1. Definitions
1.1 In these Conditions, the following words have the following meanings:
(a) Administration Fee means [5]% of the Price;
(b) Cancellation Fee means [100]% of the Price;
(c) Conditions means the terms and conditions of hire as set out in this document and any special terms and conditions agreed in writing with Fahey;
(d) Delivery Address means the address stipulated by the Hirer to Fahey for delivery of the Goods. Where no address is stipulated the Delivery Address shall be the premises of Fahey;
(e) Delivery Date means the date specified by the Hirer when the Goods are to be delivered;
(f) Delivery Point is the place at the Delivery Address where the Goods are to be left or erected;
(g) Fahey means Fahey Fence Hire (Auckland) Limited and / or its subsidiary or related companies;
(h) Goods means the equipment which the Hirer agrees to hire from Fahey;
(i) Hire Charge means the sum payable by the Hirer for the hire of the Goods;
(j) Hirer means the person or company identified as the hirer on the order form;
(k) Period of Hire means the period of hire calculated under clause 4;
(l) Price means the Hire Charge plus any additional charges for delivery, erecting, dismantling or removing the Goods, any Cancellation or Administrations Fees payable, and any other charges agreed in advance by the parties.
2. When and how these Conditions apply
2.1 These Conditions shall apply to all contracts of hire between Fahey and the Hirer to the exclusion of all other terms and conditions including any terms and conditions which the Hirer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for hire shall be deemed to be an offer by the Hirer to hire Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Hirer's acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by Fahey.
2.5 The contract created by these Conditions is personal to the Hirer and is not capable of assignment whether in whole or in part by the Hirer.
2.6 If at any time any provision of these Conditions 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 extent that these Condiitons should be construed as if the breach invalidated the entire agreement.
2.7 Headings are inserted for the convenience and shall not affect the construction of these Conditions. The singular includes the plural and vice versa. Persons include incorporated an unincorporated entities. Words implying one gender include the other. A reference to Fahey or the Hirer includes all its servants and agents.
3. Price and payment
3.1 The Price shall be calculated based upon Fahey's published price list current at the time the order for the Goods is made. The Price is exclusive of GST which shall be payable at the rate current at the date of the invoice.
3.2 Hire Charges shall be calculated on a daily basis irrespective of the time of day the Goods were hired, save that all Goods shall carry a minimum Hire Charge equivalent to one month's hire.
3.3 Where the Goods are for an event, payment of the Price plus GST shall be made prior to Delivery.
3.4 Otherwise:
(a) The Hirer will be invoiced on the Delivery Date and thereafter at the end of every calendar month;
(b) Payment of the Price and GST shall be due on the 20th of the month following the month in which the invoice was delivered. Time for payment shall be of the essence.
3.5 The Hirer shall not withhold payment of any invoice or other amount due to Fahey by reason of any right of set off or counterclaim which the Hirer may have or allege to have for whatever reason.
3.6 In default of payment, the Hirer undertakes to pay late payment penalties at 2.5% per month on any amount outstanding. In addition, the Hirer agrees to pay all costs associated with the recovery of any monies owing under these Conditions on a solicitor and own client basis.
4. Period of hire
4.1 Irrespective of the Delivery Address, the Period of Hire commences from the time part or all of the Goods leave Fahey's premises and ends once all the Goods have been returned to the Fahey's premises.
4.2 Fahey is under no obligation to reduce the Price where some of the Goods are returned to Fahey's premises prior to the end of the Period of Hire.
5. Orders for hire
5.1 All orders for hire will be confirmed by facsimile unless otherwise agreed and shall include an estimate of the Price.
5.2 The Hirer shall return the confirmation of order by facsimile within 2 days of receiving it.
5.3 Failure by the Hirer to return the signed facsimile within 2 days will be deemed to be confirmation of the order.
5.4 Where the Hirer amends or cancels the order after confirming it, the Hirer shall be liable (in Fahey's discretion) to pay:
(a) in the event of an amendment, in addition to the Price, the Administration Fee; or
(b) in the event of a cancellation, in lieu of the Price, the Cancellation Fee.
6. Delivery, erection and dismantling
6.1 Delivery shall be made at the Delivery Address on the Delivery Date.
6.2 The Hirer may specify a Delivery Point. No additional charge shall be payable by the Hirer where the Delivery Point is within 10 metres of the nearest truck access. Where the Delivery Point exceeds that distance the time taken to unload the truck and deliver the Goods will be charged on an hourly basis in accordance with Fahey's published price list current on the Delivery Date.
6.3 Where the Hirer requires Fahey to erect or dismantle the Goods, this will be charged on an hourly basis in accordance with Fahey's published price list current on he Delivery Date or the date of collection.
6.4 The Hirer will obtain all necessary consents or licences to allow Fahey to bring its vehicle and any other equipment necessary to the Delivery Point, and if applicable, to erect and/or dismantle or remove the Goods upon the expiry of the period of hire or on the breach by the Hirer of any term in this Conditions.
6.5 It is the Hirer's responsibility to ensure that it is safe to erect the Goods in the place directed. The Hirer agrees to indemnify Fahey against any cost, claim, damage, expense or liability arising out of the erection or dismantling of the Goods, including, but not limited to, any damage caused by pegs or pins being driven into the ground and causing damage to underground services.
7. Acceptance of Goods
7.1 Upon delivery, the Hirer (or its agent) shall inspect the Goods and note any damage including any holes or bent frames.
7.2 Following delivery, the Hirer has 12 hours in which to report any alleged defect, damage, shortage in quantity, failure to comply with description, or any other issues with the Goods which were present, but unnoticed, at the time of delivery. After that time the Hirer shall be deemed to have accepted the Goods in the condition agreed at the time of delivery.
7.3 At the end of the Period of Hire, the Hirer must sign off the Goods at the Delivery Address noting:
(a) Any damage to the Goods during the Period of Hire;
(b) Any missing components from the Goods.
7.4 The Period of Hire will continue until such time as the Hirer has signed off the Goods under 7.3 above.
8. Use of the Goods by the Hirer
8.1 During the Period of Hire, the Hirer shall:
(a) Take proper and reasonable care of the Goods;
(b) Return the Goods in good order and condition, free from any defects;
(c) Use the Goods in a lawful manner with due regard to all laws and regulations pertaining to the use of the Goods;
(d) Immediately notify Fahey if the Goods are damaged;
(e) Be responsible for any mysterious disappearance, loss or any damage to the Goods including events outside of the Hirer's control;
(f) Be responsible for any damage caused to a third party and any payments due to be paid directly to the third party as a consequence of the hire of the Goods;
(g) Indemnify the Owner against any claim made by any person against Fahey for any damage, expense, claim, demand action or loss arising directly or indirectly out of the Hirer's use or possession of the Goods.
(h) At all times ensure that the Goods are used in accordance with Health and Safety in Employment Act 1992 ("the Act"). The Hirer will indemnify the Fahey for any costs or penalties incurred or imposed on Fahey due to any breach of the Act by the Hirer;
(i) Not remove any signs indicating that the Goods are owned by Fahey.
9. Insurance and risk
9.1 Property in the Goods shall remain at all times vested in Fahey.
9.2 Risk shall pass to the Hirer when the Goods leave Fahey's prmeises and pass back to Fahey upon return of the Goods to Fahey's premises.
9.3 The Hirer shall be liable for any damage to the Goods during the period of Hire and agrees to indemnify Fahey up to the replacement value of such Goods which are damaged.
9.4 Fahey does not hold insurance which covers damage to the Goods during the Period of Hire. The Hirer must therefore obtain insurance with a reputable insurer which covers damage to the Goods during the Period of Hire (including transit of the Goods from Fahey's premises to the Delivery Address) and Fahey's interest in such goods shall be noted on the policy. The Hirer shall produce on request a copy of such insurance policy.
10. Warranties and liability
10.1 All terms, conditions, warranties, and representations (whether implied or made expressly) whether by Fahey, its servants or agents or otherwise (other than those express warranties set out on Fahey's website) relating to the quality and /or fitness for the purpose of the Goods are excluded to the fullest extent permitted by law.
10.2 Fahey shall not be liable for any loss or damage whatever due to failure by Fahey to deliver the Goods promptly or at all.
10.3 Fahey shall be under no liability whatever to the Hirer for any indirect loss and/or expense (including loss of profit) suffered by the Hirer arising out of a breach by the Hirer of these Conditions.
10.4 In the event of any breach of these Conditions by Fahey the remedies of the Hirer shall be limited to damages and under no circumstances shall the liability of the Seller exceed the Price.
11. Cancellation by Fahey
11.1 Fahey may terminate the hire in the event that:
(a) Fahey believes in its opinion that the Goods are at risk;
(b) The Hirer fails to pay an invoice in accordance with these Conditions;
(c) The Hirer commits a breach of these Conditions;
(d) Any distress or execution is levied on the Hirer's goods;
(e) The Hirer makes an arrangement with its creditors;
(f) A bankruptcy petition is presented against the Hirer or, being a company, any resolution or petition to wind up the Hirer is passed or the Hirer is otherwise unable to pay its debts; or
(g) A receiver, administrator, administrative receiver or manager is appointed over the whole or part of the Hirer's business or assets.
11.2 In the event of termination under clause 11.1 above, the Hirer agrees to allow Fahey the irrevocable right to enter upon the place where all or part of the Goods are kept and remove them.
11.3 The Hirer shall indemnify Fahey in respect of any claim, action, damage, expense or cost (including full solicitor/client costs) incurred or threatened as a result of Fahey exercising the powers of this clause 11 or otherwise to recover the Goods or moneys payable by the Hirer pursuant to these Conditions.
11.4 Fahey will not be liable to the Hirer or any other persons for any claim or loss arising from cancellation or repossession.
12. Personal Property Securities Act 1999 (PPSA)
12.1 The hire of the Goods may create a security interest in the Goods. If so, the provisions of this clause apply. All terms in this clause have the meaning given in the PPSA and section references are sections to sections of the PPSA.
12.2 On the request of Fahey, the Hirer shall promptly execute any documents, provide all necessary information and do anything else required by Fahey to ensure that the security interest created under these Conditions constitutes a perfected security interest in the Goods and their proceeds which will have priority over all other security interests in the Goods.
12.3 The Hirer will pay to Fahey all fees and expenses incurred by Fahey in relation to the filing of a financing statement in connection with these Conditions.
12.4 The Hirer agrees that nothing in section 133 an 134 of the PPSA applies to these Conditions
12.5 The Hirer is not authorised to sell or sublease any of the Goods to a third party.
12.6 The Hirer agrees that in the event that section 53, 54 and 56 apply Fahey will be entitled to the full amount of the value of the Goods from the Hirer and the security interest will continue in the payment given by the third party.
12.7 To the extent they are applicable to the Hirer, the Hirer waives the Hirer's right to:
(a) Receive a notice under sections 114(1)(a)
(b) Receive a statement of account under section 116;
(c) Receive surpluses distributed under section 117;
(d) Recover any surplus under section 119;
(e) Receive notice of any proposal of Fahey to retain the collateral under section 120(2);
(f) Object to any proposal of Fahey to retain collateral under section 121;
(g) Not have the Goods damaged in the event that Fahey were to remove an accession under section 125;
(h) Receive notice of the removal of an accession under section 129;
(i) Apply to the court for an order concerning the removal of an accession under section 131;
(j) Redeem collateral under section 132; and
(k) Receive a copy of any Verification Statement
13. Guarantor
13.1 Where the Hirer has been requested to provide a guarantor, he /she shall personally guarantee all monies owed under these Conditions including any costs incurred by Fahey recovering monies due on a solicitor and own client basis.
14. Privacy
14.1 Fahey may request and collect personal information about the Hirer and the guarantor to evaluate whether to agree to hire the Goods. The failure to provide the information requested by Fahey may result in the order being declined or this contract subsequently being terminated by Fahey.
14.2 The Hirer has rights of access to personal information so collected, subject to the provisions of the Privacy Act 1993.
14.3 The Hirer agrees that its personal information may be used by Fahey to advise the Hirer of the Owner's other goods and services.
14.4 The Hirer authorises the disclosure of personal information held by any other party to Fahey regarding any previous hire agreements entered into by the Hirer and/or any information in relation to the financial position of the Hirer.
14.5 The Hirer agrees that Fahey may release to other parties information regarding this hire contract in order to enforce the terms and conditions of this contract.
15. Law and jurisdiction
15.1 These Conditions are governed by the law of New Zealand and the parties irrevocable submit to the jurisdiction of the New Zealand courts.