Terms & Conditions of Trade

ErgFit Limited - Terms & Conditions of Trade

D efinitions
1. “Business Day” means a day on which the major trading banks are open for normal business to be conducted, excluding a Saturday, Sunday or public holiday in New Zealand.
2. “Contract” means the Terms and Conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
3. “Contract Hire Term” shall mean the minimum Hire period as described on the invoices, quotation, authority to hire, or any other forms as provided by ErgFit to the Customer.
4. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when using ErgFit’s website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
5. “Cooling Off Period” means the period of time following entering into this Contract when the Customer may choose to cancel the Contract, for any reason, and obtain a refund; the period of which shall be forty-eight (48) hours.
6. “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting ErgFit to provide Goods (on hire and/or for purchase) as specified in any proposal, quotation, order, invoice or other documentation, and:
  1. if there is more than one Customer, is a reference to each Customer jointly and severally; and
  2. if the Customer is a partnership, it shall bind each partner jointly and severally; and
  3. if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
  4. includes the Customer’s executors, administrators, successors and permitted assigns.
7. “ErgFit” means ErgFit Limited, its successors and assigns or any person acting on behalf of and with the authority of ErgFit Limited.
8. “Goods” means all Goods, chattels, and/or Equipment (including any accessories and parts supplied at any time, together with any further equipment acquired with, in addition to or in substitution for the Equipment or which are at any time incorporated or installed in, or attached to, any of the Equipment and, where applicable, includes all operation systems licences supplied with the Equipment by either the manufacturer or the supplier of the Equipment and any cabling or other items supplied in the installation of the Equipment) supplied to the Customer on hire and/or for purchase or Services supplied by ErgFit to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other), and are as described on the invoices, quotation, order, hire Contract, or any other authorisation forms as provided by ErgFit to the Customer.
9. “Price” means the Price payable for the Goods hire (plus any Goods and Services Tax (“GST”) where applicable) as agreed between ErgFit and the Customer in accordance with clause 8 below.
10. “PPSA” means the Personal Property Securities Act 1999 and associated regulations, as amended from time to time.
11. “PPSR” means the Personal Property Securities Register established under the PPSA.
12. “Security Interest” shall be the meaning given to it in the PPSA and includes, without limitation, any instrument by way of security or a bill of sale (as defined in any statute, a charge, mortgage, lien, pledge, hypothecation, set off or flawed asset arrangement. It includes:
  1. Anything that gives a creditor priority ahead of other creditors in respect of any asset;
  2. Retention of Title, other than in the ordinary course of day to day trading;
  3. A deposit of money by way of security.

Interpretation
1. In these Terms and Conditions, unless the context otherwise requires:
  1. The singular includes the plural, and vice versa; and
  2. The words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’; and
  3. A reference to a clause is a reference to a clause of these Terms and Conditions; and
  4. A reference to a party to these Terms and Conditions, or any other document or agreement, includes that party’s executors, administrators, successors and permitted assigns, and any person acting on behalf of, and with the authority of, that party; and
  5. Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
  6. A reference to a period of time (including, but not limited to, a year, quarter, month and day) is to a calendar period; and
  7. A reference to dollars ($), is a reference to New Zealand currency; and
  8. Headings are for convenient reference only, and do not affect interpretation.
2. If the day upon which any act, matter or thing is to be done under the Contract is not a business day, that act, matter or thing:
  1. If it involves payment other than payment which is due on demand, must be done on the preceding business day; and

1. 1. In all other cases, may be done on the next business day.

Acceptance
1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms and Conditions if the Customer places an order for or accepts Delivery of the Goods.
2. In the event of any inconsistency between the Terms and Conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3. Any amendment to the Terms and Conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. None of ErgFit’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by ErgFit or ErgFit’s official spokesperson in writing nor is ErgFit bound by any such unauthorised statements.
5. The Customer acknowledges and accepts that:
  1. The supply of Goods on credit shall not take effect until the Customer has completed a credit application with ErgFit and it has been approved with a credit limit established for the account; and
  2. In the event that the supply of Goods request exceeds the Customer credit limit and/or the account exceeds the payment terms, ErgFit reserves the right to refuse delivery, request an alternative payment method or halt the supply of Goods to the Customer, until such time as the amount in excess of the credit limit has been paid, in accordance with normal trading terms;
  3. This Contract constitutes the entire Contract between the parties and contains all the representations, warranties, covenants and agreements of the parties in relation to the subject matter of this Contract;
  4. None of the Equipment shall be sublet or cross-hired by the Customer. The Customer shall not assign or transfer their interest in this Contract or part with possession of all or any portion of the Equipment without the prior written consent of ErgFit, which consent may be arbitrarily withheld.
6. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

Errors and Omissions
1. The Customer acknowledges and accepts that ErgFit shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. Resulting from an inadvertent mistake made by ErgFit in the formation and/or administration of this Contract; and/or
  2. Contained in/omitted from any literature (hard copy and/or electronic) supplied by ErgFit in respect of the Services.
2. In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of ErgFit; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.

Authorised Representatives
1. The Customer acknowledges and agrees where the Customer does not elect to control their purchases by a Purchase Order and/or a Letter of Authority, then all purchases made by Customer and/or any other third party acting on behalf of the Customer to which the Goods/Equipment are charged to the Customer’s credit account, shall remain at all times payable by the Customer. All said notices of restrictions pertaining to purchases must be writing and will remain in place until such time as the Customer revokes.
2. The Customer agrees to notify ErgFit in writing immediately upon of the departure of the Customer employee if an authorised account user. Failure to advise ErgFit of such departures, then the Customer acknowledges they will be bound by all purchase orders made by that account user.

Finance
1. If this Contract is conditional upon the Customer obtaining a loan from a financial institution then they must provide ErgFit with written confirmation of the loan approval within five (5) working days of the date of signing this Contract before ErgFit will proceed with the supply of any Goods.
2. In the event any such loan application is declined then the Customer shall have the right to withdraw from this Contract subject to the Customer providing ErgFit with written evidence within five (5) working days of the date of signing this Contract that the loan was declined. Upon receipt of such evidence ErgFit shall refund the Customer any deposit paid less any expenses incurred by ErgFit for any Services performed to date.

Change in Control
1. The Customer shall give ErgFit not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by ErgFit as a result of the Customer’s failure to comply with this clause.

Price and Payment
1. At ErgFit’s sole discretion the Price shall be either:
  1. as indicated on any invoice provided by ErgFit to the Customer; or
  2. ErgFit’s quoted price (subject to clause 8.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. ErgFit reserves the right to change the Price:
  1. If a variation to the Goods which are to be supplied is requested; or
  2. If a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
  3. Where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions and limitations to accessing the site, safety considerations, change of design, etc) which are only discovered on commencement of the Services; or
  4. In the event of increases to ErgFit in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance Prices) which are beyond ErgFit’s control.
3. Variations will be charged for on the basis of ErgFit’s quotation, and will be detailed in writing, and shown as variations on ErgFit’s invoice. The Customer shall be required to respond to any variation submitted by ErgFit within ten (10) working days. Failure to do so will entitle ErgFit to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4. At ErgFit’s sole discretion a non-refundable deposit may be required.
5. Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by ErgFit, which may be:
  1. On or before Delivery of the Goods/Equipment;
  2. For non-trade Customers, a deposit of fifty percent (50%) will be required prior to ordering any Goods/Equipment;
  3. For certain approved Customers, due twenty (20) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
  4. The date specified on any invoice or other form as being the date for payment; or
  5. Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by ErgFit.
6. Payment may be made by electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Customer and ErgFit.
7. ErgFit may in its discretion allocate any payment received from the Customer towards any invoice that ErgFit determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer ErgFit may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ErgFit, payment will be deemed to be allocated in such manner as preserves the maximum value of ErgFit’s Purchase Money Security Interest (as defined in the PPSA) in the Goods/Equipment.
8. 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 ErgFit nor to withhold payment of any invoice because part of that invoice is in dispute.
9. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to ErgFit an amount equal to any GST ErgFit must pay for any supply by ErgFit under this or any other agreement for the sale or hire of the Goods/Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

On-Line Ordering
1. The Customer acknowledges and agrees that:
  1. ErgFit does not guarantee the website’s performance;
  2. Display on the website does not guarantee the availability of any particular Goods/Equipment; therefore, all orders placed through the website shall be subject to confirmation of acceptance by ErgFit;
  3. On-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
  4. There are inherent hazards in electronic distribution, and as such ErgFit cannot warrant against delays or errors in transmitting data between the Customer and ErgFit including orders, and you agree that to the maximum extent permitted by law, ErgFit will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
  5. When making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by ErgFit and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
  6. If the Customer is not the cardholder for any credit card being used to pay for the Goods/Equipment, ErgFit shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
2. ErgFit reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of ErgFit’s business, or violated these terms and conditions.

Provision of the Services
1. Delivery of the Goods/Equipment and/or Services (“Delivery”) is taken to occur at the time that:
  1. the Customer or the Customer’s nominated carrier takes possession of the Goods/Equipment at ErgFit’s address; or
  2. ErgFit (or ErgFit’s nominated carrier) delivers the Goods/Equipment to the Customer’s nominated address even if the Customer is not present at the address. In the event the Customer (or a representative thereof) is not present at the time of Delivery, ErgFit’s delivery docket remains prima facie evidence of such.
2. Return of the Goods/Equipment (“Return”) will be completed when the Goods/Equipment has been accepted by ErgFit, by their off-hire docket. Where the Goods/Equipment is returned by the Customer’s transport, the Goods/Equipment returned shall be inspected in ErgFit’s yard and the off-hire docket issued to the Customer shall be conclusive proof of the Return of the Goods/Equipment listed thereon, but not of its condition at the time of Return. If the Customer collects the Goods/Equipment, it will be checked on arrival in ErgFit’s yard for quality and condition. In both cases the check in ErgFit’s yard for quality and condition will be the only legal proof of the quality and condition of Goods/Equipment returned.
3. At ErgFit’s sole discretion the cost of Delivery is either included in the Price or is in addition to the Price.
4. ErgFit may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these Terms and Conditions.
5. Delivery of the Goods/Equipment to a third party nominated by the Customer shall be deemed to be delivery to the Customer for the purposes of this Contract.
6. Any time specified by ErgFit for Delivery of the Goods/Equipment is an estimate only. The Customer must take Delivery by receipt or collection of the Goods/Equipment whenever they are tendered for Delivery. ErgFit will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods/Equipment as arranged then ErgFit shall be entitled to charge a reasonable fee for redelivery and/or storage.

Title to Goods
1. Where this is a hire Contract:
  1. The Goods is and will at all times remain the absolute property of ErgFit, however the Customer accepts full responsibility for:
    1. The safekeeping of the Goods and indemnifies ErgFit for all loss, theft, or damage to the Goods howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer; and
    2. Shall keep ErgFit indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Goods during the Hire Period and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
  2. Furthermore, the Customer will insure, ErgFit’s interest in the Goods against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Goods. Further the Customer will not use the Goods nor permit it to be used in such a manner as would permit an insurer to decline any claim;
  3. The Customer is not authorised to pledge ErgFit’s credit for repairs to the Goods or to create a lien over the Goods in respect of any repairs.
2. Where this is a Contract for the purchase of the Goods
  1. ErgFit and the Customer agree that ownership of the Goods shall not pass until:
    1. the Customer has paid ErgFit all amounts owing to ErgFit; and
    2. the Customer has met all of its other obligations to ErgFit.
  2. Receipt by ErgFit of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
  3. It is further agreed that:
    1. Until ownership of the Goods passes to the Customer in accordance with clause 11.1 that the Customer is only a bailee of the Goods and must return the Goods to ErgFit on request;
    2. The Customer holds the benefit of the Customer’s insurance of the Goods on trust for ErgFit and must pay to ErgFit the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
    3. The Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for ErgFit and must pay or deliver the proceeds to ErgFit on demand;
    4. The Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ErgFit and must sell, dispose of or return the resulting product to ErgFit as it so directs.;
    5. The Customer irrevocably authorises ErgFit to enter any premises where ErgFit believes the Goods are kept and recover possession of the Goods;
    6. ErgFit may recover possession of any Goods in transit whether or not Delivery has occurred;
    7. The Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ErgFit;
    8. ErgFit may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
3. If the Customer fails to return the Goods to ErgFit then ErgFit or ErgFit’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 Goods is situated and take possession of the Goods, without being responsible for any damage thereby caused.

Personal Property Securities Act 1999 (“PPSA”)
1. Upon assenting to these Terms and Conditions in writing the Customer acknowledges and agrees that:
  1. These Terms and Conditions constitute a security agreement for the purposes of the PPSA and a Purchase Money Security Interest (“PMSI”) is granted in priority to all other creditors by the Customer in favour of ErgFit; and
  2. A security interest is taken in all Goods/Equipment that have previously been supplied and that will be supplied in the future by ErgFit to the Customer, and the proceeds from the sale of Goods and/or the hire of Equipment.
2. The Customer undertakes to:
  1. Sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ErgFit may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
  2. Indemnify, and upon demand reimburse, ErgFit for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
  3. Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Equipment or the proceeds of Goods and/or hire charges of the Equipment in favour of a third party without the prior written consent of ErgFit; and
  4. Immediately advise ErgFit of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
3. ErgFit and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.
4. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
5. Unless otherwise agreed to in writing by ErgFit, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
6. The Customer shall unconditionally ratify any actions taken by ErgFit under clauses 12.1 to 12.5.
7. Subject to any express provisions to the contrary (including those contained in this clause 12), nothing in these Terms and Conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
8. Only to the extent that the hire of the Equipment exceeds a twelve (12) month hire period shall clause 12 apply as a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 12 will apply generally for the purposes of the PPSA.

Security and Charge
1. In consideration of ErgFit agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, and the Customer grants a security interest in all of its present and after-acquired property, to secure the performance by the Customer of its obligations under these Terms and Conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
2. The Customer indemnifies ErgFit from and against all ErgFit’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising ErgFit’s rights under this clause.
3. The Customer irrevocably appoints ErgFit and each director of ErgFit as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 13 including, but not limited to, signing any document on the Customer’s behalf.

Consumer Guarantees Act 1993
1. This Contract is subject to the provisions of the Consumer Guarantees Act 1993 (“CGA”) in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded).

Defects and Returns
1. The Customer shall inspect the Goods on Delivery and shall within seven (7) days of Delivery (time being of the essence) notify ErgFit of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford ErgFit an opportunity to inspect the Goods within a reasonable time following Delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which ErgFit has agreed in writing that the Customer is entitled to reject, ErgFit’s liability is limited to either (at ErgFit’s discretion) replacing the Goods or repairing the Goods.
2. Goods will not be accepted for return for any reason other than those specified in clause 15.1 above (or in the case of Goods on hire, normal termination of Goods hire in accordance with the full Terms and Conditions herein) and provided that:
  1. The Customer has complied with the provisions of clause 15.1; and
  2. ErgFit has agreed in writing to accept the return of the Goods; and
  3. The Goods are returned at the Customer’s cost within three (3) days of the Delivery date; and
  4. ErgFit will not be liable for Goods which have not been stored or used in a proper manner; and
  5. The Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
3. ErgFit may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight.
4. Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.

Intellectual Property
1. Where ErgFit has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of ErgFit. Under no circumstances may such designs, drawings and documents be used without the express written approval of ErgFit.
2. The Customer warrants that all designs, specifications or instructions given to ErgFit will not cause ErgFit to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify ErgFit against any action taken by a third party against ErgFit in respect of any such infringement.
3. The Customer agrees that ErgFit may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ErgFit has created for the Customer.

Default and Consequences of Default
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 ErgFit’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Customer owes ErgFit any money the Customer shall indemnify ErgFit from and against all costs and disbursements incurred by ErgFit in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ErgFit’s collection agency costs, and bank dishonour fees).
3. Further to any other rights or remedies ErgFit may have under this Contract, if a Customer has made payment to ErgFit, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ErgFit under this clause 17, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
4. Without prejudice to ErgFit’s other remedies at law ErgFit shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ErgFit shall, whether or not due for payment, become immediately payable if:
  1. Any money payable to ErgFit becomes overdue, or in ErgFit’s opinion the Customer will be unable to make a payment when it falls due;
  2. The Customer has exceeded any applicable credit limit provided by ErgFit;
  3. 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
  4. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation
1. Without prejudice to any other rights or remedies ErgFit may have, if at any time the Customer is in breach of any obligation (including those relating to payment and/or failure to remedy any breach in respect of this Contract within ten (10) working days of receipt by the Customer of such notice/s) then ErgFit may suspend the Services immediately. ErgFit will not be liable to the Customer for any loss or damage the Customer suffers because ErgFit has exercised its rights under this clause.
2. ErgFit may cancel any contract to which these Terms and Conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice ErgFit shall repay to the Customer any money paid by the Customer for the Goods. ErgFit shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ErgFit as a direct result of the cancellation (including, but not limited to, any loss of profits).
4. In addition to clause 18.2 in these Terms and Conditions, ErgFit shall be entitled to cancel the Contract if:
  1. ErgFit reasonably believes that a third party may attempt to take possession of the Equipment; or
  2. The Equipment is at risk; or
  3. In the event that the Customer wishes to cancel this Contract subject to a medical matter, then the Customer must provide ErgFit with a valid medical certificate for the Contract to be assessed for any form of refund, which will be at ErgFit’s sole discretion. Where no medical certificate is provided, the Customer acknowledges and accepts that they shall be liable for:
    1. A cancellation fee of up to thirty (30%) of the remainder of the Price under this Contract; or

1. 1. 1. Forfeit any bond paid; and
    2. Be liable for all monies due and payable up to the date of cancellation.
2. Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

Privacy Policy
1. All emails, documents, images or other recorded information held or used by ErgFit is Personal Information as defined and referred to in clause 19.3 and therefore considered confidential. ErgFit acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act and any statutory requirements where relevant in a European Economic Area “EEA” then the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ErgFit acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customer’s Personal Information, held by ErgFit that may result in serious harm to the Customer, ErgFit will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
2. Notwithstanding clause 19.1, privacy limitations will extend to ErgFit in respect of Cookies where the Customer utilises ErgFit’s website to make enquiries. ErgFit agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
  1. IP address, browser, email client type and other similar details;
  2. Tracking website usage and traffic; and
  3. Reports are available to ErgFit when ErgFit sends an email to the Customer, so ErgFit may collect and review that information (“collectively Personal Information”)

If the Customer consents to ErgFit’s use of Cookies on ErgFit’s website and later wishes to withdraw that consent, the Customer may manage and control ErgFit’s privacy controls via the Customer’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.

1. The Customer authorises ErgFit or ErgFit’s agent to:
  1. Access, collect, retain and use any information about the Customer;
    1. Including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Customer’s creditworthiness; or
    2. For the purpose of marketing products and services to the Customer.
  2. Disclose information about the Customer, whether collected by ErgFit from the Customer directly or obtained by ErgFit 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.
2. Where the Customer is an individual the authorities under clause 19.3 are authorities or consents for the purposes of the Privacy Act 2020.
3. The Customer shall have the right to request (by e-mail) from ErgFit, a copy of the Personal Information about the Customer retained by ErgFit and the right to request that ErgFit correct any incorrect Personal Information.
4. ErgFit will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
5. The Customer can make a privacy complaint by contacting ErgFit via e-mail. ErgFit will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz

Confidentiality
1. Subject to clause 20.2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party's written consent.
2. Both parties agree to:
  1. Use the Confidential Information of the other party only to the extent required for the purpose it was provided; and
  2. Not copy or reproduce any of the Confidential Information of the other party in any way; and
  3. Only disclose the other party’s Confidential Information to:
    1. Employees and contractors who need access to the information and who have agreed to keep it confidential; and
    2. Its legal advisers and insurance providers if those persons undertake to keep such information confidential.
3. Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request, unless required by law to retain it.
4. Confidential Information excludes information:
  1. Generally available in the public domain (without unauthorised disclosure under this Contract); or
  2. Required by law, any stock exchange or regulatory body to be disclosed; or
  3. Received from a third party entitled to disclose it; or
  4. That is independently developed.
5. The obligations of this clause 20 shall survive termination or cancellation of this Contract.

Service of Notices
1. Any written notice given under this Contract shall be deemed to have been given and received:
  1. By handing the notice to the other party, in person;
  2. By leaving it at the address of the other party as stated in this Contract;
  3. By sending it by registered post to the address of the other party as stated in this Contract;
  4. If sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
  5. If sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

Trusts
1. If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ErgFit may have notice of the Trust, the Customer covenants with ErgFit as follows:
  1. The Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
  2. The Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
  3. The Customer will not without consent in writing of ErgFit (ErgFit will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    1. The removal, replacement or retirement of the Customer as trustee of the Trust;
    2. Any alteration to or variation of the terms of the Trust;
    3. Any advancement or distribution of capital of the Trust; or
    4. Any resettlement of the trust property.

General
1. Any dispute or difference arising as to the interpretation of these Terms and Conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
2. The failure by either party to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
3. 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 Tauranga Courts of New Zealand.
4. Subject to the CGA, ErgFit 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 ErgFit of these Terms and Conditions (alternatively ErgFit’s liability shall be limited to damages which under no circumstances shall exceed the Price).
5. ErgFit may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
6. The Customer cannot licence or assign without the written approval of ErgFit.
7. ErgFit may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of ErgFit’s sub-contractors without the authority of ErgFit.
8. The Customer agrees that ErgFit may amend their general Terms and Conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for ErgFit to provide Goods to the Customer.
9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed boarder lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
10. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

Terms Applicable to the Hire of Equipment Only

Use, Operation and Maintenance

1. The Customer shall:
  1. Satisfy itself at commencement that the Equipment is suitable for its purposes;
  2. Notify ErgFit immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
  3. Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by ErgFit or posted on the Equipment;
  4. Maintain the Equipment as is required by ErgFit and as specified in the Equipment’s operators manual (including, but not limited to, maintaining oil and grease levels, tyre pressures and perform a pre-inspection check at the commencement of every Business Day or shift, whichever the shorter time period);
  5. Immediately cease operation of the Equipment and notify ErgFit by telephone should any warning light display or any gauges such as the Equipment’s temperature gauge indicate overheating or other potential mechanical faults. Should the Customer fail to observe such indications, they agree to indemnify ErgFit from any damage thus caused;
  6. Ensure that:
    1. All persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to ErgFit upon request;
    2. The operator of any Equipment is not under the influence of alcohol or any drug that may impair their ability to operate the Equipment;
  7. Comply with all workplace health and safety laws relating to the Equipment and its operation;
  8. Allow ErgFit to inspect the Equipment at any reasonable time and on reasonable notice;
  9. On termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to ErgFit;
  10. Keep the Equipment in their own possession and control and shall not assign the benefit of the hire Contract nor be entitled to lien over the Equipment;
  11. Indemnify and hold harmless ErgFit in respect of all claims arising out of the Customer’s use of the Equipment.
2. The Customer shall not:
  1. Alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
  2. Exceed the recommended or legal load and capacity limits of the Equipment;
  3. Fix any of the Equipment in such a manner as to make it legally a fixture or an accession forming part of any freehold property that is not Equipment without ErgFit’s consent. If any of the Equipment becomes affixed to any other property without ErgFit’s consent in a manner in which ErgFit consider may prejudice ErgFit’s rights, the Customer must take such action as ErgFit reasonably require to preserve ErgFit’s rights in, and title to, that Equipment. If ErgFit agree to allow the Equipment to be affixed to any property, ErgFit may require the Customer to obtain consent of the owner or the lessor (if the lessor is not the owner) of the property to which the Equipment will be affixed prior to the Equipment being affixed.
3. Immediately on request by ErgFit the Customer will pay:
  1. The new list price of any Equipment that is for whatever reason destroyed, written off or not returned to ErgFit;
  2. All costs incurred in cleaning the Equipment;
  3. All costs of repairing any damage caused by:
    1. The ordinary use of the Equipment;

1. 1. 1. The negligence of the Customer or the Customer’s agent;
    2. Vandalism, or (in ErgFit’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer.
  2. The cost of any consumables provided by ErgFit and used by the Customer;
  3. any:
    1. Lost hire fees ErgFit would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;

1. 1. 1. Costs incurred by ErgFit in picking up and returning the Equipment to ErgFit’s premises if the Customer does not return the Equipment to ErgFit’s premises or any pre-agreed pickup location when it was originally agreed that the Customer would do so;
    2. Insurance excess payable in relation to a claim made by either the Customer or ErgFit in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or ErgFit’s.
2. Sub-Leasing
  1. The Customer must not lease, sub-lease, bail or otherwise give possession (“Sub-Lease”) of the Equipment to any other party without the express prior written consent of ErgFit and/or any associated third party of ErgFit that has an interest in the same Equipment (which ErgFit or their associated third party may withhold in its absolute discretion). Any such Sub-Lease agreed to by ErgFit or their associated third party must comply with the following conditions:
    1. The Sub-Lease must be in writing in a form acceptable to all parties and must be expressed to be subject to the rights of ErgFit under this Contract;

1. 1. 1. The Customer may not vary the Sub-Lease without the prior written consent of ErgFit and/or any associated third party of ErgFit that has an interest in the same Equipment (which ErgFit or their associated third party may withhold in its absolute discretion);
    2. The Customer must ensure that all parties are provided (at all times) with up-to-date information regarding the Sub-Lease, including the identity of the sub-leasee, the terms of, and state of, accounts and payment under the Sub-Lease, and the location and condition of the Equipment;
      1. The Customer must take all steps (including registration under the PPSA) as may be required to:
      2. Ensure that any security interest arising under, or in respect of, the Sub-Lease is enforceable, perfected and otherwise effective under the PPSA;
      3. Enabling the Customer to gain (subject always to the rights of ErgFit) first priority (or any other priority agreed to by ErgFit in writing) for the security interest; and
      4. Enabling ErgFit and the Customer to exercise their respective rights in connection with the security interest; and
  2. ErgFit may recover from the Customer the cost of doing anything under this clause 24.4, including registration fees (as per clause 12.2(b)
2. Title
  1. The Equipment is and will at all times remain the absolute property of ErgFit in accordance with clause 11.1;
  2. The Customer must not sell, dispose, or otherwise part with possession of the Equipment.
3. No Security Interest-The Customer must not give any security interest over the Equipment to anyone other than ErgFit.

Contract Hire Term
1. The commencement date shall be the date of the first Delivery of the Equipment, or from the date of signing, whichever, is the earlier. Fixed Term Hire Contracts shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least one (1) months required notice as defined in the Contract prior to the expiration date of the initial term or any additional term.
2. The Customer acknowledges and accepts that the Charges stated will remain fixed for an initial period of twelve (12) months from the date of this Contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).

Terms and Conditions applicable to the Sale of Goods Only
1. Risk
  1. Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
  2. If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, ErgFit is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by ErgFit is sufficient evidence of ErgFit’s rights to receive the insurance proceeds without the need for any person dealing with ErgFit to make further enquiries.
  3. If the Customer requests ErgFit to leave Goods outside ErgFit’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
2. Furthermore, the Customer acknowledges that ErgFit is only responsible for parts that are replaced by ErgFit and does not at any stage accept any liability in respect of previous services and/or parts supplied by any other third party that subsequently fail and found to be the source of the failure, the Customer agrees to indemnify ErgFit against any loss or damage to the Goods, or caused by the Goods, or any part thereof howsoever arising.
3. Warranty
  1. Subject to the conditions of warranty set out in Clause 26.3(b) ErgFit warrants that if any defect in any workmanship of ErgFit becomes apparent and is reported to ErgFit within three (3) months of the date of Delivery (time being of the essence) then ErgFit will either (at ErgFit’s sole discretion) replace or remedy the workmanship.
  2. All warranty claims must first be accepted by the manufacturer and/or ErgFit prior to any work being commenced under such claim, with the claim procedure being;
    1. That the Customer notifies and discusses the issue with ErgFit’s customer services team;
    2. ErgFit will seek authorisation from the manufacturer or provider (where applicable) to ascertain the quickest and most efficient repair method;
    3. On approval to proceed, ErgFit will arrange with the Customer as to repair location and any associated costs of salvage, pickup, or onsite repair;
    4. On completion of the repair, ErgFit shall seek approval from the Customer to sign off any necessary documentation.
  3. The Goods are to be returned to ErgFit for service or repair. Where ErgFit agrees to onsite servicing, pickup or delivery, ErgFit shall reserve the right to charge for associated costs.
  4. ErgFit shall not be held liable for any loss of production, income, costs, losses or damages arising from the time the Goods are out of service under a warranty claim;
  5. The conditions applicable to the warranty given by Clause 26.3(a) are:
    1. The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
      1. Failure on the part of the Customer to properly maintain any Goods; or
      2. Failure on the part of the Customer to follow any instructions or guidelines provided by ErgFit; or
      3. Any use of any Goods otherwise than for any application specified on a quote or order form; or
      4. The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
      5. Fair wear and tear, any accident or act of God.
    2. The warranty shall cease and ErgFit shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without ErgFit’s consent.
    3. In respect of all claims ErgFit shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
  6. For Goods not manufactured by ErgFit, the warranty shall be the current warranty provided by the manufacturer of the Goods. ErgFit shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
  7. The conditions applicable to the warranty given on Goods supplied by ErgFit are contained on the “Warranty Documentation” that will be supplied with the Goods.
  8. In the case of second hand Goods, the Customer acknowledges that full opportunity to inspect the same has been provided and accepts the same with all faults and that no warranty is given by ErgFit as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. ErgFit shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

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