Terms of Sale (You spending with Camelspace)
PURPOSE AND APPLICATION
1.) The purpose of these Conditions is to record the terms and conditions under which the Supplier will Hire Equipment and/or supply Services to the Client, and these Conditions shall apply to all Hires made by the Supplier to the Client from time to time, to the exclusion of all and any other terms put by or on behalf of the Client as part of an order.
DEFINITIONS AND INTERPRETATION
2.) In these Conditions:
"Client" means any person or entity who Hires Equipment from or is supplied Services by the Supplier and where applicable includes the employees, contractors, agents and subcontractors engaged by the Client to Hire Equipment from the Supplier.
"Depot" means the Supplier’s premises in Saleyards Road, Otahuhu, Auckland OR Layher’s premises in Seaview, Wellington.
"Equipment" means the scaffolding and other equipment the Supplier supplies to the Client.
"Hire" means all current and future Hires of equipment from the Supplier to the Client and "Hires" shall have corresponding meaning.
"Invoices" means all invoices prepared by or on behalf of the Supplier which are issued to the Client from time to time.
"Layher" means either the German scaffold and event equipment manufacturer (trading in New Zealand as Layher Limited, or any of its worldwide parent, subsidiaries or related entities).
"PPSA" means the Personal Property Securities Act 1999.
"Sales" means all current and future sales of Equipment from the Supplier to the Client.
"Services" means the scaffold and event Equipment Hire services provided by Camelspace Stair & Scaf Limited or any related or unrelated professional services provided by same; including scaffold or event equipment erection and/or dismantling labor and transportation thereof.
"Supplier" means Camelspace Stair & Scaf Limited or any related, owned, part owned or designated entity or any other party subcontracted by Camelspace Stair & Scaf Limited.
3.) In these Conditions:
Clause headings are for reference only and do not affect interpretation;
A reference to the Supplier includes its successors or permitted assigns;
If the Client comprises more than one person, each person's liability will be joint and several; and
References to the singular shall include the plural and vice versa.
CHARGES FOR HIRES, SERVICES AND/OR SALES
4.) These terms shall apply to any quotation provided by the Supplier or to any order placed by the Client. Rental rates for Hires are according to the Supplier’s price list(s). The Supplier shall be entitled to periodically review and increase the rates at their sole discretion however, the rental rate agreed at the commencement of a Hire will remain in force for the duration of the Hire.
5.) All rates for Hires are ex Depot unless otherwise agreed in writing and exclude the cost of transport which will be invoiced.
6.) Unless agreed in writing to the contrary, any pricing of Hire or Services shall be deemed to be an estimate only and based on information supplied by the Client. In relation to a quotation, the Client shall be responsible for the accuracy of any information upon which the quotation is based. Any changes to specifications or requirements will be invoiced at the actual Hire cost. In all other cases the Client shall be deemed to have submitted an order for Hire or Services according to the Supplier’s price lists and otherwise on the terms herein.
7.) The Client agrees to pay the Supplier any GST and any other taxes, duties or other levies applicable in respect of the Equipment or other services provided by the Supplier. All GST shall be payable on the due dates for payments relating to any Equipment or services as set out in the invoice(s).
8.) Hire charges are calculated daily, with a week being charged as seven days.
9.) The day of delivery or collection and the day of return will both be charged as whole days. There will be no reduction to the charge for weekends, holidays, inclement weather or for any other reason beyond the Supplier’s control including (without limitation) strikes, lockouts, cessation oflabour, transport delays and Government interference or control.
10.) If the Supplier delivers or collects the Equipment, then the Client will pay a delivery or collection charge at the Supplier’s normal transport rates applicable at the date of delivery or collection as the case may be. This charge will include any other transport costs incurred by the Supplier in attempting reasonably to comply with the express or implied requirements of the Client. The Client is to arrange and ensure insurance coverage is in place for all Equipment whilst being transportedand throughout the period of Hire.
11.) The Client is responsible for payment of all costs relating to freight of hired Equipment unless otherwise agreed with the Supplier beforehand in writing. The Supplier may charge for any trip to collect any Equipment the Client wishes to no longer Hire from the Supplier including trips where the Client subsequently advises the Supplier that the Equipment is still required and collection does not occur.
12.) The Client shall be liable for payment of any costs associated with engineering reports or other inspections required including any building or resource consents required by the local Territorial Authority in the course of any contract undertaken by the Client.
DELIVERY OF EQUIPMENT
13.) All transport of Equipment to the Client is at the Client’s own risk. Any loss occurring in transit which exceeds the hauler’s insurance cover is at the Client’s risk and the Client must ensure that the Client has sufficient insurance cover for any such excess. Where the Supplier arranges for delivery on behalf of the Client the Client is solely responsible for any transportation charge unless otherwise specifically agreed in writing. The Supplier accepts no responsibility or liability in respect of such transport arrangements which will be made purely to assist the Client. The Client is responsible for insuring Equipment during delivery. See clause 10.)above.
14.) Delivery times are approximate and the Client is not entitled to cancel the Equipment order unless the delivery is more than two weeks late.
15.) Unless written notice to the contrary is received by the Supplier within three days of delivery:
a.) The Equipment delivered will be deemed to be in good condition; and
b.) The quantities of Equipment delivered detailed by the Supplier in the relevant delivery advice or Invoice shall be deemed to be correct.
TITLE AND RISK
16.) Title to all Equipment hired by the Client remains with the Supplier and the Client may not resell or otherwise dispose of the Equipment
17.) Notwithstanding clause 10.)above, risk of any loss or damage to all Equipment due to any cause whatsoever shall be borne by the Client from the time the Equipment leaves the Depot. The Client is responsible for ensuring they have adequate insurance to cover the full replacement cost of all of the Supplier’s Equipment on Hire.
DURATION OF HIRE
18.) The Hire of Equipment shall commence on the date of delivery or collection of the Equipment and terminate on the date of return of Equipment to the Depot.
19.) The Hire term shall not be less than the minimum Hire period agreed at the time of Hire. If the Equipment or part thereof is returned at a date prior to expiration of the minimum Hire period, hirage for the minimum Hire period will still be paid by the Client for this Equipment.
20.) On the expiry of the initial term of Hire the Hire shall continue on the same terms as the initial term. A Hire is for an agreed inventory of Equipment that must be collected or delivered and returned in its entirety and a Hire is not deemed to have ended until both this condition has been met and clause 34.)satisfied.
PAYMENT TERMS AND CREDIT ARRANGEMENTS
21.) The Client will pay without deduction all amounts relating to Hires and Services as detailed on the Supplier’s invoices, on or before the 20th of the month following the invoice date.
22.) The Client agrees that if the Supplier holds an openchequeor a credit card voucher as security for payment in respect of any Equipment, immediately on invoicing the Client the Supplier may complete and bank the cheque or credit card voucher.
23.) The Client shall not withhold any sum including "retentions" withheld by other parties from the Client from payment to the Supplier.
24.) Where any Hire or Services provided by the Supplier is a ‘construction contract’ within the meaning of the Construction Contracts Act 2002 then there shall be no progress payments and the Hire and Services shall be paid for in one sum on the due date.
25.) The Supplier may decline or revoke any credit application at any time and for any reason, and may require any further security it deems necessary prior to the granting or reinstatement of any credit account, including where applicable the provision of supporting guarantees.
RETURN OF HIRE EQUIPMENT
26.) The Client will be responsible for returning all Hire Equipment to the Supplier and for providing the Supplier with a delivery note in which all the Equipment returned isitemised.
27.) Returns of Hire Equipment must be made during the Supplier's normal business hours and at least half an hour prior to the end of the normal business day unless prior arrangements have been agreed in writing with the Supplier. Normal business hours are 07:30 – 17:00 Monday through Friday inclusive.
28.) If the Supplier collects the Equipment, the Client will be responsible for, and will provide all assistance required by the Supplier (including the right of the Supplier to enter any premises or work site where the Equipment may be located) to return all Equipment to the Supplier. If the Supplier is required to collect the Equipment for whatever reason, it must have been dismantled prior to collection by the Supplier. Failure to do so will give the Supplier the right to charge the Client for any labor costs incurred in doing so.
29.) Upon return of the Hire Equipment, whether by collection by the Supplier or delivery of the Hire Equipment by the Client to the premises of the Supplier, the Supplier will check the quantity and condition of the Hire Equipment at its premises. If the Supplier finds any discrepancy with the quantity and condition of the Hire Equipment advised by the Client when returning the Hire Equipment, it will notify the client of such discrepancy and give the client three working days to arrange for an independent party approved by the Supplier to check the quantity and condition of the Hire Equipment. The independent party’s count and assessment shall be deemed conclusive proof of the quantity of Hire Equipment returned and its condition at the time of return. If the client fails to arrange this reconciliation then it is deemed that the Client agrees with the Supplier’s account of the Hire Equipment amounts and condition.
30.) If the Client elects not to hire Stillages from the Supplier to transport and store the Equipment and does not return the Equipment adequately bundled, the Supplier may at its discretion charge a return handling fee equal to $50 for each hour spent ‘hand’ loading returned Equipment into the Supplier’s Stillages. The number of hours spent will be determined solely by the Supplier.
LOSS OF OR DAMAGE TO HIRE EQUIPMENT
31.) The Client will be responsible for, and is advised to insure against any loss or damage caused to the Supplier's Hire Equipment from the moment it leaves the Supplier’s Depot or alternate designated dispatch point until it is returned to the Depot.
32.) The Client is responsible for returning the Equipment in a clean and usable condition.
33.) When the client returns the Hire Equipment in a worse condition than can be accounted for by fair wear and tear, the Supplier may charge the Client for cleaning, reconditioning, renewing or replacing the Hire Equipment as it considers necessary.
34.) If the Client fails to return the Hire Equipment to the Supplier in accordance with these Conditions, or the Supplier receives notice that the Hire Equipment has been lost, or the Client is unable to produce any item after reasonable notice from the Supplier, the Hire Equipment will be treated as "Lost Equipment". The Supplier may at its sole discretion Invoice the Client for any item of Lost Equipment for a sum equal to the replacement price plus an administration fee of $50.00 per hour or part thereof plus GST to cover office costs in sourcing replacement item(s), or collect from the Client’s premises or anywhere else equivalent items to the Lost Equipment which the Client owns. The Hire charge for that item of Lost Equipment will continue to accrue until the Client pays the charge for the item of Lost Equipment or the Supplier receives or collects replacement items(s).
35.) The Client will treat as confidential and will not use or disclose to any other person any information relating to quantities, price, or availability of any Equipment provided by the Supplier to the Client and these obligations shall survive any termination of the obligations contained in these Conditions.
36.) The Client shall be responsible for:
Determining that the Equipment is suitable for its requirements.
Ensuring that the Equipment is used in a proper manner and only for the purposes for which it was designed.
Complying at all times with the OSH approved Code of Practice for scaffolding, a copy of which is available from the relevant government and/or industry bodies.
37.) The Client shall not make any alterations to the Equipment.
38.) At all times upon the request of the Supplier the Client shall advise the Supplier of the whereabouts of the Equipment and allow the Supplier access to inspect the Equipment.
39.) The Client acknowledges that:
a.) The Supplier does not warrant or represent the suitability of any Equipment or Service for the Client’s use;
b.) The Client shall be responsible for ensuring that any instructions, applicable standards, guidelines and code of practice(s), applications and installation methods are followed and/or warnings observed;
c.) If any recommendation or advice has been given by Supplier, the Supplier will not be responsible for the actual implementation of the recommendation or the advice or actions or performance of the Client.
40.) For the purposes of securing the performance by the Client of its obligations under these Conditions, the Client agrees that if any payment is in arrears for seven days or more or the Client is in breach of any other provision of these Conditions, then without prejudice to any other rights or remedies available to the Supplier, the Supplier may recover the Equipment hired or sold or any equivalent or identical equipment owned by the Client, without giving the Client notice in writing and without prejudice to any monies which may become due to the Supplier. If no equivalent or identical equipment can be located by the Supplier, the Supplier may seize material, equipment or plant owned by the Client to equal value. The Client will assist the Supplier to return the Equipment immediately to the Supplier.
41.) Notwithstanding the terms of clause 42.), and without prejudice to any other remedies available to the Supplier and notwithstanding any period of hire specified, the Supplier may terminate its agreement with the Client at any time without notice being given in the event of:
A breach of any of these general conditions of Hire; or
Committal of any act of bankruptcy; or
Allowing any execution or distress to be levied upon the Equipment; or
The Client being a company, if an application is made or resolution is passed to liquidate; or a receiver or statutory manager of its assets is appointed; or an assignment or compromise is made for the benefit of its creditors; or the cessation of business trading.
Upon termination of its agreement with the Client the Supplier shall be entitled to take possession of the Equipment. For this purpose the Client irrevocably appoints the Supplier its agent and authorises the Supplier to enter on any land or premises owned by or under the control of the Customer upon which the Equipment is then situated. The Client agrees to indemnify the Supplier in respect of any claims, damages or expenses arising out of any action taken in respect of the repossession of the Equipment.
42.) In the event of any non-payment or other breach of these conditions, the Supplier may at its discretion charge the Client interest on the unpaid overdue balance from the day after the payment due date until the date payment is received (including that day) at the rate of 4% per annum above the current commercial overdraft rate charged by the Supplier’s bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by the Supplier. Interest will not be payable on amounts in dispute, provided the dispute is resolved infavourof the Client. The Client will also pay all costs of recovery or costs incurred by the Supplier in enforcement or attempted enforcement of these Conditions including the Supplier’s legal costs on a solicitor/client basis and in the event of legal action will pay continuing interest at that rate after the date of judgment order or award until full payment has been received by the Supplier. The Supplier reserves the right to cancel any credit on overdue accounts.
43.) For the purposes of clause 40.)above, the Client grants a security interest (as defined in the PPSA) in favour of the Supplier in the Equipment including all present and after acquired Equipment (as defined in the PPSA) and its proceeds and in any equipment owned by the Client ("Client Equipment") which is identical in description to any of the Equipment hired by the Supplier to the Client and the Client acknowledges that the granting of the security interest gives rise to remedies of repossession of the goods in accordance with the PPSA or otherwise where the Supplier seeks to enforce the security interest.
PERSONAL PROPERTY SECURITIES ACT
44.) For the purposes of the Personal Property Securities Act 1999 (PPSA) the duration of Hire is deemed to be for an indeterminate period. The Client expressly acknowledges that any period of Hire specified in any quotation or otherwise agreed is indicative only and used to establish a daily and/or weekly rate for Equipment Hire, but (subject to the Client’s strict compliance with the conditions of Hire) may be extended for further indefinite periods at the election of the Client. The Client hereby grants a security interest (as defined in the PPSA) in the Equipment and the Client Equipment as appropriate. The Client will, at the Supplier’s request, promptly execute any documents, provide all necessary information and do anything else required by the Supplier to ensure that the security interest is perfected in accordance with the PPSA with such priority as the Supplier requires including executing any variations to these Conditions.
45.) The Client waives its rights under the PPSA to receive a copy of any verification statement otherwise required by the PPSA. If applicable, so far as permitted by section 107 of the PPSA the Client will have no rights under sections 114(1)(a), 120 and 133 of the PPSA, including the right to receive any notices. The Client agrees if applicable that the Supplier may exercise its rights under sections 109 and 120 concurrently, and that repossession and retention of goods under sections 120 – 123 will immediately extinguish any rights and/or interests the Client may have in the goods and that the Supplier may allocate any monies it receives to debts, charges and expenses in any priority it determines.
46.) The Client agrees that the Client's account may be debited with the costs of registration of a financing statement and all other costs associated with the perfection and enforcement of the security interest (including full client/solicitor costs).
47.) Subject to clause 45.)the Client shall ensure that all third parties who may from time to time Hire or lease any of the Equipment from the Client are advised of the Supplier's security interest in the Equipment.
LIMITATION OF THE SUPPLIER'S LIABILITY
48.) The Client shall accept full responsibility for and shall indemnify the Supplier against all claims for injury to persons and/or damage to property caused by, or in connection with or arising out of, the use, erection, dismantling, storage or transportation of Equipment however arising including the negligence of third parties and against all costs and charges in connection with such claims whether arising under statute or common law.
49.) The Client shall accept full responsibility for the safekeeping of the equipment and shall indemnify the Supplier for all loss, theft or damage to the Equipment.
50.) The Supplier will not be liable for failure to deliver the Equipment on a specific date or within a specified time from receipt of the order.
51.) Any drawings, designs or specifications which the Supplier provides to the Client in connection with the Equipment do not constitute a warranty or guarantee on the practicability, efficacy or safety of that Equipment. The Supplier will not be responsible for the cost of any additional work caused by defects in such drawings, designs or specifications.
52.) The Supplier will not be liable for any consequential loss or damage caused directly or indirectly by the Equipment or any defects in any drawings, designs or specifications which the Supplier provides with the Equipment.
53.) To the extent allowed by law, the Supplier has no liability (whether statutory, in contract or tort (including negligence), or howsoever) to the Client for any physical, direct or indirect damage, economic loss of any kind, and any other loss or costs, (including legal and solicitor/client costs) caused or contributed to by the Supplier in respect of any Hire or Equipment or Services supplied to the Client. Without limiting the foregoing, the Supplier also has no liability or responsibility for any failure by the Client to meets its obligations under these terms and conditions or to ensure that the Equipment is used in accordance with any instructions issued. To the extent permitted by law, every warranty or conditional guarantee implied by custom or law is hereby excluded. If, notwithstanding the foregoing, the Supplier shall be found to have any liability it is agreed that any liability will not exceed a sum equivalent in value to one month’s Hire of the Equipment or Services supplied to the Client.
54.) The Supplier and the Client agree that any dispute arising out of, or in connection with, these Conditions which is unable to be resolved by discussion and negotiation between the parties will in the first instance be dealt with by mediation by a mediator using the rules prescribed by LEADR New Zealand Incorporated, such mediation to be held at Auckland.
55.) If the dispute is unable to be resolved by mediation then the dispute will be resolved by arbitration under the Arbitration Act 1996 by a single arbitrator agreed on by the parties. If the parties cannot agree on an arbitrator then the arbitrator will be a person nominated by the President of the Auckland District Law Society, having regard to the nature of the dispute. The arbitrator will make every effort tominimisethe costs and the formalities of the arbitration. Arbitration hearings will be held at premises nominated by the Supplier.
56.) No failure or delay by the Supplier to enforce any provision of these Conditions at any time shall be a waiver of the provision. No waiver shall be effective unless it is in writing. No waiver of any breach of these Conditions shall be deemed to be a waiver of any other or any subsequent breach.
57.) The Client must not assign or transfer all or any part of its rights or obligations under these Conditions without the prior written consent of the Supplier. The Supplier may assign any rights or obligations without the Client’s prior approval. The Supplier may also subcontract any of its obligations.
58.) Any clause of these Conditions which is or becomes unenforceable, illegal or invalid for any reason shall be severed and shall not affect the enforceability, legality, validity or application of any other clause(s) which shall remain in full force and effect.
59.) The Client authorises the Supplier to collect, retain and use personal information about the Client (the “Information”) including the information contained in these Conditions for the following purposes:
a.) Assessing the Client’s credit worthiness and undertaking a credit check;
b.) Administering the financing, whether directly or indirectly, of the Client’s contract(s) and enforcing the Supplier’s rights;
c.) Marketing the goods and services provided by the Supplier.
60.) The Client also authorises the Supplier to provide the information:
a.) To any person for the purposes set out above;
b.) To credit agencies for the purposes of maintaining effective credit records.
61.) The Client acknowledges:
a.) That the information shall be deemed to be held by the Supplier at the Supplier’s address, notwithstanding that it may be provided to other persons for the purposes described above;
b.) That where information can be readily retrieved the Client shall have access to it, the right to request correction and the right to be notified of action taken in response to any such request, subject to the payment of a reasonable charge;
c.) That the authorisations set out above are irrevocable;
d.) That for purposes of the preceding clauses the term the “Supplier” means Camelspace Stair & Scaf Limited and includes any financier or discounter of the Supplier’s contract(s) or any related company of the Supplier.
62.) These Conditions are governed by New Zealand law.
63.) Where the Client acquires any Equipment for the purposes of a business, or holds itself out as acquiring it for the purposes of a business, the Client agrees that the Consumer Guarantees Act 1993 shall not apply.
64.) These Conditions, together with the payment and Equipment details contained in any Invoice(s) constitute the entire agreement between the parties relating to the Equipment.
65.) No variation to these Conditions shall be valid or binding unless recorded in writing and signed by both parties.
66.) The Supplier reserves the right to supply to any person or entity, and any agreement with the Client shall not be construed as alicence, authority or contract excusive to the Client.
SCHEDULE 1 – PERSONAL GUARANTEE
In consideration of the Supplier opening an account for the Client at my/our request we the directors/shareholders named in section v.) of the account opening form personally guarantee to the Supplier the performance by the Client of all and any of its obligations to the Supplier, including due payment of all moneys now owing or due to be paid in the future and the due performance and observance of the Client obligations as set out in these General Terms of Trade.
Specifically I/We acknowledge as follows:
a.) I/We shall be personally liable as a principal debtor and not merely as a surety.
b.) I/We will indemnify the Supplier and keep it indemnified for any breaches of the Conditions by the Client.
c.) In the event of any default or the failure to pay by the Client I/We shall pay on demand.
d.) This guarantee and indemnity will not be affected by any indulgence, compromise, release, abandonment or waiver by the Supplier of its rights against the Client, or any variation or alteration of the Conditions or the terms of any other agreement between the Supplier and the Client, nor by any requirement for the Client to enter into any new or replacement conditions of sale and hire or other agreement.
e.) This guarantee is given freely and I/We waive any right to obtain independent legal advice before I sign it.
f.) I/We acknowledge and agree that if the Client's application for credit is approved, this guarantee is given in consideration for the Supplier's:
i.) agreement to grant, or to continue to grant credit to the Clientat my/our request on the terms set out in the attached Conditions or any amended Conditions;
ii.) forbearance to sue at my/our request for all moneys now owed by the Clientto the Supplier for one month from the date of this application.
This guarantee will continue until expressly cancelled by me/us in writing to the Supplier but any such cancellation will not release me from any liabilities that exist at the time of cancellation. Any further guarantee given by me/us in respect of any new agreement or other conditions of sale and hire that the Supplier and the Client enter into will be a separate guarantee and shall not affect or in any way release me/us from my/our obligations under this guarantee. If a new agreement or other conditions of sale and hire are entered into and a guarantee is given by any other person in support of that application then that new guarantee will not affect my/our obligations under this guarantee.