www.freedompilates.co.nz
SCHEDULE ONE - TERMS & CONDITIONS
- ACCEPTANCE
1.1 These Terms & Conditions (Terms) form part of the Rental Agreement for the supply of the equipment specified on registration page (Equipment) provided by Freedom Pilates Ltd (FPL) to you. You are responsible for reading and understanding these Terms prior to renting the Equipment.
1.2 Accessing this website or renting any Equipment from us shall constitute acceptance by you of all the terms & conditions contained within these terms.
1.3 We reserve the right to amend these Terms at any time, and unless stated otherwise, any change to these Terms shall take effect immediately.
- EQUIPMENT
2.1 Subject to the provisions of these Terms, FPL shall rent the Equipment to you for the duration of the rental period specified on the registration page (Term) in exchange for the rental fee specified on page one (Rental). Unless otherwise stated, the rental term will be for a minimum of 6 months, after which period the rental will be deemed open term and can be terminated with 4 weeks notice to FPL
2.2 You shall be entitled to exclusive possession and control of the Equipment during the Term, provided that you have met all your obligations under these Terms.
2.3 Unless otherwise agreed by FPL, you shall be responsible for all costs relating to the pick-up and transportation of all Equipment from FPL premises. Any damage caused to any premises by you (or any individual(s) engaged by you) in the course of removing any items of the Equipment shall be promptly rectified by you at your sole expense.
2.4 All risk in respect of the Equipment shall pass to you upon the taking of possession.
2.5 FPL warrant to you that, as at the date of the Rental Agreement, each item of Equipment is in good working order and repair.
2.6 FPL shall undertake and/or arrange for any repairs to the Equipment which are covered under any manufacturer warranty provided to FPL.
- RENTAL & BOND
3.1 During the Term, you shall make payments to FPL as outlined in the registration page:
3.1.1 To secure the performance of your obligations under these Terms, you shall pay the bond specified (Bond) which shall be payable immediately upon signing of these Terms. FPL will refund the Bond (or any remaining amounts of the Bond, as applicable) to you at the end of the Term. However, in the event that you breach the terms and conditions of these Terms, FPL may access the Bond to cover any losses incurred by FPL. For the avoidance of doubt, FPL will not hold the Bond in trust as stakeholder and FPL will have full and final discretion in regards to any costs to be covered by the bond.
3.1.2 The Rental for the use and control of the Equipment, payable monthly in advance, commencing on the date of the Rental Agreement (or such other commencement date as mutually agreed in writing).
3.2 FPL shall be entitled to charge you interest at a default rate of twenty percent (20%) per annum for any overdue Rental. FPL may, at any time, without notice to you:
3.2.1 enter into any premises where FPL reasonably believe the Equipment is held by you and take possession of the Equipment if any Rental is in arrears for more than sixty (60) days; or
3.2.2 refer any default in payment of Rental to a debt collection agency and you shall be responsible for payment of all associated fees and charges.
3.3 In addition to the Rental, FPL shall be entitled to charge a reasonable service fee if FPL are requested by you to provide any set-up, maintenance or servicing assistance relating to the Equipment.
3.4 In addition, FPL shall be entitled to charge a reasonable administration fee for the processing and collection of failed rental payments. Including, but not limited to a $20 service fee for each failed monthly rental payments.
- OWNERSHIP
4.1 For the duration of the Term, notwithstanding your exclusive right to possess and use the Equipment, ownership of the Equipment shall at all times remain with FPL. Accordingly, FPL shall be entitled to hold any ownership papers, manufacturer warranties, guarantees and certificates of registration in respect of the Equipment.
4.2 FPL shall be entitled to register a security interest on the Personal Property Securities Register with respect to the Equipment for the duration of the Term.
- CUSTOMER OBLIGATIONS
5.1 During the Term, you shall:
5.1.1 At your own expense, maintain the Equipment in good order and repair, fair wear and tear excepted, including replacing any defective or worn out parts with new parts. Any such replacement parts or accessories shall upon installation become part of the Equipment;
5.1.2 Give FPL immediate notice of any loss or damage to the Equipment or mechanical malfunction;
5.1.3 Not make any alterations or modifications to the Equipment without FPL’s prior written consent (including, without limitation, with respect to any labels or branding). You must, if directed by FPL, remove accessories fitted by you and make good any damage caused as a result of such removal;
5.1.4 Not attempt to sell, pledge, charge, hire out or otherwise deal with the Equipment or do or omit to do any act whereby any liens on the Equipment shall arise;
5.1.5 Comply with the provisions of all legislation, by-laws and regulations affecting the Equipment or the use or possession thereof;
5.1.6 At all times ensure that the Equipment is used solely for the purposes intended by the Equipment manufacturer and in accordance with any instructions and manuals as to the use, operation and maintenance of the Equipment. In the event that any individual under the control or supervision of you uses the Equipment in such manner which is inconsistent with the Equipment manufacturer’s intended use and instructions, you will make good any damage or, at FPL’s option, pay reasonable compensation to FPL for any loss with respect to any applicable item(s) of the Equipment;
5.1.7 At your own expense fully comply with FPL instructions and recommendations concerning the maintenance and use of the Equipment;
5.1.8 Take all reasonable steps to protect the Equipment from loss or damage, and immediately rectify any damage to the Equipment in accordance with clause 6.4; and
5.1.9 Not undertake any act which may in any way prejudice FPL rights under these Terms.
5.2 If, for any reason, any item of Equipment is to be returned by you to FPL, such item of Equipment must be delivered by you to FPL’s premises (as such other site specified by FPL) and you must adhere to FPL’s reasonable handback directions and specifications (including with respect to the condition of the Equipment).
5.3 No accident, damage or loss, mechanical defect or breakdown of the Equipment shall relieve you from making any payment of Rental or any other amounts required by these Terms, unless such incident is attributable to FPL negligence or wilful damage.
- INSURANCE
6.1 FPL shall keep the Equipment insured in FPL’s name against fire, accident, theft and such other risks as FPL or any applicable chargeholder may require. FPL are entitled to receive all monies payable under any insurance policy payable by any other person in respect of damage to or loss of any of the Equipment.
6.2 If FPL are required to make an insurance claim for loss or damage to any of the Equipment which has occurred while the Equipment is in your possession and control (or any individuals under your control or supervision), you shall pay to FPL any excess or any premium deducted under the policy.
6.3 If any item of Equipment suffers damage to the extent in which that item is beyond repair or is determined to be an insurance write-off or is stolen and not recovered, then FPL may either (at FPL’s absolute discretion):
6.3.1 Terminate these Terms in respect of such item of Equipment effective from the date of such total damage or loss but these Terms shall continue to be of full force and effect in respect of all other items of Equipment, in which case: You shall be liable for the Rental instalment in respect of such Equipment for the month in which the total damage or loss occurred, plus an additional month, and thereafter shall have no further obligation to make monthly Rental in respect of such item of Equipment and there shall be a consequent adjustment to the Rental; and Any other amounts owing by you in relation to such item of Equipment under these Terms shall immediately become due and payable; or
6.3.2 FPL shall apply all insurance funds received in replacing such item of Equipment with a similar item, either new or used, in which case: You shall be liable for the Rental instalment in respect of such item of Equipment for the month in which the damage or theft occurs, plus an additional month, and thereafter shall be liable for monthly Rental in respect of such replaced item of Equipment from the date upon which such item is made available to you, or after the additional month for which payment was made, whichever is later; and If the replacement item is new, or if the cost price of a used item is in excess of the market value of the item immediately prior to that item being written off or stolen, FPL shall be entitled to increase the Rental by a pro rata amount as reasonably determined by FPL.
6.4 If the Equipment suffers any loss or damage other than as described above, you shall promptly arrange for repairs to be carried out at your cost to FPL’s reasonable satisfaction using a suitably trained individual authorised by FPL.
- TERMINATION
7.1 Either party may terminate these Terms by giving written notice to the other, if that other party:
7.1.1 Breaches any material term of these Terms and, having been given thirty (30) days’ notice requiring the party to rectify the breach, fails to do so; or
7.1.2 Enters into liquidation, is declared insolvent in any legal proceedings or is declared bankrupt.
7.2 In the event that these Terms is terminated pursuant to clause 7.1, you must promptly account to FPL for amounts owed at that time.
7.3 Should these Terms be terminated by FPL under clause 7.1:
7.3.1 FPL shall be entitled to retain the Bond, less any amount by which the Bond exceeds the Rental due at the date of termination; and
7.3.2 You must immediately return the Equipment to FPL’s premises at your sole cost.
- INDEMNITY
8.1 You shall indemnify and hold harmless FPL against all damages, losses or liabilities which may arise in respect of the Equipment, whether direct or indirect, including, without limitation, any damage, loss or liability due to use or operation of the Equipment by you or any person under your control or supervision.
- CONFIDENTIALITY
9.1 You shall each keep the terms and content of these Terms confidential and shall not disclose the terms and content of these Terms to any person or entity, with the exception of any information already in the public domain.
- NOTICES
10.1 Any notice to be given pursuant to the terms of these Terms must be in writing addressed to the party to whom it is given and sent by either pre-paid post or e-mail to the physical address or e-mail address of such party as detailed on page one of the Rental Agreement (or such other physical address or e-mail address as a party may from time to time notify to the other party) and shall be deemed to be served on the day sent by e-mail or on the third day after it is posted.
- ENTIRE AGREEMENT
12.1 These Terms constitutes the entire agreement, understanding and arrangement (express and implied) between the parties in respect of the matters contained in these Terms, to the exclusion of all other agreements, arrangements, understandings or representations, whether express or implied, and therefore supersedes any prior agreements, arrangements, understandings and representations between the parties in respect of such matters of any nature.
- VARIATIONS
13.1 Any variation of these Terms must be in writing and signed by the parties.
- DELAY AND WAIVER
14.1 Any failure by a party to enforce any clause of these Terms, or any forbearance, delay or indulgence granted by that party to the other party shall not be construed as a waiver of the first party’s rights under these Terms.
- SURVIVAL
15.1 Any indemnities, warranties or obligations of confidence under these Terms shall survive the termination of these Terms. Any other terms of these Terms which are, by their nature, intended to survive termination of these Terms, shall survive the termination of these Terms.
- VALIDITY
16.1 If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason, these Terms shall remain in full force apart from such provision which shall be deemed deleted.
- ASSIGNMENT
17.1 Each party may assign its rights under these Terms to a third party subject to the prior written consent of the other party, which shall not unreasonably be withheld.
- CURRENCY
18.1 Any reference to “dollars” or “$” shall mean New Zealand dollars (NZ$) unless otherwise specified.
- JURISDICTION
19.1 These Terms shall be governed by and construed in accordance with the laws of New Zealand and the parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with these Terms.
