1. Parties. In consideration of the mutual covenants and promises set forth in the Commercial Terms and these General Lease Terms, this Equipment Lease (“Lease”) is made, effective as of the date the last Party signs this Lease, by and between: (A) BISON Group Limited (NZCN 5115901), a company registered in New Zealand, with business offices located at 14 Wickliffe Street, Dunedin Central, Dunedin, 9016, New Zealand (“Bison”) and (B) Customer. Bison and Customer are each a Party and together the Parties to this Lease.
2. Lease. Bison hereby agrees to lease to Customer, and Customer hereby agrees to lease from Bison, the Leased Equipment described in the Commercial Terms.
3. Term. The term of this Lease shall commence on the Lease Start Date and shall expire on the Lease End Date. Bison may terminate this Lease at any time: (a) for convenience upon thirty (30) days notice; and (b) for cause with or without notice.
4. Shipping. Bison will ship the Leased Equipment to Customer’s premises to Customer’s Site for the Lease Start Date and Bison will be responsible for arranging and paying for the return shipment of the Leased Equipment from Customer’s Site to Bison’s premises on or after the Lease End Date. Customer shall ensure that the Leased Equipment is available and in order for Bison to collect from the Lease End Date.
5. Rent and Deposit.
(a) Customer agrees to pay Bison’s invoices for the fees as described in the Commercial Terms to Bison on a monthly basis, one month in advance, beginning on the Date of First Payment as described in the Commercial Terms and on the first day of each succeeding month throughout the term hereof. Any instalment payment not made by the tenth (10th) day of the month shall be considered overdue and in addition to Bison’s other remedies, Bison may levy a late payment charge equal to two percent (2%) per month on any overdue amount. Any monthly lease fee for any partial month shall be prorated.
(b) Customer agrees to pay Bison the Deposit Amount as described in the Commercial Terms (if applicable) prior to taking possession of the Leased Equipment. The Deposit Amount will be refunded to Customer promptly following Customer's performance of all obligations in this Lease.
6. Use. Customer shall use the Leased Equipment in a careful and proper manner and shall comply with and conform to all: (a) applicable laws and regulations in any way relating to the possession and/or use of the Leased Equipment; and (b) instructions and documentation provided by Bison or with the Leased Equipment. Customer agrees to allow Bison to have reasonable safe access to the Leased Equipment and obtain any consents required for Bison to have safe access to the Leased Equipment. Customer agrees not to tamper with, attempt to repair, alter, modify or otherwise interfere with the Leased Equipment, or any identifying marks or numbers on it.
7. Warranty. BISON DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THAT BISON WARRANTS THAT BISON HAS THE RIGHT TO LEASE THE LEASED EQUIPMENT TO LESSEE, AS PROVIDED IN THIS LEASE.
8. Working Order of Leased Equipment. Customer shall promptly report to Bison if any Leased Equipment is no longer in good mechanical working order or in need of repair together with details (if known) as to the nature of the issue, the date the issue with the Leased Equipment was identified and the cause of the issue with the Leased Equipment.
9. Loss and Damage.
(a) Customer hereby assumes and shall bear the entire risk of loss and damage to the Leased Equipment from any and every cause whatsoever while the Leased Equipment is in Customer’s possession and/or under Customer’s control. No loss or damage to the Leased Equipment or any part thereof shall impair any obligation of Customer under this Lease which shall continue in full force and effect through the term of the Lease.
(b) In the event of loss or damage of any kind whatever to the Leased Equipment, Customer shall pay to Bison the replacement cost of the lost or damaged Leased Equipment, or Bison’s cost to repair the damaged Leased Equipment if it is possible and economical to repair in Bison’s sole discretion and determination.
10. Surrender. Upon the expiration or earlier termination of this Lease by Bison, Customer shall: (a) ensure that the Leased Equipment is in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted; (b) make the Leased Equipment ready and available at the Customer’s Site for collection by Bison; and (c) allow Bison, or a third party Bison nominates, to collect the Leased Equipment from the Customer’s Site. Customer shall keep the Leased Equipment free and clear of all levies, liens and encumbrances.
11. Insurance. At all times while the Leased Equipment is in Customer’s possession and/or control including, without limitation, from the date the Leased Equipment is delivered to Customer and until the Leased Equipment is collected from Customer, Customer shall procure and continuously maintain and pay for:
(a) All risk insurance against loss of and damage to the Leased Equipment for not less than the full replacement value of the Leased Equipment, naming Bison as loss payee, and
(b) Combined public liability and property damage insurance with limits as approved by Bison, naming Bison as additionally named insured and a loss payee.
The insurance shall be in such form and with such company or companies as shall be reasonably acceptable to Bison, shall provide at least thirty (30) days advance written notice to Bison of any cancellation, change or modification, and shall provide primary coverage for the protection of Customer and Bison without regard to any other coverage carried by Customer or Bison protecting against similar risks. Upon request, Customer shall provide Bison with an original policy or certificate evidencing such insurance.
12. Taxes. All fees are stated exclusive of goods and services tax and any other sales taxes.
13. Bison’s Insurance Payments. In case of failure of Customer to procure or maintain said insurance or to pay fees, assessments, charges and taxes, all as specified in this Lease, Bison shall have the right, but shall not be obligated, to effect such insurance, or pay said fees, assignments, charges and taxes, as the case may be. In that event, the cost thereof shall be repayable to Bison with the next instalment of the monthly lease fee, and failure to repay the same shall carry with it the same consequences, including interest at two percent (2%) per month, as failure to pay any instalment of the monthly lease fee.
14. Indemnity. Customer shall indemnify Bison against, and hold Bison harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorney’s fees and costs, arising out of, connected with, or resulting from Customer’s use of the Leased Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation, or return of the Leased Equipment.
15. Limitation of Liability.
(a) Bison’s liability to Customer, whether in tort (including negligence), contract, breach of statutory duty, equity or otherwise is excluded except to the extent expressly prohibited by laws and except as provided under Section 15(b).
(b) Bison’s liability to Customer and anyone claiming through Customer is limited solely to Customer’s actual direct losses and actual direct damages which arise directly as a result of a breach by Bison of Bison’s express obligations under this Lease up to a maximum amount equal to two month’s lease fees. Direct loss or damage shall not include:
i. any loss of profit, loss of data, loss of revenue, loss of use, loss of contract, or loss of goodwill of any person, whether or not such losses or damages are considered to be direct or indirect;
ii. any indirect, consequential or special loss; or
iii. any loss resulting from liability to any third person; or
i.v. any loss or damage resulting from any delay in providing the Goods.
16. Default. If Customer fails to pay any fees or other amounts to Bison within ten (10) days after the same is due and payable, or if Customer fails to observe, keep or perform any other provision of this Lease required to be observed, kept or performed by Customer, Bison shall have the right to exercise any one or more of the following remedies:
(a) To declare the entire amount of fees hereunder immediately due and payable without notice or demand to Customer.
(b) To sue for and recover all rents, and other payments, then accrued or thereafter accruing.
(c) To take possession of the Leased Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. Customer hereby waives any and all damages occasioned by such taking of possession.
(d) To terminate this Lease.
(e) To pursue any other remedy at law or in equity. Notwithstanding any repossession or any other action which Bison may take, Customer shall be and remain liable for the full performance of all obligations on the part of the Customer to be performed under this Lease.
All of Bison’s remedies are cumulative, and may be exercised concurrently or separately.
17. Bankruptcy. Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under any insolvency or bankruptcy laws is commenced by or against the Customer, or if the Customer is adjudged insolvent or bankrupt, or if Customer makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Leased Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Customer is a party with authority to take possession or control of the Leased Equipment, Bison shall have and may exercise any one or more of the remedies set forth in Section 16 (Default) hereof; and this Lease shall, at the option of the Bison, without notice, immediately terminate and shall not be treated as an asset of Customer after the exercise of said option.
18. Ownership. The Leased Equipment is, and shall at all times be and remain, the sole and exclusive property of Bison; and the Customer shall have no right, title or interest therein or thereto except as expressly solely to the extent set forth in this Lease. Customer agrees that it must not sell, dispose of, or otherwise part with possession of, the Leased Equipment. Bison may, on reasonable notice and without prejudice to any of its other rights, recover, take possession, sell and/or re-lease any of the Leased Equipment. Customer authorises Bison, its servants and agents to enter upon any premises where Bison reasonably believes the Leased Equipment is held for these purposes. Customer agrees with Bison that section 109(1) of the Personal Property Securities Act 1999 is contracted out of in respect of particular Leased Equipment if, and only for so long as, Bison is not the secured party with priority over all other secured parties in respect of the Leased Equipment. Customer indemnifies Bison against any reasonable costs, losses, damages or expenses incurred by Bison in exercising its rights under this clause. Bison may sell or re-lease any of the Leased Equipment and apply the proceeds of sale or lease in reduction of any amounts owing to it. Customer acknowledges and agrees that: (a) these terms are a security agreement for the purposes of section 36 of the Personal Property Securities Act 1999; (b) Bison takes a security interest in all Leased Equipment that Bison supplies, to secure (with equal priority) payment of all amounts that you owe us; (c) the security interest will continue until Bison has received all amounts owing; and (d) Customer waives any rights to receive a verification statement under section 148 of the Personal Property Securities Act 1999. Customer agrees to: (I) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Bison may reasonably require to perfect and maintain the perfection of its security interest (including to register a financing statement or financing change statement on the Personal Property Securities Register); (II) indemnify, and upon demand reimburse, Bison for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Leased Equipment charged thereby; (III) not register a financing change statement (in accordance with Regulation 9) or a change demand (in accordance with Regulation 10) without the prior written consent of Bison; and (IV) give Bison not less than 14 days prior written notice of any proposed change in your name and/or any other change in your details (including but not limited to, changes in your address, facsimile number, or business practice). To the extent permitted by law, Customer and Bison contract out of: (A) section 114(1)(a) of the PPSA; and (B) Customers rights as a debtor referred to in sections 107(2) of the PPSA. Customer agrees that Bison’s security interest has the same priority in relation to all amounts owing to Bison from time to time, including future advances.
19. Equipment and Services Acquired for Business Purposes. Customer agrees that it is acquiring Bison’s services (including the Leased Equipment) for the purposes of a business as defined in the Consumer Guarantees Act 1993 and that the provisions of that Act do not apply to any services we agree to provide under this Lease.
20. Additional Documents. If Bison shall so request, Customer shall execute and deliver to Bison such documents as Bison shall deem necessary or desirable for purposes of recording or filing to protect the interest of Bison in the Leased Equipment including, but not limited to, a financing statement.
21. Entire Agreement. This instrument constitutes the entire agreement between the Parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the Parties hereto.
22. No Agency. Nothing in this Lease will be deemed to constitute either Party as the agent, partner or joint venturer of the other. Bison, in providing the Leased Equipment and any services associated therewith, is acting as an independent contractor.
23. Notices. Service of all notices under this Lease shall be sufficient if given personally or mailed certified, return receipt requested, postage prepaid, at the address set forth on the Commercial Terms for Customer or page 1 of the General Lease Terms for Bison, or to such address as a Party may provide in writing to the other Party from time to time.
24. Assignment. Customer shall not assign this Lease or its interest in the Leased Equipment without the prior written consent of Bison. Bison may assign this Lease without prior written consent of Customer.
25. Governing Law. This Lease shall be construed and enforced according to laws of the New Zealand.
26. Headings. Headings used in this Lease are provided for convenience only and shall not be used to construe meaning or intent.