General Conditions of Hire
In these conditions:
“Aggreko” means AGGREKO (NZ) LIMITED (NZCN 1110957);
“Damage Waiver” means a waiver granted by Aggreko under clause 12;
“Damage Waiver Premium” means a premium specified by Aggreko that the Hirer must pay to Aggreko as a condition of Aggreko granting a Damage Waiver;
“Excess” means the excess as defined in clause 11.4;
“GST” means any goods and services or value added tax, within the meaning of the Goods and Services Tax Act 1985 or any amending or substituting legislation (together with any similar foreign legislation if applicable to any Hire Contract outside New Zealand);
“Hire Contract” means the contract for the hire of the Plant by Aggreko to the Hirer on these Terms and Conditions, and for the purposes of the PPSA, means a lease as defined therein;
“Hire Period” means the time from when the Plant leaves Aggreko's depot or place where last issued until received back at Aggreko's depot or other place named by Aggreko;
“Hirer” means a person, firm or corporation, jointly and severally if there is more than one, hiring Plant from Aggreko;
“Insurance Waiver” means a waiver of the requirement of the Hirer under clause 11.1 to insure the Plant granted by Aggreko under clause 11.2(a)
“Insurance Waiver Premium” means the premium specified by Aggreko that the Hirer must pay to Aggreko as a condition of Aggreko granting an Insurance Waiver;
“Plant” means all plant, equipment, cable, cable drums, trailers, fuel tanks, batteries, machinery and accessories of whatever nature supplied by Aggreko to the Hirer;
“PPSA” means the Personal Property Securities Act 1999 and any amending or substituting legislation;
“Site” means any site to which the Plant is or is to be delivered and including without limitation any ship, truck or other vehicle upon which the Plant is intended to be used by the Hirer;
“Terms and Conditions” means these general conditions.
2. Basis of Contract
2.1 The Terms and Conditions apply exclusively to every contract for the hire of Plant by the Hirer from Aggreko and cannot be varied or supplanted by any other terms without the prior written consent of Aggreko.
2.2 Any written quotation provided by Aggreko to the Hirer concerning the proposed supply of Plant is valid for 30 days and is an invitation only to the Hirer to place an order based upon that quotation. Any terms in Aggreko's written quotation form part of the Terms and Conditions and, in the event of any inconsistency, the terms in Aggreko’s written quotation will prevail.
2.3 The Hirer is responsible for care of the Plant pursuant to the Terms and Conditions for the Hire Period, and remains bound by any continuing provisions after return of the Plant.
3. Credit Limit
3.1 At the time of opening an account, Aggreko will set a limit on the total amount permitted to be outstanding by the Hirer to Aggreko at any time (“Credit Limit”).
3.2 Aggreko reserves the right to remove or disable any of the Plant on hire by the Hirer in the event of the Credit Limit being exceeded.
3.3 It is the duty of the Hirer to ensure the hire of the Plant is operated within the Credit Limit. Aggreko is not under a duty to the Hirer to limit the hire of Plant to the Credit Limit.
3.4 and if (at Aggreko’s absolute discretion) Aggreko should continue to provide Plant over and above the Credit Limit, the full amount due to Aggreko shall be payable by the Hirer notwithstanding that the Credit Limit may have been exceeded.
4. Variation and Cancellation
4.1 Changes, errors or omissions in the specifications provided by the Hirer which results in extra cost to or work by Aggreko will be charged to the Hirer at Aggreko's standard rates for such work.
4.2 If through circumstances beyond the control of Aggreko, Aggreko is unable to provide Plant, then Aggreko may cancel any order (even if it has already been accepted) or Hire Contract by notice in writing to the Hirer.
4.3 No purported cancellation or suspension of an order or any part of it by the Hirer is binding on Aggreko after that order has been accepted by Aggreko.
4.4 Aggreko reserves the right to alter any specifications of the Plant and to make changes to the Plant or its specifications, provided that the end performance of the Plant is not prejudiced by that action.
5. Price and Price Variation
5.1 Prices quoted by Aggreko are net Ex-Works prices at date of quotation.
5.2 Prices for the hire of Plant and supply of services by Aggreko exclude:
(i) sales tax, GST, value added tax and any other taxes, duties or imposts imposed on or in relation to the Plant or services whether within or outside of New Zealand; and
(ii) the cost of freight, insurance and other charges arising from the point of despatch of the Plant to the Site and return,
all of which are payable by the Hirer in addition to the price.
5.3 In addition to the amount payable for the hire of the Plant, the Hirer must pay to Aggreko any amount specified in clauses 4.1 and 5.2 required to be paid by Aggreko in connection with the Hire Contract.
5.4 Where there is any change in the costs incurred by Aggreko in relation to the provision of the Plant, Aggreko may vary its price to take account of those changes.
5.5 Where the Hire Contract is not for a specified period, then, on 5 days written notice:
(i) Aggreko may terminate the Hire Contract;
(ii) provided that the Plant is returned to Aggreko’s depot or other place named by Aggreko and has not been lost or damaged and that the Hirer is not otherwise in breach of the Terms and Conditions, the Hirer may terminate the Hire Contract;
(iii) Aggreko may increase the previously agreed prices for the hire of the Plant not more than every 6 months during the Hire Period.
5.6 In the event of termination of the Hire Contract all Aggreko's rights under the Terms and Conditions remain until fulfilled by the Hirer.
6. Invoicing and Payment
6.1 If credit is provided by Aggreko, payment for Plant hired must be made within 30 days from the date of Aggreko's invoice.
6.2 If credit is not provided by Aggreko, payment for Plant hired must be made before the Plant is despatched or collected.
6.3 Payment by cheque will only be accepted on receipt of cleared payment.
6.4 The Hirer must promptly approve Aggreko’s invoices for payment, or within 7 working days of receipt of an invoice give details to Aggreko in writing for each item of the invoice that is disputed and the reason for the dispute .
7. Delivery and transport
7.1 The Hirer must pay the cost and, if required by Aggreko, arrange transport of the Plant from the place specified by Aggreko to the Site and back to a place specified by Aggreko at the end of the Hire Period.
7.2 If the Plant requires transportation for repair or replacement during the Hire Period then the cost of transport will be born by Aggreko, unless the repair or replacement is due to damage or breakdown of the Plant caused by the Hirer or its employees, contractors, agents or any other third party on the Site.
7.3 The Hirer must recoil any cable on the drums supplied.
8. Operation of Plant
8.1 Loading and Unloading: The Hirer is responsible for loading and unloading the Plant on Site. Any Aggreko personnel supplied for loading and unloading will do so as agents of the Hirer.
8.2 Care of Plant: The Hirer is responsible for the following:
(i) safekeeping of the Plant during the Hire Period;
(ii) maintenance of the Plant in good working condition;
(iii) operating the Plant for any intervals specified by Aggreko and seeking Aggreko’s consent before an interval is exceeded;
(iv) checking lubrication and cooling levels of the Plant daily and changing the lubricating oil and coolant in strict accordance with Aggreko's instructions;
(v) using only fuel, oil, coolant and lubricants specified by Aggreko;
(vi) use of the Plant in strict conformity with Aggreko's specifications and any other relevant laws or regulations;
(vii) ensuring that the Plant is not operated for any purpose beyond its rated capacity or in a manner likely to result in undue wear;
(viii) inspecting the Plant on a regular basis and ensuring that it is not to operate it if it has become defective, damaged or in a dangerous state;
(ix) ensuring that the Plant is not moved from the Site, unless in an emergency and Aggreko is advised immediately afterwards;
(x) complying with all relevant laws, by-laws and regulations applicable to the installation, use and operation of the Plant;
(xi) advising Aggreko immediately if the Plant breaks down or fails to operate properly, or if the Plant is damaged, lost or stolen; and
(xii) protecting the Plant against fire, theft, distress or seizure.
8.3 Solid Footing: If the Site is soft or unsuitable for the Plant to work on or travel over, the Hirer must at its cost supply suitable timbers or their equivalent for the Plant to travel over or work on.
8.4 Access: The Hirer must allow Aggreko's employees, contractors, agents and insurers access to the Plant at all reasonable times to deliver, remove, inspect, test, adjust, maintain, repair or replace it. The Hirer is responsible for providing safe and proper access and is liable for all loss or damage suffered by Aggreko or its employees, contractors, agents or insurers as a result of the Hirer's failure or delay in doing so.
8.5 Maintenance/Service: The Hirer must notify Aggreko in writing immediately if the Plant has operated for 250 hours from the date it was last serviced or from the start of the Hire Period, whichever is later. Following receipt of such notification, Aggreko will, at its cost, service the Plant within 1 week of Aggreko advising the Hirer that it will do so. If the Hirer fails to notify Aggreko or if Aggreko is unable to access the Plant to service the Plant during business hours within the period specified, Aggreko may, in addition to any other rights it has, charge the Hirer for:
(i) compensation for added wear, tear and damage to the Plant;
(ii) any overtime costs incurred by Aggreko; and
(iii) the costs of the next service and any consequential repairs.
The Hirer must not try to effect any repairs on the Plant. The Hirer is responsible for all costs associated with access to the Site, including inductions whilst servicing Aggreko’s equipment.
8.6 Operations of the Plant: Only the Hirer or its employees, contractors or agents may operate the Plant, must do so under the supervision and instructions of the Hirer and be qualified to operate the Plant. The Hirer is responsible for the acts and omissions of all Plant operators. The Hirer must not permit any other person to operate the Plant.
8.7 Transfer and Rehiring: Neither the Plant nor any part of it may be lent, rehired or sub-let to any person. If Aggreko consents in writing to a rehire or sub-lease of the Plant, the Hirer remains bound by all of the Terms and Conditions and must ensure that any rehirer or sub-lessee also complies with all terms of the Terms and Conditions relating to the use or care of the Plant.
8.8 Inspection Reports: Copies of any reports or copies which Aggreko is obliged by law to possess will be supplied to the Hirer on request and must be returned at the end of the Hire Period.
9.1 Breakdowns or defects in the Plant resulting from:
(i) proper and ordinary use or fair wear and tear; or
(ii) the development of an inherent fault or a fault not ascertainable prior to commencement of the Hire Period;
may, at Aggreko's option, either be repaired or the Plant replaced at Aggreko's expense. No charge will apply from the date of notice of breakdown until the repair or replacement of the Plant.
9.2 If repair is impracticable and if replacement Plant is not available, Aggreko may terminate the Hire Contract and will not have any liability whatsoever to the Hirer for such termination or any consequences of breakdown.
9.3 No relief from hire charges nor any claims will be allowed by Aggreko for stoppages due to causes out of Aggreko's control including, without limitation, bad weather or Site conditions.
10. Limitation and Exclusion
10.1 Except as specifically set out in the Terms and Conditions, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Plant, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded to the maximum extent permitted by law.
10.2 Aggreko may satisfy any liability it has to the Hirer under the Hire Contract or otherwise by replacement or repair of the Plant, including any liability arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for purpose of the Plant or the use of or any other dealings with the Plant by the Hirer or any third party.
10.3 Aggreko is not liable for any indirect or consequential losses or expenses suffered by the Hirer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
10.4 Aggreko will not be liable for any loss or damage suffered by the Hirer where Aggreko has failed to meet any delivery date or cancels or suspends the supply of the Plant.
10.5 Nothing in the Terms and Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified, except to the extent permitted by the relevant legislation.
10.6 The parties agree that where the Plant is hired for the purposes of the Hirer’s business, the Consumer Guarantees Act 1993 does not apply and it is fair and reasonable that the parties are bound by this clause 10.6.
10.7 The Hirer acknowledges that it does not rely on the representations or other conduct of Aggreko or Aggreko’s employees, contractors or agents, whether during negotiations prior to the Hire Contract being entered into, or at any subsequent time, and that the purpose of this clause 10.7 is to expressly contract out of the Fair Trading Act 1986 to the maximum extent possible. The parties agree that it is fair and reasonable that the parties are bound by this clause 10.7.
11.1 Subject to clause 11.2(a), the Hirer shall, prior to the delivery of the Plant, at its own expense insure the Plant with an insurer approved by Aggreko in writing and in accordance with a Material Damage/Plant & Equipment policy (subject to the standard conditions and exclusions) for full replacement value and for loading, unloading, transit and all commercially insurable perils including theft, such insurance cover to be satisfactory in every respect to Aggreko in its sole and absolute discretion. If Aggreko is not satisfied with the insurance proposed by the Hirer, or fails to comply with its obligations under this clause 11.1, Aggreko may decline to hire the Plant to the Hirer, unless the Hirer complies with clause 11.2(a). Any variation from such an insurance contract must be approved by Aggreko. The Hirer shall, prior to delivery of the Plant, provide to Aggreko evidence of insurance of the Plant, including receipts for the premium payable for such insurance and a copy of the insurance policy noting the interest of Aggreko as owner of the Plant. Any insurance moneys recovered by the Hirer in respect of such risks shall, to the extent deemed necessary by Aggreko, be applied as directed by Aggreko. If the Plant is involved in any incident resulting in injury to persons or damage to property, immediate notice must be given to Aggreko by telephone and confirmed in writing to Aggreko’s office and, no admission, offer, promise, payment or indemnity shall be made by the Hirer without Aggreko’s consent in writing.
11.2 (a) If, prior to the delivery of the Plant, the Hirer pays to Aggreko the Insurance Waiver Premium and accepts liability to pay to Aggreko an amount equal to the Excess as defined in clause 11.4 in the event of any loss of, or damage to, the Plant, including Damage Waiver as described in clause 12.1 (i), then Aggreko will be deemed to have granted an Insurance Waiver to the Hirer. In that event, if there is any loss of or damage to the Plant, subject to the conditions and exclusions contained in clause 11.3, Aggreko will waive its rights against the Hirer in respect of that loss or damage, so long as the Hirer has complied with its obligations under clause 11.2(b) and paid the Excess in accordance with the provisions of clause 11.4.
(b) Where clause 11.2(a) applies:
(ii) The Hirer must comply with all reasonable requests of Aggreko in relation to any loss of or damage to the Plant and where appropriate the Hirer will procure a written Police report and promptly submit the Police report to Aggreko.
11.3 For the avoidance of doubt the Hirer acknowledges that the conditions and exclusions defined in this clause 11.3 are expressly excluded from the Insurance Waiver and waiver of rights offered pursuant to clause 11.2(a) of this Hire Contract and the obligations of Aggreko under clause 12 will also not apply should any event described in those conditions and exclusions occur;
(a) Damage to the Plant or any other property due to misuse, abuse or overloading of the Plant; and
(b) Damage to the Plant or any other property caused by the Hirer or its servants or agents or any other person or persons lawfully or unlawfully on the Site intentionally, unintentionally, accidentally, negligently or otherwise allowing the Plant or any other property to cause damage to or by the Plant during loading, unloading, lifting or otherwise moving the Plant or any other property; and
(c) Mysterious disappearance or wrongful conversion of the Plant; and
(d) Loss or damage in contravention of the conditions of this Hire Contract; and
(e) Loss or damage from use in violation of any statutory laws and regulations; and
(f) Loss of tools, accessories, electric cords, power cables, welding cables, batteries and other similar accessories; and
(g) Loss or damage resulting from lack of lubrication or other normal servicing or equivalent; and
(h) Loss or damage to motors or other electric appliances or devices caused by overloading or artificial electrical current, including the use of under rated extension leads or electrical powered tools and machines including automatic voltage regulators; and
(i) Damage to tyres, including punctures; and
(j) Loss or damage caused by incorrectly synchronising the Plant with other plant, utility power source, main power supply or any other power supply; and
(k) Loss or damage when the Plant is synchronised or otherwise connected to other plant or any other power source by any person other than an authorised agent of Aggreko; and
(l) Plant transported at any time during the rental period other than by Aggreko or its authorised agent; and
(m) The Hirer breaches these Terms and Conditions.
11.4 When clause 11.2 applies, if there is any loss of or damage to the Plant the Hirer will, subject to clause 12, pay Aggreko an amount equal to an Excess which is 20% of the replacement value of the Plant.
12. Damage Waiver
12.1 If, prior to delivery of the Plant, the Hirer pays the Damage Waiver Premium to Aggreko, Aggreko will, in the event of any loss of or damage to the Plant, in respect of that loss or damage, subject to the conditions and exclusions contained in clause 11.3:
(i) where clause 11.1 applies (Hirer’s own insurance), waive Aggreko’s right to payment of the amount that would otherwise be payable under clause 15 in respect of damage to the Plant that is:
- dints, scratches, chips or cracked glass;
- blistered or discoloured paint or graffiti; or
- other minor damage;
to the extent that the cost to rectify that damage (assessed by Aggreko) is less than 10% of the replacement value of the Plant or $10,000 (whichever is less) (“Waived Amount”). If the cost to rectify that damage to the Plant (assessed by Aggreko) exceeds the Waived Amount, the Hirer remains liable under clause 15 for the difference;
(ii) where clause 11.2 applies (Insurance Waiver), waive Aggreko’s right to payment of the cost to rectify that damage to the Plant (assessed by Aggreko) which exceed the Waived Amount Excess that would otherwise be payable under clause 11.4, so long as the Hirer has paid the Insurance Waiver Premium and complied with its obligations under clause 11.2(b).
13 Ownership of and Title to the Plant
13.1 Ownership of and title to the Plant remains at all times with Aggreko, notwithstanding that the Aggreko has, by the Hire Contract, let the Plant to the Hirer on hire.
13.2 The Hirer shall not deal with the Plant in any way so as to defeat the ownership and the right and title of Aggreko to the Plant.
13.3 If the Hirer fails to return the Plant to Aggreko upon the expiry or earlier termination of the Hire Period, then Aggreko or Aggreko’s employees, contractors or agents may enter upon and into buildings and premises owned, occupied or used by the Hirer where Aggreko suspects the Plant is situated or stored, and take possession of the Plant. Aggreko shall exercise reasonable care in entering and removing the Plant, but shall not be liable for any damage so caused, whether to the property of the Hirer or the buildings or premises in or on which the Plant is situated or stored and the Hirer hereby indemnifies Aggreko from and against any liability arising from that action.
13.4 The Hirer shall not mortgage, charge or otherwise encumber in any way whatsoever the Plant, nor give any interest (whether registered or otherwise) in the Plant to any other person at any time.
14 Personal Property Securities Act 1999 (PPSA)
14.1 Unless the context otherwise requires, terms used in this clause 14 that are defined in the PPSA have the same meaning as in the PPSA.
14.2 The Hirer grants to Aggreko a security interest in the Plant as security for payment of the Hirer’s obligations and for the performance from time to time of the Hirer’s other obligations to Aggreko under the Hire Contract.
14.3 If requested by Aggreko, the Hirer will do whatever is necessary or desirable to ensure that the security interest referred to in this clause 14 constitutes a perfected security interest in the Plant and its proceeds that has priority over all other security interests in the Plant.
14.4 The security interest granted under this clause is a continuing interest irrespective of whether there may be monies or other obligations owing by the Hirer to Aggreko at a particular time.
14.5 The Hirer agrees that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 124(1)(a), 133 and 134 of the PPSA shall apply to the Hire Contract or the security under the Hire Contract and waives the Hirer’s rights under sections 121, 125, 126, 127, 129, 131, 132 and 133 of the PPSA.
14.6 The Hirer will not permit the Plant to become an accession or to be affixed to any land or premises.
14.7 The Hirer acknowledges receiving a copy of the Terms and Conditions and waives all rights to receive from Aggreko verification of any financing statement or any other notice of any event described by the PPSA.
14.8 The Hirer indemnifies Aggreko for any costs it incurs in registering, maintaining and enforcing the security interest created by the Terms and Conditions.
15. Responsibility and Indemnity
15.1 Subject to clauses 11.2 and 12, the Hirer is solely responsible for all risks relating to or arising from the selection, use and location of the Plant.
15.2 Subject to clauses 11.2 and 12, the Hirer hereby indemnifies Aggreko and keeps Aggreko harmless from and against any and all costs, actions, claims, demands, loss or damage (including all legal costs on a solicitor/client basis) and expenses arising from or in connection with the Plant or as a result of its use or location or the Hirer’s breach of the Hire Contract, including any indirect or consequential loss or expense.
16.1 If the Hirer:
(i) breaches any term of the Hire Contract (including any term of these Terms and Conditions);
(ii) allows the Plant to be damaged or lost, or the Plant is damaged or lost, while under the responsibility of the Hirer;
(iii) defaults in payment by the due date of any amount payable under the Hire Contract;
(iv) is an individual and dies or becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally;
(v) is a corporation and enters into any scheme of arrangement, any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, has as a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, liquidation (including provisional liquidation), winding up or dissolution without winding up of the Hirer; or
(vi) in the reasonable opinion of Aggreko, the Plant may be at risk for any reason whatsoever (including adverse weather or work conditions);
(vii) in the reasonable opinion of Aggreko, the Hirer is likely to breach any of its obligations under the Hire Contract;
Aggreko may, without prejudice to any other remedy available to it, by notice in writing given to the Hirer:
(i) declare to be due and payable, and require immediate payment of all money payable by the Hirer to Aggreko under the Hire Contract irrespective of whether such moneys are then due;
(ii) charge the Hirer interest at 1.5% per month for the period from the due date until the date of payment in full;
(iii) charge the Hirer for, and the Hirer hereby indemnifies Aggreko from, all costs and expenses (including without limitation all legal costs (on a solicitor/client basis) and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms and Conditions or to recover the Plant;
(iv) charge the Hirer for the cost of repairing or replacing any lost, damaged or destroyed Plant;
(v) charge the Hirer for subsequent lost hire charges as a result of the Plant being lost, damaged or destroyed until the Plant is repaired or replaced;
(vi) claim damages from the Hirer for breach of the Hire Contract;
(vii) cease or suspend for such period as Aggreko thinks fit, supply of any further Plant to the Hirer; and/or
(viii) by notice in writing to the Hirer, terminate any Hire Contract so far as it has been unperformed by Aggreko;
without effect on Aggreko’s accrued rights under the Hire Contract.
16.2 On termination, the Hirer must on demand immediately return the Plant. If the Hirer does not, Aggreko or Aggreko’s employees, contractors or agents may enter any buildings and premises owned, occupied or used by the Hirer where the Plant is suspected to be situated or stored, and take possession of the Plant. Aggreko will not be liable for any damage caused and the Hirer hereby indemnifies Aggreko from any liability arising from that action.
17.1 Aggreko is bound by the Privacy Act 1993 (“Privacy Act”). All personal information (as defined in the Privacy Act) obtained about the Hirer will be collected, stored, used, disclosed, transferred and destroyed in accordance with the Privacy Act. Aggreko will only use that personal information for the purpose for which it is provided, including for the purposes of carrying out credit checks and debt collection (which may require the disclosure of personal information to third parties), supplying goods and services to the Hirer, evaluating the hire of equipment by the Hirer, and providing the Hirer with information about goods and services Aggreko thinks might be of interest to the Hirer. The Hirer has the right to access personal information that Aggreko holds about the Hirer and to request correction of it if the personal information is incorrect.
17.2 The Hirer must comply with the Privacy Act in connection with any personal information supplied to it by Aggreko about an individual in connection with the Hire Contract.
18.1 Aggreko may from time to time amend these Terms and Conditions and shall as soon as possible forward a copy of any amended Terms and Conditions to the Hirer. The Hirer shall have 21 days from the date of being sent such amended Terms and Conditions to decline the same and to terminate any Hire Contract by notice in writing to Aggreko within that period. In the absence of that notice, the Hirer will be bound by the amended Terms and Conditions..
19.1 The Hirer shall not assign the Hire Contract. Aggreko may assign the Hire Contract.
19.2 The law of New Zealand from time to time governs these Terms and Conditions and the parties agree to the non-exclusive jurisdiction of the courts of New Zealand.