Conditions of use

1. Definitions

1.1 “Allways Hire” means Allways Hire Ltd, its successors and assigns or any person acting on behalf of, and with the authority of, Allways Hire Ltd.

1.2 “Hirer” means the person/s hiring the Equipment, as specified in any quotation, invoice, order or other document, and if there is more than one Hirer, is a reference to each Hirer jointly and severally.

1.3 “Equipment” means all Equipment (including any accessories) supplied on hire by Allways Hire to the Hirer (and where the context so permits shall include any incidental supply of services), as described on the quotation, invoice, order or other document, as provided by Allways Hire to the Hirer.

1.4 “Minimum Hire Period” means the least amount of time the Equipment is to be hired by the Hirer, as described on the quotation, invoice, order or other document, as provided by Allways Hire to the Hirer.

1.5 “Hire Charges” means the cost of the hire of the Equipment, as agreed between Allways Hire and the Hirer, in accordance with clause 4 of this contract.

2. Acceptance

2.1 The Hirer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Hirer places an order for Equipment, or accepts Delivery.

2.2 These terms and conditions may only be amended with Allways Hire’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Hirer and Allways Hire.

2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Change in Control

3.1 The Hirer shall give Allways Hire not less than fourteen (14) days prior written notice of any proposed change of ownership of the Hirer and/or any other change in the Hirer’s details (including but not limited to, changes in the Hirer’s name, address, contact phone or fax number/s, or business practice). The Hirer shall be liable for any loss incurred by Allways Hire as a result of the Hirer’s failure to comply with this clause.

4. Hire Charges and Payment

4.1 At Allways Hire’s sole discretion the Hire Charges shall be either:

(a) as indicated on invoices provided by Allways Hire to the Hirer, in respect of Equipment supplied; or

(b) Allways Hire’s current Hire Charges, as at the date of Delivery, according to Allways Hire’s current hourly or hectare rate/s; or

(c) Allways Hire’s quoted Hire Charges (subject to clause 4.2), which shall be binding upon Allways Hire provided that the Hirer shall accept Allways Hire’s quotation in writing within thirty (30) days.

4.2 Allways Hire reserves the right to change the Hire Charges in the event of a variation to Allways Hire’s quotation.

4.3 At Allways Hire’s sole discretion, a non-refundable deposit of up to fifty percent (50%) of the estimated total Hire Charges may be required prior to Delivery, and shall be treated as a part payment of, and deducted from, the Hire Charges.

4.4 Time for payment for the Equipment being of the essence, the Hire Charges will be payable by the Hirer on the date/s determined by Allways Hire, which may be:

(a) where Allways Hire has agreed in writing to supply the Equipment on account, twenty (20) days following the end of the month in which a statement is posted to the Hirer’s address or address for notices;

(b) the date specified on any invoice or other form as being the date for payment; or

(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Hirer by Allways Hire.

4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Hirer and Allways Hire.

4.6 Unless otherwise stated the Hire Charges do not include GST. In addition to the Hire Charges, the Hirer must pay to Allways Hire an amount equal to any GST Allways Hire must pay for any supply of Equipment on hired by Allways Hire under this contract or any other agreement. The Hirer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Hirer pays the Hire Charges. In addition the Hirer must pay any other taxes and duties that may be applicable in addition to the Hire Charges, except where they are expressly included in the Hire Charges.

4.7 Receipt by Allways Hire 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 Allways Hire’s rights and ownership in relation to the Equipment, and this contract, shall continue.

5. Hire Period

5.1 The duration for the hire of the Equipment (“Hire Period”) shall commence from the time the Equipment departs from Allways Hire’s premises (“Start Time”), and will continue until the return of the Equipment to Allways Hire’s premises (“Finish Time”), and/or until the expiry of the Minimum Hire Period, whichever last occurs.

5.2 No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless Allways Hire confirms special prior arrangements in writing. In the event of Equipment breakdown, or where it is found that the meter is not working, and provided the Hirer notifies Allways Hire immediately, Hire Charges will:

(a) not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Hirer; or

(b) be estimated by Allways Hire and, in the absence of manifest error, that estimate shall be final and binding upon the Hirer.

6. Delivery

6.1 Delivery of the Equipment (“Delivery”) is taken to occur at the time that:

(a) the Hirer (or the Hirer’s nominated carrier) takes possession of the Equipment at Allways Hire’s premises; or

(b) Allways Hire (or Allways Hire’s nominated carrier) delivers the Equipment to the Hirer’s nominated address, even if the Hirer is not present at the address.

6.2 At Allways Hire’s sole discretion the cost of Delivery is either included in, or in addition to, the Hire Charges.

6.3 The Hirer must take Delivery, by receipt or collection of the Equipment, whenever they are tendered for Delivery. In the event that the Hirer is unable to take Delivery, as arranged, then Allways Hire shall be entitled to charge a reasonable fee for redelivery.

6.4 Any time or date given by Allways Hire to the Hirer is an estimate only. The Hirer must still accept Delivery, even if late, and Allways Hire will not be liable for any loss or damage incurred by the Hirer as a result of Delivery being late.

7. Risk

7.1 Allways Hire retains property in the Equipment nonetheless; all risk for the Equipment passes to the Hirer on Delivery and the Hirer:

(a) accepts full responsibility for the safekeeping of the Equipment, and indemnifies Allways Hire for all damages, losses or liabilities which may arise in respect of the Equipment, its use or operation by the Hirer or by any other party; and

(b) will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment;

(c) accepts full responsibility for and shall keep Allways Hire 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 Hirer or any other persons.

8. Insurance

8.1 If this contract provides that Allways Hire is to provide insurance, the Hirer shall pay a premium of seven percent (7%) of the total Hire Charges (in addition to the Hire Charges) to be paid in accordance with clause 4.4. Such insurance is limited to the value of the Equipment only and covers accidental, unforeseen damage or theft, but excludes the risks as defined in clause 8.4. The Hirer shall remain liable for any loss or damage to the Equipment not covered by this insurance and for any excess payable for any claim in respect of the Equipment.

8.2 If the Hirer declines to accept the insurance under clause 8, the Hirer must, at its own cost, insure (and keep insured) the Equipment in the name of Allways Hire for such amount(s), and against such risks and contingencies, and on such terms, as shall from time to time be specified by Allways Hire. The Hirer must supply the details of such insurance policy to Allways Hire.

8.3 If any money is paid to the Hirer by the insurance company pursuant to a claim or otherwise in respect of the Equipment, the Hirer shall immediately pay such money to Allways Hire.

8.4 The insurance under clause 8 does not include the following excluded risks:

(a) damage due to misuse, abuse or negligence, loss by theft where the Hirer has failed to take proper precautions to protect and/or secure the Equipment; and

(b) consequential damage to personnel, property or third parties; and

(c) operation of the Equipment whilst under the influence of drugs or alcohol; and

(d) operation of the Equipment whilst in an unsafe or unroadworthy condition, where such condition has arisen during the Hire Period, and has caused, or contributed to, the damage or loss, and where the Hirer or the operator of the Equipment was aware, or should have been aware, of that condition; and

(e) the Equipment is operated by anyone not named or described in this contract as a person authorised to operate the Equipment; and

(f) in the case of a vehicle, is driven by an unlicensed person, or by a person without the appropriate licence for that use; and

(g) the Equipment is wilfully or recklessly damaged or lost by the Hirer, any authorised operator, or any person under the Hirer’s authority ot control; and

(h) in the case of a vehicle, the driver commits a traffic offence whilst driving the Equipment.

9. Title

9.1 Notwithstanding the possession and use of the Equipment by the Hirer, or any temporary attachment of the Equipment to any land or premises to facilitate the use of the Equipment, and subject only to the rights of the Hirer as a mere bailee of the Equipment with a right to use the Equipment in accordance with, and under, this contract, the Equipment is, and will at all times, remain the absolute property of Allways Hire.

9.2 If the Hirer fails to return the Equipment to Allways Hire, then Allways Hire, or Allways Hire’s agent, may (as the invitee of the Hirer) enter upon and into land and premises owned, occupied or used by the Hirer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.

9.3 The Hirer is not authorised to pledge Allways Hire’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

10. Personal Property Securities Act 1999 (“PPSA”)

10.1 Upon assenting to these terms and conditions in writing the Hirer acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Equipment previously supplied by Allways Hire to the Hirer (if any) and all Equipment that will be supplied in the future by Allways Hire to the Hirer.

10.2 The Hirer undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Allways Hire may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, Allways Hire 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;

(c) not register a financing change statement or a change demand without the prior written consent of Allways Hire.

10.3 Allways Hire and the Hirer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

10.4 The Hirer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

10.5 Unless otherwise agreed to in writing by Allways Hire, the Hirer waives its right to receive a verification statement in accordance with section 148 of the PPSA.

10.6 The Hirer shall unconditionally ratify any actions taken by Allways Hire under clauses 10.1 to 10.5.

11. Hirer’s Responsibilities

(a) satisfy itself, prior to taking Delivery, that the Equipment is in proper working order and condition, and fit for the intended purpose;

(b) notify Allways Hire immediately by telephone of the full circumstances of any mechanical breakdown or accident in connection with the Equipment. The Hirer is not absolved from the requirements to safeguard the Equipment by giving such notification;

(c) ensure that all persons operating the Equipment are suitably qualified and competent to use the Equipment, instructed in its safe and proper use, and holds a current and appropriate driver’s licence;

(d) comply with all laws relating to the Equipment and its operation, including any occupational health and safety laws and laws relating to towing and securing and tying loads;

(e) keep the Equipment in their own possession and control at all times;

(f) be responsible for all cleaning, lubrication, maintenance (including maintenance of tyres and tyre pressure levels) and adjustments of the Equipment, and ensuring the Equipment is returned clean and in the same condition as it was supplied at the Start Time;

(g) at the cost of the Hirer, supply all petrol, fuel, oil, lubricating oil, cleaning and other materials and labour required for the operation of the Equipment. The Hirer must use fuel and lubricating oils as advised by Allways Hire;

(h) 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, or in, the Equipment, or in any other manner interfere with the Equipment);

(i) not affix the Equipment (or any part thereof) in such a manner as to make it legally a fixture forming part of any freehold, unless the use of the Equipment requires such, and only then with the written consent of Allways Hire;

(j) not, without Allways Hire’s prior written consent:

(i) agree, attempt, offer, or purport to sell, assign, sublet, lend, pledge, mortgage, bail, let on hire or otherwise part with, or attempt to part with, personal possession of the Equipment, or otherwise deal with the Equipment;

(ii) suffer any encumbrance, charge or lien of any kind to arise or remain on the Equipment, or any part of the Equipment;

(k) grant Allways Hire the right, at all reasonable times, to inspect the Equipment at the Hirer’s premises, upon Allways Hire giving the Hirer reasonable notice and without unduly interfering with the Hirer’s operations;

(l) 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 excepted, to Allways Hire; and

(m) be liable for loss or damage from excluding risks as per clause 8.4.

11.2 Immediately on request by Allways Hire the Hirer will pay:

(a) the new list price of any Equipment that is for whatever reason destroyed, written off, or not returned to Allways Hire;

(b) all costs incurred in cleaning the Equipment;

(c) all costs of repairing any damage caused by:

(i) the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;

(ii) the negligence of the Hirer or the Hirer’s agent;

(iii) vandalism, or (in Allways Hire’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Hirer;

(d) for the repair or replacement of any damaged or punctured tyres;

(e) all traffic infringement notices (i.e. tickets, etc.) that are incurred whilst the Equipment is hired by the Hirer;

(f) any lost hire fees Allways Hire would have otherwise been entitled to for the Equipment, under this, or any other hire contract;

(g) the cost of fuels and consumables provided by Allways Hire and used by the Hirer.

12. Defects

12.1 The Hirer shall inspect the Equipment on Delivery and shall within forty eight (48) hours notify Allways Hire of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation. The Hirer shall afford Allways Hire an opportunity to inspect the Equipment within a reasonable time following such notification if the Hirer believes the Equipment is defective in any way. If the Hirer shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which Allways Hire has agreed in writing that the Hirer is entitled to reject, Allways Hire’s liability is limited to replacing the Equipment.

13. Default and Consequences of Default

13.1 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 Allways Hire’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

13.2 If the Hirer owes Allways Hire any money, the Hirer shall indemnify Allways Hire from and against all costs and disbursements incurred by Allways Hire in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Allways Hire’s collection agency costs, and bank dishonour fees).

13.3 Without prejudice to any other remedies Allways Hire may have, if at any time the Hirer is in breach of any obligation (including those relating to payment) under these terms and conditions Allways Hire may suspend or terminate the supply of Equipment to the Hirer, and/or repossess the Equipment as per clause 9.2. Allways Hire will not be liable to the Hirer for any loss or damage the Hirer suffers because Allways Hire has exercised its rights under this clause.

13.4 Without prejudice to Allways Hire’s other remedies at law Allways Hire shall be entitled to cancel all or any part of any order of the Hirer which remains unfulfilled and all amounts owing to Allways Hire shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Allways Hire becomes overdue, or in Allways Hire’s opinion the Hirer will be unable to make a payment when it falls due;

(b) the Hirer 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

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Hirer or any asset of the Hirer.

14. Cancellation

14.1 Allways Hire may cancel these terms and conditions, or cancel Delivery at any time before the Equipment is delivered, by giving written notice to the Hirer. On giving such notice, Allways Hire shall repay to the Hirer any sums paid in respect of the Hire Charges. Allways Hire shall not be liable for any loss or damage whatever arising from such cancellation.

14.2 In the event that the Hirer wishes to cancel this contract, then the Hirer shall be liable for any loss incurred by Allways Hire (including, but not limited to, any loss of profits) up to the time of cancellation, or as a direct result of the cancellation.

15. Privacy Act 1993

15.1 The Hirer authorises Allways Hire or Allways Hire’s agent to:

(a) access, collect, retain and use any information about the Hirer;

(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Hirer’s creditworthiness; or

(ii) for the purpose of marketing products and services to the Hirer.

(b) disclose information about the Hirer, whether collected by Allways Hire from the Hirer directly or obtained by Allways Hire 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 Hirer.

15.2 Where the Hirer is an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.

15.3 The Hirer shall have the right to request Allways Hire for a copy of the information about the Hirer retained by Allways Hire and the right to request Allways Hire to correct any incorrect information about the Hirer held by Allways Hire.

16. General

16.1 No provision, other than those which are mandatory, shall be implied by statute or at common law or otherwise into this contract against Allways Hire. No representation, condition or warranty (express or implied) shall be binding upon the Hirer unless it is in writing and executed by Allways Hire.

16.2 The failure by Allways Hire to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Allways Hire’s right to subsequently enforce that provision. 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.

16.3 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 courts of the Hawkes Bay District, New Zealand.

16.4 Under no circumstances is Allways Hire liable for any claim, action, demand, suit, loss, legal fee or other cost or expense of any kind whether (directly or indirectly) arising out of a breach by Allways Hire of these terms and conditions, or from the use or inability to use the Equipment, whether arising under law, contract, negligence or other tort. Such loss will include, but not be limited to, any loss of income, any loss of goodwill or reputation and any fine, penalty, cost or loss incurred by the Hirer connected in any way with transportation of the Equipment. If Allways Hire is ever liable to the Hirer, or any other person, then the liability of Allways Hire is in all cases limited to a refund of the Hire Charges.

16.5 If the Hirer is acquiring Equipment for the purposes of a trade or business, the Hirer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Equipment by Allways Hire to the Hirer.

16.6 The Hirer hereby disclaims any right to rescind, or cancel any contract with Allways Hire, or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Hirer by Allways Hire, and the Hirer acknowledges that the Equipment is hired relying solely upon the Hirer’s skill and judgment.

16.7 The Hirer shall not be entitled to set off against, or deduct from the Hire Charges, any sums owed or claimed to be owed to the Hirer by Allways Hire, nor to withhold payment of any invoice because part of that invoice is in dispute.

16.8 Allways Hire may license or sub-contract all or any part of its rights and obligations without the Hirer’s consent.

16.9 The Hirer agrees that Allways Hire may amend these terms and conditions at any time. If Allways Hire makes a change to these terms and conditions, then that change will take effect from the date on which Allways Hire notifies the Hirer of such change. The Hirer will be taken to have accepted such changes if the Hirer makes a further request for Allways Hire to supply Equipment to the Hirer.

16.10 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

16.11 The Hirer warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.