HIRE AGREEMENT (AGREEMENT) TRANSPORTABLE
ACCOMMODATION NZ LIMITED(TANZ)
GENERAL TERMS
1. By signing this Agreement, the Customer agrees to be bound by the Commercial Terms and General Terms.
2. Customer Obligations: The Customer:
a) Shall hire the Unit (which includes any additional items listed in the Commercial Terms) for the hire period at the hire fee and on the terms and conditions contained in this Agreement.
b) Shall pay the hire fee, delivery fee, security bond, early termination fee (if any), and any other fees or charges set out in the Commercial Terms.
c) After the hire period has ended, must give TANZ at least two (2) weeks written notice to terminate this Agreement, provided that no such notice can begiven between 20 December in one year through to 14 January in the immediately following year.
d) Agrees that TANZ may increase the hire fee by no more than 10% per year for a hire that exceeds one (1) year in length.
e) Shall ensure that the Unit ordered is fit and suitable for the purpose for which it is required by the Customer and TANZ is not liable if they are not.
f) Shall be responsible for obtaining any necessary permits, and for compliance with all regulations, by-laws, or rules in connection with the use of the Unit.
g) For the purposes of facilitating TANZ’s business, authorises TANZ:
i) to request all information it may require about the Customer from the Customer and the Customer agrees to release such information to TANZ,
ii) to collect Customer information from any third parties and the Customer authorises those third parties to release such information to TANZ,
iii) to hold information given to TANZ by the Customer or any third party, and
iv) to use information for the purposes related to facilitating the administration of TANZ’s business, including giving any information to personsto facilitate the collection of debts from the Customer.
h) Must always keep the Unit clean and tidy and ensure that the Unit is cleaned at the end of the hire period and prior to collection.
i) Must not, unless otherwise agreed in the Commercial Terms:
i) permit cooking, smoking, vaping, candle use, or any potential fire hazard risk inside the Unit and must always leave the smoke alarm in the Unit,
ii) allow any animals (including pets) inside the Unit at any time,
iii) put heaters close to walls, and
iv) use any gas heater and/or any other gas appliance in the Unit.
j) And the Landowner agree that TANZ may, at all reasonable times and on the giving of reasonable notice and without unduly interfering with theCustomer’s use of the Unit, to enter with its employees or agents on or into the premises where the Unit is located to inspect the state of repair of theUnit, but no more than once every 6 months.
k) Accepts that they have no claim against TANZ in the event of any loss, theft, accident, injury, illness or death as a result of hiring the Unit.
3) TANZ Obligations: TANZ will:
a) Deliver the Unit to the delivery address specified by the Customer, being the Customer’s (or Landowner’s) property.
b) Connect power to the Unit, unless agreed otherwise with the Customer in writing.
4) Title and Risk: TANZ retains all legal and equitable title to the Unit supplied to the Customer notwithstanding delivery of the Unit to the Customer, possession and use of the Unit by the Customer, or any temporary attachment of the Unit to any land to facilitate its use. Although ownership of Unit remains with TANZ, all risk of any loss, damage and deterioration (other than fair wear and tear) in relation to any Unit supplied, passes to the Customer on delivery.
5) Security: Unless expressly stated otherwise, terms defined in this section 5) have the same meaning as set out in the Personal Property Securities Act 1999 (PPSA).
a) The Customer grants TANZ a Security Interest in the Unit supplied by TANZ to the Customer, (either before or after the date of this Agreement). ThisSecurity Interest is granted by the Customer to TANZ as Security for all amounts owing by the Customer to TANZ and for the performance of theCustomer’s obligations under this Agreement.
b) TANZ has the right to take possession of any Unit in the event any unpaid amounts owed to TANZ become overdue.
c) It is expressly agreed that:
i) to the fullest extent possible, TANZ and the Customer contract out of the application of Sections 114(1)(a), 133 and 134 of the PPSA,
ii) the Customer’s rights as debtor in sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA shall not apply to this Agreement,
iii) each Security Interest created by this Agreement is continuing, notwithstanding any immediate payments, settlement of accounts or anything else,
iv) the Customer waives any requirement of TANZ to provide the Customer a verification statement following registration by TANZ of afinancing statement or a financing change statement under Section 148 of the PPSA,
v) the Customer has received value from TANZ as at the date of first delivery of the Unit and the Customer has not agreed to postpone the timefor attachment of the Security Interest granted to TANZ under this Agreement nor to subordinate such Security Interest in favour of any person,
vi) the Customer must not make any change to the Customer’s details without giving notice to TANZ a reasonable time before the change,
vii) no Security interest created under this Agreement is discharged, nor are the Customer’s obligations affected by any amendment to, or the validity or enforceability of, or failure to enforce this Agreement, or anything else whatsoever that, but for this clause, may have discharged this Agreement or affected the Customer’s obligations under this Agreement, and
viii) the Customer must not consent to or enter into any agreement which permits any supplier or other person to register a Security Interest in respectof the Unit, which ranks in priority to TANZ’s rights as a first ranking security holder in the Unit.
d) All costs of enforcement under this Agreement are chargeable to the Customer’s account, including legal fees and disbursements on a solicitor and own client basis incurred in obtaining any orders under the PPSA.
e) The Customer must promptly execute documents and do such further acts as may be required by TANZ to ensure TANZ is paid all sums due to TANZ and to otherwise protect the interests of TANZ under this Agreement, including to register the Security Interest granted to TANZ under this Agreement under the PPSA and to ensure that the Security Interest is a first ranking perfected Security Interest over the Unit.
6) Confidentiality and Intellectual Property: The parties agree to treat as confidential, any information relating to the other party, which by its nature, or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as “Confidential Information” and neither party will use or disclose any Confidential Information except as so far as may be reasonably necessary to enable that party to fulfil its obligations or exercise its rights under this Agreement or as required by Law.
7) All intellectual property in the Unit remains the sole and exclusive property of TANZ.
8) Default: Without prejudice to TANZ’s other remedies at law, TANZ shall be entitled to cancel all or any part of a hire period which remains unfulfilled and allamounts owing to TANZ will, whether or not due for payment, become immediately payable if:
a) Any money payable to TANZ becomes overdue or in TANZ’s opinion the Customer will be unable to make a payment when it falls due.
b) The Customer is in breach of any other obligation under this Agreement.
c) The Customer has exceeded any applicable credit limits provided by TANZ.
d) The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters an arrangement with its creditors, or makes an assignment for the benefit of its creditors.
e) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
9) If any of the subclauses under clause 8) apply TANZ reserves the right to, and the Landowner and the Customer agree that, TANZ (or its agents) is entitled to enter onto the premises where the Unit may be situated and remove and take possession of any Unit and TANZ shall not be liable in contract, tort or otherwise for any costs, losses, damages or expenses suffered by the Customer, the Landowner, or any third party as a result of exercising TANZ’s right under this clause. The Customer indemnifies TANZ against any liability that TANZ may have to any third party (including legal costs on a solicitor-client basis) as a result of TANZ exercising TANZ’s rights under this clause.
10) Cancellation: Without prejudice to any other remedies TANZ may have, if at any time the Customer is in breach of any obligation, including those relating to payment, under this Agreement, TANZ may suspend or terminate the supply of the Unit to the Customer. TANZ will not be liable to the Customer for anyloss or damage the Customer suffers because TANZ exercise its rights under this clause.
11) TANZ may cancel this Agreement or cancel delivery of any Unit at any time before the Unit is delivered, by giving written notice to the Customer. On givingsuch notice TANZ shall repay the Customer any money paid by the Customer for the Unit (including the Security Bond). TANZ shall not be liable for any loss or damage whatsoever arising from such cancellation.
12) If the Customer cancels delivery of the Unit, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by TANZ as a direct or indirect result of the cancellation, including, but not limited to any loss of profits.
13) Disputes: If a dispute arises between the parties, then either party may send to the other party a notice of dispute in writing adequately identifying andproviding details of the dispute.
14) Within 14 days of service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute.
15) At any such conference each party shall be represented by a person having authority to agree to resolution of the dispute.
16) If the dispute cannot be resolved, either party may, by further notice in writing, delivered to the other, refer the dispute to arbitration.
17) Any arbitration should be undertaken by a single Arbitrator agreed between the parties, or failing agreement, by two Arbitrators (one to be appointed by each party, and their Umpire) appointed by them prior to arbitration. Such arbitration to be carried out in accordance with the provisions of the ArbitrationAct 1996.
18) Exclusion and Limitation of Liability: Except as expressly provided in this Agreement, all warranties, undertakings, inducements, descriptions, conditions(including but not limited to fitness or suitability for purpose), tolerance to any conditions, merchantability or otherwise or representations whether expressed, implied, statutory or otherwise relating in any way to the Unit or to this Agreement, are to the maximum extent permitted by law, expressly excluded.
19) If the Client is acquiring the Unit in Trade, for the purposes of section 5D of the Fair Trading Act 1986 (FTA) and section 43 of the Consumer Guarantees Act1993 (CGA), TANZ and the Customer acknowledge and agree that, to the maximum extent permitted by law:
a) The Unit provided to the Customer under or in connection with this Agreement is being provided in trade.
b) To the extent that the FTA and/or the CGA applies to the hire of the Unit to the Customer under this Agreement, in respect of all matters under orin connection with this Agreement the parties are contracting out of the CGA and sections 9, 12(a) and 13 of the FTA.
c) The parties each have an opportunity to receive advice from a lawyer prior to contracting under this Agreement.
d) It is fair and reasonable for the parties to be bound by this clause 19).
20) Except where applicable law, including the FTA, expressly requires otherwise, TANZ is not liable in any event for:
a) Any special, indirect or consequential damage, loss or injury of any kind or for any loss of business, profit, data or anticipated savings, suffered by theCustomer or any other person, however caused, even if TANZ had been advised of the possibility of such damage, loss or injury, or arising directly orindirectly from any breach of TANZ’s obligations arising under or in connection with this Agreement or from any cancellation of this Agreement or fromany negligence, representation or other act or omission on the part of TANZ, its agents or contractors.
b) Any loss, damage or injury caused to the Customer, it’s agents, contractors, customers, visitors, tenants, trespasses or other persons by the Customer’s possession and use of the Unit. The Customer shall indemnify TANZ against any claim by any of the foregoing persons in respect of any loss, damage or injury arising from the possession and/or use of the Unit.
21) General: The failure by a party to enforce any provision of this Agreement must not be treated as a waiver of that provision, nor will it affect that party’s right to subsequently enforce that provision.
22) If any provision of this Agreement shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23) This Agreement is governed by the laws of New Zealand and are subject to the jurisdiction of the Courts of New Zealand.
24) TANZ shall be under no liability whatsoever to the Customer for any direct, indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by TANZ of this Agreement.
25) TANZ will not be liable to the Customer for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the Unit orfailure to perform any of the provisions of this Agreement where such delay or failure is caused directly or indirectly by an act of God, earthquake, fire, conflict, labour dispute, civil commotion, intervention of a Government, inability to obtain labour, materials, facilities, accidents, pandemics, interruptions of or delays in transportation or any other cause beyond TANZ’s control.
26) The Customer may not assign its rights under this Agreement without the prior written consent of TANZ (to be given at TANZ sole discretion). Any change in the legal or beneficial ownership of shares in the capital of the Customer (or its parent company), or any change in the share structure of the Customer or of any parent shareholder, which results in a change in effective management or control of the Customer in the opinion of TANZ, shall be deemed to be an assignment.
27) TANZ may subcontract, assign or novate this Agreement in part or full.