CONDITIONS

The conditions set out below shall apply to all contracts for the hire and / or sale of equipment (“Goods”) and services (“services”), between Cold Hire (2003) Ltd. (“the Owner”) and the person hiring or buying the equipment and/or services (“the Client”). These conditions shall not be modified, amended, waived, in whole or in part, except by written agreement between parties.

 

TERMS AND CONDITIONS OF SALE AND HIRE

 

1. General
1.1
All goods are sold and services provided in accordance with the following terms and conditions which shall be construed in accordance with New Zealand law.
1.2
The Owner gives all technical assistance entirely at the Client’s risk.
1.3
Subject to clause 6.2, all representations or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby expressly excluded, unless expressly accepted by the Owner in writing.
   

2. Prices
Unless otherwise agreed in writing between the Owner and the Client, all goods are sold or hired at the Owner’s current prices at the time of delivery exclusive of goods and services tax, other taxes and duties, freight and insurance, and quotations are accordingly subject to variation.

3. Delivery
Delivery is deemed to be made to the Client:
3.1.1
if delivered by the Owner, when the goods reach the delivery address; or
3.1.2
if not delivered by the Owner, when the goods are first dispatched from the Owner's premises.
3.2
All carriers who are not the Owner are deemed to be agents of the Client.
3.3
The Owner will use reasonable endeavours to maintain deliveries according to schedule but any period or dates quoted for delivery are to be regarded as approximate only.
3.4
The Owner is not responsible for non-delivery caused by any factors beyond its reasonable control. The Client is bound to accept and pay for goods delivered within a reasonable time after any cause of delay has ceased.
3.5
The Owner may stop future deliveries until the Client has paid for all previous deliveries (whether payment is due or not).
3.6
The Client authorises the Owner to arrange for carriage of goods on such terms and conditions as the Owner thinks fit.

4. Returns and Cancelled Orders
4.1
Subject to clause 6.2, goods will only be accepted for return within 7 days of the date of delivery and in the same condition as they were in as at delivery.
4.2
The goods remain at the risk of the Client until the goods are physically received back and accepted by the Owner.
4.3
Freight for such returns will be at the Clients risk and expense.
4.4
The Client may not cancel any order without the prior written consent of the Owner, and the Client shall pay all costs incurred by the Owner in respect of the cancelled order.
   

5. Services
5.1
Unless otherwise arranged in writing with the Owner, the Owner does not provide any services to the Client and the installation, repair and maintenance of the goods is the responsibility of the Client.
5.2
If the Owner installs, repairs or maintains the goods it will use reasonable care but gives no warranty as to the efficacy of the installation, repair or maintenance, except as expressly agreed in writing.
5.3
If the Owner provides services to the Client these will be provided at the Client’s risk and the Client acknowledges that the Owner has no knowledge or control over health and safety or other procedures on premises other than the Owner’s premises.

6. Consumer Guarantees Act 1993
6.1
The Client acknowledges that if the Client is not a consumer (as defined in the Consumer Guarantees Act 1993 (“Act”)) or if the goods are being purchased for business purposes (as provided in section 43 of the Act), the terms and guarantees under the Act do not apply.
6.2
Nothing in these terms and conditions is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and all provisions of these terms and conditions shall be read as modified to the extent necessary to give effect to that intention. If the Client does not fall within clause 6.1 the provisions of the Consumer Guarantees Act 1993 apply.
6.3
The Client undertakes to insert a similar provision to clause 6.1 in its terms and conditions of trade with any business or non-consumer purchaser it resupplies with the goods and further undertakes to indemnify the Owner from any loss or liability incurred under the Consumer Guarantees Act 1993 as a direct result of its failure to include such a provision.
6.4
The Client will indemnify the Owner for any liability that the Owner may incur which arises as a consequence of representations made by the Client about any of the goods which are made otherwise than in accordance with the Owner’s express specifications and warranties which accompany the goods.

7. Risk
7.1
Goods are at the sole risk of the Client from time delivery is deemed to be made under clause 3.1 whether received by the Client or not, whether or not there is a delay in delivery and even though ownership of the goods may not have passed to the Client.
7.2
The Owner has no obligation to do anything to limit any loss it might suffer if the Client does not pay the Owner on time.
7.3
The Client shall at all times insure the goods and keep them insured for their full insurable value against all insurable causes including loss or damage by fire and theft. If the goods are lost, damaged or destroyed then the Client agrees to make a claim against the insurance policy with respect to the lost, damaged or destroyed goods and to immediately pay the proceeds received to the Owner, and the Client will remain liable to the Owner for any shortfall in the insurance proceeds.

8. Payments
8.1
The Client must, subject to the other provisions of these terms and conditions, pay for the goods on delivery unless prior written arrangements have been made with the Owner ("the due date"), time being of the essence.
8.2
If the Client owes money to the Owner under more than one invoice, the Owner may allocate any payment received from the Client to payment or part payment of any outstanding invoice, notwithstanding any instructions of the Client to the contrary.
8.3
If the Client does not pay in full by the due date, and without prejudice to the Owner's other rights and remedies:
the Owner may charge the Client interest at the Default Rate on the amount outstanding from the due date until actual payment; and the Owner will be entitled to treat the contract as having been cancelled by the Client.
8.4
All discounts cease to apply if all monies due are not received by the Owner on the due date.
8.5
The Owner may demand full payment of any monies due at any time and without notice.
8.6
Payment shall become immediately payable regardless of the terms of payment and the Owner may take immediate action to recover payment if the Client is in default under any agreement with the Owner or commits an act of bankruptcy or goes into liquidation or receivership or enters into a creditors composition or has its credit standing impaired in any way.
8.7
Payment by cheque or other bill of exchange or any promissory note will not be deemed to be payment until actually honoured or cleared to the credit of the Owner, and until such time, shall not prejudice or affect the Owner's rights or powers or remedies against the Client and/or the goods.

9. Retention of Title
9.1
Ownership in the goods shall not pass to the Client and any proceeds of sale of the goods shall belong to the Owner until the Client has paid for the goods in full.
9.2
The Client acknowledges and agrees that the Owner may register any security interest that the Owner has in respect of the goods and their proceeds on the Personal Property Securities Register and that such security interest survives until the goods are fully paid for.
9.3
Until payment to the Owner has been made in full for the goods, the Client acknowledges and agrees that:
9.3.1
the Owner supplies the goods to the Client on the condition that the Owner has a PMSI in the goods;
9.3.2
in relation to goods that are inventory, the Client will not allow any non-purchase money security interest to arise in respect of the goods unless the Owner has perfected its PMSI prior to the Client’s possession of the goods;
9.3.3
the Client will not permit the goods to become accessions or commingled with other goods or mass if the Owner has not perfected any security interest that the Owner has in relation to the goods; and
9.3.4
if the Client (notwithstanding clause 9.1 of these terms and conditions) sells the goods prior to payment for the same to the Owner, the Client will pay the proceeds arising from that dealing into a separate account with separate records so that those proceeds remain identifiable and traceable to that dealing and the goods. The Client agrees that there will be no other funds in the account. If the Client further deals with such proceeds, the Client will manage that dealing or dealings in a manner having the result that the proceeds remain identifiable or traceable to the original goods. If the Client sells the goods prior to payment for the same to the Owner, all claims which the Client holds against third parties shall be handed over to the Owner.
9.4
If the Owner perfects any security interest that the Owner has in relation to the goods, the Client will not do anything that results in the Owner having less than the security or priority position in respect of the PPSA that the Owner assumed at the time of that perfection.
9.5
The Client irrevocably gives the Owner and its agents the right to enter upon the Client's premises, without giving notice and without being in any way liable to the Client, or to any person or company claiming through the Client, to take possession of the goods while the Client owes money to the Owner, or if the Owner has sufficient cause to exercise any rights that the Owner has under section 109 of the PPSA.
9.6
If the Owner is a secured party under the PPSA:
9.6.1
the parties contract out of Part 9 of the PPSA in the following manner: the rights and obligations contained in sections 114, 125, 129, 132, 133 and 134 of that Part do not apply between the Owner and the Client;
9.6.2
the Client waives its rights granted in sections 121 and 131 of the PPSA. Further, in accordance with section 148 of the PPSA, the Client waives its right to receive any financing statement or financing change statement from the Owner; and
9.6.3
The party’s contract out of the Client’s right to receive a statement of account under section 116 of the PPSA and the debtor’s right to receive notice of a secured party’s proposal to retain collateral under section 120(2) of the PPSA.
9.7
The Client will assist the Owner by completing any formalities or providing any information required by the Owner such that the Owner may establish and maintain the best security position that it is entitled to under the PPSA.

10. Warranties
10.1
If goods supplied to the Client by the Owner are stated as being covered by a warranty, the provisions of this clause 10 constitute the warranty, except as modified in writing by the Owner.
10.2
The warranty period commences on the date of delivery and runs for the term stated, or if no term is stated, for 30 days.
10.3
Replacements or work carried out on the goods do not extend the warranty period beyond that calculated under clause 10.2. The warranty period for replacement parts expires with the warranty for the goods as a whole.
10.4
The Owner will (at its option) repair (or reimburse the Client for the cost of repairs) or replace the goods during the warranty period where the goods are defective or malfunction in the ordinary course of usage provided that:
10.4.1
the goods have been used in a manner suitable to the design of the goods and the failure is not due directly or indirectly to the improper use of the goods;
10.4.2
the Owner is not required to refund the purchase price;
10.4.3
any defect or malfunction is not the result of incorrect installation by a person other than the Owner, inadequate or improper power, gas and/or water supply or connection, power surge or fluctuation of any kind, inadequate ventilation or drainage, fire, or flooding.
10.5
The warranty does not cover:
10.5.1
glass or light bulbs;
10.5.2
any goods that have had their serial plate removed or tampered with;
10.5.3
ordinary wear and tear;
10.5.4
any goods that have been serviced, dismantled, repaired or altered by personnel not authorised by the Owner;
10.5.5
any field labour and mileage not authorised by the Owner;
10.5.6
any defect or malfunction caused by accident or other event outside the reasonable control of the Client.
10.6
The warranty only applies if:
10.6.1
upon discovery of the defect or malfunction the Client immediately ceases and does not continue to use or operate the goods without the Owner’s consent;
10.6.2
the Client makes a claim to the Owner in writing within 7 days of discovering the defect or malfunction;
10.6.3
the claim is made within the warranty period described in clause 10.2.
10.7
The Owner will respond to a warranty claim within a reasonable time having regard to the time required to reasonably investigate the claim and assess the action required.
10.8
The limits on liability levels in clause 11.2 apply to liability under any warranty and accordingly the Owner is not obliged to expend more on carrying out its obligations under any warranty than is set out in clause 11.2.
10.9
The warranty is personal to the original Client and is not transferable or assignable in any way without the Owner’s written consent.
10.10
Clause 10 is subject to clause 6.2.

11. Remedies
11.1
The Client must promptly examine the goods and their installation. Subject to any written warranty given by the Owner, any claim by the Client will be deemed to be irrevocably waived if not made within 30 days of the date of deemed delivery of the goods to the Client under clause 3.1.
11.2
Subject to clause 6.2, if the Owner is under any liability to the Client then whether such liability is in contract, tort or otherwise and notwithstanding any relief or remedy to which the Owner may be entitled to under the Contractual Remedies Act 1979 or at law or in equity, such liability shall be limited to the price at which the goods and services are supplied to the Client or the actual loss or damage suffered by the Client whichever is the lesser. Under no circumstances will the Owner be liable for indirect or consequential loss of any kind whatsoever.

12. Disputes
12.1
The Client must give the Owner notice in writing forthwith if the Client disputes any invoice. The parties shall discuss the disputed amount in good faith and attempt to resolve the dispute within 20 days of the date of the Client's notice. Pending resolution of the dispute the Client shall forthwith pay that part of the invoice not in dispute.
12.2
Either party may refer any dispute between the parties to arbitration under the Arbitration Act 1996 or any Act passed in amendment thereof or in substitution therefore provided that any amount awarded is limited as set out in clause 11.2

13. Waiver
No waiver or omission to act by the Owner at any time shall affect or impair in any way or the rights of the Owner to avail itself of the remedies it may have.

14. Privacy Act 1993
14.1
The information contained in any application or order by the Client is being collected by the Owner primarily for the purpose of determining the creditworthiness of the Client and for the registering of a financing statement on the Personal Property Securities Register. The information collected will be used by the Owner or any third party nominated by the Owner for this purpose. The Owner shall hold the information collected and the Client acknowledges the voluntary supply of the information. The Client acknowledges that should the information requested by the Owner be withheld the Owner is entitled to reject any application or order by the Client at the Owner's discretion.
14.2
The Owner acknowledges the Client's right of access to and correction of the information collected concerning the Client.
14.3
The Client agrees that the Owner may obtain information about the Client from any person (including any credit or debt collection agency) in the course of the Owner's business including credit assessment, debt collecting and direct marketing activities, and the Client consents to any person providing the Owner with such information.
14.4
The Client agrees that the Owner may use any information it has about the Client relating to the Client's creditworthiness and give that information to any other person, including any credit or debt collection agency, for credit assessment and debt collection purposes. The Client agrees that any other information collected by the Owner about the Client may be used by the Owner in the course of its business.
14.5
The Client shall notify the Owner of any change in circumstances which may affect the accuracy of the information provided by the Client to the Owner.

15. Intellectual Property
15.1
All of the Owner’s trademarks or other intellectual property rights in respect of the goods remain the Owner’s property and the Client may not use, remove, interfere with or alter them in any way.
15.2
The Client must notify the Owner immediately if it receives a claim from a person alleging that it is the owner of any intellectual property rights relating to the goods and if the Owner considers itself to be affected, the Owner shall be entitled to completely control the defense or settlement of the claim.

16. Partial Invalidity
If any part or all of a provision is held to be illegal or unenforceable for any reason, such illegality or unenforceability shall be applicable only to that part or all of the said provision or provisions, and the remainder of the said provision or provisions and these terms and conditions shall remain in full force and effect.

17. Entire Agreement
Unless expressly provided otherwise in any written agreement between the Owner and the Client, these terms and conditions constitute the entire agreement, understanding and arrangements (expressed and implied) relating to the sale of goods from the Owner to the Client and supersede and cancel any previous agreement, understanding and arrangement relating thereto whether written or oral.

18. Amendment
These terms and conditions may be amended by the Owner giving the Client notice in writing of the amendment.

19. Definitions and Construction
The following terms have the meaning set out below:
19.1
“Accessions”, “Commingled Goods”, “Inventory”, “Perfect”, “Non-Purchase Money Security Interest”, “Personal Property Securities Register”; “Proceeds”, “Purchase Money Security Interest”, “Secured Party”, “Security Interest” and “Verification Statement” have the meaning given to such terms in the PPSA or that may be taken from their use in the PPSA.
19.2
"Client" means any party placing an order for goods or services from the Owner.
19.3
“goods” means the goods ordered from the Owner by the Client.
19.4
“Default Rate” means 3% per annum above the Owner’s bank overdraft rate at the time the default is made.
19.5
“PMSI” means a Purchase Money Security Interest as this term is defined in the PPSA.
19.6
"PPSA" means the Personal Property Securities Act 1999 and associated regulations.
19.7
"Owner" means Cold Hire (2003) Ltd
19.8
“Services” means services provided by the Owner to the Client.

 

 

 

 

The information provided on www.coldhire.co.nz is intended to provide general information to the public. Every effort has been made to ensure that the information set out on these websites is accurate. However, visitors to these websites are advised that:

 
Cold Hire (2003) Ltd, its employees, principals, or agents do not accept any responsibility or liability whatsoever whether in contract, tort, equity or otherwise for any action taken as a result of information on these websites or for any error, inadequacy, deficiency, flaw, or omission in the information provided or arising out of or in connection with the websites, or any content on or accessed by use of the websites, or any copying display or other use thereof.
To the extent permitted by law, Cold Hire does not guarantee or warrant that these websites will be uninterrupted, without delay, error-free, omission-free or free of viruses.
Therefore, the information on these websites is provided on an “as is” basis without warranties of any kind, express or implied, including accuracy, timeliness and completeness.
Materials on these websites may not be modified, reproduced or publicly displayed, performed or distributed or used for any public or commercial purpose.
You are solely responsible for the actions you take in reliance on the content on or accessed through these websites.
Cold Hire may change the contents and or the services or goods described on or referred to in these websites at any time and without prior notice.
All links and references to other websites, organisations or people are provided for convenience only and do not represent an endorsement by Cold Hire of those websites, organizations, or people, or of any information contained on those websites, nor of the organizations, people, products or services referred to in those websites. Cold Hire does not control and is not responsible for any of these websites or their content.
Cold Hire does not endorse any website, organization, or person who provides a link to www.coldhire.co.nz.
The laws of New Zealand shall govern your use of these websites. These terms and any matters or disputes connected with these websites will be governed by the laws of New Zealand and will be dealt with by the New Zealand courts.
If you are accessing this Website from a place other than in New Zealand, you are responsible for compliance with any relevant local laws or regulations in New Zealand.
Any information obtained or used by you in relation to these websites is your sole responsibility. You undertake to indemnify Cold Hire against all costs, expenses, liabilities, claims, demands, and legal costs arising from your access to or use of these websites.
All fees and costs are quoted in $NZD and are exclusive of GST unless otherwise indicated.

REGULATIONS

 

Cold Hire adheres to the Fair Trading Act 1986 (New Zealand), Privacy Act 1993 (New Zealand) and the Consumer Guarantees Act 1993 (New Zealand). We will:

 
Not engage in conduct that is misleading or deceptive or that is likely to mislead or deceive.
Not make false or misleading representations about the goods or services that we supply.
Ensure that any goods or services supplied correspond with the description given.
Ensure that any goods supplied are of acceptable quality and fit for any purpose made known to the supplier by the consumer where the consumer relied on the advice or knowledge of the supplier.
Ensure that services supplied will be rendered with due care and skill and be reasonably fit for any purpose and capable of achieving any result specified by the consumer which the consumer makes known to the supplier where the consumer relied on the advice or knowledge of the supplier.
Where a consumer acquires or hold themselves out as acquiring goods or services for the purposes of business, re-supplying them in trade, consuming them in the course of a process of production or manufacture, or repairing or treating in trade of other goods - Cold Hire and the consumer undertake that the relevant provisions of the Consumer Guarantees Act 1993 (New Zealand) shall not apply. (Section 43 Consumer Guarantees Act 1993 (New Zealand)).

EXCLUSION OF ALL OTHER LIABILITY

 
You may have rights under the Consumer Guarantees Act 1993. Cold Hire now excludes all other liability we may have to you. This exclusion also applies for the benefit of all our employees and contractors. You release all of us from any and all liability that may arise from your use of any equipment or products supplied by Cold Hire and any adverse affects you may suffer.
None of us are liable to you or have to pay you for anything caused by or resulting from anything any of us does or does not do or delays in doing, whether or not it is contemplated or authorised by the agreement you have with us. This exclusion applies whatever you may claim for and however liability arises or might arise if it were not for this exclusion. This exclusion does not prevent you from requiring us to do anything we have agreed to do and does not limit any rights you may have under the Consumer Guarantees Act 1993.

LIMITATIONS OF OUR LIABILITY

 
We have explained your rights to claim compensation from us under the Consumer Guarantees Act 1993 and excluded all other liability we or any of our employees or contractors may have to you. If any of us is ever liable to you and, for any reason, any of us cannot rely on the exclusion of liability set out above, then the maximum combined amount all of us (together) will have to pay you and anyone else who uses the goods and services we provide for you (together), is no more than the total amount you have paid to us for the goods or services
This limitation does not limit any rights you may have under the Consumer Guarantees Act 1993.

PRIVACY POLICY

 

Cold Hire will only use personal information for the purpose for which it was collected. If any other use is contemplated other than that which is disclosed to the individual, Cold Hire will first obtain the permission for the new use from that individual before Cold Hire uses the information in such a manner.


You are entitled under the Privacy Act 1993 (New Zealand) to access the personal information that Cold Hire holds about you. If you believe any detail of your personal information to be incorrect, you may request that it be corrected. In doing this, you agree to pay Cold Hire the reasonable charges requested by Cold Hire in relation to the time and attendance involved in complying with your request in this regard.


 
 
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