TERMS OF TRADE
1. THE hirer.
a) acknowledges receipt of the Cool Room in good and complete working order and condition; and
(b) acknowledges that the Cool Room has been inspected prior to the execution hereof;
(c) relies solely on his own judgment in accepting the same upon the terms herein;
(d) shall collect the Cool Room at his own expense from the Owner’s premises on the date specified in the Schedule;
(e) will not sell or offer to sell, assign, mortgage, pledge, sublet, lend or otherwise deal with the Cool Room or with any interest in it or with any interest in this Agreement;
(f) will keep the Cool Room in his own possession and will not remove the same from the land, premises or site on which it is to be situated without the consent of the Owner first had and obtained in writing;
(g) will not cause or allow the Cool Room to be affixed to any premises or the land upon which the Cool Room is situated so as to become a fixture;
(h) will not create or allow to be created any lien upon the Cool Room;
(i) will duly and punctually pay all charges and impositions payable (if any) in respect of the use of the Cool Room and shall produce all receipts for such payments to the Owner on demand;
(j) will protect the Cool Room against distress, execution or seizure and indemnify the Owner against all losses, costs, charges, damages and expenses incurred by him by reason or in respect thereof;
(k) will at his own expense keep and maintain the Cool Room in the same good order and working condition (reasonable wear and tear expected) as it was at the time of uplifting;
(l) will at all reasonable times permit the Owner to have access to the Cool Room to inspect and test the state and condition thereof;
(m) will at all times during the term hereof comply with all Acts, Regulations and Bylaws affecting or applicable to use of the Cool Room including the payment of all fees in respect thereof and the obtaining of any permits or authorities necessary in respect
(n) will notify the Owner immediately any fault, defect, loss, damage or liability occurs or arises to by or in the Cool Room or any part thereof howsoever caused;
(o) acknowledges and agrees that he is using the Cool Room for the purposes of business only and not for domestic or household use or consumption and accordingly the provisions of the Consumer Guarantees Act 1993 will not apply;
(p) will not alter add or interfere with or modify the Cool Room without the consent in writing of the Owner first had and obtained;
(q) agrees that the term of hire specified in the Schedule shall be a minimum term of hire (“the Minimum Term”);
(r) will pay interest calculated on a daily basis at the rate of 24 per centum per annum on all moneys payable hereunder which may from time to time be overdue; and or all costs in relation to collection of overdue accounts will be added to your account.
(s) authorises the Owner to collect, retain and use any information about the Hirer for the purpose of assessing the Hirer’s credit worthiness, enforcing any rights under this contract or marketing by the Owner to any other party;
(t) authorises the Owner to disclose any information obtained to any person for the purposes set out in herein;
(u) hereby gives irrevocable authority to the Owner to enter any premises occupied by the Hirer or on which the Cool Room are situated at any reasonable time after default by the Hirer or before default if the Owner believes a default is likely and to remove and repossess any and all other property to which the Cool Room is attached or in which the Cool Room is incorporated. The Owner shall not be liable for any costs, damages, expenses or losses incurred by the Hirer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded;
(v) will forthwith deliver the Cool Room to the Owner upon the termination of the last day of the hire period at its place of business or at such other place as shall be previously agreed in writing at which time the Owner shall inspect the Cool Room as to repair and condition and repayment of the Bond or any part thereof (if paid) shall be subject to such inspection;
(w) agrees that where the Hirer is a natural person the authorities herein are authorities or consents for the purposes of the Privacy Act 1993.
2.(a) IT shall be the obligation of the Owner to insure the Cool Room from the time of collection by the Hirer from the Owner’s premises to the time of actual return to the Owner. The Cool Room shall be insured for full replacement value against fire and loss or damage from whatever cause arising (except negligence or omission or similar act by the Hirer) and such insurance may also include public liability and comprehensive cover against all risks, loss, injury, damage, accident, vandalism, theft or otherwise howsoever arising in respect of the Cool Room in the name of the Owner and / or the Hirer at the Owner’s discretion. The Hirer hereby agrees to duly and punctually pay any excess on any insurance policy or policies arising from claims immediately upon production of an invoice by the Owner and will also keep the Owner indemnified against all claims loss or damage to the Cool Room arising from negligence on the part of the Hirer or his agent or other action or omission which shall have the effect of invalidating or rendering void or voidable the Owner’s insurance policy or policies in whole or in part.
(b) SHOULD any loss of or damage to the Cool Room or any part thereof occur during the term hereof such moneys as are payable under any policy of insurance shall be paid to the Owner who may at its option elect to spend such moneys towards repairing, reinstating or replacing the Cool Room and in such event the Cool Room so repaired reinstated or replaced shall be deemed to be the Cool Room which is the subject hereof and the provisions hereof shall apply in all respects thereto (including liability on the part of the Hirer to pay the hireage reserved hereunder during any period while the Cool Room is being repaired, reinstated or replaced) as if the Cool Room had at the date hereof been the subject hereof or the Owner may elect to terminate this Agreement and such moneys as shall be payable under any policy of insurance (as hereinbefore mentioned) shall be retained by the Owner WITHOUT PREJUDICE to the rights of the Owner to recover any unpaid monies due by the Hirer.
(c) AT no time shall the Owner be liable for any loss to product, goods, food, or any other materials stored in the Cool Room or any consequential loss suffered by the Hirer arising from any defect, fault, damage, lack of repair, breakdown or failure whatsoever or howsoever arising during the period of hire AND FURTHER should repair or maintenance to the Cool Room be required arising from negligent act, accident or omission on part of the Hirer then all costs incidental to repair or reinstatement shall be borne by the Hirer. Not withstanding anything to the contrary herein contained the maximum liability of the Owner to the Hirer for any loss howsoever suffered shall in no case exceed the equivalent of one month’s Cool Room hire.
3. THE Owner shall use his best endeavours to have any faults repaired as soon as possible after notification by the Hirer.
4. ANY accessories, parts or replacements which are now or may hereafter be supplied with or attached to the Cool Room shall be deemed to have become part of the Cool Room and subject to the terms hereof.
5. IF the Hirer shall fail to keep perform or observe any covenant condition or agreement herein contained or implied the Owner may without prejudice to any of its rights or remedies hereunder do all things and pay all moneys necessary to make good such default, and the cost of anything so done and any moneys so paid (including any moneys paid by the Owner in releasing any lien claimed on the Cool Room whether justifiable or not and including all expenses reasonably incurred by the Owner in obtaining or attempting to obtain possession of the Cool Room and including the cost of dismantling and removing the Cool Room from the land, site or premises where situate and including the cost of repair or reinstatement of such land, site or premises incidental to the dismantling or removal of the Cool Room therefrom, and including all other payments of a like nature (reasonably payable to enable the Owner to obtain possession of the Cool Room) shall be deemed to be a debt due by the Hirer to the Owner.
6. IF the Hirer shall make default in punctual payment of hireage to be paid by him or in the observance of any of the covenants conditions or agreements herein contained or implied or if a judgment of any Court against the Hirer remains unsatisfied for one day or if any lien shall lawfully be claimed over the Cool Room by any workman or other person in respect of repairs executed at the request of the Hirer or if he shall die or commit or suffer an act of bankruptcy or being a company if a resolution shall be passed or a petition filed for the winding up of the Hirer or if the Hirer has a Receiver of its assets appointed or be unable to pay its debt within the meanings of the Companies Act 1993 or if any execution is levied upon the Hirer or if any insurance policy in respect of the Cool Room be cancelled or if the Hirer shall do or cause to be done or permit or suffer any act or thing whereby the Owner’s rights in the Cool Room or under this Agreement may be prejudiced or put in jeopardy, the Owner may (subject to clause 9 hereof) without prior notice or waiting any time and notwithstanding any subsequent acceptance of any payment of any moneys due hereunder determine the hiring and enter upon any lands or premises where the Cool Room may be and retake possession thereof and determine this agreement, but without releasing the Hirer from any liability in respect of the breach or non-observance of any covenant agreement condition or restriction herein contained or implied.
7. IN the event of hiring being determined under clause 6 above the Hirer shall forthwith at his own risk and cost peaceably deliver up the Cool Room to the Owner at the Owner’s address for the time being and in the event of the Hirer failing so to do the Owner may retake possession of the Cool Room as aforesaid.
8. EARLIER termination of the hiring under this agreement shall not affect the right of the Owner to recover from the Hirer any moneys due to the Owner at the date of such termination or to recover damages in respect of any breach or default by the Hirer of the terms of the Agreement.
9. NO indulgence to the Hirer nor any waiver of the Owner’s rights under the Agreement purporting to be granted by the Owner shall constitute a release or a waiver of any breach committed by the Hirer, and all the original rights and powers of the Owners hereunder shall remain in full force and effect notwithstanding any neglect forbearance or delay in the enforcement thereof.
10. THE Owner does not warrant the Cool Room is suitable for any purpose other than that of a Cool Room as noted per the schedule hereto.
11. ANY notice required to be served hereunder by either party shall be deemed to have been properly served if left at or posted in a prepaid letter addressed to the other party at its place of business in the case of the Owner or the address where the Cool Room is situate as hereinafter set forth or any other address whereat the Hirer may reside have its registered office or carry on his calling known to the Owner in the case of the Hirer and any such service by post shall be deemed to have been effected when the letter containing such notice would be delivered in the ordinary course of post.
12. WHERE prior to the expiry date of the Minimum Term the Hirer for any reason whatsoever purports to cancel this Agreement or the Owner cancels this Agreement pursuant to clause 6 herein the following shall occur:
(a) The bond shall be immediately forfeited to the Owner.
(b) The Hirer shall pay to the Owner in cash and in one lump sum a payment equivalent to the hiring cost which would have been paid to the Owner over the Minimum Term calculated from the date of cancellation of the Agreement to the date of expiry of the Minimum Term.
(c) The payment due to the Owner by the Hirer per (b) above shall be immediately payable to the Owner upon cancellation of this Agreement.
(d) Clause 1(r) herein shall apply to all moneys owing to the Owner by the Hirer as at the date of determination of this Agreement.
13. NOTWITHSTANDING anything herein before contained the Owner and Hirer may at any time during the continuance hereof agree to vary the terms hereof by substituting the Cool Room for another Cool Room. Such variation shall be evidenced by a Memorandum signed by the Owner and the Hirer setting forth the amended term of hire and the amended hireage costs to be payable hereunder and a full description of the Cool Room being in substitution for the Cool Room described in the Schedule all of which details shall be deemed to be in place of those contained herein and the provisions of such Memorandum shall after execution be deemed to be incorporated herein and the provisions thereof shall apply in all aspects hereto as if the term of hire, the hireage costs payable and the description of the Cool Room had been inserted herein as at the uplifting date.
14. TIME shall be of the essence of the Hirer’s obligations hereunder.
15. NOTHING herein contained shall confer on the Hirer any right of property or interest in the Cool Room.
16. THE price may be increased by the amount of any reasonable increase in the cost of supply of the Cool Room that is beyond the control of the Owner between the date of the contract and delivery of the Cool Room.
17. The Hirer grants to the Owner a security interest in all present and after acquired Cool Rooms and their proceeds.
17.1 On the request of the Owner the Hirer shall promptly execute any documents and do anything else required by the Owner to ensure attachment and perfection of the security interest over the Cool Rooms and their proceeds including providing any information the Owner reasonably requires to complete a Financing Statement or a Financing Change Statement. The Hirer waives any right to receive a copy of a verification statement under the Act.
17.2 The Hirer will pay to the Owner all costs, expenses and other charges incurred, expended or payable by the Owner in relation to the filing of the Financing Statement or a Financing Change Statement in connection with the Agreement.
17.3 The Owner and the Hirer agree that nothing in Sections 114(1)(a), 117(1)(c), 133 and 134 of the Act shall apply to the Agreement.
17.4 The Owner and the Hirer also agree that the following rights of the Hirer as debtor shall not apply:
(a) to receive a statement of account under Section 116;
(b) to recover surplus under Section 119;
(c) to receive notice of a secured party proposal to retain collateral under Section 120(b);
(d) object to a secured party’s proposal to retain collateral under Section 121;
(e) not to have Cool Rooms damaged when a secured party removes an accession under Section 125;
(f) refuse permission to remove an accession under Section 127;
(g) receive notice of the removal of an accession under Section 129;
(h) apply to the Court for an order concerning the removal of an accession under Section 131;
(i) redeem collateral under Section 132.
17.5 The Hirer acknowledges that it has received a copy of these terms and conditions and in particular the terms contained in this Agreement to Hire constitute a security agreement for the purposes of the Act.
18. WHERE a quotation is given by the Owner for Cool Rooms:
(a) Unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
(b) The quotation shall be exclusive of goods and services tax unless specifically stated to the contrary; and
(c) The Owner reserves the right to alter the quotation because of circumstances beyond its control.
19. NO claim relating to the Cool Room will be considered unless made within fourteen (14) days of supply.
20. IF the Hirer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for the Owner agreeing to supply the Cool Room and grant credit to the Hirer at their request, also sign this contract in their personal capacity and jointly and severally personally undertake as principal debtors to the Owner payment of any and all monies now or hereafter owed by the Hirer to the Owner and indemnify the Owner against non-payment by the Hirer. Any personal liability of a signatory hereto shall not exclude the Hirer in any way whatsoever from the liabilities and obligations contained in this Agreement to Hire. The signatories and the Hire shall be jointly and severally liable under the terms and conditions of this Agreement to Hire and for payment of all sums due hereunder.
21. THE Owner shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
22. IF any provisions of this Agreement to Hire shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
23. THE words “The Owner” shall where the context so admits or requires be deemed to include the Owner’s successors or assigns and the words “the Hirer” shall where the context so admits or requires be deemed to include the Hirer’s executors and administrators if an individual or its successors if an incorporate company. Singular shall include plural and masculine shall include feminine and masculine shall include neuter and vice versa.