1. TERMS AND CONDITIONS
1.1 “MusicWorks” shall mean MusicWorks Limited, or any agents or employees thereof.
1.2 “Customer” shall mean the Customer, any person acting on behalf of
and with the authority of the Customer, or any person purchasing products and
Instruments from MusicWorks.
1.3 “Instruments” Shall mean:
1.3.1 all Instruments of the general description specified on the front of
this agreement and supplied by MusicWorks to the Customer; and
1.3.2 all Instruments supplied by MusicWorks to the Customer; and
1.3.3 all inventory of the Customer that is supplied by MusicWorks; and
1.3.4 all Instruments supplied by MusicWorks and further identified in any
Invoice issued by MusicWorks to the Customer, which invoices are deemed to
be incorporated into and form part of this agreement; and
1.3.5 all Instruments that are marked as having been supplied by
MusicWorks or that are stored by the Customer in a manner that enables them
to be identified as having been supplied by MusicWorks; and
1.3.6 all of the Customer’s present and after-acquired property that
MusicWorks has performed work on or to or in which goods or materials
supplied or financed by MusicWorks have been attached or incorporated.
1.3.7 The above descriptions may overlap but each is independent of and
does not limit the others.
1.4 “Instruments” shall also mean all instruments, accessories, goods,
products, and advice provided by MusicWorks to the Customer and shall
include without limitation the hiring and sale of musical instruments and all
charges for time and attendances, hire charges, insurance charges, or any fee
or change associated with the supply of Instruments by MusicWorks to the
Customer.
2. COLLECTION AND USE OF INFORMATION
2.1 The Customer authorises MusicWorks to collect, retain and use any
information about the Customer, for the purpose of assessing the Customer’s
credit worthiness, enforcing any rights under this contract, or marketing any
Instruments provided by MusicWorks to any other party.
2.2 The Customer authorises MusicWorks to disclose any information
obtained to any person for the purposes set out in clause 2.1.
2.3 Where the Customer is a natural person the authorities under clauses
2.1 and 2.2 are authorities or consents for the purposes of the Privacy Act 1993.
3. P AYMENT
3.1 Payments are to be made as agreed in the rental contract (“the due
date”)
Payments are to be made in advance without demand.
3.2 Interest may be charged on any amount owing after the due date at
the rate of 2.5% per month or part month.
3.3 With respect to any amount owing after the due date the customer
authorises MusicWorks to charge the customer’s credit card with the amount
that is overdue.
3.4 Any expenses, disbursements and legal costs incurred by
MusicWorks in the enforcement of any rights contained in this contract shall be
paid by the Customer,
including any reasonable solicitor’s fees or debt collection agency fees.
A deposit may be required.
4. QUOTATION
4.1 Where a quotation is given by MusicWorks for Instruments unless
otherwise agreed, the quotation shall be valid for thirty (30) days from the date
of issue.
5. TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999)
5.1 With respect to any Instrument purchased by the Customer (the
option to purchase having been elected) title in the Instrument purchased
passes to the Customer only when the Customer has made payment in full
for the Instrument provided by MusicWorks and of all other sums due to
MusicWorks by the Customer on any account whatsoever. Until all sums
due to MusicWorks by the Customer have been paid in full, MusicWorks has a
security interest in all Instruments provided (whether rented or purchased).
5.2 The Customer gives irrevocable authority to MusicWorks to enter any
premises occupied by the Customer or on which Instruments are situated at any
reasonable time after default by the Customer or before default if MusicWorks
believes a default is likely and to remove and repossess any Instruments and
any other property to which Instruments are attached or in which Instruments
are incorporated.
MusicWorks shall not be liable for any costs, damages, expenses or losses
incurred by the Customer or any third party as a result of this action, nor liable
in contract or in tort or otherwise in any way whatsoever unless by statute such
liability cannot be excluded. MusicWorks may either resell any repossessed
Instruments and credit the Customer’s account with the net proceeds of sale
(after deduction of all repossession storage, selling and other costs) or may
retain any repossessed Instruments and credit the Customer’s account with the
invoice value thereof less such sum as MusicWorks reasonably determines on
account of wear and tear, depreciation, obsolescence, loss or profit and costs.
5.3 Where Instruments are retained by MusicWorks pursuant to clause
5.2 the Customer waives the right to receive notice under s. 120 of the Personal
Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.
6. INSURANCE
6.1 The Customer is to insure any Instruments supplied with an insurer
approved by MusicWorks with respect to such risks as MusicWorks may
require.
6.2 Clause 6.1 shall not apply if the Customer agrees to obtain an
indemnity from MusicWorks by paying the insurance charge. The indemnity
will cover:
6.2.1 Any repairs required to keep the Instrument in proper playing
condition; and
6.2.2 Accidental loss or damage the Instrument (including but not limited
to damages or losses caused by theft, fire or accident);
6.2.3 The Customer must submit evidence of loss or damage as
MusicWorks may reasonably require, including but not limited to a police
report in relation to theft;
6.2.4 Notwithstanding the above provisions, the following items are not
covered by the MusicWorks indemnity:
6.2.4.1. Any wilful damage or gross negligence in handling the Instrument;
6.2.4.2. refining or lacquer and plated finishes;
6.2.4.3. consumables that would be used in the normal operation or upkeep
(including but not limited to strings, reeds, oils, cork, grease, swabs, sticks or
rosin);
6.2.4.4. accessories supplied (including but not limited to neck straps,
mouthpieces, ligatures, caps, cleaning rods, blows, shoulder pads).
6.2.5 The Customer is not to do, or permit to be done anything which might
or could prejudice any insurance or indemnity aforesaid or permit any insurer to
decline any claim.
7. LIABILITY
7.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986
and other statues may imply warranties or conditions or impose obligations
upon MusicWorks which cannot by law (or which can only to a limited extent
by law) be excluded or modified. In respect of any such implied warranties,
conditions or terms imposed on MusicWorks, MusicWorks’ liability shall, where
it is allowed, be excluded or if not able to be excluded only apply to the minimum
extent required by the relevant statute.
7.2 Except as otherwise provided by clause 7.1 MusicWorks shall not be
liable for:
7.2.1 Any loss or damage of any kind whatsoever arising from the supply
of Instruments by MusicWorks to the Customer, including consequential loss
whether suffered or incurred by the Customer or another person and whether in
contract or tort (including negligence) or otherwise and irrespective of whether
such loss or damage arises directly or indirectly from Instruments provided by
MusicWorks to the Customer, and
7.2.2 The Customer shall indemnify MusicWorks against all claims and
loss of any kind whatsoever however caused or arising and without limiting
the generality of the foregoing of this clause whether caused or arising as a
result of the negligence of MusicWorks or otherwise, brought by any person in
connection with any matter, act, omission, or error by MusicWorks its agents or
employees in connection with the Instruments.
7.2.3 I f contrary to the disclaimer of liability contained in these terms
and conditions of trade, MusicWorks is deemed to be liable to the Customer,
following and arising from the supply of Instruments by MusicWorks to the
Customer, then such liability is limited in its aggregate to $500.
8. CONSUMER GUARANTEES ACT
8.1 The guarantees contained in the Consumer Guarantees Act 1993 are
excluded where the Customer acquires Instruments from MusicWorks for the
purposes of a business in terms of section 2 and 43 of that Act.
9. RENTAL OF INSTRUMENTS
9.1 The Customer is responsible for any loss or damage to the
Instrument during the rental term and will indemnify MusicWorks for all repair
and replacement costs.
9.2 I n addition to clause 9.1, the Customer will indemnify MusicWorks
for any loss of revenue suffered due the unavailability of the Instrument for hire
and from and against all claims in respect of any costs (including legal costs on
a solicitor-client basis), loss, damage, injury or liability arising from the hireage.
9.3 The Customer shall:
9.3.1 Maintain the Instrument in good repair, condition and working order;
9.3.2 Store the Instrument in its case (if any) or otherwise carefully store
the Instrument when the Instrument is not in use;
9.3.3 Return the Instrument in the condition it was in at the commencement
date of the hire term less fair wear and tear; and
9.3.4 Bring the Instrument to and only to MusicWorks for servicing or
repair at the Customer’s own cost; and
9.3.5 With respect to late returns pay $2.00 per day for each day overdue.
9.4 The Customer shall not unless with MusicWorks prior written
consent;
9.4.1 Modify the Instrument;
9.4.2 Take the Instrument outside New Zealand;
9.4.3 Assign the hire contract or part with possession of the Instrument.
10. OPTION TO PURCHASE
10.1 The Customer may elect to purchase the Instrument during the
rental contract period. If purchasing an ex rental instrument the Customer
gets up to a maximum of 1 years rental off the price of the ex rental instrument
or a similar ex rental instrument. If the Customer elects to purchase a new
Instrument during the rental period then the customer will receive up to
a maximum of 2 years rental of the price of a new Instrument of equal or
higher value. The Customer will receive a discount equal to the lesser of one
of the following; the monthly rental paid to date or 2 full yearly payments, or
24 monthly payments or 4 six monthly payments. None of these discounts
apply to any special promotion price.
10.2 For the avoidance of doubt, the monthly rental referred to in clause
10.1 above does not include any insurance charges paid to MusicWorks
pursuant to clause 6.
10.3 Subject to clause 10.1 MusicWorks has the absolute discretion to
determine the price of the Instrument at the time the Customer elects the option
to purchase.
11. EVENT OF DEFAULT
11.1 I f the Customer fails to pay any money due or perform any
obligations during the hire term, MusicWorks may without any prior notice
retake possession of the Instrument. The Customer agrees that MusicWorks, its
agent and employees may enter onto any land where MusicWorks believes the
Instrument to be and retake possession of the Instrument.
12. NO REFUNDS
12.1 The Customer agrees that no refunds are given by MusicWorks
following the early return of Instruments.
13. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR
TRUSTEES
13.1 I f the Customer is a company or trust, the director(s) or trustee(s)
signing this contract, in consideration for MusicWorks agreeing to supply
Instruments and grant credit to the Customer at their request, also sign this
contract in their personal capacity and jointly and severally personally undertake
as principal debtors to MusicWorks the payment of any and all monies now or
hereafter owed by the Customer to MusicWorks and indemnify MusicWorks
against non-payment by the Customer.
Any personal liability of a signatory hereto shall not exclude the Customer
in any way whatsoever from the liabilities and obligations contained in this
contract. The signatories and Customer shall be jointly and severally liable
under the terms and conditions of this contract and for payment of all sums
due hereunder.
14. MISCELLANEOUS
14.1 MusicWorks shall not be liable for delay or failure to perform its
obligations if the cause of the delay or failure is beyond its control.
14.2 Any rental contract entered into between MusicWorks and the
Customer shall also form part of these terms and conditions of trade.
I have read and understood these terms and conditions of trade.
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