Forklift Hire and Sales Agreement

Short Term Hire
STELLAR MACHINERY LIMITED – TERMS OF TRADE FOR HIRE OF FORKLIFTS AND ASSOCIATED EQUIPMENT The terms of trade as set out herein (“terms of trade”) represent a legally binding agreement (“this agreement”) between the Customer named on the front page of this agreement (“the Customer”, “you”) and Stellar Machinery Limited (“Stellar”, “we”, “us”) under which Stellar hires to the Customer the forklifts, attachments and related equipment (“Equipment”) on the terms and conditions set out on the front page of this agreement and on the terms and conditions set out in these terms of trade. The agreement governs all short term and long term rentals of the Equipment by Stellar to you. These terms of trade are effective from the date of signing of this agreement and will replace any prior agreement that you may have with Stellar. Your acceptance of any Equipment from Stellar indicates your continuing acceptance of these terms of trade and those terms contained on our website at stellarmachinery.co.nz which may be amended or updated from time to time. Definitions “Early Termination Fee and Charges” the early termination fee and charges shall comprise: (a) The sum of the remaining unpaid monthly hire charges payable for the balance of the hire term which hire charges and hire term are shown on the front page of this agreement; (b) All interest payable in accordance with clause 12 of these terms of trade; (c) Stellar’s transport costs of uplifting the equipment; (d) Stellar’s administration charges (calculated in Stellar’s sole and absolute discretion for the cancellation of this agreement and the rehire of the equipment to another customer of Stellar). “The Customer” means any party described on the face of this agreement and includes that Customer’s servants, employees, agents, sub-contractors and invitees. “The Equipment” means the equipment referred to on the face of this agreement and forms the subject of this agreement and includes any accessories, replacements, additional or other Equipment which are supplied with the Equipment at the time of hire or thereafter. “Hire Period” means the period commencing either from delivery of the Equipment by Stellar to the address specified by the Customer, or collected for hire by the Customer until the time of collection of the Equipment by Stellar, or the return of the Equipment to Stellar by the Customer, whichever is earlier. Stellar will confirm to the Customer when it considers the Hire Period to be at an end by the issue of an “off hire” number. Nothing in this definition will effect Stellar’s right to take possession of the equipment and to demand and collect the early terminationfee and charges should the Customer cancel or repudiate this agreement prior to the expiry of the hire term shown on the front page hereof. General 1. All applications to hire are subject to these terms of trade. A binding agreement containing these terms of trade shall arise in respect of each application to hire placed by the Customer with Stellar when Stellar issues an invoice or delivers the Equipment to the Customer, whichever is earlier. 2. No quotation by Stellar shall constitute an offer to hire. Hire Charges 3. The Customer will pay to Stellar the Hire Charges applying at the time of hire in accordance with the terms of payment set out below, together with any additional payments invoiced or demanded by Stellar to the Customer in accordance with these terms of trade including, but not limited to, charges for delivery, labour charges, maintenance, repair, replacement and collection of the Equipment, interest and solicitor/client costs of recovery in the event of default of payment by the Customer. 4. Stellar can not increase the Hire Charges during the Hire Period. 5. When Equipment is returned in a condition other than when received by the Customer, fair wear and tear during the period of Hire, accepted, Stellar may in addition to the Hire Charge, charge the Customer for cleaning, reconditioning, renewing, repairing or replacing the Equipment where considered necessary by Stellar including damage suffered to the Equipment in the course of delivery and/or return (in the event that the Equipment is not delivered or collected by Stellar). 6. Hire Charges quoted do not include any duty, tax or levy. Where applicable, any such duty tax or levy shall be borne by the Customer. 7. Hire Charges quoted are those applicable at the date of quotation and for a period of seven (7) days after the date of quotation. If Stellar’s standard Hire Charges for any of the Equipment increase after the date of quotation and before a Hire Agreement is entered into, Stellar reserves the right to revise their quotation. Terms of Payment 8. Stellar shall invoice the Customer monthly in advance on the 20th day of each month. 9. All invoices are due for payment before the 20th day of the month following the date of the invoice. 10. The Customer shall be required to set up and maintain an automatic monthly payment to pay Stellar the Hire Charges, and provide evidence of the automatic payment prior to collection of the Equipment or delivery of the Equipment. 11. In the event of any payment being in arrears for more than fourteen (14) days, Stellar may terminate the agreement without notice and without prejudice to any monies which may have become due and payable by the Customer to Stellar. 12. All charges payable by the Customer to Stellar not paid on the due date shall carry interest at the rate of 18% per annum calculated daily from the due date of payment but compounding monthly. 13. Overdue accounts may be referred for collection and all costs incurred (including solicitor/client costs) will be added to the amount due. Early Termination 14. Should for any reason (save default of Stellar) the Customer cancels or repudiates this agreement prior to the expiry of the hire term set out on the front page of this agreement then in such case Stellar will be entitled to immediately demand and collect from the Customer as liquidated damages the early termination fee and charges. The Customer acknowledges and agrees that the early termination fee and charges are reasonable in all of the circumstances including by way of example only, the Equipment being specially adapted to meet the Customer’s requirements and the loss in value of the Equipment during the period of hire. Delivery 15. If requested by the Customer, Stellar will deliver the Equipment at the commencement of this agreement and collect the Equipment at the expiration (or earlier termination) of this agreement. 16. The Customer will pay to Stellar on each occasion a delivery and erection charge and a dismantle and collection charge at Stellar’s standard transport and labour rates applicable at the date of delivery or collection immediately upon presentation of a tax invoice by Stellar. Such charge shall include any wasted journey or transport time incurred by Stellar in attempting reasonably to comply with the express or implied requirements of the Customer and wasted without fault on the part of Stellar. 17. Stellar is not liable to the Customer for failure to deliver the Equipment on a specific date or within a specified time from receipt of order for hire. 18. The Customer shall be responsible for receiving the Equipment on site. In the event of any shortage and/or damage to the Equipment prior to delivery, the delivery docket must be endorsed by the Customer at the time of delivery specifying such shortage and/or damage and immediately notified to Stellar. Warranties and Exclusions 19. The Customer warrants that he/she/it: 19.1 Has truly represented the payment of the full amount of the deposit; 19.2 Is not a convicted person, an undischarged bankrupt, or if a company, insolvent within the meaning of the Companies Act 1993 (or amendments thereto); 19.3 Will keep the Equipment within the Customer’s control; 19.4 Will not alter the Equipment or any identifying number or mark thereon; 19.5 Will not remove the Equipment from the Customer’s premises or the address to which they were delivered without the written consent of Stellar; 19.6 Will maintain and keep the Equipment in good order and repair throughout the period of hire and will reimburse Stellar upon demand being made for the costs of any want of such maintenance and repair on the termination of this agreement for any reason; 19.7 Will not part with possession of the Equipment except to return the Equipment to Stellar; 19.8 Will produce/make available the Equipment for inspection at all reasonable times during usual business hours, when requested by Stellar. 19.9 Will notify Stellar of any change in his/her/its address for service of any notice if the same changes during the course of this agreement. 20. Nothing in these Terms of trade shall be construed or deemed to be an express warranty or condition by Stellar as to the quality, fitness or suitability of the Equipment hired and all implied terms, conditions or warranties statutory or otherwise are hereby excluded to the extent permitted by law. 21. The Customer agrees to inspect the Equipment upon collection of the Equipment or prior to delivery and to ascertain that they are fit for the use for which they are required by the Customer; collection of the Equipment or acceptance of delivery of the Equipment (as the case may be) by the Customer shall be deemed to be conclusive evidence of inspection and approval of the Equipment. 22. To the extent that any warranty is implied into this agreement which cannot be excluded by law, or for the breach of any term of this contract for which liability is not lawfully excluded, Stellar hereby limits its liability for any such breach to the re-supply of the hire service. 23. Stellar will not be liable for any loss or damage (including consequential loss or damage) suffered by the Customer as a result of any breakdown or non-performance of the Equipment during the period of hire. Repossession of Equipment 24. The Customer agrees that: 24.1 If any false statement has been made in relation to this agreement; or 24.2 If any deposit referred to on the face of this agreement is not paid in full; or 24.3 If any default is made or breach is committed in relation to this agreement or it is terminated for any reason; or 24.4 If the Customer commits any act of bankruptcy, is subject to execution or distress or, being a company, goes into receivership or liquidation; or 24.5 Being a natural person, is declared insane then in any such event, Stellar will be immediately entitled to possession of the Equipment and may repossess them without notice and with the use of force. Repair and Maintenance of Equipment 25. Stellar shall use its best endeavours to service the Equipment on or around the date/s specified on the second page of this agreement. Failure by Stellar to service the Equipment shall not release the Customer from any of their obligations to Stellar under these terms of trade. 26. Subject to clause 27, the Customer agrees that should any Equipment require maintenance and/or repair (including any required maintenance and/or repair noted during a service of the Equipment), such maintenance and/or repairs shall be effected only by Stellar or its duly authorised agent at the cost of the Customer. 27. The Customer shall be solely responsible for completing any maintenance and/or repairs to the tyres on any Equipment, including but not limited to any punctures to the tyres, and the cost of such repairs and/or maintenance. 28. The Customer is responsible for: 28.1 Any damage to the Equipment by any party other than Stellar; whether malicious, negligent or accidental; 28.2 The cost of repair or replacement of any Equipment which have been modified or altered in any way by any person other than Stellar; 28.3 The repair or replacement of the Equipment where any action by the Customer or any person other than Stellar invalidates any warranty for the equipment given to Stellar by its manufacturer or supplier and the Customer will pay to Stellar upon demand all costs incurred by Stellar in relation to repair or replacement of the Equipment and any other loss suffered by Stellar. No Lien or Charge 29. The Customer is prohibited from creating any lien or charge over the Equipment or pledging the credit of Stellar. Drawings 30. Stellar accepts no responsibility for any drawings, designs or specifications and submission of any drawings, designs, or specifications does not constitute any warranty, guarantee, representation or opinion of the practicality of construction or the efficacy, safety or otherwise of the Equipment to be supplied by Stellar in accordance therewith and Stellar will not be responsible for the cost of any additional work caused by defects in such drawings, designs or specifications. Stellar will not be liable for any consequential loss or damage caused directly or indirectly by any defect or otherwise however caused. Force Majeure 31. Stellar shall not be liable for any failure or delay to supply, deliver or collect the Equipment where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Stellar including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind. Indemnity 32. The Customer indemnifies Stellar in respect of any claim for loss or damage arising out of or in any way related to the improper, negligent or unlawful use of the Equipment by the Customer and the Customer warrants that the Customer holds third party liability insurance, to cover the Customer’s liabilities arising from or relating to the use of the Equipment. Nothing in this clause constitutes an attempt to contract out of Section 28 of the Health and Safety at Work Act 2015 or to transfer liability under that Act. 33. The Customer indemnifies Stellar against the destruction or loss of the Equipment by any means or for any reason whatsoever, including lawful confiscation. Insurance 34. The Equipment shall be at the sole risk of the Customer from the time of delivery by Stellar (or collection of the Equipment by the Customer) until collection by Stellar or return to Stellar by the Customer. The Customer will effect replacement insurance in the joint names of the Customer and Stellar against loss or damage however caused, and will provide proof of such insurance to Stellar upon request. Access to Site 35. The Customer will allow Stellar at its request, to enter the premises of the Customer or provide access to any site, building or location under the control of the Customer where the Equipment are situated for the purpose of inspection, maintenance or repossession of the Equipment. If the Customer is not the owner of the site, the Customer warrants that it has the authority to permit such entry to Stellar. Return of Equipment 36. When Equipment are returned to Stellar by the Customer’s transport, the Equipment returned will be counted in Stellar’s yard and a delivery docket with an acknowledgement of receipt of the Equipment noted thereon will be issued to the Customer. This docket will be conclusive proof of the return of the quantity of Equipment listed thereon but not the condition of the Equipment at the time of return. If Equipment are collected by Stellar they will be checked on site for quantity and upon arrival in Stellar’s yard such Equipment will be checked for both quantity and condition. In both cases the check in Stellar’s yard for quantity and condition will be the only legal proof of the quantity and condition of Equipment returned. 37. In all cases the Customer will be responsible for returning all Equipment to Stellar unless the Customer requests Stellar to collect the Equipment. 38. No returns will be accepted on weekends or public holidays or after 5pm Monday to Friday. 39. Upon the expiration of the Hire Period (evidenced by the issue of an off hire number by Stellar to the Customer) Stellar will at the Customer’s request, (and in the absence of the Customer returning the Equipment to Stellar) use its best endeavours to collect the Equipment from the Customer within two working days from the end of the Hire Period. 40. The obligations of the Customer under this agreement shall not cease upon notification by Stellar to the Customer of an off hire number. The Customer acknowledges that the rights of Stellar herein shall continue until such time as Stellar is satisfied that the provisions hereof have been complied with. All of the Customer’s obligations under this agreement have been complied with. Lost Equipment 41. Where Equipment is not returned to Stellar or where Stellar receives notice that the Equipment has been lost or where after reasonable notice from Stellar the Customer does not produce all or part of the Equipment, such Equipment shall be treated as “Lost Equipment”. Stellar may invoice the Customer for the Lost Equipment at the standard sale price at the date of the invoice and the Customer will pay the invoice immediately upon demand. Until such sum is paid, Hire Charges will continue to accrue for the Lost Equipment. 42. Where Lost Equipment are subsequently returned to Stellar or recovered and taken back into use by the Customer, the Customer shall be entitled to a credit equal to the sum paid for the Lost Equipment and Stellar shall be entitled to off-set against such sum received in payment of the Lost Equipment hire charges in respect of the Equipment as if such Equipment had never been lost but had throughout and continuously been in the possession and use of the Customer. Waiver 43. No waiver by Stellar of any breach of this agreement shall be deemed a waiver of any continuing or recurring breach. Stellar’s rights are not affected by any waiver or indulgence granted by Stellar. Credit Contracts and Consumer Finance Act 2003 (“CCCFA”) 44. Where this agreement would otherwise be subject to the provisions of the CCCFA and where such supply is a supply for business purposes, the Customer agrees that the Equipment is supplied by Stellar to the Customer for business purposes and is not for personal, domestic or household purposes within the meaning of Consumer Credit Contract set out in section 11 of the CCCFA and that the provisions of the CCCFA do not apply to the supply of Equipment for hire to the Customer. Privacy Act 1993 45. The Customer authorises any person or company to provide Stellar with information in response to Stellar’s credit enquires and authorises Stellar to make such enquires. The Customer further authorises Stellar to furnish to any third party details of this agreement and any subsequent dealings that the Customer may have with Stellar. Service of Documents 46. The Customer agrees that service of any notices or Court documents may be effected by forwarding the same by pre-paid post, facsimile or personal delivery to the last known address of the Customer. Governing Law 47. This agreement will be governed by and construed according to the laws of New Zealand. Essentiality of Terms 48. All of the terms and conditions set out in the agreement are essential terms. Personal Property Securities Act 49. Should, for any reason, the term of the hire of the equipment in this agreement be for a period longer than one (1) year, then in such case and for the better securing of Stellar’s ownership of the Equipment, the Customer hereby grants to Stellar a security interest over the equipment and the Hirer hereby grants to Stellar a security interest over the Equipment and the Hirer acknowledges that Stellar will register details of the security interest on the Personal Property Securities Register. 50. The Hirer waives any right to receive a copy of a verification statement under the Personal Property Securities Act and confirms that the following sections of the Personal Property Securities Act do not apply to this agreement –sections 114(a)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134.
Long Term Hire
STELLAR MACHINERY LIMITED – TERMS OF TRADE FOR HIRE OF FORKLIFTS AND ASSOCIATED EQUIPMENT The terms of trade as set out herein (“terms of trade”) represent a legally binding agreement (“this agreement”) between the Customer named on the front page of this agreement (“the Customer”, “you”) and Stellar Machinery Limited (“Stellar”, “we”, “us”) under which Stellar hires to the Customer the forklifts, attachments and related equipment (“Equipment”) on the terms and conditions set out on the front page of this agreement and on the terms and conditions set out in these terms of trade. The agreement governs all short term and long term rentals of the Equipment by Stellar to you. These terms of trade are effective from the date of signing of this agreement and will replace any prior agreement that you may have with Stellar. Your acceptance of any Equipment from Stellar indicates your continuing acceptance of these terms of trade and those terms contained on our website at stellarmachinery.co.nz which may be amended or updated from time to time. Definitions “Early Termination Fee and Charges” the early termination fee and charges shall comprise: (a) The sum of the remaining unpaid monthly hire charges payable for the balance of the hire term which hire charges and hire term are shown on the front page of this agreement; (b) All interest payable in accordance with clause 12 of these terms of trade; (c) Stellar’s transport costs of uplifting the equipment; (d) Stellar’s administration charges (calculated in Stellar’s sole and absolute discretion for the cancellation of this agreement and the rehire of the equipment to another customer of Stellar). “The Customer” means any party described on the face of this agreement and includes that Customer’s servants, employees, agents, sub-contractors and invitees. “The Equipment” means the equipment referred to on the face of this agreement and forms the subject of this agreement and includes any accessories, replacements, additional or other Equipment which are supplied with the Equipment at the time of hire or thereafter. “Hire Period” means the period commencing either from delivery of the Equipment by Stellar to the address specified by the Customer, or collected for hire by the Customer until the time of collection of the Equipment by Stellar, or the return of the Equipment to Stellar by the Customer, whichever is earlier. Stellar will confirm to the Customer when it considers the Hire Period to be at an end by the issue of an “off hire” number. Nothing in this definition will effect Stellar’s right to take possession of the equipment and to demand and collect the early terminationfee and charges should the Customer cancel or repudiate this agreement prior to the expiry of the hire term shown on the front page hereof. General 1. All applications to hire are subject to these terms of trade. A binding agreement containing these terms of trade shall arise in respect of each application to hire placed by the Customer with Stellar when Stellar issues an invoice or delivers the Equipment to the Customer, whichever is earlier. 2. No quotation by Stellar shall constitute an offer to hire. Hire Charges 3. The Customer will pay to Stellar the Hire Charges applying at the time of hire in accordance with the terms of payment set out below, together with any additional payments invoiced or demanded by Stellar to the Customer in accordance with these terms of trade including, but not limited to, charges for delivery, labour charges, maintenance, repair, replacement and collection of the Equipment, interest and solicitor/client costs of recovery in the event of default of payment by the Customer. 4. Stellar can not increase the Hire Charges during the Hire Period. 5. When Equipment is returned in a condition other than when received by the Customer, fair wear and tear during the period of Hire, accepted, Stellar may in addition to the Hire Charge, charge the Customer for cleaning, reconditioning, renewing, repairing or replacing the Equipment where considered necessary by Stellar including damage suffered to the Equipment in the course of delivery and/or return (in the event that the Equipment is not delivered or collected by Stellar). 6. Hire Charges quoted do not include any duty, tax or levy. Where applicable, any such duty tax or levy shall be borne by the Customer. 7. Hire Charges quoted are those applicable at the date of quotation and for a period of seven (7) days after the date of quotation. If Stellar’s standard Hire Charges for any of the Equipment increase after the date of quotation and before a Hire Agreement is entered into, Stellar reserves the right to revise their quotation. Terms of Payment 8. Stellar shall invoice the Customer monthly in advance on the 20th day of each month. 9. All invoices are due for payment before the 20th day of the month following the date of the invoice. 10. The Customer shall be required to set up and maintain an automatic monthly payment to pay Stellar the Hire Charges, and provide evidence of the automatic payment prior to collection of the Equipment or delivery of the Equipment. 11. In the event of any payment being in arrears for more than fourteen (14) days, Stellar may terminate the agreement without notice and without prejudice to any monies which may have become due and payable by the Customer to Stellar. 12. All charges payable by the Customer to Stellar not paid on the due date shall carry interest at the rate of 18% per annum calculated daily from the due date of payment but compounding monthly. 13. Overdue accounts may be referred for collection and all costs incurred (including solicitor/client costs) will be added to the amount due. Early Termination 14. Should for any reason (save default of Stellar) the Customer cancels or repudiates this agreement prior to the expiry of the hire term set out on the front page of this agreement then in such case Stellar will be entitled to immediately demand and collect from the Customer as liquidated damages the early termination fee and charges. The Customer acknowledges and agrees that the early termination fee and charges are reasonable in all of the circumstances including by way of example only, the Equipment being specially adapted to meet the Customer’s requirements and the loss in value of the Equipment during the period of hire. Delivery 15. If requested by the Customer, Stellar will deliver the Equipment at the commencement of this agreement and collect the Equipment at the expiration (or earlier termination) of this agreement. 16. The Customer will pay to Stellar on each occasion a delivery and erection charge and a dismantle and collection charge at Stellar’s standard transport and labour rates applicable at the date of delivery or collection immediately upon presentation of a tax invoice by Stellar. Such charge shall include any wasted journey or transport time incurred by Stellar in attempting reasonably to comply with the express or implied requirements of the Customer and wasted without fault on the part of Stellar. 17. Stellar is not liable to the Customer for failure to deliver the Equipment on a specific date or within a specified time from receipt of order for hire. 18. The Customer shall be responsible for receiving the Equipment on site. In the event of any shortage and/or damage to the Equipment prior to delivery, the delivery docket must be endorsed by the Customer at the time of delivery specifying such shortage and/or damage and immediately notified to Stellar. Warranties and Exclusions 19. The Customer warrants that he/she/it: 19.1 Has truly represented the payment of the full amount of the deposit; 19.2 Is not a convicted person, an undischarged bankrupt, or if a company, insolvent within the meaning of the Companies Act 1993 (or amendments thereto); 19.3 Will keep the Equipment within the Customer’s control; 19.4 Will not alter the Equipment or any identifying number or mark thereon; 19.5 Will not remove the Equipment from the Customer’s premises or the address to which they were delivered without the written consent of Stellar; 19.6 Will maintain and keep the Equipment in good order and repair throughout the period of hire and will reimburse Stellar upon demand being made for the costs of any want of such maintenance and repair on the termination of this agreement for any reason; 19.7 Will not part with possession of the Equipment except to return the Equipment to Stellar; 19.8 Will produce/make available the Equipment for inspection at all reasonable times during usual business hours, when requested by Stellar. 19.9 Will notify Stellar of any change in his/her/its address for service of any notice if the same changes during the course of this agreement. 20. Nothing in these Terms of trade shall be construed or deemed to be an express warranty or condition by Stellar as to the quality, fitness or suitability of the Equipment hired and all implied terms, conditions or warranties statutory or otherwise are hereby excluded to the extent permitted by law. 21. The Customer agrees to inspect the Equipment upon collection of the Equipment or prior to delivery and to ascertain that they are fit for the use for which they are required by the Customer; collection of the Equipment or acceptance of delivery of the Equipment (as the case may be) by the Customer shall be deemed to be conclusive evidence of inspection and approval of the Equipment. 22. To the extent that any warranty is implied into this agreement which cannot be excluded by law, or for the breach of any term of this contract for which liability is not lawfully excluded, Stellar hereby limits its liability for any such breach to the re-supply of the hire service. 23. Stellar will not be liable for any loss or damage (including consequential loss or damage) suffered by the Customer as a result of any breakdown or non-performance of the Equipment during the period of hire. Repossession of Equipment 24. The Customer agrees that: 24.1 If any false statement has been made in relation to this agreement; or 24.2 If any deposit referred to on the face of this agreement is not paid in full; or 24.3 If any default is made or breach is committed in relation to this agreement or it is terminated for any reason; or 24.4 If the Customer commits any act of bankruptcy, is subject to execution or distress or, being a company, goes into receivership or liquidation; or 24.5 Being a natural person, is declared insane then in any such event, Stellar will be immediately entitled to possession of the Equipment and may repossess them without notice and with the use of force. Repair and Maintenance of Equipment 25. Stellar shall use its best endeavours to service the Equipment on or around the date/s specified on the second page of this agreement. Failure by Stellar to service the Equipment shall not release the Customer from any of their obligations to Stellar under these terms of trade. 26. Subject to clause 27, the Customer agrees that should any Equipment require maintenance and/or repair (including any required maintenance and/or repair noted during a service of the Equipment), such maintenance and/or repairs shall be effected only by Stellar or its duly authorised agent at the cost of the Customer. 27. The Customer shall be solely responsible for completing any maintenance and/or repairs to the tyres on any Equipment, including but not limited to any punctures to the tyres, and the cost of such repairs and/or maintenance. 28. The Customer is responsible for: 28.1 Any damage to the Equipment by any party other than Stellar; whether malicious, negligent or accidental; 28.2 The cost of repair or replacement of any Equipment which have been modified or altered in any way by any person other than Stellar; 28.3 The repair or replacement of the Equipment where any action by the Customer or any person other than Stellar invalidates any warranty for the equipment given to Stellar by its manufacturer or supplier and the Customer will pay to Stellar upon demand all costs incurred by Stellar in relation to repair or replacement of the Equipment and any other loss suffered by Stellar. No Lien or Charge 29. The Customer is prohibited from creating any lien or charge over the Equipment or pledging the credit of Stellar. Drawings 30. Stellar accepts no responsibility for any drawings, designs or specifications and submission of any drawings, designs, or specifications does not constitute any warranty, guarantee, representation or opinion of the practicality of construction or the efficacy, safety or otherwise of the Equipment to be supplied by Stellar in accordance therewith and Stellar will not be responsible for the cost of any additional work caused by defects in such drawings, designs or specifications. Stellar will not be liable for any consequential loss or damage caused directly or indirectly by any defect or otherwise however caused. Force Majeure 31. Stellar shall not be liable for any failure or delay to supply, deliver or collect the Equipment where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Stellar including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind. Indemnity 32. The Customer indemnifies Stellar in respect of any claim for loss or damage arising out of or in any way related to the improper, negligent or unlawful use of the Equipment by the Customer and the Customer warrants that the Customer holds third party liability insurance, to cover the Customer’s liabilities arising from or relating to the use of the Equipment. Nothing in this clause constitutes an attempt to contract out of Section 28 of the Health and Safety at Work Act 2015 or to transfer liability under that Act. 33. The Customer indemnifies Stellar against the destruction or loss of the Equipment by any means or for any reason whatsoever, including lawful confiscation. Insurance 34. The Equipment shall be at the sole risk of the Customer from the time of delivery by Stellar (or collection of the Equipment by the Customer) until collection by Stellar or return to Stellar by the Customer. The Customer will effect replacement insurance in the joint names of the Customer and Stellar against loss or damage however caused, and will provide proof of such insurance to Stellar upon request. Access to Site 35. The Customer will allow Stellar at its request, to enter the premises of the Customer or provide access to any site, building or location under the control of the Customer where the Equipment are situated for the purpose of inspection, maintenance or repossession of the Equipment. If the Customer is not the owner of the site, the Customer warrants that it has the authority to permit such entry to Stellar. Return of Equipment 36. When Equipment are returned to Stellar by the Customer’s transport, the Equipment returned will be counted in Stellar’s yard and a delivery docket with an acknowledgement of receipt of the Equipment noted thereon will be issued to the Customer. This docket will be conclusive proof of the return of the quantity of Equipment listed thereon but not the condition of the Equipment at the time of return. If Equipment are collected by Stellar they will be checked on site for quantity and upon arrival in Stellar’s yard such Equipment will be checked for both quantity and condition. In both cases the check in Stellar’s yard for quantity and condition will be the only legal proof of the quantity and condition of Equipment returned. 37. In all cases the Customer will be responsible for returning all Equipment to Stellar unless the Customer requests Stellar to collect the Equipment. 38. No returns will be accepted on weekends or public holidays or after 5pm Monday to Friday. 39. Upon the expiration of the Hire Period (evidenced by the issue of an off hire number by Stellar to the Customer) Stellar will at the Customer’s request, (and in the absence of the Customer returning the Equipment to Stellar) use its best endeavours to collect the Equipment from the Customer within two working days from the end of the Hire Period. 40. The obligations of the Customer under this agreement shall not cease upon notification by Stellar to the Customer of an off hire number. The Customer acknowledges that the rights of Stellar herein shall continue until such time as Stellar is satisfied that the provisions hereof have been complied with. All of the Customer’s obligations under this agreement have been complied with. Lost Equipment 41. Where Equipment is not returned to Stellar or where Stellar receives notice that the Equipment has been lost or where after reasonable notice from Stellar the Customer does not produce all or part of the Equipment, such Equipment shall be treated as “Lost Equipment”. Stellar may invoice the Customer for the Lost Equipment at the standard sale price at the date of the invoice and the Customer will pay the invoice immediately upon demand. Until such sum is paid, Hire Charges will continue to accrue for the Lost Equipment. 42. Where Lost Equipment are subsequently returned to Stellar or recovered and taken back into use by the Customer, the Customer shall be entitled to a credit equal to the sum paid for the Lost Equipment and Stellar shall be entitled to off-set against such sum received in payment of the Lost Equipment hire charges in respect of the Equipment as if such Equipment had never been lost but had throughout and continuously been in the possession and use of the Customer. Waiver 43. No waiver by Stellar of any breach of this agreement shall be deemed a waiver of any continuing or recurring breach. Stellar’s rights are not affected by any waiver or indulgence granted by Stellar. Credit Contracts and Consumer Finance Act 2003 (“CCCFA”) 44. Where this agreement would otherwise be subject to the provisions of the CCCFA and where such supply is a supply for business purposes, the Customer agrees that the Equipment is supplied by Stellar to the Customer for business purposes and is not for personal, domestic or household purposes within the meaning of Consumer Credit Contract set out in section 11 of the CCCFA and that the provisions of the CCCFA do not apply to the supply of Equipment for hire to the Customer. Privacy Act 1993 45. The Customer authorises any person or company to provide Stellar with information in response to Stellar’s credit enquires and authorises Stellar to make such enquires. The Customer further authorises Stellar to furnish to any third party details of this agreement and any subsequent dealings that the Customer may have with Stellar. Service of Documents 46. The Customer agrees that service of any notices or Court documents may be effected by forwarding the same by pre-paid post, facsimile or personal delivery to the last known address of the Customer. Governing Law 47. This agreement will be governed by and construed according to the laws of New Zealand. Essentiality of Terms 48. All of the terms and conditions set out in the agreement are essential terms. Personal Property Securities Act 49. Should, for any reason, the term of the hire of the equipment in this agreement be for a period longer than one (1) year, then in such case and for the better securing of Stellar’s ownership of the Equipment, the Customer hereby grants to Stellar a security interest over the equipment and the Hirer hereby grants to Stellar a security interest over the Equipment and the Hirer acknowledges that Stellar will register details of the security interest on the Personal Property Securities Register. 50. The Hirer waives any right to receive a copy of a verification statement under the Personal Property Securities Act and confirms that the following sections of the Personal Property Securities Act do not apply to this agreement –sections 114(a)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133 and 134.
Machine Sales
Background The Vendor supplies all goods for which the purposes of the Personal Property Securities Act 1999 (“the PPSA”) are described in the attached Schedule (“the goods”) and services as contained herein to the Customer despite anything that may be stated to the contrary in the Customer’s enquiries or on the Customer’s orders, subject to the following conditions: 1. Application 1.1These terms apply to all offers, quotations and agreements entered into between the Vendor and the Customer for the supply of goods and services from the date of this agreement. 1.2The placement of an order shall be deemed to be acceptance of these terms by the Customer. 1.3In the case of any conflict arising between these terms and any other terms between the Vendor and the Customer, these terms shall prevail. 2. Non Contractual Terms 2.1All performance figures are based on estimates only and the description of the goods in the contract and in all drawings, specifications, brochures, catalogues and other information supplied is given as an aid to identification or description of the goods only and is not a warranty that the goods shall correspond precisely with any such description. 3. Price 3.1All prices are quoted on prevailing rates. Any increases in costs to the Vendor for goods and/or services whenever and howsoever arising shall be payable by the Customer. 3.2Where applicable, Goods and Service Tax shall be charged and payable by the Customer in addition to the quoted price. 3.3Quotations remain open for acceptance by the Customer for a period of thirty (30) days. Any Quotation may be withdrawn by the Vendor at any time before acceptance. 4. Payment 4.1Payment of the price and any price increases shall be made in full without deduction as follows: (a)Immediately upon delivery of any goods; (b)On the 20th of the month following invoicing for parts and services; (c)At the point of sale in respect of all cash sales of goods. 4.2Where the Customer has failed to make payment on the due date, this shall constitute a breach of these terms, for which the Customer will be liable to pay to the Vendor liquidated damages (in addition to the amount due) being an amount equal to interest on the amount due at a rate equal to ten (10) per cent per annum above the current overdraft rate which the Vendor has or may have with its principal trading bank, such interest to accrue on a daily basis from the due date of the payment until payment is made. 4.3The Vendor will apportion payments by the Customer to outstanding accounts in such amounts and in such order as the Vendor may determine in its sole discretion. 5. Delivery and Risk 5.1Delivery shall occur when the Vendor hands possession and control of the goods to the Customer or to a third party for transportation. Thereafter the goods shall be at the sole risk of the Customer and all costs of insurance, freight and delivery shall be paid by the Customer PROVIDED HOWEVER that the Vendor shall be under no obligation to arrange any such insurance, freight or delivery on behalf of the Customer. 6. Delays and Non Delivery 6.1The Vendor shall not be liable for any loss or damage suffered by the Customer due to the non-performance, non delivery or delay in delivery of the goods howsoever arising through no fault of the Vendor. 7. Property 7.1Notwithstanding the passing of risk, all of the goods shall remain the sole property of the Vendor until the Customer has paid for the same in full, together with all sums due from the Customer to the Vendor. Receipt by the Vendor of any cheque or other bill of exchange or any promissory note shall not be deemed to be payment or conditional payment until the same has been honoured or cleared and until such time shall not prejudice or affect the Vendor’s rights, power or remedies against the Customer and/or the goods. 7.2Until payment in full has been made for the goods and all other sums due, the Vendor and the Customer acknowledge and agree as follows: (a)The goods are held by the Customer as bailee and may only be resold as the agent for and on behalf of the Vendor. (b)The Customer shall store the goods separately from the Customer’s own goods and any other goods supplied to the Customer. 8. Personal Property Securities Act 1999 8.1The Customer grants to the Vendor a security interest in all present and after acquired goods. 8.2On the request of the Vendor, the Customer shall promptly execute any documents and do anything else required by the Vendor to ensure that the security interest created under this agreement constitutes a first ranking perfected security interest over the goods. The Customer shall also provide the Vendor with any information the Vendor reasonably requires to complete a financing statement. 8.3The Customer: (a)Shall immediately notify the Vendor in writing of any change in the Customer’s name; and (b)Shall also provide any information the Vendor reasonably requires to complete a financing statement or financing change statement. (c)Waives any right to receive a copy of a verification statement under the PPSA. 8.4The Customer will pay to the Vendor all costs, expenses and other charges incurred, expended or payable by the Vendor in relation to the filing of a financing statement or financing change statement. 8.5The Customer agrees that nothing in sections 114(a)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to this agreement. 8.6The Customer agrees that its right as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to this agreement. 9. Claims 9.1The Vendor warrants that all the new Equipment (such as forks, masts, container ramps, extension forks, side shifts or any attachments) manufactured by it is warranted against faulty workmanship or materials for thirty (30) days and agrees to replace or repair the same at its cost (excluding travelling costs and expenses), subject to the limitations contained in this agreement. 9.2Proprietary articles supplied as part of the goods are subject only to the warranty given by the makers of the articles. 9.3The Vendor is not responsible for any damage whatsoever caused either to the goods supplied or as a result of the malfunction of the goods if: (a)The goods are fitted by unqualified tradespersons or are fitted in an unprofessional manner; or (b)The instructions for operating the goods have not been complied with; or (c)The goods are adapted to a use for which they are not specifically intended; or (d)The goods are added to or repaired using components not recommended or approved by the manufacturer; or (e)The goods are improperly stored or transported; or (f)The damage is as a result of fair wear and tear, lack of lubrication, dirt, misuse, neglect or accident. 9.4Without restricting the limitations of liability contained elsewhere in this agreement, the Vendor’s liability in relation to the supply of the goods and services and the goods themselves is limited to the purchase price of the goods and services in respect of which such liability arises. 9.5The warranties contained in this clause will be effective only where the Customer has complied with its payment obligations under these terms and to the fullest extent permitted by law, this warranty shall be the Customer’s sole remedy against the Vendor. 10. General Warranty Exclusions 10.1To the fullest extent permitted by law, the Vendor shall not otherwise be liable, whether under any statute, regulation, by-law or at common law or otherwise for any damage, loss or injury caused by any defect or non-compliance of the goods of the Vendor. The Vendor shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever, nor shall the Vendor be liable for any damage or loss caused to the Customer’s servants, agents, customers or other persons whomsoever. 10.2Where this agreement would otherwise be subject to the Consumer Guarantees Act 1993, the Vendor agrees that it is acquiring the goods and services for business purposes and that the Consumer Guarantees Act 1993 does not apply to the supply of the goods and services to the Vendor. 11. Credits 11.1Any credit note, discount, rebate or allowance to the Customer shall be deemed to be without prejudice and shall not be effective unless all moneys owing have been paid and all obligations have been fulfilled by the Customer in accordance with these terms. Discounts shall not apply to sales tax, freight, other extras or auxiliaries. Credits for returned parts are at the Vendor’s discretion provided that the parts: (a) Are returned within fourteen (14) days of receipt; (b) Are returned freight free; (c) Are in good saleable condition in manufacturer’s/supplier’s original containers unsoiled and undamaged; (d) Are accompanied by number and date of supplying invoice; (e) Are not a procured item. 12. Default 12.1The Vendor shall be entitled to cancel all or any part of any contract or contracts with the Customer, in addition to the other remedies contained in this agreement, in the following circumstances: (a)If the Customer is in breach of this agreement (including failing to make payment on due date); or (b)If the Customer fails to meet any obligations under this agreement or any other agreement; or obligation to the Vendor; or (c)If the Customer becomes or is likely to become insolvent or is adjudicated bankrupt; or (d)If a receiver is appointed in respect of the assets of the Customer; or (e)If the Customer no longer carries on business or threatens to cease carrying on business; or (f)If the Customer enters into a compromise or arrangement with its creditors; or (g)if the Customer enters into an agreement or arrangement for amalgamation with another company. 12.2If the Customer defaults in payment or in taking delivery in time, the Vendor shall be entitled to terminate this agreement so far as it is unfulfilled, without prejudice to its right to recover all sums owing to it in respect of deliveries already made. Upon termination of the agreement, the Vendor shall be entitled to dispose of the balance of the goods contracted for and the Customer shall indemnify the Vendor for any loss in price incurred by its realisation against the price against which such goods were contracted to be bought by the Customer; and 12.3Despite s109 of the PPSA and in addition to the rights contained in that section, the Vendor may recover and/or resell any of the goods and enter any premises where the Vendor believes the goods are stored at any time without notice. If the goods or any of them are wholly or partially attached to other goods, the Vendor may, where practical, disconnect or sever in any way whatsoever as may be necessary to remove the goods. The Vendor may recover and resell for its own account sufficient goods to satisfy all unpaid liabilities and the costs of resale. If the Vendor recovers any excess, the Vendor will not be liable in damages to the Customer but must account to the Customer for the excess; and 12.4The Vendor may appoint a Receiver in respect of the goods (including the proceeds of the same) supplied to the Customer under this agreement. Any Receiver so appointed may take possession of the goods and resell them and otherwise exercise all rights and powers conferred on a Receiver by law; and 12.5The Customer will pay all costs and expenses (including costs on a solicitor/client basis and debt collector’s costs) the Vendor incurs in enforcing or attempting to enforce the Vendor’s rights under this agreement. The Vendor may deduct any costs and expenses incurred from the proceeds of sale of any goods recovered from the Customer. 13. Changes in Design 13.1The Vendor reserves the right at any time to change the design or construction of, or materials in, the goods but shall not be required to incorporate such changes in goods already delivered. 14. Maintenance 14.1The Customer agrees that the Vendor will undertake all maintenance of the goods, including but not limited to grease levels, oil levels and general maintenance (“the Vendor maintenance”) in accordance with the maintenance schedule on the front page herein. 14.2The Vendor will notify the Customer via email only. 14.3The Vendor will invoice the Customer upon completion of the Vendor maintenance and payment will be due and payable in accordance with these terms. 14.4The Customer may terminate the Vendor maintenance, by giving one (1) months written notice to the Vendor. 15.Agreement to Mortgage 15.1Despite anything to the contrary contained herein or any other rights which the Vendor may have howsoever: (a)where the Customer is the owner of land, realty or any other asset capable of being charged, the Customer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Vendor or the Vendor’s nominee to secure all amounts and other monetary obligations payable under these terms. (b)The Customer acknowledges and agrees that the Vendor (or the Vendor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (c)Should the Vendor elect to proceed in any manner in accordance with this clause, the Customer shall indemnify the Vendor from and against all of the Vendor’s costs and disbursements including legal costs. (d)The Customer agrees to irrevocably nominate, constitute and appoint the Vendor or the Vendor’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15. 16. Waiver 16.1All rights, powers, exemptions and remedies of the Vendor contained herein shall remain in full force notwithstanding any neglect, forbearance or delay in the enforcement thereof. The Vendor shall not be deemed to have waived any conditions unless such waiver be in writing from the Vendor and any such waiver shall apply to and operate only in the particular transaction, dealing or matter. 17. Interpretation 17.1These terms shall be given a fair, large and liberal interpretation to the fullest extent permitted by law and shall not be construed against the Vendor. 18. Proper Law 18.1These terms and this agreement shall be governed by the law of New Zealand and the Customer hereby submits to the exclusive jurisdiction of the New Zealand Courts. 19. Acknowledgement 19.1The Customer acknowledges that it has received a copy of this agreement and in particular that the terms contained herein constitute a “security agreement” for the purposes of the PPSA. Schedule All materials, handling, construction and specialised Equipment and parts as described on Stellar Machinery Limited quote, order form or invoice rendered by the Vendor to the Customer.
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Forklift Hire and Sales Agreement

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Machine Sales