Terms and Conditions of Hire and Service

1. Definitions and Interpretation / Agreement

These Terms and Conditions are intended to apply only where the Hirer is in trade (within the meaning of the Consumer Guarantees Act 1993) and the equipment is supplied to the Hirer and acquired by the Hirer in trade. If the Hirer is a “consumer” for the purposes of the Fair Trading Act 1986 and/or the Consumer Guarantees Act 1993 (“CGA”), these Trade Conditions will not apply and the WCV Hire Limited Consumer Terms and Conditions (“Consumer Conditions”) shall apply instead.

(a) In these Terms and Conditions:

“Agreement” means the contract made between the Company and the Hirer in relation to the hire of Equipment, and includes:

(i) The Hirer’s Credit Application,

(ii) These Terms and Conditions,

(iii) Any quotation provided by the Company (if any) and

(iv) Any other Hire agreement or arrangement provided to or made with the Hirer by the Company, whether signed or not.

“Company” means WCV Hire Ltd trading as Premier Fencing

“Equipment” means any of the Company’s Fencing, (including any associated or attached tools, accessories and parts), or anything else that is supplied and/or hired to the Hirer under the Agreement .

“Fencing” means all fencing including Panels, Gates, Crowd Barriers and Hoarding and other fencing components required in the supply and install of the Equipment that is supplied to the Hirer pursuant to the Agreement.

“Goods” means any Equipment supplied by the Company to the Hirer under these Terms and Conditions.

“GST” means “GST” within the meaning of the GST Act

“GST Act” means the New Zealand Goods and Services Tax Act 1985 and the following expressions bear the same meaning as in the GST Act: “tax invoice”, “taxable supply” and “value”.

“Hirer” means the person(s), company or other legal entity hiring the Equipment from the Company. Where the context permits, it includes Hirer’s employees and contractors.

“Hire Period” means the Initial Hire Period and any Extensions

“Initial Hire Period” means the term as identified at the commencement of the Agreement

“Insolvency Event” means, in relation to a party, that one of the events specified in clause 15 has occurred in relation to that party.

“Intellectual Property” means any intellectual property including without limitation patents, trademarks, copyright, designs, layouts, circuit boards, knowhow, software, object.

“PMSI” means a purchase money security interest as defined in section 17.

“Rates” means the rates notified by the Company to Hirer from time to time.

“Register” means the Personal Property Securities Register. “Security Agreement” means a

“security agreement” within the meaning of section 16. “Security Interest” means a

“security interest” within the meaning of section 17.

“Services” means anything other than supply of Equipment as carried out under the Agreement or as agreed by the Company and Hirer including delivery, install and removal of Equipment

“Site” means the land or premises located at the address on which Equipment is to be installed as requested by the Hirer.

2. General

(a) These Terms and Conditions apply to:

(i) the establishment, operation and use of the account Agreement of the Hirer with the Company;

(ii) all transactions effected by the Hirer with the Company for the supply of Equipment and Goods or Services on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of Equipment, Goods and Services; and

(iii) the exclusion of all others including any terms and conditions of the Hirer.

(a) These Terms and Conditions shall apply as if incorporated into each order placed by the Hirer with the Company.

(b) The Company reserves the right to change these Terms and Conditions without notice. Any amended Terms and Conditions will be placed on Premier Fencing website (www.premier fencing.co.nz) and shall apply with effect from the date they are placed on the website unless the amended Terms and Conditions specify a later date from which they are to apply

3. Payment and default arrangements

(a) The hire fee must be paid in the manner and in accordance with the payment terms specified on any invoice issued by the Company or otherwise notified to Hirer from time to time (time being of the essence).

(b) The full amount of hiring charges will be invoiced upfront and payment is required to be paid in cash or cleared funds upfront unless there are applicable agreed account terms for the Hirer providing for alternative payment terms.

(c) The Hirer agrees to pay in cash or cleared funds all hiring charges on or before the commencement date of the Hire Term (unless agreed to the contrary by the Company) including delivery fees, pick up fees, hire fees, service fees and all taxes and charges incidental to the hire.

(d) The Hirer must notify the Company within seven (7) days of any errors with the invoice.

(e) The Hirer must not deduct any part of the hire fee as retention money.

(f) The Company reserves the right to reverse any previously agreed discount for customers if the account is not paid in full by the due date.

(g) The Hirer agrees to pay the Company interest on all overdue balances at a rate of 2% above the Company’s standard bank overdraft interest rate per calendar month until all sums owed to the Company under these Terms and Conditions have been paid in full.

(h) The Hirer is liable for any costs associated with the Company recovering overdue sums due under these Terms and Conditions and the Hirer will indemnify the Company on demand for all expenses incurred by the Company in recovering any amounts which the Hirer fails to pay by the payment due date including without limitation any bank dishonour fees, commissions payable to any commercial or mercantile agents and any legal costs incurred by the Company (assessed on an indemnity basis) arising from the Hirer’s default or breach of any of the Terms and Conditions.

(i) If the Hirer fails to pay for any goods or services supplied by the Company when due, then by notice to the Hirer, the Company may declare any amounts actually or contingently owing by the Hirer to the Company to be immediately due and payable.

(j) Unless the Hirer is entitled under agreed account terms to pay hiring charges under an approved credit account, the Hirer must on or before the commencement date of the Hire Period, and as a condition to the Hire Period commencing, provide to the Company details of a valid debit or credit

card it is authorised to use, including the card number, name of cardholder, expiry date and security code. The Hirer hereby authorises the Company to debit the account of the cardholder with any charges, fees, costs or liabilities validly arising under the Agreement as determined by the Company

acting reasonably without further notice to or approval from the Hirer or the cardholder. It is the Hirer’s responsibility to ensure that there are sufficient funds in the cardholder’s account to allow a debit payment to be made in accordance with this authority. If there are insufficient funds, the

cardholder may be charged a fee by the relevant financial institution and by the Company. The Company will keep the information provided in relation to the cardholder under this clause (including the card holder’s account details) confidential. The Company will make reasonable efforts to keep

any such information secure and that any of the Company’s employees or agents who have access to the information do not make any unauthorised use, reproduction or disclosure of that information. The Company will only disclose this information to extent specifically required by law or for the

purposes of this Agreement.

4. Credit Card Payments

(a) If a Hirer pays its outstanding account by a credit card, at the time the transaction is processed the Hirer must pay to the Company an amount that the company determines (acting reasonably) to be equal to the merchant service fee or any similar fee payable by the Company to its transaction

acquirer in connection with the transaction.

(b) The Company may add any amount payable by the Hirer under paragraph (a) to the Hire Charges of the relevant goods or services supplied or to be supplied by the Company to the Hirer

5. GST

(a) To the extent that a party makes a taxable supply in connection with these Terms and Conditions, the consideration payable by a party under these Terms and Conditions represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed.

(b) Subject to clause 5(c),if a party makes a taxable supply pursuant to these Terms and Conditions for a consideration which, under clause 5(a), represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.

(c) A party’s obligation to make payment under clause 2 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

6. Cancellations of Orders

The Hirer may not cancel any order that it places for supply of Equipment after that order is accepted by the Company unless the Company gives it consent in writing. The Company may give or withhold its consent in its absolute discretion. The Company may give its consent subject to conditions that may include payment of money to the Company.

7. Suspension of Credit

The Company may at any time refuse to extend credit or further credit to the Hirer (and without the Company having or giving any reason for doing so).

8. Rates and Hire Period

(a) The Hire Period will commence upon the Date of the delivery/installation of the Equipment and continue for the Initial Hire Period and any extensions of that period and will end when the Equipment is back in the possession of the Company.

(b) The Hire Period includes weekends and public holidays and is irrespective of the time the Equipment is being used by the Hirer.

(c) Unless otherwise instructed by the Hirer, at the end of the Initial Hire Period and each extension of the Hire Period, the Company will automatically extend the Hire Period to the end of the next calendar month and invoice the Hirer for all extensions of the Hire Period.

(d) Extensions of the Hire Period will continue until the Hirer instructs the Company to pick up the Equipment , it is returned by the Hirer to the Company, or the Company decides to terminate the hire arrangements/Agreement pursuant to clause 21 of the these Terms and Conditions.

(e) Where the Hirer instructs the Company to pick up the Equipment under paragraph (c), at least 5 Working Days notice must be given (“Notice to Collect”) unless agreed otherwise by the Company at its sole discretion.

(f) Notice for Collection of Equipment must be within the Company’s normal business hours. In the event of insufficient notice being given or request for collection outside of the Company’s normal business hours, hiring charges will continue to apply at the Company’s absolute discretion until the

Equipment is received by the Company. Additional charges for out of hour pick ups will apply, at the company’s sole discretion..

(g) The Initial Hire Period/Hire Period noted on the Agreement will not be deemed notice to the Hirer that the Equipment is available for collection. Where the Company agrees to collect the Equipment, the Hirer remains responsible for any theft, loss or damage to the Equipment until the Equipment is

collected by the Company.

(h) During the Hire Period, the Hirer must pay the Company all hire fees as calculated in accordance with the Rates and inaccordance with these Terms and Conditions.

(i) All Rates are subject to change and may increase without notice.

(j) The Hirer is not permitted to claim a reduction or refund in hire fees for Equipment returned before the end of the Initial Hire Hired or any extended Hire Period.

(k) The Hirer’s obligations to pay charges and any other sums to the Company shall continue despite any theft of, or accident or damage caused to the equipment.

(l) Minimum Hire rates and Hire Periods apply

9. Delivery, Installation and Removal

(a) The Company will arrange delivery of the Equipment to the Site and will install the Equipment as far as possible in accordance with the Hirer’s sketch plan or verbal directions. The Hirer acknowledges that the Company may need to alter the position of the Equipment to accommodate installation to the Site or other obstacles.

(b) The Hirer may request the Company to install additional Equipment or to remove part of the Equipment before the expiration of the Hire Period, subject to payment of the extra charges.

(c) If the Company is delayed from delivering or removing the Equipment from any location for any reason beyond its reasonable control, it may charge the Hirer additional delivery charges. The additional delivery charges will be based on the duration of the delay and will be calculated for every

15- minute period (or part) using the rates published on the Company’s Websites Standard Rates Schedule from time to time.

(d) No refunds will apply in the event that the Equipment is returned/collected at the Hirer’s request prior to the expiration date of any Initial Hire Period or agreed extension to their Hire Period

(e) Traffic management is not included on any standard quote from the company but can be arranged for an additional fee.

10. Extra Charges

(a) Additional Equipment requested by the Hirer will incur additional charges for hire and delivery/installation. The removal of Equipment will not excuse the Hirer from the payment of the agreed hire charges for the Equipment.

(b) Any additional pickups will incur additional charges. 11. Use of Equipment

(a) The Hirer must ensure that the Equipment is used strictly in accordance with the Company’s instructions and any procedures recommended by the Company from time to time.

(b) The Hirer must at all times keep the Equipment in good condition and must not, without the Company’s prior written consent, alter or make additions to the Equipment, or deface, remove or conceal any Company logo, identifying mark or number, or indication of the Company’s ownership of

the Equipment.

(c) The Hirer must at all times ensure that the Equipment is used in a safe manner, and must not deliberately damage, abuse or mistreat the Equipment or allow the Equipment to be deliberately damaged, abused, or mistreated.

(d) If any damage, loss, theft or destruction of the Equipment occurs, whether the Hirer was responsible or not, the Hirer must immediately notify the Company and provide full details of the damage, loss theft or destruction.

(e) The Hirer must ensure that the Equipment is used at all times strictly in accordance with;

i) all applicable laws, and

ii) any relevant industry usage, custom and standards for goods similar to the Equipment.

(f) The Hirer must obtain and maintain, at its own expense, any insurance, permit or license that may be required under any law or by any statutory or other authority for the use of the Equipment, including its installation or removal. Without limiting the Hirer’s obligations under this clause, the Hirer must obtain all permits required under any relevant planning, environment or health and safety legislation, and must ensure that its personnel are appropriately inducted, trained and supervised so as to ensure the safe and lawful use of the Equipment.

12. Missing and Damaged Equipment

(a) The Hirer is responsible for any stolen, missing or damaged Equipment while on hire to it, and the cost of replacement or repairs of that Equipment..

(b) If the Equipment is returned or collected in a condition which in the reasonable opinion of the Company renders it unusable for hire, or if the Equipment is stolen or missing, the Hirer must pay the Company on demand the cost of replacement or repair of the Equipment calculated in accordance with the relevant Damaged & Lost Materials price list as published on the Company’s Websites, from time to time. In no circumstances will title to the Equipment or any part of it pass to Hirer and the provisions set out in clause 12 relating to the Company’s title rights shall apply.

(c) Other than for the cost of replacing or repairing the Equipment, the Hirer will be liable for all costs, expenses, damages and loss (including consequential loss), incurred by the Company arising out of the Equipment not being returned or collected, including where the Equipment has been stolen or missing.

13. Location and Use of the Equipment

(a) The Hirer must expressly inform the Company of the location of the Equipment during the

Hire Period.

(b) The Hirer must not:

i) part with possession of the Equipment;

ii) allow any other person to use the Equipment; or

iii) permit the removal of the Equipment from the location at which the Hirer represented it would be located without the prior written consent of the Company.

(c) The Hirer must store the Equipment in a safe place, and do all other things necessary to ensure the continued safety and preservation of the Equipment.

14. Movement of Equipment

(a) The Hirer may at its own risk move or alter the position of the Equipment on the Site. The Hirer indemnifies the Company against all claims for any loss or damage, howsoeverarising, as a result of any movement of, or alteration to the Equipment.

(b) The Hirer may engage the Company to move/relocate the Equipment on the Site. The Company will charge for this service, which the Hirer can obtain on request and which the Hirer shall pay in accordance with the Company’s usual terms for moving/relocating of the Equipment.

15. Hirer’s Obligations

The Hirer will:

(a) Accept full responsibility for the safe-keeping of the Equipment, and except as specified hereafter, shall indemnify the Company for all loss, theft of or damage to the Equipment however, 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 Hirer.

(b) Pay to the Company all hire and related charges and other costs as stipulated in accordance with the Company’s Terms and Conditions and payment terms.

(c) Accept full responsibility for and indemnify the Company against all claims in respect of any injury to persons, or loss or damage to property, arising out of the possession or use of the Equipment during the Hire Period however arising, whether from the negligence of the Hirer or the Company or other party and limiting the generality of the foregoing whether or not the Equipment was being operated by an employee, servant or agent of the Hirer or any person for whose acts the Company might be or is held to be responsible in connection with the use of the Equipment.

(d) Not be entitled to sell, transfer, mortgage, charge or encumber in any way the Equipment nor, without the Company’s management prior written consent, part with the possession of the Equipment nor assign the benefit of this Agreement.

(e) Not be entitled to remove the Equipment from the Site or allow it to be removed without the Company’s permission.

(f) Ensure that the Equipment is returned to the Company in the same condition as it was delivered.

(g) The Company may inspect the Equipment from time to time during the Hire Period and the Hirer shall permit or procure permission for representatives of the Company to enter the Site.

16. Exclusions of Warranties and Limitations of Liability

(a)In entering into any Agreement, the Hirer acknowledges that the Company:

i) excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of goods and services and for all claims under or relating to the Equipment for any indirect damages or losses, or for any special, punitive or exemplary damages;

ii) limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of goods and services and for all claims under or relating to the Equipment and to the sums payable by the Hirer for the hire of the Equipment; and

iii) excludes any liability for or in connection to a claim that the Equipment supplied by the Company under these Terms and Conditions is not fit for a particular purpose, except where the Company has a liability as contemplated by paragraph (a) or (d).

(b) The Hirer is liable for and shall indemnify the Company against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Company and any environmental loss,

cost, damage or expense) in respect of:

i) Personal injury;

ii) Damages to intangible property; or

iii) A claim by a third party in respect of the Hirer’s hire or use of the Equipment. The Hirer’s liability under this indemnity is diminished to the extent that the Company’s breach of the Terms & Conditions (if any) or negligence causes the liability, claims, damage, loss, costs or expenses.

(c) The indemnity set out in paragraph b) above is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the term of hire of the Equipment. It is not necessary for a party to incur an expense or make any payment before enforcing a right of indemnity conferred under these Terms & Conditions.

(d) The Company will not be liable to the Hirer for any acts or omissions of any person supplied by the Company where that person is acting under the Hirer’s direction or control during the Hire Period relating to the Equipment and the services provided under these Terms & Conditions and the Hirer shall indemnify the Company against all liability, claims, damages, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis) arising from or incurred in connection with such acts or omissions.

(e) Subject to the provisions contained in this clause 14, the Company will not be responsible for failure or delay in delivery, pickup, installation or removal and will have no liability to the Hirer or any other person for any loss (including any consequential loss) arising out of such failure or delay.

17. Retention of Title Arrangements

(a) Property in and title to the Equipment remains with the Company in all circumstances (even if the Hirer goes into liquidation or becomes bankrupt during the hire period).

(b) The Hirer’s right to use the Equipment is as a Bailee only.

(c) The Hirer is not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over or otherwise deal in any way with any of the Equipment.

(d) Unless otherwise agreed by the Company, the Hirer must identify and store the Equipment in a manner that clearly shows that it is the property of the Company.

18. Equipment supplied will not become fixtures

(a) The Hirer acknowledges and agrees that it is the intention of the parties that:

i) Where the Equipment is or might be characterized as fixtures to land; or

ii) Where the Equipment rests by its own weight on the land then the following provisions apply.

(b) The Equipment shall be taken to be personal property of the Company and not fixtures despite having been connected to an electricity point, gas supply outlet, plumbing connection or another appliance or otherwise affixed to land.

(c) In the event of a default by the Hirer under these Terms and Conditions, that in addition to any other enforcement provisions set out in these Terms and Conditions, if the Equipment can be removed without causing significant damage to the premises on which they are located, the Hirer consents to the Company and any authorized contractor acting on behalf of the Company, entering upon the premises of the Hirer or any premises where they are located or have been installed for the purposes of disconnecting them from an electricity point, plant or generator, gas supply outlet, plumbing connection or another appliance (as the case may be) and removing and retrieving them.

(d) In the event of the Company exercising its rights under sub paragraph c), the Hirer:

i) must not make any claim against the Company; and

ii) must indemnify the Company against any claim by any third party (including without limitation the owner of the relevant property) in contract, tort (including negligence) or otherwise arising from or in connection with the exercise of those rights including without limitation for the cost of making good the premises arising from or connected with the removal of the Equipment or for any loss or damage (whether direct or indirect) suffered by the Hirer or any third party.

19. Notices

(a) The Hirer agrees that the Company does not need to give the Hirer any notice under the agreement (including without limitation notice of a verification statement received from the Registrar) unless the notice is required that requirement cannot be excluded.

(b) Where default in the event of a default by the Hirer in performing of any of its obligations in connection with a supply of the Equipment, the Hirer agrees that (as between the parties to the Terms and Conditions) the Company is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Equipment.

20. Change of Details

In the event that there is a change in any of the Hirer’s details and contact numbers or addresses set out in these Terms and Conditions or contained in any application for credit made by the Hirer prior to executing such application, the Hirer agrees to notify the Company in writing within 5 days of such change.

21. Termination of Hire

(a) The Company may terminate the Agreement without notice to the Hirer, if:

(i) The Hirer breaches any of these Terms and Conditions or any other agreement with the Company

(ii) the Company believes on reasonable grounds that hired equipment may be at risk for any reason whatsoever, including the manner of its use by the Hirer, adverse weather or work conditions,

(iii) The Company believes that the Hirer is unable to, or might be unable to, pay any charge, cost, purchase price or fee in connection with the equipment under these Terms and Conditions;

(iv) If the hirer has a winding up petition presented against it, is wound up, goes into voluntary liquidation, commits an act of bankruptcy has a receiver appointed to its assets, or any of them makes an assignment or compromise for the benefit of its creditors, is placed under official management or ceases to carry on business.

(b) Notwithstanding clause 21(a), the Company may terminate the Contract at any time without reason by giving the Hirer 48 hours’ written notice.

(c) Where the Company terminates the Agreement pursuant to 21 (a) or (b) Agreement, i) the company shall be entitled to take possession of the Equipment without authority of the Hirer if the Hirer fails to comply with payment terms and for this purpose the Hirer irrevocably authorises the Company or its representatives to enter onto the Site and agrees to indemnify the Company in respect of any claims, damages and expenses associated with the recovery of the Equipment.

ii) the Hirer indemnifies the Owner against, and shall pay to the Company upon demand, any cost (including legal costs), claim, damage, expense or liability suffered or incurred by the Company whether arising directly or indirectly from the Company acting to recover any equipment hired or monies payable by the Hirer pursuant to the Agreement, or otherwise in connection with the exercise or attempted exercise of any of its rights or remedies under the Agreement

iii) the Hirer shall pay to the Owner: (a) all hire charges and other moneys due to the Company at the date of termination; and (b) the balance of all hire charges yet to accrue from the date of termination to the expiry of the Hire Period of the Agreement

(d) Termination of the Agreement by the Company is without prejudice to any rights that the Company may have under the Agreement.

22. Signatory’s Warranties

Any person signing any document on behalf of Hirer in respect of the hire of the Equipment warrants that they:

(a) have the Hirer’s authority to contract with the Company on the Hirer’s behalf; and

(b) have been authorised by the Hirer to bind the Hirer to hire the Equipment on the terms set out in the Agreement, and agrees to indemnify the Company against all losses, costs and claims incurred by the Company if this is not the case.

Terms and Conditions of Hire and Service

info@premierfencing.co.nz

021-0239-5018