Terms & Conditions - Rentals
1.1 “Shipleys” shall mean Shipleys Audiovisual Ltd, its successors and assigns or any person acting on behalf of and with the authority of Shipleys Audiovisual Ltd.
1.2 “Client” means the person/s hiring the Equipment or any person acting on behalf of and with the authority of the Client, as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Equipment” shall mean all Equipment (including, but not limited to, audio and/ or visual equipment, projects, any accessories) supplied on rental by Shipleys to the Client (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to rent, or any other work authorisation forms as provided by Shipleys to the Client, , at the Client’s request from time to time, and:
(a) where the context so permits shall include any incidental supply of services;
(b) the Equipment shall be as described on the invoices, quotation, or any other authorisation forms as provided by Shipleys to the Client; and
(c) Shipleys may, at its sole discretion, decline to supply the Equipment to the Client.
1.4 “Term” means the rental period of the Equipment by the Client, as described on the invoices, quotation, or any other authorisation forms as provided by Shipleys to the Client.
1.5 “Charges” shall mean the cost of the rental of the Equipment as agreed between Shipleys and the Client subject to clause 5 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Equipment.
2.2 These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Shipleys.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 The Client acknowledges:
(a) “good working order” means, in respect to the Equipment, that:
(i) the Equipment is in good condition and good appearance throughout; and
(ii) the Equipment has been properly maintained and serviced in accordance with the original manufacturer’s recommendations and requirements.
2.5 Shipleys will:
(a) provide the Equipment in good working order; and
(b) allow the Client exclusive use of the Equipment during the Term.
2.6 In the event the Equipment supplied for rental requires a Shipley’s employee to operate, then this party remains an employee of Shipleys and operates the Equipment in accordance with the Client’s instructions. As such Shipleys shall not be liable for any actions of the employee in following the Client’s instructions.
3. Authorised Representative
3.1 The Client acknowledges that Shipleys shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Shipleys, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Shipleys for all additional costs incurred by Shipleys (including Shipleys profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
4. Change in Control
4.1 The Client shall give Shipleys not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Shipleys as a result of the Client’s failure to comply with this clause.
5. Charges and Payment
5.1 At Shipleys sole discretion the Charges shall be either;
(a) as indicated on invoices provided by Shipleys to the Client in respect of Equipment supplied; or
(b) the Charges, at the date of delivery of the Equipment, according to Shipleys current price list; or
(c) Shipleys quoted Charges (subject to clause 5.2) which shall be binding upon Shipleys provided that the Client shall accept Shipleys quotation in writing within thirty (30) days.
5.2 Shipleys reserves the right to change the Charges:
(a) if a variation to the Equipment/Services which are to be supplied is requested; or
(b) upon one (1) months’ written notice to the Client.
5.3 At Shipleys sole discretion, a deposit (in the form of a bond) shall be required at the commencement of this contract, which shall be refunded to the Client within thirty (30) days of the return of the Equipment, provided that the Client has complied with their obligations hereunder. The deposit may be used to offset any applicable charges payable by the Client under clause 6, and any outstanding balance thereof shall be due as per clause 5.4.
5.4 Time for payment for the Equipment being of the essence, the Charges will be payable by the Client on the date/s determined by Shipleys, which may be:
(a) on delivery/pick-up of the Equipment;
(b) before delivery of the Equipment;
(c) by way of instalments in accordance with Shipleys payment schedule;
(d) payment for all Clients shall be due twenty (20) days following the end of the month in which a statement is sent to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Shipleys.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/online banking, credit card (plus a surcharge may apply per transaction), or by any other method as agreed to between the Client and Shipleys.
5.6 Unless otherwise stated the Charges does not include GST. In addition to the Charges the Client must pay to Shipleys an amount equal to any GST Shipleys must pay for any supply by Shipleys under this or any other agreement for the rental of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Charges. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.
5.7 The Client acknowledges and agrees that the Client’s obligations to Shipleys for the supply of the Equipment shall not cease until:
the Client has paid Shipleys all amounts owing for rental of the Equipment; and
the Client has met all other obligations due by the Client to Shipleys in respect of all contracts between Shipleys and the Client.
Receipt by Shipleys of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Shipleys rights in relation to the Equipment, and this contract, shall continue.
6. Other Charges
6.1 In addition to the Charges, the Client will be required to pay to Shipleys, immediately upon request:
(a) for any consumables, fuel or trade materials supplied to the Client by Shipleys;
(b) where applicable, the costs of delivering, mobilisation, demobilisation, commissioning and/or collecting the Equipment (as per clause 8.1);
(c) for repairs and maintenance carried out by Shipleys at the Client’s request;
(d) all costs associated with the operation of the Equipment which are not included in Shipleys rental rates;
(e) all costs incurred in cleaning and/or repairing the Equipment where the Equipment is not returned in good working order including damage caused by undue wear and tear, such as damaged road cases/covers, damage due to rough loading or handling, neglect by the Client, dust related electric failure, engine damage due to dust ingestion);
(f) any lost rental fees Shipleys would have otherwise been entitled to for the Equipment, under this, or any other rental contract;
(g) any insurance excess payable in relation to a claim made by either the Client or Shipleys in relation to any damage caused by, or to, the Equipment whilst the same is rented by the Client and irrespective of whether charged by the Client’s insurers or Shipleys; and
(h) any consequential damage or loss, howsoever arising, suffered by Shipleys as a result of the Client’s breach of any of these terms and conditions.
6.2 The Client will not be reimbursed for repairs or other expenditure, unless such have been prior approved in writing by the management of Shipleys.
7. Rental Period
7.1 Charges shall commence from the time the Equipment departs from Shipleys premises and will continue until the return of the Equipment thereto, unless otherwise agreed in writing between the parties.
7.2 The Term shall be completed when the Equipment has been returned to Shipleys nominated premises in the same condition as when it was rented, or where the Equipment is unsuitable for rental, until repairs are completed by Shipleys or nominated agent and the Equipment is returned to the agreed premises.
7.3 Where Shipleys agrees to collect the Equipment, the Client agrees to maintain the responsibility for the Equipment whilst it is awaiting collection.
7.4 In the event of Equipment breakdown, provided the Client notifies Shipleys immediately of such event, Charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client. However, Shipleys shall not be liable for any costs incurred by the Client due to the non-operation of the Equipment, regardless of the causes.
7.5 Stand down:
(a) will only be applicable where agreed to in writing between the parties prior to the commencement of the Term. Otherwise, any request by the Client to Shipleys will be, in the first instance, orally and confirmed in writing for consideration by Shipleys. Adjustment to Charges will be made on the merit of such request, and only in accordance with this clause;
(b) is usually charged to the Client at fifty percent (50%) of the daily Charges, unless otherwise agreed in writing between the parties prior to the stand down.
8.1 Delivery of the Equipment (“Delivery”) is taken to occur at the time that the Client, or the Client’s nominated carrier, takes possession of the Equipment at Shipleys premises. Shipleys (or Shipleys nominated carrier) may agree to make delivery and/or collection of the Equipment to and/or from the Client’s nominated address, and the Client will pay to Shipleys any charges and expenses incurred thereby as per clause 6.1(b).
8.2 At Shipleys sole discretion the cost of delivery is in addition to the Price.
8.3 Shipleys reserves the right to amend the delivery date and the completion date due to circumstances beyond its control (including, but not limited to) breakdowns, inclement weather, staffing issues or any other like matters.
8.4 Any time or date specified by Shipleys to the Client for Delivery is an estimate only, the Client must still accept Delivery (even if late), and Shipleys will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Equipment to be supplied at the time and place as was arranged between both parties. In the event that Shipleys is unable to supply the Equipment, as agreed, solely due to any action or inaction of the Client, then Shipleys shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date.
9. Use, Operation and Maintenance of the Equipment
9.1 The Client:
(a) shall be responsible for organising the event, unless otherwise arranged (for which the Equipment is supplied), including permits, and for locating any underground services (including, but not limited to, electricity, gas, sewerage, pumps, water mains, irrigation, telephone cables, fibre optic cables and any other services that may be on site);
(b) shall ensure that all persons operating the Equipment are suitably instructed in the Equipment’s safe and proper use, and where necessary, holds valid proof of training (e.g. a current Certificate of Competency) and/or are fully licensed to operate the Equipment (operating licence or permit valid for the type of Equipment rented), and shall provide evidence of the same to Shipleys upon request;
(c) will use the Equipment solely for the Client’s own use, and shall not permit the Equipment of any part thereof to be used by any other party for any other use, without the express written permission of Shipleys;
(d) agrees that the Equipment will only be used for its intended purpose and in accordance with any instructions and recommendations in regard to its operation, maintenance and storage;
(e) shall not exceed the recommended or legal load and capacity limits of the Equipment;
(f) agrees to comply with all worksafe guidelines regarding health and safety laws and regulations relating to the use of the Equipment and associated operations;
(g) shall ensure that the Equipment is returned to Shipleys in good working order and clean of all foreign matters. The Client’s failure to adhere to this clause shall incur additional charges as per clause 6.1(e).
10. Client’s Warranties
10.1 The Client warrants that:
(a) by accepting Delivery, the Client is satisfied that the Equipment complies with its description, is clean and in good working condition, and is suitable for the Client’s purposes;
(b) any accident involving the Equipment which results in damages to property, Equipment facility or personnel is to be reported to Shipleys within eight (8) hours of the occurrence;
(c) no alterations, modifications or additions shall be carried out without the prior written approval of Shipleys management;
(d) the Client will not use the Equipment, nor permit it to be used, in such a manner as would permit an insurer to decline any claim (including, but not limited to, using the Equipment for any illegal purpose, etc.);
(e) the Equipment shall be kept in the Client’s own possession and control, and the Client:
(i) shall not assign the benefit of this rental contract, nor be entitled to take a lien, or grant any encumbrance over the Equipment; and
(ii) will not remove the Equipment from the site location without the prior written approval of Shipleys.
(f) the Equipment will be returned to Shipleys in good working condition, to the return location and by the return date, as agreed. The Client must notify Shipleys in writing of (and Shipleys management, at its sole discretion, agree to) any request for extension to the Term in advance of the agreed return date after due diligence the Equipment may be reported to the Police as having been stolen.
11.1 The Equipment shall at all times, whilst in the care, custody or control of the Client, be at the sole risk of the Client.
11.2 The Client agrees with Shipleys that the use of Equipment carries with it dangers and risks of injury, and the Client agrees to accept all dangers and risks.
11.3 Shipleys will maintain current insurance policies in respect of the Equipment to its full insurable value.
11.4 In the event that the Equipment provided by Shipleys is the subject of an insurance claim made by Shipleys, as a result of any action or inaction of the Client, then the Client accepts full liability for the value of Equipment (or part thereof) that is lost, stolen or damaged in any way any during the entire rental term, irrespective of whether the insurance claim is successful.
12.1 The Equipment is and will at all times remain the absolute property of Shipleys, however the Client accepts full responsibility for the safekeeping of the Equipment, and indemnifies Shipleys for all loss, theft, or damage to the Equipment, howsoever caused, and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client. In addition, any instance where the Equipment is placed into the care, custody or control of the Client, whether operated by the Client’s personnel or not, the Client agrees to accept full responsibility for the Equipment during the Term and agrees to return such Equipment in as good condition as when received, with ordinary wear and tear accepted. In addition, the Client agrees to indemnify and defend Shipleys against, and hold harmless from, any and all claim, demands, causes or actions or losses for personnel injuries (including death) or for property damage arising out of the use or operation of the Equipment during the Term, even though such injuries (including death) or damage may be attributable to the negligence or other fault on the part of Shipleys.
12.2 The Client:
(a) is not authorised to pledge Shipleys credit for repairs to the Equipment, or to create a lien over the Equipment in respect of any repairs;
(b) must return the Equipment to Shipleys upon request to do so;
(c) shall not agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let or rental, or otherwise part with, or attempt to part with, personal possession of, or otherwise not to deal with, the Equipment.
12.3 Notwithstanding anything else herein contained, Shipleys, or any authorised agent of Shipleys, may at any time (as the invitee of the Client) enter upon and into any premises where the Equipment is located to exercise any rights they have under this contract or at law, including (if the need arises), the right to decommission and/or repossess the Equipment from the relevant premises, without being responsible for any damage thereby caused, in the event the Client is in breach of any obligation (including those relating to payment) under this contract, or Shipleys believes (in its sole opinion) the Equipment is being misused, used in contravention of any law, has been abandoned, or is at risk in any other way whatsoever, and:
(a) the Client agrees to obtain all necessary consents from the owner, occupier and other interested parties (such as any mortgagee) of the relevant premises where the Equipment is located to enable Shipleys to do this;
(b) any costs incurred by Shipleys as a result of so repossessing the Equipment shall be charged to the Client;
(c) Shipleys shall only charge the Client for the Charges up to and including the time of repossession;
(d) in addition to Shipleys right to repossess the Equipment, Shipleys is entitled, at its sole discretion, following any breach of any provision of this contract by the Client, to terminate this contract and/or sue for recovery of any damages or charges or loss suffered by Shipleys, and/or to cancel any insurances effective in respect of the rented Equipment.
13. Personal Property Securities Act 1999 (“PPSA”)
13.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Equipment and/or collateral (account) – being a monetary obligation of the Client to Shipleys for Services – that have previously been supplied and that will be supplied in the future by Shipleys to the Client.
13.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Shipleys may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Shipleys for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Equipment charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment and/or collateral (account) in favour of a third party without the prior written consent of Shipleys.
13.3 Shipleys and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
13.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
13.5 Unless otherwise agreed to in writing by Shipleys, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
13.6 The Client shall unconditionally ratify any actions taken by Shipleys under clauses 13.1 to 13.5.
14. Security and Charge
14.1 In consideration of Shipleys agreeing to supply the Equipment, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies Shipleys from and against all Shipleys costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Shipleys rights under this clause.
14.3 The Client irrevocably appoints Shipleys and each director of Shipleys as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15. Client’s Responsibilities
15.1 Shipleys retains property in the Equipment, as per clause 12.1, nonetheless all risk for the Equipment passes to the Client on Delivery, and the Client must return the Equipment to Shipleys upon request to do so.
15.2 The Client:
(a) accepts full responsibility for the safekeeping of the Equipment and indemnifies Shipleys for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client.
(b) will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment, nor permit it to be used, in such a manner as would permit an insurer to decline any claim.
(c) accepts full responsibility for, and shall keep Shipleys indemnified against, all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment whilst it is the Client’s possession, and whether or not arising from any negligence, failure or omission of the Client or any other persons.
15.3 The Client shall:
(a) satisfy itself at commencement that the Equipment is suitable for its purposes;
(b) unless with the written consent of Shipleys, keep the Equipment in their own possession and control and shall not assign the benefit of this agreement nor be entitled to take a lien, or grant any encumbrance over the Equipment;
(c) notify Shipleys immediately of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(d) not alter or make any additions to the Equipment, including but without limitation, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(e) use the Equipment solely for the Client’s own work, and shall not permit the Equipment (of any part thereof) to be used by any other party for any other work;
(f) not sell, transfer, create a security interest in, sign or sublease the Equipment, or to assign the agreement, nor shall the Client under any circumstances, mortgage, pledge or otherwise deal with the Equipment;
(g) on conclusion, ensure the Equipment is handed over complete, with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Shipleys (or Shipleys designated employee);
(h) in the event of dry rental:
(i) ensure the Equipment is operated safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Shipleys or posted on the Equipment;
(ii) comply with all worksafe guidelines regarding health and safety laws relating to the Equipment and its operation;
(iii) not exceed the recommended or legal capacity limits of the Equipment.
15.4 Immediately on request by Shipleys the Client will pay:
(a) the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to Shipleys;
(b) all costs incurred in cleaning the Equipment;
(c) all costs of repairing any damage caused by:
(i) wilful or negligent actions of the Client or the Client’s employees;
(ii) vandalism, or (in Shipleys reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Client;
(d) any costs incurred by Shipleys in picking up and returning the Equipment to Shipleys premises if the Client does not return the Equipment to Shipleys premises, or any pre-agreed pickup location, when it was originally agreed that the Client would do so;
(e) any charges Shipleys would have otherwise been entitled to for the Equipment, under this, or any other agreement;
(f) any insurance excess payable in relation to a claim made by either the Client or Shipleys in relation to any damage caused by, or to, the Equipment whilst the same is rented by the Client, irrespective of whether charged by the Client’s insurers or Shipleys.
16.1 The Client shall inspect the Equipment on delivery and shall within five (5) days or as soon as practically possible notify Shipleys of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Shipleys an opportunity to inspect the Equipment within a reasonable time following delivery if the Client believes the Equipment is defective in any way. If the Client shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which Shipleys has agreed in writing that the Client is entitled to reject, Shipleys liability is limited to replacing the Equipment.
17.1 No warranty is given by Shipleys as to the quality or suitability of the Equipment for any purpose and any implied warranty is expressly excluded. The Client shall indemnify and hold harmless Shipleys in respect of all claims arising out of the use of the Equipment.
18. Consumer Guarantees Act 1993
18.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).
19. Intellectual Property
19.1 If during the course of supply the Goods, Shipleys develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of Shipleys and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of Shipleys.
19.2 The Client warrants that all designs, specifications, information and instructions to Shipleys will not cause Shipleys to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold Shipleys harmless from all loss incurred or suffered by Shipleys arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s Intellectual Property rights by the Client during its use of the Goods.
19.3 The Client agrees to use any software supplied by Shipleys strictly in compliance with the terms of the licence under which it is supplied. The Client further agrees that they shall not:
(a) use in any way, or rely on the software for any purpose other than what it was designed or is suitable for;
(b) combine the software with any other software;
(c) copy, reproduce, translate, adapt, vary, merge, modify, or create any derivative work based on the software;
(d) reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the software, or assist another party to do the same;
(e) sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the software in any way whatsoever;
(f) use the software to commit a crime (including, but not limited to, sending spam) and the Client agrees to indemnify Shipleys against any action taken by a third party against Shipleys in respect of any such infringement.
19.4 The Client agrees that Shipleys may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Shipleys has created for the Client.
20.1 Shipleys may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice Shipleys shall repay to the Client any sums paid in respect of the Charges. Shipleys shall not be liable for any loss or damage whatever arising from such cancellation.
20.2 In the event that the Client wishes to cancel this agreement then the Client shall be liable for any loss incurred by Shipleys (including, but not limited to, any loss of profits) up to the time of cancellation or a direct result of the cancellation.
21.1 Without prejudice to any other remedies Shipleys may have against the Client, and notwithstanding the Term, this contract may be terminated by Shipleys:
(a) upon giving the Client twenty-four (24) hours verbal notice of termination at any time during the Term;
(b) without notice, and all amounts owing to Shipleys shall, whether or not due for payment, become immediately payable in the event that:
(i) any money payable to Shipleys becomes overdue, or in Shipleys opinion the Client will be unable to meet its payments as they fall due; or
(ii) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; or
(iv) the Client commits a breach of any part of this contract.
22. Default and Consequences of Default
22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Shipleys sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
22.2 If the Client owes Shipleys any money the Client shall indemnify Shipleys from and against all costs and disbursements incurred by Shipleys in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Shipleys collection agency costs, and bank dishonour fees).
22.3 Further to any other rights or remedies Shipleys may have under this contract, if the Client has made payment to Shipleys by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Shipleys under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
22.4 Without prejudice to any other remedies Shipleys may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Shipleys may suspend or terminate the supply of Equipment to the Client. Shipleys will not be liable to the Client for any loss or damage the Client suffers because Shipleys has exercised its rights under this clause.
23. Privacy Act 1993
23.1 The Client authorises Shipleys or Shipleys agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by Shipleys from the Client directly or obtained by Shipleys from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
23.2 Where the Client is an individual the authorities under clause 23.1 are authorities or consents for the purposes of the Privacy Act 1993.
23.3 The Client shall have the right to request Shipleys for a copy of the information about the Client retained by Shipleys and the right to request Shipleys to correct any incorrect information about the Client held by Shipleys.
24. Force Majeure
24.1 Subject to clause 24.2, neither party shall be responsible for any delays in Delivery or collection due to causes beyond their control (including, but not limited to, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of, or inability to obtain shopping space, or land transportation).
24.2 Nothing in clause 24.1 will limit or exclude the Client’s responsibility and liability under this contract for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Term, or had broken down, or become unsafe to use as a result of the Client’s conduct or negligence.
25.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Christchurch Courts of New Zealand.
25.3 Shipleys shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Shipleys of these terms and conditions (alternatively Shipleys liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
25.4 Shipleys may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client consent.
25.5 The Client cannot licence or assign without the written approval of Shipleys.
25.6 Shipleys may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Shipleys sub-contractors without the authority of Shipleys.
25.7 The Client agrees that Shipleys may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Shipleys to provide Goods to the Client.
25.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.