Ace Caravans Ltd Terms & Conditions of Hire
1.1 “Ace” shall mean Ace Caravans Limited, its successors and assigns or any person acting on behalf of and with the authority of Ace Caravans Limited.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Caravan” shall mean the Caravan(s) (including any accessories) supplied on hire by Ace to the Customer (and where the context so permits shall include any incidental supply of services). The Caravan shall be as described on the Hire Agreement, invoices, quotation, or any other authorisation forms as provided by Ace to the Customer.
1.5 “Price” shall mean the cost of the hire of the Caravan as agreed between Ace and the Customer subject to clause 4 of this contract.
2. Consumer Guarantees Act 1993
2.1 This agreement is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).
3.1 Any instructions received by Ace from the Customer for the hiring of the Caravan and/or the Customer’s acceptance of the Caravan supplied on hire by Ace shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be amended with the written consent of Ace.
3.4 The Customer shall give Ace not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Ace as a result of the Customer’s failure to comply with this clause.
3.5 The Caravan is supplied by Ace based only on the terms and conditions herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions.
4. Price and Payment
4.1 At Ace’s sole discretion the Price shall be indicated on the Seller’s Hire Agreement in respect of the Caravan supplied to the Customer.
4.2 At Ace’s sole discretion –
(a) a non-refundable deposit of five hundred dollars ($500.00) shall be required to confirm the booking of the Caravan, with the balance of the Price due prior to collection of the Caravan; and
(b) a bond of five hundred dollars ($500.00) shall be required, which shall be refunded to the Customer provided the Customer returns the Caravan (and its contents) to Ace at the agreed location and the agreed time, in the same condition as when hired, and no equipment is lost or damaged. The bond may be reduced proportionately where Ace has incurred costs to restore the Caravan and/or its contents to the same condition it was prior to the hire by the Customer (including, but not limited to, cleaning, refilling the gas bottle, repair of damage, etc).
4.3 Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due on collection of the Caravan.
4.4 Payment will be made by cash, Eftpos, bank cheque, direct credit,Credit card (fees apply) or by any other method as agreed to between the Customer and Ace.
4.5 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.6 Where Work and Income New Zealand (“WINZ”) is responsible for the payment of the Price, the Customer authorises Ace to contact WINZ to verify any information provided by the Customer and arrange payments.
5. Hire Period
5.1 At Ace’s sole discretion –
(a) A minimum hire period of three (3) days shall apply for all Caravan hire; and
(b) The Hire Period shall be the number of days stipulated on the Hire Agreement.
5.2 Hire charges are calculated per calendar day. The day of collection is counted as day one of the Hire Period, regardless of the pick-up time, and the day the Caravan is returned is counted as the final day.
5.3 The Hire Period shall commence from 2 pm on the day the Caravan is collected, and shall continue until 10am on the day the Caravan is returned. If the Caravan is returned after 10am it shall be classed as an additional day and the Customer shall be charged accordingly. Late collection or early return of the Caravan shall not entitle the Customer to any refund of the unused portion of the Hire Period.
5.4 The Customer shall, at or before the expiry of the Hire Period, deliver the Caravan to Ace’s premises, or obtain Ace’s consent to the continuation of hire. Any extension of the Hire Period shall incur additional charges, which shall be due for payment when Ace confirms the extended period.
5.5 No allowance whatever can be made for time during which the Caravan is not in use for any reason, unless Ace confirms special prior arrangements in writing. In the event of the breakdown of the Caravan, provided the Customer notifies Ace immediately, hiring charges will not be payable during the time the Caravan is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.
6. Ace’s Obligations
6.1 The Ace shall supply the Caravan in a safe and roadworthy condition.
6.2 The Ace shall be responsible for all ordinary and extraordinary costs of the Caravan during the term of hire except to the extent that by the terms of this Agreement those costs are payable by the Customer.
7. Customer’s Responsibilities
7.1 The Customer shall ensure that –
(a) the tyres are maintained at their proper pressure; and
(b) all reasonable care is taken in towing and parking the Caravan; and
(c) the handbrake is properly released once connected to the towing vehicle; and
(d) all vents and windows are secure before towing; and
(e) the jockey wheel is fully retracted or folded up before towing; and
(f) the Caravan is locked and secure at all times it is not in use.
7.2 The Customer shall be liable for any parking or traffic infringements and will supply relevant details as required by the Police and/or Ace relating to any such parking or traffic infringement and offences, impoundment, towage and storage.
7.3 Smoking and the use of any illegal drugs is not permitted in the Caravan. Any evidence or smell of smoking / drug use will incur any costs of cleaning the Caravan, and/or repairing or replacing upholstery or any contents of the Caravan.
7.4 The use of candles / naked flames, or gas cooking devices that are not factory installed is expressly prohibited. Any damage resulting from the Customer’s failure to adhere to this clause shall be the responsibility of the Customer.
7.5 Animals are not permitted inside the Caravan (except for registered guide dogs).
7.6 The Customer shall not –
(a) Sublet or hire the Caravan to any other person; and
(b) Permit the Caravan to be towed outside their authority; and
(c) Tow the Caravan, or permit it to be towed, in circumstances that contravene clause 8.3.
7.7 In the event of loss or damage to the Caravan (and any of its contents) the Customer shall be liable for –
(a) the daily hire rate for the period the Caravan is off fleet for accident repairs (up to a maximum of 7 days); and
(b) the costs of repairing any –
(i) damage to windows, vents and/or tyres;
(ii) damage relating to creek or river crossing, beach towing and flooded areas, or towing on restricted roads;
(iii) overhead or underbody damage to the Caravan.
(c) the cost of replacing lost keys.
8.1 Subject to the exclusions set out below, the Customer, and any driver authorized to tow the Caravan, is fully indemnified in respect of any liability they might have to Ace in respect of the loss or damage to the Caravan and its accessories and spare parts and any consequential loss of revenue or other expenses of Ace, including towing and salvage costs associated with the recovery of the Caravan and its accessories and spare parts.
8.2 Subject to the exclusions set out below, the Customer, and any driver authorized to tow the Caravan is indemnified to the extent of the amount stipulated in the Hire Agreement in respect of any liability they might have for damage to any property (including injury to any animal) belonging to any other person and arising out of the use of the Caravan.
8.3 The indemnities referred to above shall not apply where the damage, injury, or loss arises when –
(a) The driver towing the Caravan is under the influence of alcohol or any drug that affects their ability to tow the Caravan;
(b) The driver towing the Caravan is in breach of the Transport Act 1962, the Traffic Regulations 1976, or any other Act, regulations, or bylaws relating to road traffic;
(c) Subject to the Caravan being deemed safe and roadworthy on the commencement of the Hire Period, the vehicle towing the Caravan, or the Caravan, is in an unsafe or unroadworthy condition and that caused or contributed to the damage or loss, and the Customer or driver was aware or ought to have been aware of the unsafe or unroadworthy condition of the vehicle and/or Caravan;
(d) The Caravan is used in any race, speed test, rally, or contest;
(e) The Caravan is towed by any person who at the time when they tows the Caravan is disqualified from holding or has never held a driver’s licence appropriate for towing the Caravan;
(f) The Caravan is willfully or recklessly damaged by the Customer or any other person nominated in the Hire Agreement or towing the Caravan under the authority of the Customer, or is lost as the result of willful or reckless behaviour of the Customer or any such person.
(g) The Caravan is used outside the Hire Period or any agreed extension of that term.
8.4 It is agreed between Ace and the Customer that Section 11 of the Insurance Law Reform Act 1977 shall apply with respect to the above exclusions as if this clause constituted a contract of insurance. The general effect of this provision is that an exclusion will not apply if the Customer proves on the balance of probability that the damage or loss was not caused or contributed to by the matters to which the exclusion refers.
9. Repairs and Accidents
9.1 If the Caravan is damaged or requires repair or salvage, whether because of an accident or breakdown, the Customer shall advise Ace of the full circumstances by telephone as soon as practicable.
9.2 The Customer shall not arrange or undertake any repairs or salvage without the authority of Ace except to the extent that the repairs or salvage are necessary to prevent further damage to the Caravan or to other property.
9.3 The Customer shall ensure that no person shall interfere with the lights or suspension of the Caravan, except in an emergency.
10.1 The Caravan is and will at all time remain the absolute property of Ace.
10.2 In the event of any breach by the Customer of this Agreement, Ace or Ace’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Caravan is situated and take possession of the Caravan, without being responsible for any damage thereby caused. Furthermore, the Customer shall be liable for any repossession costs incurred by Ace.
10.3 The Customer is not authorised to pledge Ace’s credit for repairs to the Caravan or to create a lien over the Caravan in respect of any repairs.
11. Default and Consequences of Default
11.1 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 Ace’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Ace.
11.3 If the Customer defaults in payment when due, the Customer shall indemnify Ace from and against all costs and disbursements incurred by Ace in pursuing the debt including legal costs on a solicitor and own client basis and Ace’s collection agency costs.
11.4 Without prejudice to any other remedies Ace may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Ace may repossess the Caravan as per clause 10.2, or suspend or terminate the supply of the Caravan to the Customer and any of its other obligations under the terms and conditions. The Ace will not be liable to the Customer for any loss or damage the Customer suffers because Ace has exercised its rights under this clause.
11.5 If the Customer defaults in payment when due, then an administration fee of ten dollars ($10.00) shall become immediately due and payable. In the event of two subsequent defaults, Ace shall be entitled to cancel this Agreement and repossess the Caravan as per clause 10.2.
11.6 Without prejudice to Ace’s other remedies at law Ace shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Ace shall, whether or not due for payment, become immediately payable in the event that –
(a) any money payable to Ace becomes overdue, or in Ace’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12. Unclaimed Property
12.1 The Customer acknowledges that any property owned by the Customer that is left (or remains) in the Caravan whilst in the possession of Ace will be held for one (1) month, after which Ace shall be entitled to dispose of the property. Ace shall have the power to sell the property to recover any outstanding payment owed by the Customer.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which Ace may have howsoever –
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Ace or Ace’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Ace (or Ace’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should Ace elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Ace from and against all Ace’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Ace or Ace’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 The Ace may cancel these terms and conditions or cancel the hire of the Caravan at any time before the Caravan is collected by giving written notice. On giving such notice Ace shall repay to the Customer any sums paid in respect of the Price. The Ace shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Customer wishes to cancel this Agreement, the Customer acknowledges that any deposit paid to Ace is non-refundable, and the Customer shall be liable for any loss incurred by Ace (including, but not limited to, any loss of profits) up to the time of cancellation or a direct result of the cancellation.
15. Privacy Act 1993
15.1 The Customer and the Guarantor/s (if separate to the Customer) authorise Ace to –
(a) collect, retain and use any information about the Customer and/or the Guarantor/s, for the purpose of assessing the Customer’s and/or the Guarantor/s creditworthiness or marketing products and services to the Customer and/or the Guarantor/s; and
(b) to disclose information about the Customer and/or the Guarantor/s, whether collected by Ace from the Customer and/or the Guarantor/s directly or obtained by Ace 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 Customer and/or the Guarantor/s.
15.2 Where the Customer and/or the Guarantor/s are an individual the authorities under (clause 15.1) are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Customer and/or the Guarantor/s shall have the right to request Ace for a copy of the information about the Customer and/or the Guarantor/s retained by Ace and the right to request Ace to correct any incorrect information about the Customer and/or the Guarantor/s held by Ace.
16. Personal Property Securities Act 1999 (“PPSA”)
16.1 Upon assenting to these terms and conditions in writing the Customer 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 Caravans previously supplied by Ace to the Customer (if any) and all Caravans that will be supplied in the future by Ace to the Customer.
16.2 The Customer 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 Ace may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, Ace for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Caravan charged thereby;
(c) not register a financing change statement or a change demand without the prior written consent of Ace.
16.3 The Ace and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
16.4 The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
16.5 Unless otherwise agreed to in writing by Ace, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
16.6 The Customer shall unconditionally ratify any actions taken by Ace under clauses 16.1 to 16.5.
17.1 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.
17.2 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 courts of New Zealand.
17.3 The Ace shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Ace of these terms and conditions.
17.4 In the event of any breach of this contract by Ace the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of Ace exceed the Price.
17.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Ace.
17.6 The Ace may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Ace reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Ace notifies the Customer of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by Ace to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Ace’s right to subsequently enforce that provision.