Diack Bros Ltd Hire Terms and Conditions of Trade

1. Definitions

1.1 “Owner” will mean Diack Bros Limited, or any agents, employees, successors or assignees thereof.

1.2 “Hirer” will mean the entity or person named on any form provided by the Owner to the Hirer (or any person

acting on behalf of and with the authority of such entity or person) who hires or agrees to hire Equipment. If

the Hirer includes two or more persons, those persons liability is joint and several.

1.3 “Equipment” and/or “Hire Equipment” will mean all Hire Equipment supplied on hire by the Owner to the

Hirer (and where the context so permits shall include any supply of Services as herein after defined).

1.4 “Quotation” will mean all and any quotes and/or prices referred to in the Quotation or Authority to Hire Forms.

1.5 “Dry Hire Equipment” will mean Equipment supplied by the Owner to be operated directly by the Hirer.

1.6 “Services” will mean all services supplied by the Owner to the Hirer and includes any advice or

recommendations.

1.7 “PPSA” will mean the Personal Properties Securities Act 1999.

1.8 “PPSR” will mean the Personal Properties Security Register.

1.9 “Price” will mean the cost to hire any Equipment as agreed to with the Owner and the Hirer subject to clause

4 of this contract.

 

2. General

2.1 Headings are inserted for convenience and will not affect the format of this contract. The singular includes

the plural and vice versa. Persons include incorporated and unincorporated entities. Words referring to one

gender include the other.

2.2 If any provision of this contract shall be invalid or unenforceable the validity, legality and enforceability of the

remaining provisions shall not be affected, prejudiced, or impaired in any way.

2.3 These Terms and Conditions and any contract to which they apply shall be governed by the laws and

statutes of New Zealand and subject to the jurisdiction of the court geographically closest to the physical

address of the Owner.

2.4 The Owner will be under no liability to the Hirer for any indirect loss and expense suffered by the Hirer

arising out of breach by the Owner of these Terms and Conditions.

2.5 In the event of any breach of this contract by the Owner the remedies of the Hirer shall be limited to the

Price of the Equipment Hire as damages.

2.6 The Hirer is not entitled to set off against or deduct from the Price any sums owed or claimed to be owed to

the Hirer by the Owner.

2.7 The Owner can license or sub-contract all or any part of its rights and obligations without requiring the

Hirer’s consent.

2.8 The Owner reserves the right to review these Terms and Conditions at any time. If there is to be any change

to these Terms and Conditions, that change will take effect from the date on which the Owner notifies the

Hirer of any such change.

2.9 The Owner’s failure or delay in exercising or enforcing any right it has under this contract shall not operate

as a waiver of the Owner’s rights to exercise or enforce such rights or any other rights in the future.

2.10 The Hirer shall notify the Owner of any intention to cease trading and/or of any change in the Hirer’s name

and/or contact details by giving at least seven (7) days notice in writing prior to any such events taking effect.

 

3. Acceptance

3.1 Any instructions, written or verbal, received by the Owner from the Hirer for the hiring of Hire Equipment

and/or the Hirer’s acceptance of Hire Equipment supplied for hire by the Owner will be deemed acceptance

of these Terms and Conditions. Written instructions will refer to the Terms and Conditions disclosed on the

Credit Application, Quotation, and Authority to Hire forms, plus any other disclosure forms supplied by the

Owner to the Hirer.

3.2 The Owner will only supply Hire Equipment /Services on these Terms and Conditions unless agreed

otherwise in writing.

3.3 These terms and conditions along with invoices, credit application, quotations, or any other documents

issued by the Owner together form the contract and are the full agreement between the parties.

3.4 Where more than one Hirer has entered into agreement, the Hirers shall be jointly and severally liable for all

payments of the Equipment Hire Price.

 

4. Authority to Hire (Quotation)

4.1 Where a quotation is given for the Price then:

a) the quotation shall only be binding upon the Owner for thirty (30) days from the date of issue; and

b) where Equipment and/or Services is required in addition to the quotation then the Hirer agrees to pay

the additional Price of Equipment and/or Services; and

c) the Owner reserves the right to amend the quotation in the event of circumstances beyond the Owner’s

control.

 

5. Price and Payment

5.1 At the Owner’s sole discretion the Price will be either;

a) as shown on invoices provided by the Owner to the Hirer for payment of Equipment supplied; or

b) the Owner’s quoted Price (subject to clause 4.1) which shall be binding upon the Owner provided that

the Hirer accepts the Owners quotation in writing within thirty (30) days.

5.2 The Owner reserves the right to change the Price following a variation to the Owner’s quotation.

5.3 A deposit will be required if the Owner requests one.

5.4 Time for payment for the Equipment Hire will be of the essence and stated on the invoice or any other forms.

The due date will be noted on the Seller’s invoice.

5.5 At the Owner’s sole discretion:

a) payment will be due upon delivery of the Equipment; or

b) payment will be due before the delivery of the Equipment; or

c) payment will be seven (7) or fourteen (14) days after an Invoice is issued for the Price; or

d) payment will be on the 20th of the month following the date on which an Invoice is issued for the Price;

or

e) payment for approved Hirer’s will be made by instalments as set out in the Owner’s payment schedule.

5.6 Payment will be made by cash, cheque, bank cheque, or direct credit.

5.7 GST, any other taxes and duties which may be applicable will be added to the Price except unless expressly

included in the Price.

 

6. Default

6.1 Without prejudice to any other rights or remedies that the Owner may have against the Hirer, the Hirer

agrees

that in the event of default in payment by the Hirer, the Hirer agrees to pay on request:

a) all costs (including, and not limited to, debt collection agency fees, commission, legal fees and any

other costs on a solicitor and own client basis) incurred by the Owner in recovering any payments due

by the Hirer to the Owner; and

b) interest on the amount outstanding at the end of each month in which the Hirer’s account is in arrears at

the rate of two percent (2%) per month (compounding) with such a rate after, as well as before, any

judgement; and

c) a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of

each month in which the Hirer’s account is in default.

6.2 The Owner may at the Owner’s sole discretion stop further performance of this contract, require payment in

cash before further performance of this contract, or terminate this contract without notice to the Hirer upon

the happening of any of the following events:

a) the Hirer makes default in payment due under this contract or in payment of any monies due by the

Hirer to the Owner on any account whatsoever; or

b) the Hirer is insolvent or takes any proceedings to reschedule any indebtedness; or

c) in the Owner’s opinion the Hirer is unable to pay indebtedness as it falls due; or

d) a receiver or manager is appointed to any property of the Hirer.

 

7. Cancellation

7.1 The Owner may cancel this contract at any time by giving written notice. The Owner will not be liable for any

loss or damage whatever due to such cancellation. The Owner shall refund any Deposits paid if he cancels

the agreement.

7.2 The Hirer may cancel delivery of Equipment and/or Services within five (5) working days of the date of this

agreement subject to the payment of a cancellation fee of 25% of the Price of the Equipment hire and/or

Services.

 

8. Privacy Act 1993

8.1 The Hirer acknowledges that personal information collected or held by the Owner is provided and may be

held, used and disclosed for the following purposes:

a) administering, whether directly or indirectly, the Owner's contracts and enforcing the Owner's right

there-under; and

b) marketing Services provided by the Owner; and

c) ascertaining at any time the Hirer's creditworthiness and obtaining at any time credit reports, character

references or credit statements; and

d) enabling the Owner to notify any credit agency of any application for credit or default on any obligation

of the Hirer to the Owner and enabling the Owner to provide such personal information to any credit

agency so such credit agency can maintain correct accounting records; and

e) enabling the Owner to communicate with the Hirer for any purpose.

8.2 Where the Hirer and/or Guarantors are an individual the authorities under clause 8.1 are authorities or

consents for the purposes of the Privacy Act 1993.

8.3 The Hirer has the right under the Privacy Act 1993 to obtain access to and to request correction of any

personal information concerning them held by the Owner.

 

9. Delivery of Dry Hire Equipment

9.1 The Delivery of the Equipment shall be deemed to be completed when:

a) the Owner gives possession of the Equipment directly to the Hirer; or

b) possession of the Equipment is given to the carrier, courier or other Bailee for the purpose of

transmission to the Hirer.

9.2 Where delivery of the Equipment is made at the Hirer’s address unloading is at the Hirer’s risk. Where

delivery of the Equipment is made at the Owner’s address loading is at the Hirer’s risk.

9.3 The costs of delivery shall be in addition to the Price.

9.4 Where the Hirer does not take delivery of the Equipment by the delivery date specified, the Hirer will

either:

a) pay a re-delivery fee; or

b) nominate a third (3rd) party to accept delivery on behalf of the Hirer.

9.5 The time agreed for delivery shall be an essential term of this agreement.

 

10. Hirer’s Disclaimer

10.1 The Hirer disclaims all rights to rescind, or cancel the Hire Contract, to sue for any damages or claim

restitution arising from any misrepresentation made to the Hirer by the Owner. The Hirer acknowledges

that any Dry Hire Equipment is operated by the Hirer relying solely upon the Hirer’s ability and judgment.

 

11. Hirer’s Responsibility for Dry Hire Equipment

11.1 The Hirer will:

a) advise the Owner immediately by telephone of all circumstances of any mechanical breakdown or

accident associated with the Equipment. The Hirer is not discharged from his responsibilities to

safeguard the Equipment by giving such notification; and

b) satisfy itself prior to taking delivery of the Equipment that the Equipment is suitable for its purposes; and

c) operate the Hire Equipment safely, only in accordance with the law, for its intended use, and with any

manufacturer’s instruction, whether issued by the Owner or fixed on the Hire Equipment; and

d) ensure that any persons operating the Hire Equipment are fully instructed in its safe and designated use,

and if necessary, hold a current certificate of competency and/or be fully licensed to operate the

equipment; and

e) comply with all occupational health and safety laws relating to the Equipment and its operation; and

f) ensure the Equipment is kept in the Hirer’s control and possession; and

g) not change the Equipment including without limitation altering, make any additions to, remove any

identifying mark, plate or number on or in the Hire Equipment or in any other way interfere with the

Equipments identity; and

h) use the Hire Equipment only in its own work and not permit the Hire Equipment to be used by any other

party; and

i) not attach any of the Hire Equipment in such a way to make it legally a fixture or part of any freehold; and

j) on completion of the hire, return the Hire Equipment and all parts and accessories, clean and in the same

condition as delivered, fair wear and tear is accepted, by the Owner.

11.2 Upon request by the Owner the Hirer will pay:

a) the current list price of any Equipment that is wrecked, written off, or not delivered back to Owner; and/or

b) all costs incurred in cleaning the Equipment; and/or

c) all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to

10% of the new list price of the Equipment; and/or

d) costs of repairing any damage to the Hire Equipment due to negligence by the Hirer or Hirer’s agent; and/or

e) costs of repairing any damage to the Hire Equipment caused by vandalism, or in any way other than in

ordinary use of the Equipment by the Hirer; and/or

f) the cost of fuels, plus consumables provided by the Owner and used by the Hirer whilst hiring the Equipment.

 

12. Warranty

12.1 No warranty is implied or given by the Owner for the quality or suitability of any Dry Hire Equipment for any

purpose. The Owner will not be responsible for any loss or damage to the Hire Equipment, or caused by the Hire

Equipment or any part thereof however any loss or damage may arise.

 

13. Contractual Remedies Act 1979

13.1 The provisions of the Contractual Remedies Act 1979 will apply to this contract as if section 15(d) of the Act

which states that nothing in the Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual

Remedies Act 1979.

 

14. Consumer Guarantees Act 1993

14.1 This contract is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the

Hirer is contracting within the Terms and Conditions of a Trade/Business (which cases are specifically excluded).

 

15. Risk

15.1 The Owner retains Title in the Hire Equipment, however all risk for the Dry Hire Equipment shall pass from the

Owner to the Hirer upon delivery of the Dry Hire Equipment.

15.2 The Hirer accepts complete responsibility for the safeguarding of the Dry Hire Equipment and indemnifies the

Owner for any loss, theft or damage to the Dry Hire Equipment.

15.3 The Hirer will keep the Dry Hire Equipment fully insured against fire, accident, theft and any risk the Owner may

necessitate, in the names of the Owner and the Hirer, and provide payments of insurance policy proceeds to the

Owner until such a time as payment is made in full and the Dry Hire Equipment is returned to the Owner.

15.4 The Owner reserves their right to claim the insurance proceeds direct from the Hirer’s insurance company.

 

16. Title

16.1 Title will not pass to the Hirer, but will remain with the Owner at all times.

16.2 If the Hirer fails to return the Dry Hire Equipment to the Owner then the Owner or the Owner’s agent may enter

upon and into land and premises owned, occupied or used by the Hirer, or any premises where the Dry Hire

Equipment is situated as invited by the Hirer and take possession of the Equipment, without being responsible

for any damages that may be caused.

16.3 The Hirer has no authority to authorise any repairs to the Dry Hire Equipment on behalf of the Owner, and/or to

allow any lien to be created over the Owner’s Dry Hire Equipment.

 

17. PPSA

17.1 The Hirer acknowledges that this contract creates a security interest in all Dry Hire Equipment supplied by the

Owner to the Hirer and all Dry Hire Equipment that will be supplied in the future by the Owner to the Hirer.

17.2 The Hirer will:

a) sign any further documents and provide any further information which should be complete, accurate and upto-

date in all respects which the Owner may request in order to register a financing statement or financing

change statement on the Personal Properties Security Register;

b) indemnify, and upon request reimburse, the Owner for any expenses incurred to register a financing

statement or financing change statement on the Personal Properties Register or releasing any Equipment

charged on the PPSR;

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

17.3 The Owner and the Hirer agree that nothing in sections 114(1) (a), 120(1), 122, 133 and 134 of the PPSA shall

apply to these terms and conditions.

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

17.5 Unless otherwise agreed to in writing by the Owner, the Hirer waives its right to receive a verification statement

in accordance with section 148 of the PPSA.

17.6 The Hirer shall unconditionally consent to any actions taken by the Owner under clauses 17.1 to 17.5.

 

18. Limitation of Liabilities

18.1 The Owner shall not be liable to the Hirer, or to any other person, for any loss or damage either:

a) caused by any delay in delivery however that delay is caused; or

b) arising directly or indirectly from the Equipment or the use of the Equipment.

18.2 The Owner shall not be liable for any consequential, indirect or special damages or loss of any kind suffered by

the Hirer or any other person caused by any breach by the Owner of any of the Owner’s obligations under this

contract.

18.3 If the Owner is ever liable to the Hirer, or any other person, and the Owner cannot rely on the exclusions or

representations, warranties, or liabilities set out in these terms and conditions then the Owner’s liability is in all

cases limited to the Price of the Equipment Hire.

 

19. Compliance with Laws and Acts

19.1 The Hirer and the Owner 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. If and where applicable, this shall

include and not be limited to, Sale of Goods Act 1908, Fair Trading Act 1986 and Consumer Guarantees Act

1993.

19.2 The Hirer shall obtain (at the expense of the Hirer) any licenses and approvals that may be required for the

Equipment.

19.3 The Hirer agrees that the site will comply with any occupational health and safety laws relating to

building/construction sites and any other relevant safety standards or legislation.

 

20. Caveat & Mortgage

20.1 The Hirer and/or any Guarantor of the Hirer agree that the Owner shall have the rights to complete and register a

mortgage over any property owned by the Hirer and/or Guarantor of the Hirer to secure any amount outstanding

and that the Owner shall have the right at its discretion to place a caveat on any such property for the purpose of

this clause and the Hirer and/or Guarantor hereby irrevocably appoint the Owner as the attorney of the Hirer

and/or the Guarantor for the purpose of the Owner exercising its rights under this clause whilst any amount

remains in default.

20.2 If the Owner decides to pursue this clause the Hirer and/or Guarantor will both indemnify the Owner from and

against any and all of the Owner’s costs and disbursements including legal costs on a solicitor and own client

basis.

 

21. Force Majeure

21.1 Not withstanding anything in the contract, if the Owner shall fail to perform any obligation hereby imposed upon it,

and such failure shall be caused by Acts of God, Strikes, Earthquakes, Floods, or any act of omission

occasioned by any cause beyond the control of the party invoking the clause, then the Owner shall be exempt

from all liability to the extent due to or arising from such failure.

 

22. Disputes

22.1 Any and all disputes arising between the parties under this contract will be referred to a single arbitrator to be

mutually agreed upon by the parties (or failing such agreement as appointed by the Arbitrators Institute of New

Zealand Council). Any determination of such arbitrator shall be final and binding on the parties and not subject to

review.

 

23. Workers Lien

23.1 Where the Owner has not received or been tendered the whole of the Price, or payment has been

dishonoured, the Owner shall have:

a) a lien on the Hirer’s goods in transit; and/or

b) the right to retain the Hirer’s goods for the Price while the Owner is in possession of them; and/or

c) a right to stop the Hirer’s goods in transit whether or not delivery has been made or ownership

passed; and/or

d) a right to resale; and/or

e) the foregoing right to disposal, provided that the lien of the Owner shall continue despite the commencement

of proceedings or judgement for the Price having been obtained.

 

24. Underground Locations and Site Access

24.1 Whilst the Owner will take all care to avoid damage to any underground services the Hirer agrees to;

a) undertake a search of any relevant records to determine the existence and position of pipes, cables

and other utilities on or about the work site; and

b) physically locate the position of all such utilities and advise the Owner of all such locations; and

c) shall arrange with the controlling authorities for all necessary exploration work, location, protection,

isolation, offsetting, reinstatement or alteration required; and

d) indemnify the Owner in respect of all and any liability claims, loss, damage, costs and fines as a result

of damage to underground services not precisely located and notified to the Owner by the Hirer.

24.2 The Owner shall not be liable for any loss or damage caused in accessing the work site beyond reasonable

control of the Owner (including, without limitation, damage to pathways, driveways and concreted or paved or

grassed areas).

 

25. Construction Contracts Act 2002

25.1 In the event that the Hirer is a residential occupier as defined by the Construction Contracts Act 2002 the Hirer

hereby expressly acknowledges that:

a) The Owner 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 Hirer, and the payment is not paid in full by the due date for payment and

no payment schedule has been given by the Hirer, or a scheduled amount stated in a payment schedule

issued by the Hirer in relation to the payment claim is not paid in full by the due date for its payment, or the

Hirer has not complied with an adjudicator’s notice that the Hirer must pay an amount to the Owner by a

particular date, and the Owner has given written notice to the Hirer of its intention to suspend the carrying

out of construction work under the construction contract.

b) If the Owner suspends work, it is not in breach of contract; and is not liable for any loss or damage

whatsoever suffered, or alleged to be suffered, by the Hirer or by any person claiming through the Hirer; and

is entitled to an extension of time to complete the contract; and 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.

c) If the Owner exercises the right to suspend work, the exercise of that right does not affect any rights that

would otherwise have been available to the Owner under the Contractual Remedies Act 1979; or enable the

Hirer to exercise any rights that may otherwise have been available to the Hirer under that Act as a direct

consequence of the Owner suspending work under this provision.