Commercial Terms and Conditions.

1. DEFINITIONS

1.1 “Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in Auckland are open for business;

1.2 “Cabin” means each portable cabin leased to the Lessee by Just Cabins (as described in the First Schedule), and if more than one cabin is leased, means all of them.

1.3 “Just Cabins” and “Lessee” respectively mean the parties named as such in the Agreement to Lease to which these terms and conditions form part;

1.4 “Lease” means any Cabin lease arrangement formed under a Agreement to Lease between Just Cabins and the Lessee, and incorporates these Terms.

2. GENERAL

2.1 Any Cabin leased by Just Cabins to the Lessee is leased subject to these terms and conditions (“Terms”). By leasing and taking possession of the Cabin from Just Cabins, the Lessee is deemed to have accepted these Terms.

3. ACKNOWLEDGEMENTS

3.1 The Lessee acknowledges:

(a) It has inspected the Cabin and enters into this Agreement in reliance upon that inspection and upon the Lessee’s own judgement as to the quality of the Cabin and the fitness of the Cabin for the Lessee’s purposes;
(b) The Lessee is responsible for obtaining, at the Lessee’s cost, any consents or approvals required for the Cabin to be utilised as intended by the Lessee;
(c) This Agreement is a commercial chattels lease and does not create any lease or tenancy subject to the Residential Tenancies Act 1986 or the Property Law Act 2007;

4. DURATION OF LEASE

4.1 The lease will commence on Commencement Date and continue until the expiry of the Term.

4.2 If Just Cabins permits the Lessee to keep possession of the Cabin after the expiry of the Term, the lease of the Cabin will (until other arrangements are made in writing between the parties):

a) revert to a month-to-month lease;
b) be terminable by the either party on giving one calendar months written notice to end the lease; and
c) otherwise continue to be on the same terms and conditions as set out in these Terms.

4.3 The Guarantor(s) acknowledges that his/her/their obligations continue during any such month-to-month lease.

4.4 The Lessee may apply to Just Cabins in writing at any time during the Term and request that the lease be terminated. Just Cabins may, at its own discretion, agree to such early termination upon conditions determined by Just Cabins.

5. RENT AND OTHER PAYMENTS

5.1 The Lessee will pay Just Cabins the Rent in advance at the specified Rent Intervals. The first Rent payment will be payable on or before the Commencement Date.

5.2 All Rent will be paid as directed by Just Cabins by automatic payment to the nominated bank account as Just Cabins directs.

5.3 The Lessee will pay the Delivery Fee and Bond to Just Cabins prior to the Cabin being delivered to the Site. In addition, the Lessee will pay any additional delivery or removal charges (e.g. hiab or crane hireage, ferry costs etc.)

5.4 The Bond is a performance bond against default by the Lessee of any payments due under this Agreement or any loss or damage caused to the Cabin. If the Lessee fails to make any payments to Just Cabins, or causes any loss or damage to the Cabin, Just Cabins may apply the Bond against such default, loss or damage.

5.5 Just Cabins reserves the right to charge interest on any moneys unpaid seven (7) days after the due date at the rate of 10% per calendar month or part thereof.

5.6 The Lessee may not deduct or withhold any amount (whether by way of set-off, counterclaim, retention or otherwise) from any money owing to Just Cabins.

5.7 The Lessee must pay to Just Cabins, on demand, all costs and expenses incurred by Just Cabins as a result of any breach of this Agreement by the Lessee or in performing any obligations of the Lessee which the Lessee has not performed, or exercising or attempting to exercise Just Cabins’ rights under this Agreement, including any legal costs (on a solicitor-client basis) or any other types of costs and/or expenses whatsoever incurred in:

(a) Collecting any amounts due but not paid to Just Cabins by the Lessee (including any collection agency or legal charges and costs);
(b) Repossessing the Cabin and entering and removing the Cabin from the land on which the Cabin is situated; and
(c) Making good any injury caused to any land or to the property of any person by any entry or removal;

5.8 In addition, Just Cabins may charge $5.00 per phone call/text message, $15.00 per email/letter and $50.00 for each Site visit in connection with the recovery or attempted recovery of any monies owed by the Lessee to Just Cabins.

6. DELIVERY AND CABIN SITE

6.1 The Lessee is responsible for ensuring, at its own cost, that the proposed Site of the Cabin is clearly marked, clear of any obstacles that may hinder placement of the Cabin, and that Just Cabins has suitable access to the Site.

6.2 The Lessee will not move or attempt to move the Cabin once it has been placed on the Site by Just Cabins.

6.3 Just Cabins reserves the right to delay the delivery of the Cabin where the Lessee fails to make payment of the first rent payment and the monies set out at clause 5.3.

6.4 Just Cabins will in no circumstances be liable for any loss of any nature to any person, including any consequential loss, resulting from any delays in delivery of the Cabin.

6.5 Just Cabins will be responsible for removing the Cabin within 10 working days of the expiration or sooner termination of this lease, and for that purpose the Lessee grants Just Cabins (and/or its employees and contractors):

(a) a licence for the Cabin to remain on the Site pending removal; and
(b) a licence to enter onto the Site and remove the Cabin.

7. KEY AND LOCK

7.1 Just Cabins will supply the Lessee with one (1) key to the Cabin on delivery. The Lessee may make additional copies of the Key at its cost.

7.2 The Lessee will be liable for the cost of replacing any key not returned and/or any replacement key provided to the Lessee (including the cost of any courier or delivery charges). Just Cabins will provide any replacement key as soon as possible, but it may take up to five (5) working days.

7.3 The Lessee will not change the lock without first obtaining written consent from Just Cabins to do so.

8. CREDIT ENQUIRIES

8.1 The Lessee authorises Just Cabins to make such enquiries from third parties as to its credit worthiness as may be required by Just Cabins from time to time.

8.2 The Lessee authorises Just Cabins to collect, retain and use any information it, and divulge it to third parties for debt collection purposes. Just Cabins agrees not to on-sell the information to third parties for marketing purposes.

8.3 Just Cabins will comply with any applicable obligations under the Privacy Act 1993. Where Just Cabins retains personal information about you, the Lessee acknowledges the right to access and correct any such personal information held by Just Cabins.

9. OWNERSHIP OF THE CABIN

9.1 The Lessee agrees that the Cabin will at all times remain the property of Just Cabins.

9.2 Just Cabins retains full title to the Cabin notwithstanding:

(a) the delivery of the Cabin to the Lessee;
(b) the possession and use of the Cabin by the Lessee; and/or
(c) any attachment of the Cabin to the Site, subject only to the rights of the Lessee as a mere bailee of the Cabin with a right only to use the Cabin in accordance with, and under, this lease.

9.3 Accordingly, the Lessee must not remove nor permit anyone to remove the name plates attached to the Cabin and/or the registration plate which clearly state that the Cabin is the property of Just Cabins.

9.4 Any additions or improvements which will be effected to the Cabin and any accessories which will be affixed to the Cabin will become part of the Cabin for the purposes of this lease.

9.5 The Lessee warrants that it has all necessary rights to allow the placement of the Cabin on the Site and the removal of the Cabin from the Site, and indemnifies Just Cabins against all claims against Just Cabins from any owner of the relevant land.

10. MAINTENANCE AND DAMAGE

10.1 The Cabin will be delivered to the Lessee in good clean order and repair. The Lessee is responsible for the inspection of the Cabin on delivery.

10.2 The Cabin will be deemed to have been delivered to the Lessee in good clean order and repair if the Lessee does not within 24 hours of delivery otherwise notify Just Cabins.

10.3 The Lessee must keep the Cabin in the same good clean order and repair and condition as the Cabin was in at the Commencement Date of the lease and will at the end or earlier determination of the lease yield up the Cabin in the same clean order and repair and condition (subject to any fair wear and tear arising from reasonable use of the Cabin).

10.4 Where the Cabin is damaged (including damage caused by the improper, careless, or abnormal use of the Cabin) or yield up in a dirty state, the Lessee will be liable for the cost of making good that damage and any cleaning costs.

10.5 For the avoidance of any doubt, the Lessee must pay for the cost of repair of all glass breakage and breakage or damage to the door, walls, window, light fittings, carpet, power points or any other component of the Cabin.

10.6 The Lessee must keep all floor coverings clean and at the end of the Term professionally clean the carpets in the Cabin.

10.7 The Lessee must give prompt notice to Just Cabins of any accident to or defect (e.g. any leak, crack in a window) in the Cabin which the Lessee may become aware of.
10.8 In the event the Lessee fails to yield up the Cabin in the same good clean order and repair as the Cabin was in at the Commencement Date, Just Cabins may make good any damage and/or clean the Cabin at the Lessee’s cost.

10.9 Just Cabins may apply the Bond to make good any damage and/or clean the Cabin as contemplated at clause 9.8 above. Where the Bond does not cover the costs of such repairs and/or cleaning, the Lessee will pay to Just Cabins all the costs and expenses incurred by Just Cabins in executing the works in accordance with clause 10.8 together with interest thereon at the rate of 10% per calendar month or part thereof from the date of expenditure to the date of payment.

11. USE OF CABIN

11.1 The Lessee may only use the Cabin for reasonably suitable purposes. The Lessee will obtain all necessary consents/permits and the like from the Local Territorial Authority (at the Lessee’s sole cost) and comply with all statutory provisions relating to the use and location of the Cabin (including, but not limited to, the Resource Management Act 1991 and the Building Act 2004).

11.2 The Lessee will not, nor permit any person to:

(a) Damage the Cabin, or move it from the Site;
(b) modify and/or alter (structural or otherwise) the Cabin in any manner;
(c) affix or attempt to affix the Cabin to any land other than by temporary connections of power, gas, water, or telephone services which can be connected, and can readily be severed, with no damage to the Cabin;
(d) keep any animal (including domestic pets) in the Cabin;
(e) smoke in the Cabin;
(f) keep or store anything that presents a fire risk (e.g. no gas heaters, cooking appliances and/or flammable liquids and substances);
(g) keep or store anything that may damage the Cabin and in particular the carpet;
(h) paint or otherwise change the appearance of the Cabin;
(i) use nails and/or any other thing which may cause permanent holes and/or marks in the Cabin; and/or
(j) use the Cabin for any unlawful purpose.

12. INSURANCE

12.1 Just Cabins will insure the Cabin during the Term of the Lease, but will not insure any contents. The Lessee is solely responsible for insuring any contents and its personal possessions.

12.2 The Lessee will not carry on, or allow any person, to do any act or thing which may void any policy of insurance for the Cabin or permit any insurer to deny a claim, and indemnifies Just Cabins against all damages, losses or liabilities which result from the actions or omissions of the Lessee and are not covered by Just Cabins’ insurance (including without limitation any applicable insurance excess up to $2,500.00).

13. RIGHT OF INSPECTION

13.1 Just Cabins and its representatives may on 24 hours written notice to the Lessee inspect the condition of the Cabin. Just Cabins is not required to give any notice in the case of any occurrence which it (acting reasonably) considers to be an emergency.

14. SUITABILITY

14.1 Just Cabins does not give any warranty or representation (express or implied) that the Cabin is suitable or will remain suitable for use by the Lessee or that any use of the Cabin by the Lessee will comply with the bylaws or other requirements of the local Council.

14.2 For the avoidance of any doubt, the Lessee acknowledges and agrees that the Lessee has not relied on Just Cabins’ skill or judgment as to the suitability or otherwise of the Cabin and no agent, representative, dealer, or employee of Just Cabins has the authority to increase and/or alter this clause 14.2.

15. TERMINATION AND REPOSSESSION

15.1 For the purposes of these Terms, a Default Event will be one or more of the following: –

(a) a any material default by the Lessee under the Terms or the Lease including without limitation a failure to make any payment within 10 Business Days of its due date or a failure by the Lessee to remedy any other default of the Lessee under the Lease within 10 Business Days of receiving notice requiring that default to be remedied;
(b) Just Cabins becomes aware that the Lessee made any material false statement in relation to the making of the Lease;
(c) The Lessee becomes insolvent or is adjudged bankrupt;
(d) a receiver, liquidator, official assignee or statutory manager of the Lessee’s assets is appointed;
(e) the Lessee makes or proposes an arrangement or compromise with creditors;
(f) any judgment of any Court that is not stayed or satisfied;
(g) any change in the effective control and/or management of the Lessee; or
(h) any other event which in the sole discretion of Just Cabins jeopardises Just Cabins’ rights or interest in the Cabin, or which gives rise to concern as to the timely payment of the Lessee’s debts.

15.2 Where a Default Event occurs, and without prejudice to any other remedies, Just Cabins may:

(a) demand immediate payment of the arrears, as well as payment in advance for the Cabin; or
(b) terminate this Agreement and retake possession of the Cabin but
(i) without releasing the Lessee from any liability in respect of any breach or non-observance of any of the provisions contained or implied in this lease; and
(ii) without prejudice to Just Cabins’ right to retain all money paid to Just Cabins pursuant to this lease; and Just Cabin’s right to claim damages.

15.3 If Just Cabins terminates this Agreement, the Lessee irrevocably grants to Just Cabins and its’ representatives the right and licence to enter upon the Site, without notice and without liability whatsoever to the Lessee, or to any person or company claiming through the Lessee to retake possession of the Cabin.

15.4 If this lease is terminated for any reason other than its due fulfilment by the Lessee or other than with the express consent of Just Cabins in writing, then without prejudice to its other rights under these Terms, at law or in equity, Just Cabins may, at any time thereafter, demand immediate payment of all or any of the following:

(a) all arrears of the Rent and other money then due and payable by the Lessee under the lease;
(b) the costs of repossession of the Cabin;
(c) Just Cabins’ loss on the lease to be notified by Just Cabins to the Lessee;
(d) all costs and expenses incurred by Just Cabins in enforcing this lease;
(e) interest on all money payable under this provision from the date of termination to the date of payment at the rate of 10% per calendar month or part thereof.

16. CONSUMER GUARANTEES ACT 1993

16.1 The Lessee acknowledges that the Cabin is being leased from Just Cabins wholly or mainly for use in its business and as such the provisions of the Consumer Guarantees Act 1993 do not apply.

17. PROHIBITION TO SELL OR CHARGE THE CABIN OR ASSIGN AGREEMENT

17.1 The Lessee will not:

(a) sell, transfer, assign or sublease, mortgage, pledge or otherwise deal with the Cabin in any way likely to be prejudicial to the interests of Just Cabins;
(b) assign its rights under this Agreement, unless Just Cabins gives its prior written consent to such assignment; and/or
(c) give any security interest over the Cabin to anyone other than Just Cabins.

17.2 If the Cabin is sold by the Lessee, the proceeds of sale are deemed to be held on trust for Just Cabins. If the proceeds of sale are not retained separately, in a trust account on behalf of Just Cabins, then Just Cabins will have the right to trace the proceeds of any such illegal sale.

18. PHOTOGRAPHS

18.1 Just Cabins may photograph the Cabin on the Site after delivery and use that image on its Facebook page and/or website www.justcabins.co.nz. Just Cabins agrees not to identify the Lessee without its permission and will only generally describe the location by town or city (e.g. “Campground at Ohope Beach”).

19. PERSONAL PROPERTY SECURITIES ACT 1999(“PPSA”)

19.1 The Lessee and any Guarantors agree:

(a) That this Agreement creates and/or provides for a registerable “Security Interest” (as that term is defined in the PPSA) in Just Cabin’s favour in relation to the Cabin (and any proceeds thereof);
(b) To notify Just Cabins in writing at once if there is any change to the Lessee or Guarantor’s name, address or contact details;
(c) To immediately do such acts and provide such information (at the Lessee’s own cost) as in Just Cabins’ opinion may be necessary or desirable to enable Just Cabins to perfect the interests created or provided for by this Agreement as a first priority interest;
(d) That Just Cabins may withhold possession of the Cabin from the Lessee until Just Cabins perfects its security interest in accordance with the PPSA;
(e) To waive any rights they otherwise would have to receive a verification statement confirming registration of a financing statement or a financing change statement relating to the security interest created by this Agreement.
(f) That to the extent that Part 9 of the PPSA applies to this Agreement: (i) where Just Cabins has rights in addition to, or existing separately from those in Part 9 of the PPSA, those rights will continue to apply and in particular will not be limited by section 109 of the PPSA; (ii) nothing in sections 114(1)(a), 133 and 134 of the PPSA will apply to this Agreement or the Security Interest created by this Agreement; and (iii) the Lessee and Guarantors will have none of the rights which s107(2) and s107(3) of the PPSA enables the parties to contract out of.

20. ATTORNEY

20.1 The Lessee irrevocably appoints Just Cabins as its attorney to do on behalf of the Lessee anything that the Lessee ought to do under this Agreement in the event of default by the Lessee.

21. LIABILITY

21.1 All expressed and implied terms, conditions and warranties that might otherwise apply to this agreement are excluded to the extent permitted by law.

21.2 Except as expressly provided for under the Terms, the liability of Just Cabins whether in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Cabins or from any other breach of Just Cabins’ obligations under the Terms will not in any event exceed an amount equivalent to the price invoiced by Just Cabins for the Cabin. Just Cabins will not be liable for any consequential injury or specific damage or loss of any kind whatsoever.

22. LESSEE’S COMPLIANCE

22.1 The Lessee will comply with the provisions of all statutes and all rules or regulations in force in relation to the Cabin and its use and occupation of the Cabin.

22.2 The Lessee will indemnify Just Cabins against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses) for any breach of this Agreement.

23. INTELLECTUAL PROPERTY

23.1 All intellectual property relating to the Cabin, including without limitation the specifications and design, all related documentation (including this Agreement), all marketing and promotional materials, and Just Cabins’ trademarks and trade name (“Intellectual Property”) are the sole property of Just Cabins Limited and used by Just Cabins under licence. No right or licence is granted to the Lessee under this Agreement to use any of the Intellectual Property without first obtaining Just Cabins Limited’s written consent.

24. MISCELLANEOUS

24.1 These Terms contain the entire Agreement between the parties in relation to the Cabin and cannot be altered, amended, modified or otherwise changed except in writing signed by all parties.

24.2 Notices to the Lessee under this Agreement may be sent by Just Cabins to the Lessee’s address and/or email as shown in this Agreement.

24.3 No indulgence granted to the Lessee by Just Cabins will in any way prejudice Just Cabins’ rights under this lease.

24.4 If any provision of these Terms or the Lease is held to be illegal, invalid or unenforceable, in whole or in part, the parties intend that the offending provision will be severed and the legality, validity and enforceability of the remainder of the Terms or Lease will not be affected.

25. GUARANTEES

25.1 Each Guarantor:

(a) guarantees (jointly and severally if more than one) repayment to Just Cabins of all amounts payable by the Lessee pursuant to this Agreement, and the performance of all of the Lessee’s obligations under this Agreement, and indemnifies Just Cabins against any loss or damage suffered as a result of any breach by the Lessee;
(b) acknowledges that Just Cabins has entered into this Agreement with the Lessee at the request of the Guarantor, that Just Cabins might not have done so without the Guarantor’s guarantee, and that Just Cabins doing so is a benefit to the Guarantor;
(c) agrees that if the Lessee does not pay any amount, or perform any obligation, under this Agreement, the Guarantor will do so on demand.
(d) agrees that if for any reason any amounts payable by the Lessee under this Agreement or any collateral securities are not recoverable by Just Cabins, whether as a matter of law or as a matter of fact, the Guarantor will indemnify Just Cabins against any resulting loss, and will pay the amount of any such loss to Just Cabins as a principal debtor and on demand.
(e) agrees that their obligations as a Guarantor are absolute and unconditional, and will not be released or in any way affected by:

(i) this Agreement being unenforceable or otherwise defective; or
(ii) any variation or release of this Agreement, or any other Guarantor; or
(iii) any concessions by Just Cabins to the Lessee or to any other Guarantor; or
(iv) the insolvency, bankruptcy or liquidation (as appropriate) of the Lessee or any other Guarantor; or
(v) any other act, omission, or rule of law which would, were it not for this clause, release a guarantor or indemnifier, and irrevocably waives any rule of law to a different effect.

(f) Acknowledges that the Guarantor is not a “Debtor” for the purposes of the PPSA and, to the extent permissible by law, waives any notices or rights of a Debtor under PPSA to the extent inconsistent with these terms.
(g) Acknowledges that the Guarantor has either had independent legal advice prior to executing these terms or, if that has not occurred, that is solely the Guarantor’s own choice freely made, and as a result the Guarantor irrevocably waives any rights which the lack of that independent advice might otherwise have given the Guarantor