1. "Company", "we", "our", or "us" means LeasePlus Limited(LP) its assignees, successors and any subcontractor engaged by the Company to provide the Services.
"Customer" "you" and "your" means the person(s) or legal entity named overleaf. If there is more than one and/or it means each of you separately and all of you jointly and severally.
"Agreement" means the Equipment and/or Service Agreement, its Schedules and terms and conditions, any other terms and conditions specifically relating to the various Equipment and/or services provided, and all other documents forming part of the Agreement.
"Business Day" means any day of the week excluding a Saturday or a Sunday and any public holiday when trading banks in Auckland, New Zealand are closed for business.
"Claim" means any claim:
for loss of profits suffered by the Customer; or
1.1. for any consequential, indirect or special loss, damage or injury of any kind suffered by the Customer or any person arising directly or indirectly from:
1.2. any breach of the Company's obligations under the Equipment and/or Service Agreement; or
1.3. any cancellation of this Equipment and/or Service Agreement; or
1.4. any negligence, misrepresentation or other act or omission by the Company or its employees, agents or contractors.
"Initial Term" means the minimum term of the contract as stated on the front page of the Agreement.
2. These standard terms are incorporated into any Equipment and/or Service Agreement between LeasePlus Limited(the "Company") and its customers (each "Customer"). A reference to ‘Equipment and/or Service Agreement' will be deemed to include a reference to these standard terms.
3. The Customer agrees to rent the equipment, software and services described in the Equipment and/or Service Agreement ("Products") on the terms of the Equipment and/or Service Agreement.
4. The Equipment and/or Service Agreement will run for the minimum term listed on the front page of this document ("the Initial Term") and following the Initial Term, the Equipment and/or Service Agreement may be cancelled by either party giving not less than 3 months' written notice to the other, however if no notice is given then the Equipment and/or Service Agreement will automatically renew for a further period of 12 months.
5. You agree to pay the Payments (plus GST) as set out in the Agreement to us monthly with the first payment due on the First Payment Date, and thereafter each month during the Term, or if that day is not a Business Day the following Business Day. Time is of the essence in your obligations under the clause as notice and late payment fees will apply.
6. The Customer must make payment monthly in advance by direct debit to the account nominated by the Company.
7. The Customer may not withhold payment or make any deductions from any amount owing to the Company.
8. The Customer acknowledges that where any deposit is required by the company as a part of payment for equipment and/or services such deposit is not refundable for any reason and the Customer forfeits the deposit in the event of termination of the Service Agreement, regardless of the timing of such termination.
9. If the customer requires an invoice for monthly payments, the Customer agrees that it may be required to pay an administration fee.
10. In some instances, the Company may agree to provide you with Equipment to allow the Services to be delivered to you, in this instance.
10.1. The Equipment remains our property at all times. You only have a right to use the Equipment for the Term and no right to purchase the Equipment on or before termination of the Agreement. You must protect, and make clear to others our interest in the Equipment. You must not give another person an interest in, or security over the Equipment or any reason.
10.2. You must not part with possession of the Equipment (other than for maintenance or repair with an authorsied repair technician) or alter the Equipment in any way unless agreed by us in writing.
10.3. We may act in your name, or on your behalf, to take any steps we deem necessary to protect our interest in the Equipment.
10.4. You must get our consent before the location of the Equipment is changed from the Site.
10.5. You must only use the Equipment in the manner and for the purpose for which it was designed and in accordance with the manufacturer's instructions. Opening the cases will be considered abuse and is strictly prohibited.
10.6. You must only allow properly trained people to use the Equipment.
10.7. You must not purport to assign, sublet, bail, mortgage, pledge, grant a security interest in, sell, dispose of, or otherwise deal with the Equipment to any third party.
10.8. We have the right to enter your premises to exercise our right under this Agreement, including removal of the equipment.
10.9. Replaced Components become part of the Equipment once they have been exchanged for any reason;
10.10. If additional or different Equipment is provided to you, it will be on the same terms and conditions as Contained in this Agreement and you must pay all additional Fees thereof.
11. If the LP Equipment becomes mixed with or incorporated in any other goods, property or materials in such a way that is ceases to exist separately, the original ownership of the new goods created by that mixing will vest immediately on creation in LP as co-owner of the new goods with the owner of any other materials which become part of the new goods. The co-ownership will be calculated proportionally to the value of the various component materials. LP's ownership of the new goods is otherwise on the same terms as the ownership of the LP equipment originally supplied.
12. The Customer must fully insure the Products from the time of delivery.
13. The Customer must protect the Products, and not damage, deface, alter or tamper, mortgage, or otherwise use the Products for any security. If the Products include a SIM card, this may only be used with the Products supplied by the Company and the Customer must not alter it in any way.
14. The Products must be returned, at your expense, to the Company on expiry or cancellation of the Equipment and/or Service Agreement. If the Customer does not return the Products, or if there is any loss of the Products for any reason, then the Customer shall be liable to pay the replacement cost of the Products as per the current price list set by the Company or its suppliers.
15. The Company may charge the Customer for the cost of repairs in the event the Products are damaged, by way or liquid damage, abuse, pest infestation, electrical surges or any other issue excluding fair wear and tear. The Company may replace or repair any quality Product at their discretion.
You acknowledge that the Equipment supplied under this Agreement is being acquired for business purposes only and accordingly the provisions of the Consumer Guarantees Act 1993 do not apply to the Equipment and any services provided under this Agreement. You also acknowledge that this Agreement is not a consumer credit contract as defined in the Consumer Contracts & Consumer Finance Act 2003 and accordingly your rights and obligations under this Agreement will not be regulated by that Act
16. The Customer grants a security interest to the Company in each and every part of the Products as security for payment and for any other amounts owing by the Customer to the Company from time to time, and for the performance by the Customer of all the Customer's other obligations to the Company from time to time, ("Customer's indebtedness and obligations"). For the purposes of section 36(1)(b) of the PPSA, and to ensure maximum benefit and protection for the Company by virtue of section 36(1)(b)(iii) of the PPSA, the Customer confirms and agrees that the Customer intends to and does grant to the Company, as security for the Customer's indebtedness and obligations, a security interest in all of the Customer's present and after-acquired property except only for any such property which is or comprises items or kinds of personal property ("Excepted Property"):
16.1. in or to which the Customer has rights; and
16.2. which has not been supplied by the Company to the Customer,
16.3. other than any Excepted Property which is or comprises proceeds of any of that present and after-acquired property which has been supplied by the Company to the Customer.
17. The Company may allocate amounts received from the Customer in any manner it determines, including in any manner required to preserve any purchase money security interest it has in any Goods.
18. The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to the security interest under this Contract.
19. 1. The Customer agrees that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to this Contract, or the security under this Contract, and waives the Customer's rights under sections 121, 125, 129, 131 and 132 of the PPSA.
20. Company may Assign to Financier, The Company may assign this Agreement to a financier of the Company at its sole discretion. Where such an assignment occurs, the Customer agrees and acknowledges that the financier shall take assignment of all rights of the Company under this Agreement, but shall not take an assignment of any of the Company's obligations under clause 12 or any other obligation of the Company to the Customer under this Agreement or at law., in relation to that specific product.
21. You may not assign your rights under this Agreement to any third party without our prior written consent, which we may grant or withhold at our absolute discretion.
22. You may apply to assign your rights under this Agreement by completing and submitting the Company's "Assignment Agreement" standard form. Assignment is subject to the creditworthiness of the Assignee and at our discretion.
23. We reserve the right to charge an additional fee to cover the administrative costs of assigning an existing Agreement.
24. If the Products include software, the Products will be supplied with a license to use one copy of the "standard' software, in relation to that specific product.
25. Use of the Products does not confer ownership rights in respect of any software that any Product may contain. The Customer acknowledges and agrees that the Company owns the intellectual property in any software in any product it provides and ownership of this intellectual property remains with the Company. The Customer shall not make copies of the software, modify, decompile, disassemble, decrypt, extract or otherwise reverse engineer the software. The license under this clause is only for the software as supplied and does not include automatic entitlement to any present or future upgrades or updates.
26. The Customer has no right, title or interest in any of the Company's trademarks, trade names and logos, including those items used by it under license.
27. The Company will not be liable for any Claim or other remedy (of any nature, including under contract or in negligence) by the Customer or any other person.
28. If full payment is not made by the Customer to LP in accordance with the Customer Contract, then the Customer will be in default under the Customer Contract and LP may exercise all of this rights and remedies set out and otherwise available at law and
28.1. Disable or disconnect the service;
28.2. Cancel this Equipment and/or Service Agreement and sue the Customer for damages;
28.3. Enter on the Customer's premises and recover and retrieve the Products;
28.4. Recover all costs associated with the breach or insolvency from the Customer.
28.5. Late payment charges will apply.
29. The Customer indemnifies the Company and will pay all costs incurred by the Company, including legal costs on a solicitor-Customer basis and debt collectors' costs, due to an Event of Default or incurred in the recovery or attempted recovery of outstanding money or the enforcement of the terms of the Equipment and/or Service Agreement.
30. The Customer indemnifies the Company and will pay all costs incurred by the Company, including legal costs on a solicitor-Customer basis and debt collectors' costs, due to an Event of Default or incurred in the recovery or attempted recovery of outstanding money or the enforcement of the terms of the Equipment and/or Service Agreement.
31. Payments by the Customer will be applied first in reduction of such interest and costs due, and the balance in reduction of other amounts due.
32. If an Event of Default occurs, the price and any other amount owing will immediately become due and payable not withstanding that the due date has not arisen.
33. We may terminate this Agreement immediately by written notice to you if any of the following occur:
33.1. you default in the payment of any Payment or any other amount owed by you under this Agreement
33.2. you are in breach of any other term of this Agreement and such breach is not remedied within 7 days of the breach arising; or
33.3. you are in breach of any other agreement relating to or connected with this Agreement and/or the Equipment (including any agreement relating to servicing of the Equipment), or any other agreement with any member of the LP Group of companies, and such breach is not remedied within 7 days of the breach arising; or
33.4. you breach any of the terms of the insurance policy in relation to the Equipment or it is refused or cancelled;
33.5. you are unable to pay your debts as they fall due, or an application is made to adjudicate you bankrupt or an application or resolution is passed for your liquidation or winding up, or you are dissolved or struck off the NZ companies office register;
33.6. a receiver, liquidator, statutory manager or administrator is appointed over all or any of your assets and income, or you enter into, or propose any composition or arrangement with your creditors; or
33.7. any act which you cause or permit threatens the safety, condition or safe keeping of the Equipment; or
33.8. you cease to carry on your business or you repudiate this Agreement or your conduct indicates that you no longer intend to be bound by this Agreement.
33.9. Equipment/service obtained by way of fraud or misrepresentation
33.10. Upon termination or expiry, we may enter the premises where the Equipment is stored, and use reasonable force to do so, to enable us to take possession of the Equipment (including Software and related documents).
34. If this Agreement is terminated for any reason whatsoever you agree to immediately pay to us:
34.1. ANY PAYMENTS DUE AND UP THE DATE OF TERMINATION OWING WHICH YOU HAVE NOT PAID
34.2. THE BALANCE OF ALL FUTURE PAYMENTS THAT WOULD HAVE BEEN PAYABLE UP TO THE END OF THE TERM, DISCOUNTED AT THE COMPANY'S SOLE DISCRETION TO A PRESENT DAY VALUE
34.3. THE MARKET VALUE OF THE EQUIPMENT, IF IT IS NOT RETURNED
34.4. ANY AND ALL COSTS AND EXPENSES INCURRED BY THE COMPANY IN RELATION TO EARLY TERMINATION OF THIS AGREEMENT, INCLUDING ANY TERMINATION FEES, PAYABLE AT THE THEN CURRENT RATES CHARGED BY US, AND ANY COLLECTION AND LEGAL COSTS
34.5. ALL OTHER AMOUNTS OWED BY YOU UNDER THIS AGREEMENT
34.6. ANY ADDITIONAL INTEREST PAYABLE IN RESPECT OF OVERDUE PAYMENTS AND/OR ANY OTHER AMOUNTS OWED BY YOU UNDER THIS AGREEMENT
34.7. This does not limit your liability to us for any other legal action we may have against you for any breach.
35. Where any question, dispute or difference ("dispute") arises between the parties concerning or in any way arising out of this agreement or the performance of either party in terms of the Equipment and/or Service Agreement, the parties will make a genuine effort to resolve the questions, dispute or difference without resorting to litigation. If the dispute remains unresolved for 40 days; then the dispute can be referred to the Financial Services Complaints Limited (FSCL) refer to www.fscl.org.nz
36. Any notice given under this Equipment and/or Service Agreement must be in writing (or via Email) and delivered by hand or sent by email, post, courier, or facsimile transmission to the last known address of the recipient. Notices delivered by hand or sent by email or facsimile transmission are deemed to have been received on the date of delivery or transmission if made before 5pm on a Business Day. Notices sent by courier are deemed to have been received on the next Business Day and notices sent by post on the 2nd Business Day following posting.
37. The Customer, directors and Guarantor(s) authorise the Company to obtain, collect, verify, retain and use personal information about the Customer and/or Guarantor(s) (the "Information") including directors in the case of a limited liability company or trustees in the case of a trust.
37.1. The Customer, directors and Guarantor(s) authorise us (and any financier to whom this Agreement may be assigned pursuant to clause 20 ( "financier") to provide and request the information to and from any person for assessing the Customers, directors and/or Guarantors credit worthiness, administering the financing of the Equipment and/or Services, enforcing our (or any financier's) rights (as applicable) under this Agreement or at law and providing information to or request information from Third parties or credit agencies for the purpose of maintaining effective credit records and assessing the Customer, directors or Guarantors credit worthiness.
38. The Customer shall supply information required by the Company to comply with the Anti-Money Laundering and Countering of Terrorist Financing Act 2009.
38.1. PEP, politically exposed person means – An individual who holds or is in any way related to a person who holds or has held in the preceding 12 months, a prominent public function in a foreign country and or an individual who has joint ownership of legal entity or any legal arrangement or other relationship, with or on behalf of such a person.
39. In consideration of the Company, at the Guarantor's request, agreeing to supply the Customer with Products from time to time, the Guarantor:
39.1. Unconditionally and irrevocably guarantees the due and punctual payment by the Customer of all moneys due and payable by the Customer to the Company and the due observance and performance by the Customer of all its obligations owed to the Company.
39.2. Will pay on demand all moneys due and payable by the Customer to the Company.
39.3. Agrees that the liability of the Guarantor under this guarantee and indemnity is to be construed as if the Guarantor was the sole principal debtor for all moneys due and payable by the Customer to the Company.
39.4. Agrees that this guarantee shall be a continuing guarantee and shall not be satisfied or discharged if the Customer's account at any time comes to a nil or credit balance or on the winding up, liquidation, dissolution (or similar event) or the Customer or any disclaimer by any liquidator but will continue in full force and effect until the Company.
39.5. Agrees to supply on request reasonable evidence of the Guarantor's financial standing to the Company.
39.6. Indemnifies the Company against all costs and expenses which are either incurred or incidental to the enforcement of this guarantee and indemnity (including legal fees on a full indemnity basis).
40. Our Right to Complete this Agreement - You authorise us to fill out any spaces left blank by you in this Agreement, including but not limited to, the term, fees and to correct any errors relating to any aspect of this Agreement.
41. Price The pricing will be at the rates as quoted at the time of entering this Agreement and the Company reserves the right to vary the rates from time to time by giving at least 30 days written notice to the Customer. The variation shall take effect from the date nominated in the notice. The company may pass on any increase in the cost of the Service, installation or provision of the Service where such increase is caused by (i) any act, omission or delay by you or any variation in the Equipment or Service ordered, requested by you after the date of this Agreement or any material fact not discoverable at the date this Agreement, (ii) Any third Party.
42. Fees Charges
42.1. Late payment Fee...........................$15.00
42.2. Default Fee......................................$25.00
42.3. Repossession/Field visit Fee..........$50.00 in addition to third party charges
42.4. Assignment/Variation Fee...........$168.75
42.5. Multiple refund Fee........................$20.00
42.6. Monthly invoice Fee........................$10.00
43. If any clause or term of this Equipment and/or Service Agreement shall be invalid, unenforceable, or illegal then the remaining terms and provisions of this Equipment and/or Service Agreement will be deemed to be severable therefrom and will continue in full force and effect unless such invalidity, unenforceability or illegality is fundamental to this Equipment and/or Service Agreement.
44. The Equipment and/or Service Agreement is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
45. The person signing this Agreement confirms that they are properly and duly authorized to sign on behalf of the Customer. Should they not be authorized then they agree to accept full responsibility for all aspects of the Agreement basis.