1.1 “Contract” means the terms and conditions contained herein, together with any quotation, Hire form, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “ACE” shall mean Ace Rental Limited, its successors and assigns or any person acting on behalf of and with the authority of Ace Rental Limited.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting ACE to provide the services as specified in any proposal, quotation, order, invoice or other documentation, and:
1.4 “Equipment” shall mean all Equipment supplied on hire by ACE to the Client, the Client’s requested from time to time, and:
1.5 “Hire Period” means the term of the hire of the Equipment as specified on any invoices, quotation, authority to hire, or any other forms as provided by ACE and which may include weekends and/or public holidays, and continues until the hire contract is terminated in accordance with these terms and conditions or such further period as agreed by the parties in writing.
1.6 “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by ACE to the Client.
1.7 “Site” means the location/s at which the Equipment is to be operated.
1.8 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.9 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using ACE’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.10 “Damage Waiver Amount” means that amount set out in the hire Contract.
1.11 “Damage Waiver Excess” means an amount equal to ten percent (10%) of the cost to repair or replace the Equipment, capped at two thousand dollars ($2,000.00). whichever, is greater on all claims.
1.12 “Charges” shall mean the cost of the hire (including any Goods and Services Tax (GST) where applicable) of the Equipment as agreed between ACE and the Client subject to clause 5 of this Contract.
2.1 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 any Equipment.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Equipment on credit shall not take effect until the Client has completed a credit application with ACE and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Equipment request exceeds the Client’s credit limit and/or the account exceeds the payment terms, ACE reserves the right to refuse Delivery.
2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.7 None of the Equipment shall be sublet or cross-hired by the Client. The Client shall not assign or transfer its interest in the contract, or part with possession of all, or any portion, of the Equipment, without the prior written consent of ACE, which may be arbitrarily withheld.
2.8 The Client acknowledges:
2.9 ACE will:
2.10 These terms and conditions may be meant to be read in conjunction with ACE’s Damage Waiver Agreement and if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that ACE shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1 , and is not attributable to the negligence and/or wilful misconduct of ACE; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give ACE 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by ACE as a result of the Client’s failure to comply with this clause.
5. Charges and Payment
5.1 At ACE’s sole discretion the Charges shall be either;
5.2 ACE reserves the right to change the Charges;
5.3 Variations will be charged for on the basis of ACE’s quotation, and will be detailed in writing, and shown as variations on ACE’s invoice. The Client shall be required to respond to any variation submitted by ACE within ten (10) working days. Failure to do so will entitle ACE to add the cost of the variation to the Charges.
5.4 At ACE’s sole discretion, a deposit (in the form of a bond) is payable for Equipment provided on hire and will be refunded if the Equipment is returned in good working order. If the Equipment returned is unclean, missing items, stained, or damaged in any way, the bond will be retained by ACE. The refund will be processed within twenty-eight (28) days of the Recovery date of the Equipment, whichever occurs first.
5.5 Time for payment for the Equipment being of the essence, the Charges will be payable by the Client on the date/s determined by ACE, which may be:
5.6 ACE may in its discretion allocate any payment received from the Client towards any invoice that ACE determines and may do so at the time of receipt or at any time afterwards. On any default by the Client ACE may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ACE, payment will be deemed to be allocated in such manner as preserves the maximum value of ACE’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment.
5.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and ACE.
5.8 Receipt by ACE 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 until then ACE’s ownership or rights in respect of this contract shall continue.
5.9 The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by ACE nor to withhold payment of any invoice because part of that invoice is in dispute.
5.10 Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Client must pay to ACE an amount equal to any GST ACE must pay for any supply by ACE under this or any other agreement for the 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 Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
6. Delivery and Recovery
6.1 As agreed by ACE and at ACE’s sole discretion:
6.2 Unless otherwise agreed between the parties in writing, ACE shall provide (as the Client’s agent) transport of the Equipment to and from the Site, and transport charges (including loading equipment):
6.3 ACE shall not be responsible for delay or non-completion of the job for which the Equipment is hired resulting from an act beyond the reasonable control of ACE, including but not limited to, industrial action, strikes, lockouts, epidemics, fire, war, government actions, commotion, riot, floods or inclement weather.
6.4 The Client shall ensure that ACE has clear and free access to the nominated address at all times to enable them to make Delivery. ACE shall not be liable for any loss or damage to the property (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas), unless due to the negligence of ACE.
6.5 Any time specified by ACE for Delivery/Recovery of the Equipment is an estimate only and ACE will not be liable for any loss or damage incurred by the Client as a result of Delivery/Recovery being late. However both parties agree that they shall make every endeavour to enable the Equipment to be supplied and returned at the time and place as was arranged between both parties. In the event the Client is unable to accept Delivery and/or Recovery as arranged solely due to any action or inaction of the Client, or there are any delays due to free and clear access to the Site not being available, then ACE shall be entitled to charge all additional costs involved with the redelivery and/or storage, or subsequent attempts at Recovery, as applicable, and all Charges lost as a direct result of the Equipment being unavailable.
7. Use, Operation and Maintenance of the Equipment
7.1 Hire Period
7.2 Extension of the Hire Period
7.3 Access and Inspection
7.4 Client’s Obligations
8. Condition of Equipment and Inspections
8.1 The Equipment will be inspected by a representative of each party to establish the general condition thereof and a statement of condition of the Equipment will be prepared:
(a) immediately prior to the commencement of this Contract; and
(b) as soon as practicable following termination of this Contract.
8.2 The Client acknowledges and agrees that they will, at their own cost, reinstate the Equipment to its condition as specified in the pre-hire inspection, normal wear and tear excepted.
9.1 The Client hires the Equipment at the Client’s own risk and indemnifies ACE against any and all loss in respect of or damage to the Equipment, including any consequential loss, unless the Client elects to pay a Damage Waiver.
9.2 Damage Waiver is not insurance, but is an agreement (where applicable under a separate agreement) by ACE that the Client’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess. The Client is not entering into a contract of insurance with ACE by paying for the Damage Waiver.
9.3 Where a Damage Waiver is not affected the Client accepts full responsibility for the safekeeping of the Equipment and must effect insurance (and maintain any such insurance) with an insurer acceptable to ACE in the name of ACE and the Client for their respective rights and interests whilst the Equipment is at the Site, or in transit between the Site and ACE’s premises in respect of the following:
9.4 The Client agrees with ACE that the use of Equipment carries with it dangers and risks of injury, and the Client agrees to accept all dangers and risks.
9.5 ACE will maintain current insurance policies in respect of the Equipment to its full insurable value.
9.6 In the event that the Equipment provided by ACE is the subject of an insurance claim made by ACE, as a result of any action or inaction of the Client, then the Client accepts full liability for the value of Equipment (or part thereof) that is lost, stolen or damaged in any way any during the entire rental term, irrespective of whether the insurance claim is successful.
10.1 ACE retains ownership in the Equipment nonetheless all risk for the Equipment passes to the Client on Delivery.
10.2 The Client shall be solely responsible for any loss or damage to the Equipment, including (without limiting the generality of the foregoing) damage done by corrosion, rust, oxidation, and chemical reactions of every nature and kind whatsoever.
10.3 The Client acknowledges and agrees that:
11.1 The Equipment is and will at all time remain the absolute property of ACE, and must return the Equipment upon request to do so.
11.2 If the Client fails to return the Equipment to ACE then ACE or ACE’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.
11.3 The Client is not authorised to pledge ACE’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
12. Personal Property Securities Act 1999 (“PPSA”)
12.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
12.2 The Client undertakes to:
12.3 ACE and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
12.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
12.5 Unless otherwise agreed to in writing by ACE, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
12.6 The Client shall unconditionally ratify any actions taken by ACE under clauses 12.1 to 12.5 .
12.7 Subject to any express provisions to the contrary (including those contained in this clause 10 ), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12.8 Only to the extent that the hire of the Equipment exceeds a twelve (12) month Hire Period (or a six (6) month Hire Period with the right of renewal), shall clause 10 apply as a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 10 will apply generally for the purposes of the PPSA.
13. Security and Charge
13.1 In consideration of ACE agreeing to supply the 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).
13.2 The Client indemnifies ACE from and against all ACE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ACE’s rights under this clause.
13.3 The Client irrevocably appoints ACE and each director of ACE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Client’s behalf.
14.1 The Client shall inspect the Equipment on Delivery and shall within twenty-four (24) hours notify ACE of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford ACE an opportunity to inspect the Equipment within a reasonable time following Delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which ACE has agreed in writing that the Client is entitled to reject, ACE’s liability is limited to replacing the Equipment.
15. Consumer Guarantees Act 1993
15.1 This Contract is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).
16. Default and Consequences of Default
16.1 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 ACE’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes ACE any money the Client shall indemnify ACE from and against all costs and disbursements incurred by ACE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ACE’s collection agency costs, and bank dishonour fees).
16.3 Further to any other rights or remedies ACE may have under this Contract, if the Client has made payment to ACE, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ACE under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
16.4 Without prejudice to ACE’s other remedies at law ACE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ACE shall, whether or not due for payment, become immediately payable if:
17.1 Without prejudice to any other remedies ACE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions ACE may suspend or terminate the supply of Equipment on hire to the Client. ACE will not be liable to the Client for any loss or damage the Client suffers because ACE has exercised its rights under this clause.
17.2 ACE may cancel these terms and conditions or cancel Delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice ACE shall repay to the Client any sums paid in respect of the Charges. ACE shall not be liable for any loss or damage whatever arising from such cancellation.
17.3 In the event that the Client wishes to cancel Delivery of the Equipment then the Client shall be liable for any loss incurred by ACE (including, but not limited to, any loss of profits) up to the time of cancellation or a direct result of the cancellation.
18.1 All emails, documents, images or other recorded information held or used by ACE is Personal Information as defined and referred to in clause
18.3 and therefore considered confidential. ACE acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ACE acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by ACE that may result in serious harm to the Client, ACE will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1 , privacy limitations will extend to ACE in respect of Cookies where the Client utilises ACE’s website to make enquiries. ACE agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
18.3 The Client authorises ACE or ACE’s agent to:
18.4 Where the Client is an individual the authorities under clause 18.3 are authorities or consents for the purposes of the Privacy Act 1993.
18.5 The Client shall have the right to request ACE for a copy of the Personal Information about the Client retained by ACE and the right to request ACE to correct any incorrect Personal Information about the Client held by ACE.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20. Force Majeure
20.1 Subject to clause 20.2 , neither party shall be responsible for any delays in Delivery or collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).
20.2 Nothing in clause 20.1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Hire Period, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’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.
21.2 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 New Zealand.
21.3 ACE shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ACE of these terms and conditions (alternatively ACE’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
21.4 ACE may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
21.5 The Client cannot assign or licence without the written approval of ACE.
21.6 ACE may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of ACE’s sub-contractors without the authority of ACE.
21.7 The Client agrees that ACE may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for ACE to provide Equipment to the Client.
21.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
22. Lease to Own
22.1 Upon expiry of the Hire Period, provided the Client has made full payment of all monies payable and fulfilled their obligations under this Contract, the Client may enter into a separate agreement to acquire ownership of the Equipment by payment to ACE of the specified amount.