“AFTH” means Auckland Forklifts Limited T/A Auckland Fork Truck Hire, its successors and assigns or any person acting on behalf of and with the authority of Auckland Forklifts Limited T/A Auckland Fork Truck Hire.
“Client” means the person/s buying the Goods (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Services supplied by AFTH to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Equipment” means all Equipment including any accessories supplied on hire by AFTH to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by AFTH to the Client.
“Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by AFTH to the Client.
“Price” means the Price payable for the Goods/Equipment hire as agreed between AFTH and the Client in accordance with clause 5 below.
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods/Equipment.
These terms and conditions may only be amended with AFTH’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and AFTH.
In the event that AFTH is required to provide Services urgently, that may require AFTH’s staff to work outside normal business hours 5pm-8am (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then AFTH reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between AFTH and the Client.
Call Out Fee
The Client shall notify AFTH of any request to change the time or dates of the Services no later than 3pm on the day before the Services are due to take place. AFTH reserves the right to charge a Call-Out Fee if the Client fails to notify AFTH by the prescribed time.
Call-Out Fee shall mean all costs (including, but not limited to, hourly rates) incurred by AFTH due to:
AFTH not being able to access the site at the prescribed time; or
the Client failing to notify AFTH before 3pm on the day before the Services of a request to change the time or date of the Services.
The Client accepts and acknowledges that a minimum call out fee of two hours, charged at AFTH’s overtime rates, will apply under all circumstances.
Change in Control
The Client shall give AFTH 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, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by AFTH as a result of the Client’s failure to comply with this clause.
Price and Payment
At AFTH’s sole discretion the Price shall be either:
as indicated on any invoice provided by AFTH to the Client; or
AFTH’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
AFTH reserves the right to change the Price if a variation to AFTH’s quotation.. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to unforeseen circumstances such as limitations to accessing the site, availability of machinery, safety considerations, or as a result of any increase to AFTH’s in the cost of materials and labour) will be charged for on the basis of AFTH’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
At AFTH’s sole discretion a non-refundable deposit may be required.
Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by AFTH, which may be:
on delivery of the Goods/Equipment;
before delivery of the Goods/Equipment;
by way of installments/progress payments in accordance with AFTH’s payment schedule;
for certain approved Client’s, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by AFTH.
Payment may be made by cash, cheque, bank cheque, electronic/online banking, or by any other method as agreed to between the Client and AFTH.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to AFTH an amount equal to any GST AFTH must pay for any supply by AFTH under this or any other agreement for the sale of the Goods/hire of the Equipment. 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 Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods/Equipment
Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that AFTH (or AFTH’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
At AFTH’s sole discretion the cost of delivery is in addition to the Price.
AFTH may deliver the Goods/Equipment in separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
Any time or date given by AFTH to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and AFTH will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
Risk to Goods
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, AFTH is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AFTH is sufficient evidence of AFTH’s rights to receive the insurance proceeds without the need for any person dealing with AFTH to make further enquiries.
Title to Goods
AFTH and the Client agree that ownership of the Goods shall not pass until:
the Client has paid AFTH all amounts owing to AFTH; and
the Client has met all of its other obligations to AFTH.
Receipt by AFTH 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.
It is further agreed that:
until ownership of the Goods passes to the Client in accordance with clause 8.1 that the Client is only a bailee of the Goods and must return the Goods to AFTH on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for AFTH and must pay to AFTH the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for AFTH and must pay or deliver the proceeds to AFTH on demand.
the Client should not convert or process the Goods 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 AFTH and must sell, dispose of or return the resulting product to AFTH as it so directs.
the Client irrevocably authorises AFTH to enter any premises where AFTH believes the Goods are kept and recover possession of the Goods.
AFTH may recover possession of any Goods in transit whether or not delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AFTH.
AFTH may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 1999 (“PPSA”)
To the extent that these Terms and Conditions of Hire do not exceed a twelve (12) month contract term, the Client acknowledges that nothing in this agreement creates or provides for a security interest.
To the extent that these Terms and Conditions of Hire do exceed a twelve (12) month contract term, this agreement is the security agreement for the purposes of PPSA generally and in particular Section 36.
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Goods/Equipment previously supplied by AFTH to the Client (if any) and all Goods/Equipment that will be supplied in the future by AFTH to the Client.
The Client undertakes to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AFTH may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
indemnify, and upon demand reimburse, AFTH for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods/Equipment charged thereby;
not register a financing change statement or a change demand without the prior written consent of AFTH; and
immediately advise AFTH of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
AFTH and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by AFTH, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Client shall unconditionally ratify any actions taken by AFTH under clauses 9.3 to 9.7.
Security and Charge
In consideration of AFTH agreeing to supply the Goods/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).
The Client indemnifies AFTH from and against all AFTH’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AFTH’s rights under this clause.
The Client irrevocably appoints AFTH and each director of AFTH as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
The Client hereby disclaims any right to rescind, or cancel any contract with AFTH or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by AFTH and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment
Consumer Guarantees Act 1993
This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Hirer is contracting within the terms of a trade/business (which cases are specifically excluded).
The Client shall inspect the Goods/Equipment on delivery and shall within five (5) working days of delivery (time being of the essence) notify AFTH of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford AFTH an opportunity to inspect the Goods/Equipment within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods/Equipment shall be presumed to be free from any defect or damage. For defective Goods/Equipment, which AFTH has agreed in writing that the Client is entitled to reject, AFTH’s liability is limited to either (at AFTH’s discretion) replacing the Goods/Equipment or repairing the Goods/Equipment.
Goods/Equipment will not be accepted for return for any reason other than those specified in clause 13.1 above (or in the case of Equipment hire, normal termination of Equipment hire in accordance with the full terms and conditions herein).
Returns Of Goods
Returns of Goods will only be accepted provided that:
the Client has complied with the provisions of clause 13.1; and
AFTH has agreed in writing to accept the return of the Goods; and
the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
AFTH will not be liable for Goods which have not been stored or used in a proper manner; and
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.
AFTH will not accept the return of Goods for credit.
For Goods not manufactured by AFTH, the warranty shall be the current warranty provided by the manufacturer of the Goods. AFTH 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.
To the extent permitted by statute, no warranty is given by AFTH as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. AFTH shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
Default and Consequences of Default
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 AFTH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes AFTH any money the Client shall indemnify AFTH from and against all costs and disbursements incurred by AFTH in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AFTH’s collection agency costs, and bank dishonour fees).
Without prejudice to any other remedies AFTH may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions AFTH may suspend or terminate the supply of Goods/Equipment to the Client. AFTH will not be liable to the Client for any loss or damage the Client suffers because AFTH has exercised its rights under this clause.
Without prejudice to AFTH’s other remedies at law AFTH shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to AFTH shall, whether or not due for payment, become immediately payable if:
any money payable to AFTH becomes overdue, or in AFTH’s opinion the Client will be unable to make a payment when it falls due;
the Client becomes insolvent, 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client
AFTH may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are delivered by giving written notice to the Client. On giving such notice AFTH shall repay to the Client any money paid by the Client for the Goods/Equipment. AFTH shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of Goods/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by AFTH as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1993
The Client authorises AFTH or AFTH’s agent to:
access, collect, retain and use any information about the Client;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
for the purpose of marketing products and services to the Client.
disclose information about the Client, whether collected by AFTH from the Client directly or obtained by AFTH 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.
Where the Client is an individual the authorities under clause 18.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Client shall have the right to request AFTH for a copy of the information about the Client retained by AFTH and the right to request AFTH to correct any incorrect information about the Client held by AFTH.
Unpaid Seller’s Rights
Where the Client has left any item with AFTH for repair, modification, exchange or for AFTH to perform any other service in relation to the item and AFTH has not received or been tendered the whole of any moneys owing to it by the Client, AFTH shall have, until all moneys owing to AFTH are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of AFTH shall continue despite the commencement of proceedings or judgment for any moneys owing to AFTH having been obtained against the Client.
The failure by AFTH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AFTH’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.
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 Auckland Courts of New Zealand.
AFTH 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 AFTH of these terms and conditions (alternatively AFTH’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Equipment hire).
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by AFTH nor to withhold payment of any invoice because part of that invoice is in dispute.
AFTH may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that AFTH may amend these terms and conditions at any time. If AFTH makes a change to these terms and conditions, then that change will take effect from the date on which AFTH notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for AFTH to provide Goods/Equipment to the Client.
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.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
For Equipment in which a timing device is installed the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession.
Where the Equipment does not have a timing device installed hire charges shall commence from the time the Equipment is collected by the Client from AFTH’s premises and will continue until the return of the Equipment to AFTH’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
If AFTH agrees with the Client to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves AFTH’s premises and continue until the Client notifies AFTH that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs. The required return times are no later than 5.30 p.m. week days, or by arrangement weekends or Public Holidays, or such earlier time as the hire period may terminate. In the event insufficient notice is given the Client may at AFTH’s discretion be charged an extra five (5) hours of hire.
If there are any delays due to free access not being available then the Client shall be responsible and shall reimburse the Client for all lost hire fees associated with the Equipment being unavailable. The Client shall also be responsible for all other expenses and costs incurred by AFTH due to delays in access to the Equipment
The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless AFTH confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Client notifies AFTH immediately, hiring charges will 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 Client.
Risk to Equipment
AFTH retains property in the Equipment nonetheless all risk for the Equipment passes to the Client on delivery.
The Client accepts full responsibility for the safekeeping of the Equipment and indemnifies AFTH 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.
The Client will insure, or self insure, AFTH’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 effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. 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.
The Client accepts full responsibility for and shall keep AFTH indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Client or any other persons.
Title to Equipment
The Equipment is and will at all times remain the absolute property of AFTH.
If the Client fails to return the Equipment to AFTH then AFTH or AFTH’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, without being responsible for any damage thereby caused.
The Client is not authorised to pledge AFTH’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
The Client shall:
notify AFTH immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
satisfy itself at commencement that the Equipment is suitable for its purposes;
operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by AFTH or posted on the Equipment;
ensure that all persons operating or erecting the Equipment are competent and qualified to do so instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to AFTH upon request;
comply with all occupational health and safety laws relating to the Equipment and its operation;
on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to AFTH;
keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
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;
employ the Equipment solely in its own work and shall not permit the Equipment of any part thereof to be used by any other party for any other work;
not exceed the recommended or legal load and capacity limits of the Equipment;
not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
indemnify and hold harmless AFTH in respect of all claims arising out of the Client’s use of the Equipment.
Immediately on request by AFTH the Client will pay:
the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to AFTH;
all costs incurred in cleaning the Equipment;
all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
the cost of repairing any damage to the Equipment caused by the negligence of the Client or the Client’s agent;
the cost of repairing any damage to the Equipment caused by vandalism, or (in AFTH’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
any lost hire fees AFTH would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
the cost of fuels and consumables provided by AFTH and used by the Client.
In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of AFTH and operates the Equipment in accordance with the Client’s instructions. As such AFTH shall not be liable for any actions of the operator in following the Client’s instructions.