Ironclub & Sales Consumer Contract Terms and Conditions (“Consumer Conditions”)
1. CONSUMER CONDITIONS
1.1 The Consumer Conditions set out below shall apply to and are incorporated into any contract for the hire and/or sale of goods (“equipment”) as detailed in the contract details page (“Contract Details”) between Ironclub (the “Owner”) and the consumer hiring or buying the equipment (“Hirer”) (together, the “Contract”).
1.2 For the purposes of this Contract, “consumer” means a Hirer who is a “consumer” for the purposes of the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986.
1.3 Nothing in this Contract a ects, or attempts to exclude in any way, the Hirer’s rights under the Consumer Guarantees Act 1993.
1.4 If the Hirer is in trade (within the meaning of the Consumer Guarantees Act 1993) and the equipment is supplied to the Hirer and acquired by the Hirer in trade, the Owner and the Hirer confirm, acknowledge and agree that:
(a) these Consumer Conditions will be substituted with the Ironclub Hire & Sales Trade Contract Terms and Conditions (“Trade Conditions”); and
(b) the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 do not apply.
1.5 It is not intended that any Contract will be either a consumer credit contract or a consumer lease for the purposes of the Credit Contracts and Consumer Finance Act 2003.
2. AMENDMENTS
2.1 The Owner may amend any terms of the Consumer Conditions at any time, in its sole discretion, by posting updated Consumer Conditions on its website ironclub.co.nz.
2.2 Notwithstanding clause 2.1, the Hirer will continue to be subject to the Consumer Conditions attached to, and in e ect at the time the Hirer entered into, the Contract. Any amended Consumer Conditions shall only apply to a new contract for the hire and/or sale of goods entered into between the Owner and the Hirer.
3. HIRE CHARGES
3.1 Equipment may be hired for: a) Half Day; b) Daily; c) Weekly; d) Monthly; or e) as otherwise agreed to in writing. The Hirer agrees that the Owner may charge extra on a pro-rata basis for any equipment usage in excess of the agreed hire periods or the maximum usage times (in the case of metered equipment) as set out in clause 3.2 or otherwise agreed to
in writing. Certain equipment may carry minimum hiring periods and maximum usage times and these will be notified to the Hirer and itemised in the Contract Details at the time the relevant equipment is hired.
3.2 The “hire periods” and “maximum usage times” are: “Half Day” means 4 hours or overnight provided the
equipment is picked up a er 4.00pm and returned by 8.30am the following day (maximum usage time 4 hours);
“Daily” means 24 hours (maximum usage time 8 hours); “Weekly” means 7 days (maximum usage time 45 hours); and “Monthly” means 28 days (e.g. if pick up occurs on the 1st of a month, return is to be by 4.00pm on the 28th of the month (maximum usage time 180 hours)).3.3 The hire period begins from the time the equipment leaves the Owner’s premises and runs until the equipment is either returned to the Owner at the place of hire, removed by the Owner pursuant to clause 5, or the Contract is terminated pursuant to clause 6.
3.4 The Hirer shall pay as invoiced for the following charges itemised in the Contract Details or otherwise notified to the Hirer:
(a) the hire charges for the hire period of all equipment used;
(b) a bond of 150% of the estimated total charges if
applicable (see clause 4.2 below);
(c) the damage waiver charges (unless the Owner has agreed
otherwise in writing);
(d) delivery/removal charges (if applicable);
(e) excess use charges (if applicable);
(f) any damage to or loss of the equipment not covered by
the damage waiver (if applicable);
(g) cleaning fees (if applicable); and
(h) default interest for late payment (if applicable).
3.5 If the Weekly charge rate is less than the accumulated Daily charge rate over the same hire period, the Weekly charge rate will apply.
3.6 Cleaning fees will be assessed and charged if the Hirer returns equipment that the Owner deems (in its sole discretion
but acting reasonably) to be excessively dirty. If the Owner determines on this basis that the equipment will require additional cleaning, the Owner will advise the Hirer at the time the equipment is returned and notify the Hirer of the relevant cleaning fees either:(a) at the time the Hirer returns the equipment; or
(b) as soon as reasonably practicable a er the Hirer returns
the equipment if assessment of the cost of cleaning cannot be determined at the time the Hirer returns the equipment.
4. PAYMENT AND DEFAULT INTEREST
4.1 All charges will specify whether they are inclusive or exclusive of GST and the Contract Details will set out the charges and applicable GST payable by the Hirer.
4.2 For hire of equipment, unless the Hirer has a credit account with the Owner:
(a) the Hirer will be required to pay a bond of 150% of the estimated total charges; and
(b) on return of the equipment in good order and condition, the actual total charges will be calculated and the Hirer will either pay the balance outstanding, or be refunded with the di erence between the bond paid by the Hirer and the actual total charges.
4.3 Unless otherwise agreed in writing by the Owner, the Hirer must pay, or the Hirer’s account will be charged with, the cost of the damage waiver for hired equipment, the amount of which is specified in the Contract Details (see clause 10 for further details on the damage waiver).
4.4 For purchase of equipment, the Hirer will pay the Owner the agreed price. Risk in this equipment passes to the Hirer on delivery of the equipment and title will pass on payment in full to the Owner.
4.5 For credit account customers, the Owner will send the Hirer an invoice for charges incurred. The Hirer must pay the invoice by the 20th of the month following the date of invoice. The Owner reserves the right to reverse any previously agreed discount for credit account customers if the account is not paid in full by the due date.
4.6 All Hirer queries or issues with invoiced amounts must be raised with the Owner within one month of the date on the relevant invoice so that any such queries or issues can be promptly reviewed and resolved.
4.7 The Owner reserves the right to apply payments received in any manner the Owner determines.
4.8 Without prejudice to the Owner’s other remedies under these Consumer Conditions, at law or otherwise, the Hirer will pay default interest at the rate of 2% above the Owner’s overdra rate per calendar month on all outstanding amounts from the end of the agreed hire period (for cash customers) or from the 20th of the month following date of invoice (for credit account customers), until all monies have been paid in full.
4.9 The Hirer must make all payments due under the Contract (time being of the essence) without set-o or deduction of any kind.
4.10 No credit shall be extended on overdue accounts. 4.11 The Hirer must immediately notify the Owner of any
occurrence of mechanical defect, break down, the , accident or damage to the equipment. Subject to clause 4.12, provided that:
(a) the Owner can replace the equipment; and
(b) the hire period is not a ected,
the Hirer’s obligations to pay charges and any other sums to the Owner shall continue despite any mechanical defect, break down, the of, or accident or damage caused to the equipment. Where replacement equipment cannot be supplied by the Owner and/or the hire period is a ected, the charges payable by the Hirer will be adjusted to reflect the reduced hire period.
4.12 Notwithstanding anything else in the Contract, where any occurrence of mechanical defect, break down, the , accident or damage to the equipment is a result of the negligent or reckless acts or omissions of the Hirer, the Owner will be under no obligation to replace the equipment and the Hirer’s obligations to pay charges and any other sums to the Owner shall continue.
5. DELIVERY AND REMOVAL
5.1 Delivery and removal charges itemised in the Contract Details are payable by the Hirer and are in addition to the hire/ purchase charges.
5.2 If hired equipment is to be removed by the Owner, hired equipment must be packed up and ready for loading at the pre-arranged time and place and assistance rendered for loading.
5.3 The Hirer grants to the Owner, or will procure that the Owner is granted, an irrevocable right and authority to enter, and for the Owner to bring vehicles at any time onto, the place where the equipment is to be used or is located to deliver and/
or remove hired equipment either on the expiry of the hire
period or on termination of the Contract.
5.4 Any requests for removal of hired equipment must be
arranged with the relevant branch prior to completion of the hire either by telephone or email. The relevant removal cost will be notified to the Hirer and itemised in the Contract Details.
5.5 The Owner must provide the Hirer with either an o hire number, pick up ticket number or return slip when hired equipment has either been finished with and is awaiting pickup or has been returned to the place of hire, and the Hirer must retain such document or number as evidence that the equipment has been returned.
6. RIGHT TO TERMINATE
6.1 The Hirer may terminate the Contract by notice with immediate e ect if the Owner fails to comply with any term of the Contract, in which case the Hirer will be entitled to receive a refund of charges paid to the Owner which may be pro-rated to reflect the reduced hire period.
6.2 The Owner may terminate the Contract by notice with immediate e ect if:
(a) the Hirer fails to comply with any material term of the Contract;
(b) the Owner believes on reasonable grounds that hired equipment may be at risk for any reason whatsoever, including the manner of its use by the Hirer, adverse weather or work conditions, or the Hirer is unable to, or might be unable to, pay any charge, cost, purchase price or fee in connection with the equipment under these Consumer Conditions;
(c) it becomes apparent that for any reason (including through the resignation of a Guarantor) there will be no personal guarantees given in respect of the Hirer’s obligations under the Contract; or
(d) any step is taken to appoint a receiver, manager, trustee in administration, liquidator, provisional liquidator, statutory manager, administrator or other like person over the whole or any part of the Hirer’s assets or business.
6.3 Where the Owner terminates the Contract pursuant to clause 6.2, the Hirer indemnifies the Owner against, and shall pay
to the Owner upon demand, any cost (including legal costs), claim, damage, expense or liability su ered or incurred by the Owner whether arising directly or indirectly from the Owner acting to recover any equipment hired or monies payable by the Hirer pursuant to the Contract.
6.4 Upon termination of this Contract the Hirer shall forthwith deliver up any hired equipment to the Owner and shall pay to the Owner:
(a) all hire charges and other moneys due to the Owner at the date of termination; and
(b) the balance of all hire charges yet to accrue from the date of termination to the expiry of the term of the Contract discounted for early payment in such amount as the Owner at its sole discretion allows, provided that the Owner has terminated the Contract:
(i) due to the negligent or reckless acts or omissions of the Hirer or breach by the Hirer of the Contract; and
(ii) such acts, omissions or breach resulted in the Owner not being able to hire the equipment out to other customers.
6.5 Termination of the Contract by the Owner is without prejudice to any rights that the Owner may have under this Contract.
7. ASSIGNMENT
7.1 The Hirer shall not assign any of the Hirer’s rights or interests under the Contract to any person, and shall not assign, sublet, charge or part with possession of hired equipment or any part of it.
7.2 The Owner may at any time assign its rights or interests, or any part thereof, (whether absolutely, or by way of security) or transfer its obligations or any part thereof under the Contract, to any person.
8. HIRER’S OBLIGATIONS
8.1 The Hirer shall:
(a) if hired equipment is intended to be used in a location or
manner which is outside its usual or ordinary use, advise the Owner of the intended location and/or nature of use at the time of hiring the equipment;
(b) comply with any special conditions or exclusions (which may apply to specific equipment or the nature or location of the Hirer’s intended use of such equipment) notified
to the Hirer prior to the equipment leaving the Owner’s premises and detailed in the Contract Details;(c) take proper and reasonable care of hired equipment (including keeping the equipment locked and secured when not in use) and return it to the Owner at the end
of the hire period (to the place of hire, unless otherwise specified in the Contract Details) in the same order and condition as at the commencement of the hire (fair wear and tear excepted) and in a reasonably clean state (taking into account the cleanliness of the equipment at the outset of the hire period);(d) carry out all necessary daily servicing of hired equipment, (including the inspection and/or the supply of all necessary tyre pressures, water, oils, grease and fuel as may reasonably be required as part of the daily operation of the hired equipment) at the HIRER’S OWN EXPENSE;
(e) subject to clause 8.1(a) and any discussions between the Owner and Hirer regarding the Hirer’s intended use, satisfy itself that the hired equipment is suitable for the Hirer’s intended use;
(f) use hired equipment in a lawful manner with due regard to all laws and regulations pertaining to the use of such equipment;
(g) if the equipment is hired, immediately cease operating the equipment and notify the Owner by telephone if the equipment is faulty, breaks down or if any warning light