These are the terms and conditions on which YHI (“YHI”) offers its Goods and Services to you. These terms are divided into four parts: (1) general terms; (2) terms relating to the supply of Goods; (3) terms relating to the rental of Goods; and (4) terms relating to the supply of Services. By contracting with YHI you accept all of these terms.
1. The following definitions are used in these terms:
“Authorised Representative” means any of the Chief Executive Officer, the Financial Controller, any Director, and any General Manager of YHI.
“Contract” means the contract for the sale or rental of Goods or the supply of Services from YHI.
“Customer” means the person buying or renting Goods or acquiring Services from YHI and its successors and assigns.
“Equipment” means plant or machinery owned by the Customer.
“Goods” means any products that the Customer purchases or rents from YHI.
“Inspection” means YHI checking the performance of a Customer’s Equipment in accordance with the Preventative Maintenance Schedule.
“Parties” means YHI and the Customer.
“Preventative Maintenance Contract” means a Contract whereby YHI agrees for a period to inspect and maintain agreed items of the Customer’s Equipment in good operating condition, by undertaking routine monitoring and action to remedy breakdowns.
“Preventative Maintenance Schedule” means the schedule setting out details of the Equipment to be inspected, maintenance to be carried out, service level required by the customer and YHI’s fees and prices .
“Rental Period” means the period from the time the Goods are either delivered to the Customer by YHI, or collected from YHI by the Customer until the Goods are either: (a) returned to YHI at the place of rental, (b) removed by YHI pursuant to these Terms, or (c) the Contract is terminated.
“Services” means any services that YHI supplies to the Customer and includes services provided in accordance with a Preventative Maintenance Contract.
“Terms” means these terms and conditions.
“Working Hours” means between the hours of 8.00am and 5.00pm Monday to Friday excluding public holidays.
“YHI” means YHI (New Zealand) Ltd and its successors and assigns.
2. The Contract includes the Terms, which shall not be deemed or construed to be modified, rescinded or waived in whole or in part except by written amendment by the Parties. All other terms are expressly excluded unless they are in writing signed by both Parties.
3. All orders for Goods or Services shall be deemed to be an offer by the Customer to purchase or rent (as applicable) the Goods or to acquire the Services pursuant to these Terms. No order submitted by the Customer shall be deemed to be accepted by YHI unless and until confirmed in writing by an Authorised Representative.
4. No order for Goods or Services which has been accepted by YHI may be cancelled by the Customer except with the agreement in writing of an Authorised Representative on terms that the Customer shall indemnify YHI in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by YHI as a result of cancellation.
5. Acceptance of delivery of the Goods or provision of the Services shall be deemed conclusive evidence of the Customer’s acceptance of these Terms.
6. YHI reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of purchase or rental of the Goods, or the costs of the provision of the Services to reflect any increase in the cost to YHI which is due to any factor beyond the control of YHI.
7. Payment shall be deemed to be duly made by the Customer only upon YHI’s receipt of cash or cleared funds amounting to the price of or rental for the Goods or the Services.
8. Where payment for the Goods or Services is made by way of a Letter of Credit or a Bill of Exchange with a bank, any costs, administrative or otherwise, incurred thereby shall be borne by the Customer.
9. If the Customer fails to make full payment on the due date or is otherwise in breach of its obligations under the Contract, then without prejudice to any other right or remedy available to YHI, YHI shall be entitled to cancel the Contract or suspend any further provision of Goods or Services to the Customer; recover any rented Goods from the Customer; appropriate any payment made by the Customer to such of the Goods as YHI may think fit; and charge the Customer interest (both before and after any judgement) from day to day on the amount unpaid, at the rate of 1% per month until payment in full is made together with all liabilities and expenses (including legal expenses) incurred by YHI in relation to such default and in recovering any amounts due to the Customer by YHI.
10. Any dates quoted for delivery of the Goods or Services are approximate only. YHI shall not be liable for any delay in delivery of the Goods or Services however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by an Authorised Representative in writing.
11. YHI shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of YHI’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond YHI’s reasonable control. If a delay occurs for any reason beyond YHI’s control, the time for providing the Goods or Services shall be extended by a reasonable period, determined by YHI.
12. The Customer shall not withhold payment of any invoice or other amount due to YHI by reason of any right or alleged right of set-off or counterclaim whatsoever.
13. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by YHI shall be subject to correction without any liability on the part of YHI.
14. No representations or warranties concerning the Goods or Services are made by YHI unless they are confirmed in writing by an Authorised Representative. In entering into the Contract, the Customer acknowledges that it does not rely on any such representations or warranties which are not so confirmed.
15. YHI may subcontract all or part of its obligations under the Contract.
16. No waiver by YHI of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the Contract.
17. Unenforceability of a provision of these Terms does not affect the enforceability of any other provision of these Terms.
18. The Contract shall be interpreted in accordance with the laws of New Zealand.
19. If the Customer is declared bankrupt, commits an act of bankruptcy, enters into a scheme or arrangement or makes any assignment for the benefit of creditors, or being a Company shall resolve to go into liquidation, have an application for its winding up filed in any court of competent jurisdiction, enter into any scheme or arrangement or assignment or composition for the benefit of creditors, have an official manager or receiver appointed over the whole or part of its assets or undertaking, or ceases or threatens to cease to carry on business, then without prejudice to any other right or remedy available to YHI, YHI shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and the price for any Goods already delivered or Services supplied shall become payable forthwith notwithstanding any agreement to the contrary. If the Goods have been supplied under a rental arrangement YHI has the right to enter the Customer’s premises, either directly or using an agent, to recover the Goods.
20. YHI may terminate the Contract by notice with immediate effect:
20.1 if the Customer fails to comply with any term of the Contract or any other agreement with YHI;
20.2 where Goods are being rented from YHI, if YHI believes the Goods may be at risk for any reason whatsoever, including the manner of use by the Customer, adverse weather or work conditions, or where the Customer is in default of any payment to YHI.
21. If the Customer is an individual, this clause 21 applies. YHI will obtain personal information about the Customer as part of the Contract and will collect and hold such personal information for the purpose of providing Goods and/or Services to the Customer and for the purpose of communicating with the Customer about YHI’s Goods and Services. The Customer agrees that YHI may collect, retain and use such personal information and disclose the information to third parties to the extent reasonably necessary to enable YHI to exercise any of its rights under the Contract. The Customer may request access to and correction of any personal information by contacting YHI.
Supply of Goods
22. The following clauses 23 to 40 apply to Goods that have been sold or rented to a Customer.
23. The price for the Goods shall be YHI’s quoted price. Unless otherwise agreed in writing by an Authorised Representative, all prices are given by YHI on an ex-works basis excluding carriage, packing, insurance and any applicable tax or duty. Where YHI agrees to deliver the Goods otherwise than at YHI’s premises, the Customer shall be liable to pay YHI’s charges for transport, packaging and insurance.
24. Payment for the Goods is due (without any deduction) by the end of the month following invoicing unless otherwise agreed in writing by an Authorised Representative. Time for payment shall be of the essence.
25. The quantity quality and description of and any specification for the Goods shall be those set out in YHI’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by YHI).
26. YHI may from time to time make changes in the quantity, quality and description of and any specification for the Goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for use of the Goods.
27. Except where the Customer is a consumer (as the term ‘consumer’ is defined in the Consumer Guarantees Act 1993 (“the Act”)) the guarantees contained in the Act that the Goods supplied (a) are of acceptable quality (sections 6 and 7); (b) are reasonably fit for any particular purpose (section 8); (c) comply with description (section 9); (d) comply with sample (section 10); (e) are reasonable as to price (section 11); and (f) that facilities for the repair of the Goods and supply of spare parts are available (section 12) do not apply.
28. Delivery of the Goods shall be made by the Customer collecting the Goods at YHI’s premises at any time after YHI has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed in writing by an Authorised Representative, by YHI delivering the Goods to that place.
29. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by YHI to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as being repudiated.
30. If the Customer fails to take delivery of the Goods or fails to give YHI adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of YHI’s fault) then, without prejudice to any other right or remedy available to YHI, YHI shall be entitled to do any or all of the following at its sole discretion:–
30.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage;
30.2 take all steps it deems necessary to prevent the deterioration of the Goods and charge the Customer for the reasonable costs incurred thereby; and/or
30.3 without any reference to the Customer,
a) where the Customer fails to make full payment of the price for the Goods on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Customer and to sell the Goods at the best price readily obtainable or otherwise dispose of the Goods; or
b) where the Customer has made full payment of the price for the Goods on the due date and is otherwise not in breach of its obligations under the Contract, sell the Goods at the best price readily obtainable or otherwise dispose of the Goods and claim any loss on resale from the Customer.
30.4 notwithstanding the Goods being sold or disposed of at a higher price, YHI shall only be obliged to account to the Customer for the price of the Goods under the Contract after deducting all reasonable storage and selling expenses.
31. The Customer shall inspect the Goods on delivery and shall, within three days of delivery, notify YHI of any alleged defect or failure to comply with description or shortage in quantity. The Customer shall then afford YHI an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Customer fails to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage or shortage and the Customer shall be deemed to have accepted the Goods.
32. If the Goods are not in accordance with the Contract for any reason and the Customer has duly given YHI notice thereof pursuant to Condition 31 herein, the Customer’s sole remedy shall be limited to YHI making good any alleged defect, shortage in quantity or failure to comply with description by replacing or effecting rectification of such Goods at YHI’s discretion or, if YHI shall elect, by refunding a proportionate part of the price for the Goods under the Contract.
33. Where the Customer rejects any Goods, the Customer shall have no further rights whatever in respect of the supply to the Customer of such Goods by YHI.
34. Regardless of whether the Goods have been purchased or rented from YHI, risk of damage to or loss of the Goods shall pass to the Customer:
34.1 in the case of Goods to be delivered at YHI’s premises, at the time when YHI notifies the Customer that the Goods are available for collection; or
34.2 in the case of Goods to be delivered otherwise than at YHI’s premises, at the time of delivery to that place.
35. Notwithstanding delivery and the passing of risk in the Goods, or any provisions to the contrary
35.1 where the Goods have been purchased from YHI title to the Goods shall not pass to the Customer until YHI has received payment in full for the Goods;
35.2 where the Goods have been rented from YHI title to Goods shall not pass to the Customer and instead the Customer shall be regarded as a bailee of the Goods which are owned by YHI.
36. Until such time as title to the Goods passes to the Customer, the Customer shall hold the Goods as YHI’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as YHI’s property.
37. Where YHI has reasonable cause to believe:
37.1 the Customer has not strictly complied with these Terms and, in particular, default of payment in accordance with clause 24; or
37.2 the Customer has or will commit an act of bankruptcy of (being a company) has had a receiver appointed or about to be appointed, or is declared insolvent;
then notwithstanding section 109 of the Personal Property Securities Act 1999 (“the PPSA”), and in addition to the rights contained in that section, YHI may recover any or all of the Goods or the mixed goods and re-sell the Goods or the mixed goods and for such purpose may at any time of the day or night enter by force if necessary upon any premises where such Goods or mixed goods are reasonably thought to be stored (and the Customer grants to YHI an irrevocable right and authority to so recover, re-enter and re-sell).
38. In exercising its rights pursuant to clause 37, YHI shall be entitled to deduct from any sale of Goods or mixed goods recovered from the Customer all the liabilities and expenses (including legal expenses) incurred by YHI in enforcing or attempting to enforce its rights.
39. In relation to the PPSA:
39.1 The Customer grants to YHI a security interest in all present and after acquired Goods and their proceeds.
39.2 At the request of YHI the Customer shall promptly execute any documents and do anything else required by the Vendor to ensure that the security interest created under these Terms constitute a first ranking perfected security interest over the Goods and their proceeds including providing any information YHI reasonably requires to complete a financing statement or a financing change statement. The Customer waives any right to receive a copy of a verification statement under the PPSA.
39.3 The Customer will pay to YHI all costs, expenses and other charges incurred, expended or payable by YHI in relation to the filling of a financing statement or a financing change statement in connection with these Terms.
39.4 YHI and the Customer also agree that nothing in sections 114(1)(a), 117(1)(c), 133 and 134 of the PPSA shall apply to these Terms.
39.5 YHI and the Customer also agree that the rights of the Customer as debtor in sections 116, 119, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA shall not apply to these Terms.
39.6 The Customer acknowledges that it has received a copy of these Terms and in particular that the terms contained herein constitute a security agreement for the purposes of the PPSA.
40. YHI shall be entitled to recover the price for the Goods notwithstanding that property in any of the Goods has not passed from YHI.
Rental of Goods
41. The following clauses 42 to 54 apply to Goods that have been rented from YHI.
42. A Customer may rent Goods from YHI for an agreed Rental Period as specified in writing by YHI.
43. Where Goods are rented from YHI, on return of the Goods in good order and condition, the actual total charges will be calculated and the Customer agrees to pay the balance outstanding.
44. The Customer shall pay YHI as invoiced for the Rental Period for all Goods used, loss and insurance charges (if applicable), delivery/removal costs (if applicable), any damage to or loss of equipment, cleaning costs (if any), and default interest for late payment.
45. Unless otherwise agreed with YHI, delivery and removal charges are payable by the Customer and are in addition to rental charges.
46. The Customer agrees that YHI may charge extra on a pro rata basis for any Goods not returned by the end of the Rental Period. The Customer is not entitled to a refund or reduced rental charge if the Customer chooses to return the Goods to YHI before the end of the agreed Rental Period.
47. Cleaning fees will be assessed and charged if the Customer returns Goods that YHI deems (in its sole discretion) to be excessively dirty.
48. The Customer shall purchase and pay for YHI’s damage waiver insurance, as applicable unless otherwise agreed with YHI. If the Customer does not purchase such insurance, the Customer rents the Goods at its own risk and indemnifies YHI against any and all loss in respect of the Goods, including consequential loss.
49. The Customer’s obligations to pay rental charges and any other sums to YHI shall continue despite any mechanical defect in, or breakdown of, theft of, or accident or damage caused to the Goods.
50. Where Goods are rented from YHI, the Customer shall:
50.1 if the Goods are intended to be used in a location or manner outside usual or ordinary use, advise YHI of the intended location and/or nature of use at the time of rental;
50.2 take proper and reasonable care of the Goods and return the Goods to YHI at the end of the Rental Period in the same order and condition as at the commencement of the fire (fair wear and tear excepted);
50.3 not remove, deface or obscure any marks of identification, ownership or registration, on the Goods;
50.4 carry out all necessary servicing of the Goods at the Customer’s own expense unless otherwise agreed in writing with YHI;
50.5 use the Goods in a lawful manner with due regard to all laws and regulations pertaining to the use of the Goods;
50.6 immediately cease operating the Goods and notify YHI if the Goods are faulty, break down or if any warning light or system is activated;
50.7 notify YHI immediately if the Goods are lost, stolen or damaged and follow all reasonable instructions of YHI; and
50.8 be responsible for, and indemnify YHI for, any loss, theft or damage during the Rental Period.
51. The Customer warrants and agrees that all persons who are permitted to use the Goods are competent and qualified to use the Goods and shall use the equipment in accordance with any directions from YHI and/or the manufacturer relating to the use and safety of the Goods, and in accordance with the Health and Safety in Employment Act 1992 and any other relevant legislation.
52. The Customer shall, on request from YHI, advise YHI of the location of the Goods and allow YHI reasonable time to inspect and test the Goods.
53. The Customer grants YHI, or will procure that YHI is granted, an irrevocable right and authority to enter and bring its vehicles at any time onto, the place where the Goods are to be used or located to inspect, deliver and/or remove the Goods.
54. A Customer renting Goods from YHI may not assign, sublet, charge or part with possession of the Goods but this shall not prevent employees of the Customer using the Goods in accordance with these Terms.
Supply of Services
55. YHI may agree to supply preventative maintenance services to a Customer in relation to agreed items of Equipment on terms to be specified in the Preventative Maintenance Contract which includes the Preventative Maintenance Schedule.Where a Customer requests that YHI provide the Services this may include:
55.1 carrying out Inspections at times to be agreed between YHI and the Customer;
55.2 where requested to do so by the Customer, providing an inspection report after each Inspection;
55.3 carrying out any work necessary to remedy any defects in the Equipment discovered during an Inspection within the stipulations of the Preventative Maintenance Contract, and
55.4 supplying replacement parts.
56. To enable YHI to carry out the Services, the Customer shall, on YHI’s directions and for the periods specified by YHI:
56.1 take all necessary safety precautions to enable the Services to be provided;
56.2 provide, free of charge and with ready access, a working space (equipped with , heat, light, ventilation, electricity) at a premises owned or occupied by the Customer where YHI can provide the Services; and
56.3 provide YHI with all relevant drawings and documentation concerning the Equipment and its operation.
57. The Customer shall not allow the Equipment to be maintained, serviced or repaired by any other party while the Preventative Maintenance Contract is in force.
58. Scheduled Inspections and repairs shall be carried out as per the Preventative Maintenance Schedule. If the Preventative Maintenance Contract includes access to a 24 hour breakdown emergency service YHI will supply the Customer with an after-hours telephone number to call, which may be updated from time to time by YHI. YHI shall respond on site to any Customer request to remedy any failures of the Equipment within the stated timeframe included in the Preventative Maintenance Contract.
59. The Customer shall notify YHI of any failure of the Equipment by calling 0800 99 33 44 during Working Hours. Outside of Working Hours YHI will provide the Customer with another telephone number to call, which may be updated from time to time by YHI. YHI shall attend to the Customer within the stated timeframe specified in the Preventative Maintenance Contract. Charges will be at standard YHI rates unless other rates have been specified in the Preventative Maintenance Contract.
60. Where an annual fee for Services has been agreed between YHI and the Customer, that fee is payable in advance in one payment on the commencement date agreed in writing between the Parties unless otherwise agreed in the Preventative Maintenance Contract. The annual fee shall cover all services specified in the Preventative Maintenance Schedule, other than those for which an additional charge is payable.
61. At least 60 days before the anniversary date of any Preventative Maintenance Contract, YHI shall notify the Customer of any changes in the annual fee to renew the contract for a further year. If the Customer does not wish to renew the Preventative Maintenance Contract for a further year the Customer must notify YHI of this in writing within 30 days of receipt of the notice of renewal from YHI, otherwise it shall be deemed to have been renewed. Following renewal the Customer must pay YHI the annual fee in accordance with these Terms and any additional terms set out in the Preventative Maintenance Contract.
62. The Customer may terminate a Preventative Maintenance Contract after the expiry of the first year of the Contract by giving not less than 30 days notice in writing to YHI. If this occurs YHI is not required to refund any fees that have been paid by the Customer.
63. Where parts and labour are chargeable in relation to the Service performed, these shall be charged at YHI’s standard list price for spare parts and labour less any deduction applicable due to maintenance contracts. The Customer accepts these charges as a pre-condition to the Services being performed.
64. Subject to any statutory provisions, if YHI is found to be liable for any loss, damage, or harm connected with the supply of the Services, YHI’s liability shall be limited to payment of a sum not exceeding the annual fee. YHI shall not be liable to the Customer for any consequential loss or whatever nature suffered by the Customer or any other person. The Customer indemnifies YHI in respect of any loss, damage, cost or claim to it as a result of a breach of the Contract by the Customer.
65. Except where the Customer is a consumer (as the term ‘consumer’ is defined in the Consumer Guarantees Act 1993 (“the Act”)) the guarantees contained in the Act that the Services supplied will be (a) carried out with reasonable care and skill (section 28); (b) fit for a particular purpose (section 29); (c) guaranteed as to the time of completion (section 30); and (d) guaranteed as to price (section 31), do not apply.
66. The Customer shall comply with any instructions given by YHI from time to time concerning the maintenance or use of the Equipment and the keeping of a supply of replacement parts, and shall ensure that the Equipment and the Customer’s use of the Equipment complies with all relevant laws in existence from time to time including the Health and Safety in Employment Act 1992.
67. If the Customer fails to give YHI at least 48 hours notice of any postponement or cancellation of any scheduled maintenance, service or repair visit, all costs and expenses incurred by YHI shall be borne by the Customer.