HIRE CONTRACT CONDITIONS
These Hire Contract Conditions apply to the exclusion of any other
conditions proposed by the Customer, unless otherwise agreed by Engineering
& Generator Services and the Customer in writing. Engineering & Generator
Services agrees to hire Equipment to the Customer on terms set out in this
document. If the Customer wishes to hire Equipment the Customer must complete and sign (or otherwise accept in the manner required by Engineering & Generator Services) a Hire Agreement and such other documents as Engineering & Generator Services may require, together with any credit application, guarantee and indemnity or other contractual documents. Engineering & Generator Services may in its absolute discretion decline to hire Equipment to the Customer at any time if it has reasonable cause to do so.
Amendment: Engineering & Generator Services may change These Hire
Contract Conditions from time to time, by giving notice of the amendment to the Customer. Notice is deemed given (whether or not actually received) when
Engineering & Generator Services does any of the following: (a) sends
notice of the amendment to the Customer at any address (including an email
address) supplied by the Customer; (b) displays the amended terms at premises from which Engineering & Generator Services conducts hire operations.
Changes to these hire Contract Conditions will only apply to Hire Agreements entered into after the change occurs.
- Interpretation of Words in this Contract;
Commencement – means the date when the Customer takes possession of the Equipment.
Equipment – means any kind of equipment, vehicles or tools including but not limited to the following kinds of goods or goods suitable for the following kinds of uses: cleaning; cooling and/or heating; entertainment; waste management; landscaping and gardening: plumbing: fencing and covering: lifting: access; air and air compression; pumping and fluid management; welding; compaction; concrete & masonry; flooring; earthmoving; floor care and cleaning, generation and power distribution; ground equipment and shoring; ladders and scaffolding; propping; lighting; materials handling; offshore pumps; safety equipment; storage; site accommodation including portable buildings and portable toilets; traffic management including road barriers; signage; vehicles including trucks, vans and trailers, and includes tools and parts and accessories for any of the foregoing.
Hire Charge – means the amounts shown on the Hire Schedule payable by the Customer to hire the Equipment.
Hire Period – means from Commencement until the end of the period shown on the Hire Agreement. The Hire Period may only be extended for one or more definite periods and in each case this can only be done if the Customer requests it and if Engineering & Generator Services agrees. Engineering & Generator Services may issue and require the Customer to sign an amended Hire Schedule for any extension of the Hire Period.
Hire Agreement – means a document which Engineering & Generator Services may require the Customer to sign (or accept in a way Engineering & Generator Services requires) including particulars of the Equipment and the Hire Period and such other information as Engineering & Generator Services may decide to require.
Engineering & Generator Services – means the company or companies
listed on the Hire Agreement.
Remote Area – means any location that is more than 50 kilometres from the Engineering & Generator Services branch from where the Equipment is hired.
2. Engineering & Generator Services Obligations
Engineering & Generator Services will:
2.1 Allow the Customer to take and use the Equipment for the Hire Period;
2.2 Provide the Equipment to the Customer clean and in good working order;
2.3 Collect the Equipment within 5 days of being requested to do so by the Customer.
Engineering & Generator Services will not:
2.4 Be responsible for providing fuel, unless otherwise agreed
NOTE TO CUSTOMER: You must return the Equipment at your expense when due back unless agreed by Engineering & Generator Services
- Obligations of the Customer
The Customer must:
3.1 Deliver the Equipment to Engineering & Generator Services when it is due back;
3.2 Return the Equipment to Engineering & Generator Services clean and in good repair;
3.3 Return the Equipment to Engineering & Generator Services full of fuel (where applicable)
3.4 Satisfy itself at Commencement that the Equipment is suitable for its purposes;
3.5 Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instructions whether supplied by Engineering & Generator Services or posted on the Equipment;
3.6 Indemnify Engineering & Generator Services for all injury and/or damage caused or contributed to by the Customer to persons and property in relation to the Equipment and its operation and have adequate insurance to cover all
liabilities incurred as a result of the use of the Equipment;
3.7 Ensure that any person collecting or taking delivery of Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised;
3.8 Ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold any relevant current certificate of competency and/or are fully licensed to operate or erect such Equipment;
3.9 Conduct a thorough hazard and risk assessment before using the Equipment and comply with all occupational health and safety laws relating to the Equipment and its operation;
3.10 Safely secure all items loaded in or on the Equipment or in or on the Customer’s vehicle, and indemnify Engineering & Generator Services in respect of any injury and/or damage caused by items falling from the Equipment or from any vehicle or trailer operated by or on behalf of the Customer;
3.11 Operate the Equipment with an adequate motor vehicle and/or power source;
3.12 Report and provide full details in writing to Engineering & Generator Services of any accident or damage to the Equipment within 2 business days of the accident or damage occurring.
The Customer must NOT;
3.13 Tamper with, damage or repair the Equipment;
3.14 Lose or part with possession of the Equipment;
3.15 Rely upon any representation relating to the Equipment or its operation other than those contained in this Contract;
3.16 Exceed the recommended or legal load and capacity limits of the Equipment;
3.17 Use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
3.18 Exceed the recommended or legal speed limit for the Equipment.
4. No Assignment by Customer
4.1 This Agreement is personal to the Customer and is not capable of assignment by the Customer, but this shall not prevent employees of the Customer using the Equipment in accordance with the terms of this agreement.
4.2 Engineering & Generator Services may assign its rights under this agreement without the consent of the Customer or any guarantor.
5. Payments by the Customer to Engineering & Generator Services
5.1 On or before Commencement (or as otherwise specifically agreed in writing with Engineering & Generator Services), the Customer will pay the Hire Charge.
5.2 Immediately on request by Engineering & Generator Services, the Customer will pay:
(a) the new list price of any Equipment which is for whatever reason not returned to Engineering & Generator Services.
(NOTE TO CUSTOMER: Subject only to any express provision of this Contract to the contrary, the Customer is responsible for loss or theft of the Equipment),
(b) all costs incurred in cleaning the Equipment;
(c) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer, unless expressly agreed otherwise in this Contract;
(d) stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this Contract or arising from the Customer’s use of the Equipment;
(e) all costs incurred by Engineering & Generator Services in delivering and recovering possession of the Equipment;
(f) a late payment fee calculated daily at 3% per month on all amounts owing by the Customer not paid on time;
(g) any additional Hire Charges;
(h) the cost of fuels and consumables provided by Engineering & Generator Services and not returned by the Customer;
(i) any expenses and legal costs (including commission payable to a commercial agent) incurred by Engineering & Generator Services in enforcing this contract due to the Customers default.;
(j) all costs of repairing or replacing tyres, including road service; and
(k) if any damage and/or theft waiver applies, the amount for which the Customer is liable as set out in this Contract.
5.3 Without limiting the ability of Engineering & Generator Services to recover all amounts owing to it, the Customer irrevocably authorises Engineering & Generator Services to charge any amounts owing by the Customer to any credit card or account details of which are provided to Engineering & Generator Services.
6. Ownership / Retention of Title
All equipment supplied by Engineering & Generator Services to the
Customer under this agreement shall remain the property of Engineering & Generator Service
7. PPSA Law
7.1 If a ‘security interest’ for the purposes of the Personal Property Securities Act 1999 (“PPSA”) arises in relation to the Equipment provided to the Customer under this agreement whether created or provided for by a lease for a term of more than 1 year or otherwise (“security interest”) then the terms of this clause 7 shall apply.
7.2 The Customer must do anything (such as obtaining consents and signing documents), which Engineering & Generator Services requires for the purposes of:
(a) ensuring that Engineering & Generator Services security interest is enforceable, perfected and otherwise effective under the PPSA;
(b) enabling Engineering & Generator Services to gain first priority for its security interest; and
(c) enabling Engineering & Generator Services to exercise rights in connection with the security interest.
7.3 The Customer agrees that nothing in sections 114(1)(a), 133 or 134 of the PPSA applies to this agreement, and waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.
7.4 Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else or grant or create any security interest in the Equipment unless Engineering & Generator Services (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to Engineering & Generator Services and must be expressed to be subject to the rights of Engineering & Generator Services under this agreement. Customer may not vary a sub-hire without the prior written consent of Engineering & Generator Services (which may be withheld in its absolute
7.5 Customer must ensure that Engineering & Generator Services is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
7.6 To assure performance of its obligations under this agreement, the Customer hereby gives Engineering & Generator Services an irrevocable power of attorney to do anything Engineering & Generator Services considers the Customer should do under this agreement. Engineering & Generator Services may recover from Customer the cost of doing anything under this clause 7, including registration fees.
8. Damage Waiver
8.1 Damage Waiver is not insurance, but is an agreement by Engineering & Generator Services that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess.
8.2 Damage Waiver applies to all hires, subject to the conditions below, for no additional fee. The Damage Waiver Excess is the actual recovery and repair cost of the Equipment, or 20% of the current replacement cost of the Equipment as reasonably determined by Engineering & Generator Services using suppliers list prices, whichever is the lesser amount.
DAMAGE WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMERS LIABILITY in the following circumstances;
(a) where the Equipment is lost or stolen;
(b) where the operator is not suitably licensed;
(c) where the operator is affected by drugs and/or alcohol;
(d) where the equipment has been wilfully damaged by the Customer or its employees or agents;
(e) where the damage is caused by a collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object whatsoever due to insufficient clearance;
(f) where the damage is caused while the Equipment is being driven or towed on any road that is unsealed or is not a public road; or
(g) where the damage is caused in any way by overloading.
8.3 The Customer may pay an additional Equipment Waiver Plus Fee in relation to the hire of medium and large equipment (being such Equipment as determined by Engineering & Generator Services from time to time), which will;
(a) reduce the Damage Waiver Excess in relation to medium and large equipment; and
(b) add a theft waiver component for medium and large machinery. The theft waiver component is not insurance, but is an agreement by Engineering & Generator Services that the Customer’s liability for theft or loss of the Equipment can be limited in some circumstances only to an amount called the Theft Waiver Excess.
Engineering & Generator Services will ask the Customer to pay the Equipment Waiver Plus Fee on the hire of medium and large equipment, but the Customer may decide to opt out of that payment.
Payment of the Equipment Waiver Plus Fee is compulsory on all earth
moving equipment, unless Engineering & Generator Services agrees to accept
a certificate of insurance provided by the Customer at its own cost.
The reduced Damage Waiver Excess and the Theft Waiver Excess which apply
to medium and large equipment when the Equipment Waiver Plus Fee is paid will be shown on the Hire Contract and will vary for different types of machinery.
8.4 THEFT WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S LIABILITY FOR THEFT in the following circumstances;
(a) where the Customer
has failed to keep the Equipment in a securely locked compound; or
(b) where the Customer has failed to submit to Engineering & Generator Services a Police report on the theft within 7 days of the theft allegedly occurring.
In the event of Theft Waiver applying, hire fees will be charged to the Customer until the Police Report is provided to Engineering & Generator Services.
8.5 Damage Waiver or Theft Waiver will NOT apply where Engineering & Generator Services determines that any of the applicable circumstances in clauses 8.2(a)-(g) or
8.4 (a)-(b) respectively have occurred, unless the Customer is able to establish otherwise to the reasonable satisfaction of Engineering & Generator
9. Exclusion of Warranties and Liabilities.
9.1 Where the Consumer Guarantees Act 1993 (“CGA”) applies, the Customer has the benefit of guarantees in relation to the hire of the Equipment, which cannot be excluded.
9.2 Where the CGA applies and the Equipment is hired for business purposes the CGA is excluded to the fullest extent permitted by law.
9.3 To the extent that the CGA (or any other law which cannot be excluded) does not apply. Engineering & Generator Services makes no representations and gives no warranties other than those set out in these Hire Contract Conditions, and will not be liable to the Customer for any damages, costs or other liabilities whatsoever (including for consequential loss) in relation to the hiring of the Equipment by the Customer.
9.4 Engineering & Generator Services shall have no liability to the Customer, the guarantor or any other person whether in contract, tort or otherwise for any consequential of indirect damages or losses except to the extent otherwise mandatorily required by law.
10. Remote Hire
Where the Equipment is at any time hired by the Customer to be located
in the Remote Area, the following clauses will also apply, in addition to the
obligations of the Customer under Clause 3 and elsewhere in these Hire Contract Conditions;
(a) The Customer will pay an additional charge for any delivery, servicing and repair of the Equipment, and for any other attendance at the Remote Area by Engineering & Generator Services (‘Remote Area Charges’). The Remote Area Charges will be calculated on a per kilometer rate travelled by Engineering & Generator Services staff to and from the Remote Area, plus labour costs per staff member per hour(including travelling times) at scheduled rates, plus direct travelling cost including all airfares and accommodation charges incurred by Engineering & Generator Services and its staff in connection with travel to and from the Remote Area;
(b) Multiple items of Equipment hire by a Customer on the one site will only be charged for one call out fee;
(c) The Customer is responsible at its cost for daily maintenance and care of all Equipment in its possession, including daily checking of all fluids (fuel, oil, water, battery levels etc) and general tightening of any loose nuts, bolts, belts or fittings and lubrication of all grease points.
11. Breach of Hire Contract by Customer
If the Customer breaches any clause whatsoever of this Contract, or the
Customer or any guarantor becomes bankrupt, insolvent or ceases business then;
11.1 Engineering & Generator
Services shall be entitled to:
(a) terminate this Contract; and/or
(b) sue for recovery of all monies owing by the Customer; and/or
(c) repossess the Equipment (and is authorized to enter any premises where the Equipment is located to do so), and any Damage and/or Theft Waiver referred to in clause 8 is immediately invalidated.
11.2 The Customer
indemnifies Engineering & Generator Services in respect of any damages,
costs or loss resulting from a breach by the Customer of any provision of this
12.1 The Customer must
immediately check all Hire Charges, and any disputes in relation to those Hire
Charges must be communicated to Engineering & Generator Services in writing within 30 days of the Hire Contract date. In the event that no communication is received from the Customer within that 30-day period, the Hire Charges are deemed to be accepted by the Customer.
12.2 If a dispute arises
relating to this Contract, the hiring or the use of the Equipment (except in
regard to payments due to Engineering & Generator Services), the parties
agree to take reasonable steps within a period of 10 days of the dispute
arising to negotiate to settle the dispute with the assistance of Hire Industry
Association of New Zealand Inc. before litigation.
13. Privacy Act 1993
The Customer and any guarantor consent to Engineering & Generator
Services obtaining such information and making such enquiries about either of them from any source, including credit reference and reporting agencies and
companies related to Engineering & Generator Services, in relation to this
agreement and disclosing information about either of them to credit reference
agencies, companies related to Engineering & Generator Services, sureties,
financiers of Engineering & Generator Services, the trustee under any
debenture trust deed granted by Engineering & Generator Services or
assignees or anyone who is considering becoming a surety or assignee. A person has the right to access personal information (within the meaning of the Privacy Act 1993) held by Engineering & Generator Services and request correction of any errors in that information.
Engineering & Generator Services may amend these terms and
conditions by notice to the Customer, or by displaying the amended terms on its website. From the date of that notice or display, the amended terms will apply to the hire of all Equipment commencing after the date of that notice or
All payments under this Agreement by the Customer must be made without
set-off, counterclaim or withholding.
- Governing Law
This Hire Contract is governed by the law of New Zealand and the parties
submit to the non-exclusive jurisdiction of the courts of New Zealand.
Effective – March 20
TERMS AND CONDITIONS OF TRADE
1. APPLICATION (a) Unless otherwise agreed in writing by Engineering & Generator Services Limited (Seller) and the purchaser (Purchaser) these terms and conditions of trade (Terms) will apply to the supply of any goods (including generatorss and generator equipment, component goods and any related goods) by the Seller to the Purchaser (Goods). (b) If there is any inconsistency between a provision of these Terms and any provision in any other written agreement between the Purchaser and the Seller, the provisions will apply in the following descending order: (i) the provisions in any written agreement between the Purchaser and the Seller signed by the Seller; and (ii) the provisions in these Terms, provided that the provisions of these Terms will prevail over any other terms and conditions stipulated by the Purchaser or included as part of any Purchaser documentation unless those terms and conditions have been agreed to in writing by the Seller. (c) The Seller may amend these Terms at any time in its sole discretion. The amended Terms will apply in respect of all Orders placed with the Seller following the date the amended Terms are provided to the Purchaser in writing.
2. ORDERS (a) The Purchaser will place written orders with the Seller for Goods in accordance with the Seller’s specified ordering process and in accordance with any minimum order quantities specified by the Seller from time to time (Order). Each Order will constitute an offer to purchase the Goods by the Purchaser. Each offer to purchase goods will only be deemed to be accepted by the Seller sending written confirmation of the Order to the Purchaser or by the supply of the Goods to the Purchaser. (b) The Seller may in relation to any Order accept the Order or decline to accept the Order in whole or in part, in its sole discretion. Orders are accepted by the Seller subject to the Seller’s ability to supply the Goods. Notwithstanding acceptance of an Order, the Seller may cancel or refuse to supply any Order at any time in its sole discretion. (c) Any Order accepted by the Seller may not be revised, altered or cancelled by the Purchaser once accepted by the Seller unless consented to in writing by the Seller.
3. PRICE AND PAYMENT (a) The price payable for any Goods supplied to the Purchaser (Price) will be: (i) the price agreed between the parties; or (ii) in the absence of any agreement between the parties, the Seller’s prices applicable for the Goods at the time of the acceptance of the Order by the Seller. (b) The Seller may, by not less than 30 days prior written notice to the Purchaser, amend any Price in its sole discretion. The amended Price will apply in respect of all Orders accepted by the Seller after the expiry of the notice period. (c) The Seller will invoice the Purchaser the Price for all Goods ordered on a monthly basis (Invoiced Amount). (d) The Purchaser will pay the Invoiced Amount in full and without deduction or set off by the 20th of the month following the date of the invoice or where the Seller has agreed to any credit terms, the Invoiced Amount will be payable by the Purchaser on the date specified by the Seller in any invoice (Due Date). (e) Unless expressly stated in writing, the Price excludes GST (and any other relevant taxes and duties (if any)) which will be payable by the Purchaser in addition to the Price. (f) If the Purchaser fails to pay any amount owing to the Seller in full on or before the Due Date, the Seller may, without prejudice to any other right or remedy the Seller may have: (i) charge the Purchaser (who will pay the Seller on demand) default interest at 2% per month on the overdue amount, calculated daily from the Due Date until the date on which payment of the overdue amount is made in full; (ii) charge the Purchaser (who will pay the Seller on demand) all costs (including all legal costs on a solicitor-client basis and all collection costs) incurred by the Seller in the collection of such overdue amounts; and (iii) refuse to deliver any Order, cancel or suspend any Order, place any overdue account on hold or stop providing credit facilities to the Purchaser and any related entity of the Purchaser.
4. DELIVERY Delivery will be deemed to take place when the Goods are made available for collection by the Purchaser from the Seller’s premises (Delivery). If the Seller agrees to arrange for the transportation of any Goods from the Seller’s premises on behalf of the Purchaser: (a) the transportation of such Goods is at the Purchaser’s expense; (b) the Goods will be properly and suitably packed by the Seller and in such manner as to reach the intended destination in good condition under normal conditions of transport; (c) the Seller will act as the agent for and on behalf of the Purchaser and will not be liable for, or responsible for, any damage that occurs after Delivery, provided that it has complied with clause 4(b); and (d) the Seller will not be liable to the Purchaser for any loss of revenue, loss of profits or any other indirect or consequential losses or liabilities incurred by the Purchaser on account of any Goods not being delivered on any specified date.
5. RISK AND TITLE (a) Unless otherwise agreed in writing, all risk of loss, damage, deterioration or destruction to the Goods will pass to the Purchaser on Delivery. Title to any Goods will not pass to the Purchaser until the Seller has received payment in full for all Goods supplied to the Purchaser. (b) Until title to the Goods passes to the Purchaser under clause 5(a) the Purchaser will: (i) hold the Goods as a bailee only; (ii) clearly designate the Goods as the Seller’s property and store the Goods in such a way that they are identified as the Seller’s property; and (iii) maintain the Goods in good order and condition and preserve the Goods in their present form. (c) Without prejudice to the Seller’s other rights and remedies, the Seller will be entitled to retake possession of any Goods at any time prior to payment in full being received for those Goods. The Purchaser grants the Seller an irrevocable right and authority to enter onto any place where such Goods are situated, or thought to be situated at any time, and to take and resell the Goods and to retain the proceeds from such sale. Any shortfall arising from such sale will be a debt due and owing to the Seller by the Purchaser.
6. PERSONAL PROPERTY SECURITIES ACT 1999 (a) The Purchaser acknowledges that the retention of title in clause 5 gives rise to a security interest in all present and after acquired Goods supplied by the Seller to the Purchaser to secure the Purchaser’s performance of its obligations to the Seller. (b) The Purchaser undertakes to: (i) promptly do all things, execute all documents and/or provide any information which the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of its security interest (including by registration of a financing statement); (ii) give the Seller not less than 14 days’ prior written notice of any proposed change in its name and/or any other change to its details; and (iii) immediately on request by the Seller (and at the Purchaser’s expense) obtain from any third party such agreements and waivers of any security interest that third party has in the Goods, to ensure that at all times the Seller has a first priority security interest in the Goods. (c) The Purchaser waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between the Seller and the Purchaser: (i) the Purchaser will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA; and (ii) where the Seller has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
7. RETURN OF GOODS (a) Any claims by the Purchaser that any Goods supplied do not correspond to the relevant Order, or that any Goods received are defective, must be made in writing to the Seller within 20 working days after Delivery. (b) If no claim is received by the Seller within the 20 working day period the Purchaser will be deemed to have irrevocably accepted the Goods. (c) If a claim is made by the Purchaser in accordance with clause 7(a): (i) the Purchaser will advise the Seller of the defect in the Goods complained of and seek the Seller’s permission to return those Goods to the Seller for verification (at the Purchaser’s cost); and (ii) subject to verification, and on receipt of the Goods returned: (A) if the Seller supplied incorrect or defective Goods, the Seller will (at the Purchaser’s election) either issue a credit note for the Goods or, if possible, transport the applicable replacement Goods to the Purchaser at no additional cost to the Purchaser; or (B) if the Seller has not supplied incorrect or defective Goods, or the claim is made outside the applicable period, then the Seller will return the Goods to the Purchaser at the cost of the Purchaser and the Purchaser will have no further claim against the Seller in relation to those Goods.
8. LIMITATION OF LIABILITY Without prejudice to clause 7, the Purchaser acknowledges and agrees that: (a) the Seller is not liable to the Purchaser in any manner in connection with any breach of these Terms, other than to compensate the Purchaser for the cost of replacement of any Goods pursuant to clause 7; and (b) nothing expressed or implied in these Terms will confer any liability on the Seller for any consequential, indirect or special loss, damage, cost or expense suffered or incurred by the Purchaser as a direct or indirect result of: (i) a breach by the Seller of any of its obligations under these Terms; or (ii) any use of the Goods otherwise than in accordance with any relevant specifications notified by the Seller to the Purchaser.
9. NO WARRANTIES (a) Except as expressly warranted by the Seller in respect of any specific Goods, the Seller makes no representation, warranty or undertaking (whether express or implied) in relation to any Goods (including as to the merchantability, quality, or condition of the Goods, compliance with the description of the Goods, the suitability or fitness of the Goods for the Purchaser’s purposes, or the use of the Goods) and to the maximum extent permitted by law, all such representations, warranties and undertakings are negatived and excluded. (b) Where the Purchaser is acquiring, or holds itself out as acquiring, any Goods for the purposes of a business, in terms of section 43(2) of the Consumer Guarantees Act 1993 (Act), the Purchaser will not assert or attempt to assert any rights or claims against the Seller under the provisions of the Act. (c) The Purchaser acknowledges that it is not relying on the Seller’s skill or judgment as to the suitability or otherwise of the Goods for any purpose. (d) Where the Purchaser onsells any Goods to consumers who purchase those Goods for business purposes, the Purchaser will contract out of the Act in the same manner as provided in clause 12(b). If the Purchaser fails to do so, the Purchaser will indemnify the Seller against any claim, expense or loss suffered or incurred by the Seller as a direct or indirect consequence of such failure.
10. PRIVACY The Purchaser agrees that any information about the Purchaser provided at any time to the Seller may be used by the Seller for any purpose connected with the Seller’s business including (but not limited to) direct marketing, debt collection and credit reporting or assessment. The Seller is authorised to provide such information to any external agency or party for credit information and assessment purposes and that agency or party is authorised by the Purchaser to use and continue to use such information as part of its business services. The Seller and any external agency or party may retain and/or use such information for as long as they see fit.
11. GENERAL (a) The Purchaser will not assign or otherwise transfer its rights or obligations under these Terms to any person without the prior written consent of the Seller. (b) To the extent permitted by law, the Seller will not be liable for any act, omission or failure by it under these Terms if that act, omission or failure results directly or indirectly from an event or circumstances beyond the reasonable control of the Seller. (c) Any waiver by a party of any of its rights or remedies under these Terms will be effective only if it is recorded in writing and signed by a duly authorised senior representative of that party. If the waiver relates to a breach of any provision of these Terms, this will not (unless stated otherwise) operate as a waiver of any other breach of that provision. No waiver of any breach, or failure to enforce any provision, of these Terms at any time by either party will in any way affect, limit or waive that party’s right to subsequently require strict compliance with these Terms. (d) If any provision of these Terms is or becomes invalid or unenforceable, that provision will be deemed deleted from these Terms. The invalidity or unenforceability of that provision will not affect the other provisions of these Terms, all of which will remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provision. (e) These Terms are governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to these Terms.