to clause 20.2 in these terms and conditions, the Supplier shall be entitled to cancel the contract if:
      1. the Supplier reasonably believes that a third party may attempt to take possession of the Equipment;
      2. the Equipment is at risk
    4. In the event that the Client wishes to cancel this contract then the Client agrees to provide a minimum of seventy-two (72) hours noticed of termination of hire by either telephone or email. The Client shall remain liable for all hire charges due up to the time of cancellation until such notice is given.
  21. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by the Supplier is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 8 of the Act and any statutory requirements where relevant in an European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Supplier that may result in serious harm to the Client, the Supplier will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unlesssubject to an operation of law.
    2. Notwithstanding clause 21.1, privacy limitations will extend to the Supplier in respect of Cookies where transactions for purchases/orders transpire directly from the Supplier’s website. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      1. IP address, browser, email client type and other similar details;
      2. Tracking website usage and traffic; and
      3. Reports are available to the Supplier when the Supplier sends an email to the Client, so the Supplier may collect and review that information (“collectively Personal Information”) In order to enable/disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable/disable the Cookies first by selecting the option to enable/disable, provided on the website prior to proceeding with a purchase/order via the Supplier’s website.
    3. The Client authorises the Supplier or the Supplier’s agent to:
      1. access, collect, retain and use any information about the Client;
        1. (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
        2. for the purpose of marketing products and services to the Client.
      2. disclose information about the Client, whether collected by the Supplier from the Client directly or obtained by the Supplier from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    4. Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 2020.
    5. The Client shall have the right to request the Supplier for a copy of the information about the Client retained by the Supplier and the right to request the Supplier to correct any incorrect information about the Client held by the Supplier.
  22. Personal Property Securities Act 1999 (“PPSA”)
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
      1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
      2. a security interest is taken in all Equipment previously supplied by the Supplier to the Client (if any) and all Equipment that will be supplied in the future by the Supplier to the Client.
    2. The Client undertakes to:
      1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
      2. indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Equipment charged thereby;
      3. not register a financing change statement or a change demand without the prior written consent of the Supplier.
    3. The Supplier and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
    4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
    5. Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    6. The Client shall unconditionally ratify any actions taken by the Supplier under clauses 22.1 to 22.5.
  23. Dispute Resolution
    1. All disputes and differences between the Client and the Supplier touching and concerning this contract shall be referred to arbitration under a single arbitrator agreed upon by both parties, or failing contract, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
  24. Compliance with Laws
    1. The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Equipment including but not limited to, the best practice guidelines for Equipment as outlined in the Guidelines for the Provision of Facilities and General Safety in the Construction Industry Standards and any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
    2. The Supplier has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising out of the engagement. The parties agree that for the purposes of the HSW Act, the Supplier shall not be the person who controls the place of work in terms of the HSW Act.
    3. The Client shall obtain (at the expense of the Client) all engineering reports, certificates, and all licenses and approvals that may be required for the Equipment hire.
  25. Construction Contract Act 2002
    1. The Client hereby expressly acknowledges that:
      1. the Supplier has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
        1. the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
        2. a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
        3. the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Supplier by a particular date; and
        4. the Supplier has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
      2. if the Supplier suspends work, it:
        1. is not in breach of contract; and
        2. is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
        3. is entitled to an extension of time to complete the contract; and
        4. keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
      3. if the Supplier exercises the right to suspend work, the exercise of that right does not:
        1. affect any rights that would otherwise have been available to the Supplier under the Contractual Remedies Act 1979; or
        2. enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of the Supplier suspending work under this provision.
  26. Force Majeure
    1. Subject to clause 26.2, neither party shall be responsible for any delays in Delivery or collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, pandemics, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).
    2. Nothing in clause 26.1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Hire Term, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.
  27. Limitation of Liability
    1. While the Supplier provides the Services in good faith and to the best of its ability, the Supplier shall be under no liability whatsoever to the Client for any indirect and/or Consequential Loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Charges of the Equipment).The Client accepts the Supplier’s Services on the basis that to the maximum extent permitted by law, any liability of the Supplier for the Services provided under the contract is hereby excluded. This is regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise.
    2. The Client agrees to indemnify the Supplier, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 27.1 in respect of any activity arising from, or connected with this Contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by the Supplier.
  28. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Christchurch Courts of New Zealand.
    3. The Supplier may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
    4. The Client cannot licence or assign without the written approval of the Supplier.
    5. The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.
    6. The Client agrees that the Supplier may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Equipment to the Client.
    7. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
  29. Terms Specifically Applicable to the Sale of Equipment Only
    1. Risk:
      1. Risk of damage to or loss of the Equipment passes to the Client on Delivery and the Client must insure the Equipment on or before Delivery.
      2. If any of the Equipment are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Equipment. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
    2. If the Client requests the Supplier to leave Equipment outside the Supplier’s premises for collection, or to deliver the Equipment to an unattended location, then such Equipment shall be left at the Client’s sole risk.
    3. Warranty For Hire:
      1. The warranty shall be the current warranty provided by the manufacturer of the Equipment. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Equipment;
      2. in the case of second hand Equipment, the Client acknowledges that he/she has had full opportunity to inspect the same and that he/she accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Equipment, or caused by the Equipment, or any part thereof however arising.
    4. Warranty On Purchases:
      1. Subject to the conditions of warranty set out in Clause 29.4.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within three (3) months of the date of Delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) replace or remedy the workmanship.
      2. All warranty claims must first be accepted by the manufacturer and/or the Supplier prior to any work being commenced under such claim, with the claim procedure being;
        1. that the Client notifies and discusses the issue with the Supplier’s customer services team;
        2. the Supplier will seek authorisation from the manufacturer or provider (where applicable) to ascertain the quickest and most efficient repair method;
        3. on approval to proceed, the Supplier will arrange with the Client as to repair location and any associated costs of salvage, pickup, or onsite repair;
        4. on completion of the repair, the Supplier shall seek approval from the Client to sign off any necessary documentation.
      3. The Goods are to be returned to the Supplier for service or repair. Where the Supplier agrees to onsite servicing, pickup or delivery, the Supplier shall reserve the right to charge for associated costs.
      4. The Supplier shall not be held liable for any loss of production, income, costs, losses or damages arising from the time the Goods are out of service under a warranty claim;
      5. The conditions applicable to the warranty given by Clause 29.4.a are:
        1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
          1. failure on the part of the Client to properly maintain any Goods; or
          2. failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or
          3. any use of any Goods otherwise than for any application specified on a quote or order form; or
          4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
          5. fair wear and tear, any accident or act of God
        2. the warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent;
        3. in respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim
      6. For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
      7. The conditions applicable to the warranty given on Goods supplied by the Supplier are contained on the “Warranty Documentation” that will be supplied with the Goods.
      8. In the case of second hand Goods, the Client acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
    5. EXCLUDED from the warranty are the following:
      1. any blade sharpening, extensive cleaning or repairs resulting from heavy use;
      2. replacement consumables including, but not limited to, tyres, oils, fuel, lubricants, etc.;
      3. any Goods that are used for rental or hire purposes;
      4. components on second hand Goods including, but not limited to, panels, guards, hand rails, lenses, decals, etc.;
      5. components on any Goods that are damaged as a result of impact or hard use including, but not limited to, worn bearings, cotter pins and retainers;
      6. any defect resulting from general wear and tear such as may be seen to fabric, rubber grips, cushions, grease fittings, paint or steel surface or cosmetic imperfections;
      7. damage from the improper adjustments including, but not limited to, cables, pulleys, loose wheel hubs, seals and handles;
      8. any resultant damage from natural disasters, fire, abrasion or corrosion;
      9. failure to maintain the Goods or perform periodic maintenance checks resulting in damage arising from the Goods being operated with inappropriate oil, water, lubricants or other fluid levels;
      10. any damage occurring as the result of fitting spurious parts or lubricants, the incorrect use of attachments or tools, or modifications or alterations not authorised by the Supplier.
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