1. APPLICATION OF CONDITIONS
1.1 The conditions set out in this Agreement shall apply to the hire of the machinery (“the Machinery”) between Log Lease Ltd (“the Owner”) and the person(s) or entity hiring the Machinery (“the Hirer”).
2. HIRE RATE
2.1 The hire rate that the Hirer will be charged under this contract is calculated in two amounts being:
2.1.1 A ‘fixed’ daily standing charge regardless of whether the machine works or not of $ per hour plus GST per day. Insurance is included in this rate; and
2.2.1 A ‘variable’ hire fee of $ plus GST per working day (to be used to a maximum of 8 hours per day in accordance with the terms of this Agreement).
2.2 These rates are reviewable at the discretion of the Owner who will give the Hirer a minimum of 3 months’ written notice that it intends to amend the rates.
2.3 The Owner may waive the ‘fixed’ hire charge in the event that the hauler is broken down and that it can be clearly established that the breakdown is due to mechanical factors not of the Hirer’s doing.
3. HIRE PERIOD
3.1 The Hire Period commences from the date the Machinery leaves the Owner’s premises or Rotorua, and ends when it is returned to the Owner’s premises or Rotorua as directed by the Owner.
3.2 The minimum Hire Period is 12 months. The Hirer must give at least three months’ notice in writing if it wishes to terminate this agreement earlier. The Owner retains the right to terminate the agreement immediately, if necessary, to protect its interest.
4.1 The Owner will ensure the Machinery is insured with full insurance cover during any Hire Period.
4.2 The cost of Insurance is payable by the Hirer and is included in the hire rate.
4.3 The cost of Insurance will be subject to review and dependant on any increase in insurance premiums during the period of hire. If the cost of the insurance increases, then the hire rate will be amended to reflect this additional cost.
4.4 The Hirer will be responsible for payment of any excess incurred under any insurance claim involving the Machinery during the Hire Period.
4.5 The Hirer shall maintain adequate public liability insurance against claims by third parties involving the Machinery or its use by the Hirer.
5. THE MACHINERY
5.1 The Hirer has satisfied itself that the Machinery is appropriate for the work to be undertaken.
5.2 The Hirer agrees that it has inspected the Machinery prior to entering into this Agreement and acknowledges that the Machinery is in proper working order and condition and accepts the mechanical report.
5.3 Digital photos recording the state of the Machinery and a mechanical report on the condition of the Machinery will be made before the Hire Period. A mechanic of the Owner’s choice will undertake the mechanical report.
5.4 Copies of the digital photos and the mechanical report will be provided to the Hirer at its request.
6.1 The Hirer is liable for transport of the Machinery from, and return to, the Owner’s premises or Rotorua as directed by the Owner, and will be responsible for any damages that occurs in transit.
6.2 Collection and return will be to the Owner’s premises or Rotorua as directed by the Owner unless the parties agree otherwise.
7. OPERATION AND CARE OF MACHINERY
7.1 The Owner will provide the Hirer with an operating manual for the Machinery and the Hirer must ensure that the operating manual is complied with at all times during the Hire Period.
7.2 The Hirer shall ensure that a competent hauler operator operates the Machinery at all times while it is in possession of the Machinery and that any employee of the Hirer shall drive or operate the Machinery only for the purposes of and incidental to the Hirer’s business.
7.3 The Hirer shall maintain the Machinery in proper working order during the period of hire at its own expense and will be responsible for all costs of replacement or repair during the hire period.
7.4 The Hirer will provide all labour, fuel, oil, lubricating oil, cleaning, ropes and other materials for operation of the Machinery during the hire period.
7.5 The Machinery is to be serviced every 250 hours by the Owner at the Owner’s cost.
7.6 The Machinery will only be used by the Hirer for a maximum of 8 hours per day, ie not double shifted.
7.7 The Hirer shall at all times ensure that the Machinery is used solely for the purposes intended by its manufacturer and in accordance with the manufacturer’s instructions and in accordance with its rated capacity, which shall not be exceeded.
7.8 The Hirer will, at its own expense, fully comply with all instructions and recommendations of the manufacturer of the Machinery concerning the Machinery’s daily maintenance and use.
8. BREAKDOWN AND REPAIR
8.1 The Hirer must notify the Owner immediately of any breakdowns of the Machinery.
8.2 At the time of notification of breakdown the hire charge will be suspended provided that the breakdown has not been caused by the negligence of the Hirer in any way.
8.3 The Owner will be responsible for the cost of repairs for breakdowns provided the breakdown has not been caused by the negligence of the Hirer in any way.
8.4 The Hirer will be responsible for the cost of repairs for any breakdown caused by its negligence including but not limited to parts, consumables, mechanic travel time, labour and lodgings.
8.5 The Owner shall be entitled to possession of the Machinery for the purpose of repairs.
8.6 The Hirer is not authorised under this Agreement to pledge the Owner’s credit for repairs to the machinery or to create a lien over the Machinery in respect of any repairs.
8.7 The Owner shall not be liable for any consequential damage or loss suffered by the Hirer as a result of the Machinery breaking down or otherwise during the period of hire.
8.8 Any breakdown caused through negligence of the Hirer and is not covered by the insurance (clause 4.5) will be met by the Hirer.
9. PAYMENT OF HIRE CHARGE
9.1 During the Hire Period the Hirer of the Machinery will be invoiced on a monthly basis.
9.2 Each monthly tax invoice issued by the Owner will be based on:
(a) The daily Hire Rate is calculated by the number of working days of each month, based on Monday through to Friday, excluding the weekends and statutory days unless worked. Day/s not worked for any reason or due to shutdowns because of weather conditions, roading issues, and or forest owner’s instructions will be taken into consideration only if the owner has been notified within 3 days thereafter but the Owner has the right to charge the ‘fixed’ daily rate for days available for work but not worked.
(b) Any other sums due by the Hirer under this Agreement.
9.3 Full payment of any tax invoice is due by the 24th of the month following the invoice date based on the working days (Monday through to Friday), excluding the weekends, statutory holidays, and or any notified shutdown days.
9.4 The Owner reserves the right to contact the Hirer’s employer principal/forestry company and request hire payments are made direct from that entity to the Owner. The Hirer agrees to this condition in order to ensure the Owner receives payment in full and on time.
9.5 The Hirer will pay a bond of an average month (20 working days + GST), before hauler arrives on site. Any bond will be reimbursed at the end of the Hire Period, less outstanding payments or cost of repair for negligent damage to machine.
10. DEFAULT INTEREST AND COST OF RECOVERY
If the Hirer does not pay the Owner the invoiced sum or any other sums outstanding in full on the due date, the Hirer shall be liable to pay:
10.1 Interest on all outstanding charges at a rate of 15% per annum. Payments received will be credited firstly against any accrued but unpaid interest; and
10.2 The Owner’s costs of recovering or attempting to recover from the Hirer outstanding charges, including any agent’s costs, and legal costs on a full indemnity basis.
11. OWNERSHIP OF THE MACHINERY
11.1 The Owner retains full title to the Machinery notwithstanding delivery of the Machinery to the Hirer and possession and use of the Machinery by the Hirer in accordance with, and under, this Agreement.
11.2 The Hirer acknowledges that when the option to purchase machinery arises that the Hirer will be given first option.
11.3 The Hirer shall not agree, attempt, offer, or purport to sell, assign, sublet, lend, pledge, mortgage, bail, let on lease or otherwise part with or attempt to part with personal possession of the Machinery or otherwise deal with the Machinery.
11.4 The Owner may choose to register a charge in the PPSR against the Hirer to notify any interested parties that the hired machine is not owned in any way by the Hirer.
12. FURTHER CONDITIONS
12.1 The Owner reserves the right to inspect the Machinery at any time and will give reasonable notice of an inspection where possible.
12.2 The Hirer shall keep the Machinery under the Hirer’s possession, employ it solely in its own work and will not permit it or any other part thereof to be used by any other party for any other work.
12.3 The Owner is entitled to terminate this agreement at any time during the period of hire without notice and without payment of compensation forthwith if:
(a) The machinery is not properly used and maintained by the Hirer as provided in this agreement;
(b) The Hirer does not strictly comply with all of the obligations contained or implied in this agreement including the payment of any money outstanding.
12.4 Upon termination, the Hirer shall deliver the Machinery complete with any accessories in good order as received with fair wear and tear excepted to the Owner’s premises or Rotorua as the Owner directs. If the Machinery is not delivered in a prompt manner the Owner or the Owner’s agent may enter the Hirer’s premises to personally recover the machine and seek any costs of doing so from the Hirer.
12.5 Unless agreed in writing to the contrary, the acceptance by the Hirer of any hire Machinery from the Owner shall constitute acceptance of the terms of this Agreement.
12.6 Under the Health and Safety at Work Act 2015, the Hirer must take all practicable steps to ensure that people on or near the machinery are not harmed.
13. LIMITATION OF LIABILITY
13.1 The Owner assumes no liabilities whatever in respect to third party or similar risk for personal injury, or for consequential damage of any kind in respect of the Hirer’s use of the Machinery.
13.2 The Owner shall not be liable for direct or consequential damages whatsoever whether in contract or in tort including that resulting from the negligence of the Owner.
13.3 No provision, other than those that are mandatory, shall be implied by statute or at common law or otherwise into this Agreement against the Owner.
13.4 No representation or express condition or warranty shall be binding upon the Owner unless it is in writing and executed by the Owner.
13.5 The Hirer acknowledges that it has not been induced to enter into this Agreement by any representation made by or on behalf of the Owner.
13.6 The Hirer acknowledges that the Hirer relies solely on its own judgement in accepting the Machinery on hire pursuant to this Agreement.
14.1 The Hirer shall indemnify the Owner against all damages, losses or liabilities, which many arise in respect of the Machinery, its use or operation by the Hirer or by any other party.
15.1 If any part of this Agreement of its application to any party or any circumstances is or becomes unenforceable, void or illegal then unless that part is fundamental to the operation of the Agreement or contrary to public policy, the remaining terms and conditions of this Agreement will not be affected but will remain in full force and effect.
16.1 In consideration of the Owner entering into this Agreement at the Guarantor’s request the Guarantor:
(a) Guarantees payment of any money owed under this Agreement and the performance by the Hirer of the obligations of this agreement.
(b) Indemnifies the Owner against any loss the Owner might suffer should this Agreement be lawfully disclaimed or abandoned by any liquidator, receiver or other person.
16.2 The Guarantor covenants with the Owner that:
(a) No release, delay or other indulgence given by the Owner to the Hirer or to the Hirer’s successors or assigns or any other thing whereby the Guarantor would have been released had the Guarantor been merely a surety shall release prejudice or affect the liability of the Guarantor as a guarantor or as indemnifier.
(b) As between the Guarantor and the Owner the Guarantor may for all purposes be treated as the Hirer and the Owner shall be under no obligation to take proceedings against the Hirer before taking proceedings against the Guarantor.
16.3 Should there be more than on Guarantor their liability under this guarantee shall be joint and several