1.1. “Amount owing” shall mean the price of the goods or equipment hireage plus all costs, damages, charges, insurance charges, repairs, expenses, disbursements and penalties for which you are liable to pay us.
1.2. “NJC Equipment Hire” “we” “us” or “our” shall mean NJC Equipment Group Ltd, or any associated division, company, agent or employee.
1.3. “Customer”, “You” or “Your” shall mean the hirer of any equipment or purchaser of any goods or service from us and shall include any representative, agent or employee.
1.4. “Default” includes you or any Guarantor:
(a) Being unable to pay your debts as they fall due; or
(b) failing to comply with these Terms or any other agreement with us; or
(c) having an application made (or resolution passed) for a receiver, liquidator, administrator or other statutory manager to be appointed; or
(d) Being convicted of a criminal offence; or
(e) Doing any act that in our opinion causes or threatens the risk, safety, condition or safekeeping of any equipment we supply to you;
(f) ceasing to carry on business or suffering a material adverse change which in our opinion changes your financial position or creditworthiness;
(g) Indicating by notice or conduct that you no longer intend to comply with your obligations under any agreement with us.
1.5. “Guarantors” shall mean all signatories who have signed our credit account application form.
1.6. “PPSA” shall mean the Personal Property Securities Act 1999
2. CUSTOMERS AUTHORITY
2.1. You warrant that:
(a) You are either the Customer or the authorised agent of the Customer; or
(b) You are authorised to accept and are accepting these terms not only personally but as agent for and on behalf of the Customer.
2.2. You shall not assign all or any of your rights or obligations under this contract unless we agree specifically in writing. You shall advise us of any alteration to your entity structure and/or of any revocation of an agent’s authority to purchase. Until such written confirmation is received and specifically accepted by us in writing, you shall remain liable for any amount owing and our conduct shall not be deemed acceptance or affirmation of any assignment or revocation.
3.1. The conditions set out as below will apply to all contracts for the hire and/or sale of any goods and/or equipment between NJC Equipment Hire and the customer. These conditions shall not be modified, amended or waived, in whole or in part, except by written agreement between parties.
4.1. All charges are GST exclusive unless otherwise indicated.
4.2. Equipment may be hired for a period of a half day, daily, weekend, weekly, monthly, or as agreed in writing. You agree that NJC Equipment Hire may charge extra for any equipment usage in excess of the maximum usage time, and subject to the Owner’s rights in clause 7. Certain equipment may carry minimum hire periods.
4.3. The hire period will commence either from the time stated on the contract as agreed by the customer, or from the time the equipment leaves our premises and will continue until the equipment is returned to our premises, or if the hire agreement is terminated due to clause 7.
4.4. You agree to pay as invoiced for the full hire period of all equipment used, and any additional costs including but not limited to any damage waiver charges (if applicable), delivery/removal costs, excess use charges, damage to or loss of the equipment during the hire period, cleaning costs (if any), any costs incurred as a result of your method of payment, and any collection charges or default interest due to late payments.
5. PAYMENT TERMS
5.1. You may be required to pay a deposit of an amount not exceeding the estimated charge prior to the equipment leaving our premises. On return of the equipment to our premises the actual total charges will be calculated, and you will be:
(a) Charged for the difference between the deposit and the actual cost, if the actual cost is higher than the deposit amount; or
(b) Refunded the difference between the deposit and the actual cost, if the actual cost is lower than the deposit amount.
5.2. With the purchase of any equipment from NJC Equipment Hire, you will pay the agreed amount. Risk in the goods shall pass to you upon delivery.
5.3. All payment claims/invoices shall be payable immediately at the end of the agreed hire period. Where credit facilities have been granted, all payment claims/invoices shall be paid no later than the 20th of the month following the date of invoice.
5.4. Any agreed discount for credit account customers is claimable only if the account is paid by the 20th of the month following the date of the invoice.
5.5. We will not accept any claims for credit made later than 14 days following the date of the invoice.
5.6. No credits will be extended on overdue invoices.
5.7. Without prejudice to our other remedies under these conditions at law or otherwise, the customer will pay a default interest at the rate of 2% per calendar month on all outstanding invoices from the end of the agreed hire period (for cash customers) or from the 20th of the month following the date of the invoice (for credit account customers) until all payments have been paid in full.
5.8. You shall be liable for all costs incurred by us in recovering the Amount Owing including commissions chargeable by credit agencies and full legal costs.
5.9. You agree that you will not withhold payment or make any deductions against any Amount Owing without our prior written consent. If you disagree for any reason with the claimed amount, you will respond to us in writing with a payment schedule before payment is due, detailing a scheduled amount (the amount that you propose to pay) and your reasons and basis of calculation for any item in the payment claim that you do not propose to pay in full. You will pay the scheduled amount by the due date. If we disagree with your payment schedule we may refer the matter to adjudication (refer clause headed Disputes).
6. DELIVERY & REMOVAL
6.1. You must make any request for removal by phone call to the initiating depot on completion of using the hire equipment.
6.2. If you ask us to enter your site to deliver or remove equipment, or for any other purposes that form the matter of this contract you agree to:
(a) Provide suitable access, information, permission and facilities required by us to properly complete or co-ordinate delivery/removal of the equipment.
(b) Provide a specific instruction if you do not wish our vehicles to enter the site.
(c) Notify us of all relevant health and safety requirements and with any sitespecific safety requirements including any hazards in the workplace to which we may be exposed in entering your premises. We may refuse to deliver equipment if at our sole discretion we are not satisfied that it can be done so safely.
(d) Assume liability and indemnify us for any cost, claim, damage or expense caused by us as a result of us delivering or removing equipment.
7. OWNERS RIGHT TO CANCEL
7.1. You irrevocably give us licence without the necessity of giving any notice to enter all premises at which we on reasonable grounds believe the equipment to be stored, to inspect, remove, or repossess any equipment supplied by us if:
(a) We believe the equipment to be at risk for any reason, including without limitation to the manner of its use by the customer or adverse weather or working conditions; or
(b) We believe you are or may be unable to pay any hire charge, purchase price or any associated charges as set out in clause 4.
7.2. We shall not be liable for any costs, claims, damages, expenses or any other moneys or losses suffered by you or any third party whether arising directly or indirectly as a result of this action. You shall indemnify us for any liability we suffer as a result of such actions.
8. HIRER’S OBLIGATION
8.1. Subject to clause 14 (Insurance Waiver), you are responsible for the hired equipment and for any loss or damage to the equipment while in possession of the equipment until it is returned to our premises.
8.2. You are required to notify us immediately if the equipment is stolen or damaged, by phone and in writing and to follow all instructions given by us.
8.3. In the case of damage to any of the equipment, you will be responsible for and shall indemnify us for the full cost of replacement or repairs required to get the equipment back to the condition it was in prior to the hire contract.
8.4. In the case of theft or loss of the equipment however caused, you will be responsible for and shall indemnify us for the full cost of replacement. The cost of replacement shall be equal to the purchase cost or given management book value.
8.5. In addition to the clauses set out in 8.3 and 8.4, you shall be responsible for and indemnify us for any loss in revenue due to the unavailability of the equipment for hire due to loss, theft or damage. This cost shall not exceed the equivalent of 120 days of hire charges.
8.6. You agree to take proper and reasonable care of the equipment while in your possession and return it in good working order and condition. This may require you to carry out necessary basic servicing of the equipment at your own expense, including but not limited to checking necessary oils, greasing and fuel to ensure that the equipment is fit for its intended use, and operating in a satisfactory manner with due regard to all relevant laws and regulations.
8.7. If the equipment breaks down, you are required to notify us immediately by phone and except as permitted by the consumers guarantees act 1993 not bring or threaten to bring claim against us for loss or damage incurred or threatened against you or any third party arising directly from your use of the equipment. You will indemnify us against any claim made against us for any loss suffered or liability incurred arising directly or indirectly out of your use or possession of the equipment.
8.8. If the customer is not an individual, the guarantor will in any event be personally liable for the performance of the obligations of the customer. The customer warrants that all persons that use the equipment shall be COMPETENT and/or QUALIFIED to use the equipment, and shall use the
equipment in the manner it was designed to be used, and follow all instructions given by us, local authorities, codes of practice or by the
manufacturer of the equipment in relation to the safe use of the equipment, and shall comply with all obligations in relation to the use and control of the equipment and all persons using the equipment to the Health and Safety in Employment Act 1992 and all relevant legislations.
9. CREDIT FACILITIES
9.1. We may grant or decline to grant credit to you. We may in our sole discretion, at any time and without reason or notice to you and/or any Guarantor, and without prejudice to any other right it has in law or equity:
(a) Increase or decrease the amount of credit supplied to you.
(b) Terminate or suspend any credit arrangement we have with you in which case all monies owing by you to us shall be immediately due; and Terms and Conditions of Hire and Sales
(c) request additional security from you on terms satisfactory to us before proceeding further with any order.
10.1. If you dispute an invoice/payment claim you must within 15 days of the date of the payment claim provide us with a written payment schedule which:
(a) Identifies the payment claim to which it relates; &
(b) What you are prepared to pay (“Scheduled Amount”) &
(c) If the Scheduled amount is less than the claimed amount:
(i) How you calculated the Scheduled Amount; and
(ii) Your reason(s) for the difference between the scheduled amount and the claimed amount; and
(iii) Your reason(s) for withholding payment.
10.2. If you do not respond to the payment claim by paying the claimed amount in full or providing a valid payment schedule within the stipulated timeframe you acknowledge you will become liable for the claimed amount.
10.3. Subject to clause 5:
(a) Both parties will attempt to resolve any dispute arising from this contract by negotiation. Either party may at any time refer any dispute to adjudication.
(b) Notwithstanding the above clause, should you fail to seek adjudication, we will be entitled to enforce our rights via litigation.
11.1. In the event of your default of any of these terms (and until the default is corrected):
(a) We may immediately suspend or terminate any credit facilities you have with us.
(b) We shall be entitled to terminate the contract. You will be liable for all costs and losses including loss of profit arising out of such suspension or termination.
(c) Any Amount Owing will immediately become due and payable notwithstanding that the due date has not yet arisen.
(d) We may exercise our right to mortgage.
(e) You shall be liable for ALL costs incurred by us in recovering the Amount Owing including debt collection agency commission and full legal costs.
12. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
12.1. Hire of equipment may create a security interest in the equipment. If so, the provisions of this clause 12 will apply. All terms in this clause 12 have the meaning given in the PPSA and section references are to sections of the PPSA. You agree to promptly execute any documentation and/or provide any necessary information we may require to ensure the security interest created under this contract constitutes a perfected security interest in the equipment and their proceeds which will have priority over all other security interests.
12.2. You will be required to pay all fees and expenses incurred by us in relation to the filing of a financing statement in connection with this contract.
12.3. You agree to waive your rights under sections 114(1)(a), 116, 117, 119, 120(2), 121, 125, 129, 131, 132, 133, 134 and 148 of the PPSA.
13. SECURITY AND CHARGE
13.1. To secure performance of your obligations, monetary and otherwise, under these terms, you and/or the Guarantor (if any) new jointly and severally and irrevocably:
(a) grant a security interest to NJC Equipment Hire over all your estate and interest, whether such estate or interest exists now or arises in the future, in any personal property, other property, and any other asset capable of being charged; and (b) grant a mortgage and/or charge over all of your estate or interest in any land, whether such estate or interest exists now or arises in the future, with such mortgage to have deemed incorporated therein the terms and conditions contained in the mortgage general terms and conditions registered pursuant to section 155A of the Land Transfer Act 1952 under memorandum number 2011/4301.
13.2. In addition both you and/or the Guarantor acknowledge and agree that NJC Equipment Hire (or its nominee) shall be entitled to lodge a caveat on any property, for the purpose of this clause 13, which shall be released once all payments and other monetary obligations payable under these terms have been fully paid to us.
13.3. To give effect to the provisions of this clause 13 you hereby irrevocably appoint NJC Equipment Hire as your and/or the Guarantor’s attorney to execute and/or register any mortgage and/or charge for the purpose of securing and exercising our rights under this clause.
13.4. In this clause 13, the terms “security interest,” “personal property,” and “other property” have the meanings given to them in the Personal Property Securities Act 1999.
14. INSURANCE WAIVER
14.1. If you agree and have paid the Insurance Waiver, we will waive your liability (in clause 8) for accidental damage (provided that you have at all times acted reasonably) or theft of any equipment from secure premises provided further that in the case of theft you will immediately notify the Police (providing the name of the police contact) and NJC Equipment Hire.
14.2. You acknowledge that the mysterious disappearance, loss or damage resulting from negligent acts of the customer, earthquake and war damage, punctures, and damage to tyres, windows and glass or panel damage ARE NOT COVERED by the Insurance Waiver.
14.3. We require you to take our insurance waiver unless written proof of suitable insurance cover is provided.
15. LIMITATION OF LIABILITY
15.1. Except where NJC Equipment Hire is in breach of a guarantee in terms of the Consumer Guarantees Act 1993, the customer in entering into this contract acknowledges that in all other circumstances whatsoever we shall not be liable for direct or consequential damage, loss or expense however arising (whether in contact or in tort) including that resulting from the negligence of NJC Equipment Hire or arising by operation of law and whether suffered by the customer and/or third party for any amount that exceeds the amount actually paid by the customer to NJC Equipment Hire pursuant to this contract. If you are acquiring the services for the purpose of a business as defined in the Consumer Guarantees Act 1999, the provisions of that act do not apply.
16.1. Headings are inserted for convenience and shall not affect the construction of this contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. Words implying one gender include the other. A reference to the customer includes its employees and agents.
16.2. If at any time any provision of this contract is or becomes illegal, invalid or unenforceable in any respect under the law of New Zealand, neither the legal validity nor enforceability of the remaining provisions hereof shall in any way be affected or impaired thereby to the intent that this contract should be construed as if the provision or part thereof in question has been deleted or amended as required.
17. PRIVACY ACT 1993
17.1. If the customer is an individual, this clause 17.1 applies. This contract collects personal information about you. The information is principally collected to evaluate the equipment hireage that you are seeking, it is collected and held by NJC Equipment Hire. Failure to provide the information on the front of this contract may result in your application to hire equipment being declined or this contract being terminated. You have rights of access to the personal information contained in this contract, subject to the provisions of the privacy act 1993. You agree that your personal information may be used by us to advise you of our other goods and services. You authorise the disclosure of personal information held by any other party regarding any previous hire agreements entered into by you and agree to us releasing to other parties information regarding this hire contract if you do not comply with your obligations.
17.2. The customer and guarantors authorise us:
(a) To collect, retain and use information about you or such other signatory from any person for the purpose of assessing your or such other
(b) To disclose information about you or such signatory:
(i) To any person who guarantees, or who provides insurance or any other credit support, in relation to your obligations to NJC
(ii) To such persons as may be necessary or desirable to enable us to exercise any power, enforcement or attempted enforcement of our rights, remedies and powers under these conditions.
18. PERSONAL GUARANTEE
18.1. In consideration of us supplying and continuing to supply goods and/or equipment for hire to the customer, the guarantors jointly and severally
guarantee and indemnify the due performance and observance of the customer’s obligations contained in this agreement with us including, upon
demand, the payment of all Amounts Owing which is or may become due to us by the Customer.
18.2. The Guarantor(s) acknowledge:
(a) This is a continuing Guarantee; and
(b) Their obligation to us is as a principal debtor; and
(c) if there is more than one Guarantor, their liability shall be joint and several; and
(d) their liability under the Guarantee shall not be affected or discharged by the granting of time or credit to the Customer, or by the release, abandonment or waiver of any rights against the Customer, or the liquidation or bankruptcy of the Customer; and
(e) this Guarantee is in addition to and not in substitution of any other guarantee or security or other rights which we may presently have or may subsequently acquire and may be enforced without the necessity of making demand or enforcing any such other guarantees, securities or
(f) the Guarantee shall continue in full force until we agree to release them in writing and even if:
(i) The Customer’s obligations to us has been fully paid, satisfied or performed; or
(ii) Our conduct of the day to day operation of the Customer’s credit account (including but not limited to termination of supply, granting of credit, extension of further credit, granting of time, waiver, indulgence, neglect to sue or failure to give appropriate notice) implies the Guarantors may be released from this Guarantee; or
(iii) We release any other party from partial or total liability.