TERMS AND CONDITIONS
These terms and conditions are between Christopher George Adrian Waters T/A Biggest Little Digger NZBN 9429044898175 (we, us or our) and you, the person, organisation or entity requesting the hire of the Equipment (you or your), together the Parties and each a Party. As between the Parties, these terms and conditions, and any attachment to it, form the entire agreement under which we will lease the Equipment to you (together, the Agreement).
- ACCEPTANCE
1.1 You have requested to hire the Equipment by sending us a booking enquiry by email, via webform on our website, or by calling us (Booking Request).
1.2 We may, in our absolute discretion, reject any Booking Request. If we accept your Booking Request, we will provide you with this Agreement, which you may accept:
(a) by signing and returning this Agreement to us, including by email;
(b) by sending an email accepting this Agreement (expressly or impliedly); or
(c) by instructing us to proceed with the lease of the Equipment or making any payment of the Hire Fee (including the Bond).
1.3 Please read this Agreement carefully and contact us if you have any questions.
1.4 Once you accept this Agreement, a Booking is made.
1.5 If you do not accept this Agreement and, if applicable, pay the Bond within 48 hours of us sending you this Agreement, we may allow other third parties to lease the Equipment and cannot guarantee that the Equipment will be available for the Hire Period. If this occurs, we will work with you to find another suitable time. - HIRE OF EQUIPMENT
2.1 We agree to lease the Equipment to you for the Hire Period, in accordance with this Agreement.
2.2 If the Parties agree that:
(a) you are to collect the Equipment from us, we will use reasonable endeavours to make available the Equipment, and you agree to collect the Equipment from the Collection Location at the Start Time;
(b) we are to deliver the Equipment to you, we agree to use our reasonable endeavours to deliver the Equipment to the Delivery Location at the Start Time. - HIRE FEE AND PAYMENT
3.1 You agree to pay us the Hire Fee, and any other amounts due and payable under this Agreement, in accordance with the Payment Terms. All amounts are stated in New Zealand dollars and are exclusive of GST (unless otherwise stated).
3.2 Unless otherwise agreed between the Parties, the Bond (if applicable) must be paid to secure your Booking for leasing the Equipment.
3.3 If any amounts are unpaid 7 days after the payment date, we may charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate from time to time plus 2% per annum (calculated daily and compounding monthly) or we may immediately cease leasing the Equipment and enter any premises where the Equipment is located, and recover or repossess the Equipment (and you agree to provide any access to any premises (free from harm or risk to health or safety), items and consents required to enable us to do so).
3.4 If you do not return the Equipment by the End Time or have the Equipment ready for collection by us at the Delivery Location by the End Time, you will be charged a Late Fee for every hour or part thereof until you return the Equipment to us. You agree that the Late Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your delay in returning the Equipment.
3.5 This clause 3 will survive the termination or expiry of this Agreement - YOUR OBLIGATIONS AND WARRANTIES
General
4.1 You represent, warrant, acknowledge and agree that:
(a) there are no legal restrictions preventing you from engaging us, or agreeing to this Agreement;
(b) you have not relied on any representations or warranties made by us in relation to the Equipment (including as to whether the Equipment is or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
(c) you possess a valid New Zealand or international driver’s licence, you will carry your driver’s licence with you when driving the Equipment, and you will present your driver’s licence upon our request;
(d) you will cooperate with us and follow our reasonable instructions;
(e) the Equipment may only be driven by you;
(f) you will not drive the Equipment or allow it to be driven in circumstances that is a breach of the relevant transport legislation, regulations, rules or bylaws relating to road traffic; such as driving under the influence of alcohol or drugs or excessive speed and/or in a dangerous manner;
(g) the information you provide to us is true, correct and complete; and
(h) you will keep the Equipment under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Equipment to any other person.
Bond
4.2 You agree that the Bond (if applicable) will be used as a security by us throughout the Term for the performance of any of your obligations, and satisfaction of any of your liabilities, under this Agreement.
4.3 You agree that we may set off against any amounts due and payable to you under this Agreement (including the Bond), any amounts that are due and payable by you to us.
Condition of Equipment
4.4 You are responsible for determining whether the Equipment will be suitable, fit for purpose, and in compliance with their description.
4.5 Unless you notify us in writing within 2 hours of the Start Time, demonstrating that the Equipment does not comply with any description detailing the condition of the Equipment (Original Condition Description), you agree that the Equipment has been collected in good condition, clean, free from damage or defect, fit for purpose and in accordance with this Agreement (Original Condition).
4.6 If you provide us with a notice under clause 4.4, you may agree to accept the Equipment in the condition provided, which will then be deemed to be the Original Condition.
Return of Equipment
4.7 You agree to return the Equipment to us/make the Equipment available for collection by us (as agreed between the Parties) in the Original Condition, at the Return Location/ Delivery Location (as agreed between the Parties) and by the time (notified by us to you), or sooner, if requested by us on reasonable grounds (or as otherwise provided under this Agreement).
Loss or Damage to the Equipment
4.8 During the Term, you agree to:
(a) protect and keep the Equipment in its Original Condition, subject to any fair wear or tear; and
(b) prevent the Equipment from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Equipment is stolen, lost, destroyed or damaged.
4.9 You agree that you are responsible for the costs of any repairs or replacement of the Equipment that are necessary as a result of loss, theft, damage, vandalism, misuse or neglect to the Equipment during the Term. Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.
Rescheduling and cancellations
4.10 You may reschedule a Booking by providing us with at least 48 hours’ notice.
4.11 If you provide us with less than 48 hours’ notice that you would like to reschedule your Booking, we may not be able to accommodate you and you will not be refunded the Bond.
4.12 If you cancel a Booking, there will be no refund of the Bond.
4.13 You acknowledge that the amount retained under this clause 4 is a genuine pre-estimate of loss suffered or incurred by us, as we will have held the booking slot for you and may not be able to fill it.
4.14 If we cancel a Booking (due to no fault on your part), you will be fully reimbursed for any amounts paid to us. - TITLE AND RISK
5.1 Risk in the Equipment will pass to you once the Equipment has been picked up by you and is in your custody or control. You will be solely responsible for the Equipment until it is returned to us and is in our full custody and control.
5.2 Title in the Equipment will remain with us, and you take the Equipment as a bare bailee only.
5.3 This clause 5 will survive the termination or expiry of this Agreement. - SECURITY INTEREST
6.1 You agree that this Agreement and your obligations under this Agreement create a registrable security interest in favour of us for the purposes of the Personal Property Securities Act 1999 (PPSA), and you consent to the security interest (and any other registrable interest created in connection with this Agreement) being registered on any relevant securities register, including the Personal Property Securities Register (and you must do all things to enable us to do so, including providing us with any details we reasonably request, ensuring that our security interest is enforceable, perfected and otherwise effective under the PPSA, enabling us to gain first priority for the security interest and enabling us to exercise our rights in connection with the security interest).
6.2 This clause 6 will survive the termination or expiry of this Agreement. - LIABILITY, INDEMNITY AND EXCLUSIONS
7.1 Statutory Rights: Subject to clause 7.2, nothing in this Agreement attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights that the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986 may confer you with, or any other obligations that cannot be restricted or modified at law (Statutory Rights). Any and all other warranties or conditions which are not guaranteed by Statutory Rights are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
7.2 Commercial Hiring: To the maximum extent permissible by law, you agree that where this Agreement is entered into for the purposes of a business then the Consumer Guarantees Act 1993 shall not apply to this Agreement and you agree that it is fair and reasonable that the Parties are bound by this Agreement, including this clause 7.2.
7.3 Limitations: Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our maximum aggregate Liability in relation to the lease of the Equipment or this Agreement will be limited to us resupplying the Equipment to you or, in our sole discretion, to us repaying you the amount of the Hire Fee paid by you to us in respect of the lease of the Equipment to which the Liability relates.
7.4 Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for and agree to indemnify us and hold us harmless, in respect of any Liability that we may suffer, incur or are otherwise liable for as a result of, or in connection with:
(a) any loss (including theft) of, or damage to, the Equipment during the Term;
(b) any failure to return the Equipment in accordance with this Agreement (including returning the Equipment in its Original Condition); and
(c) breach of this Agreement or any laws by you or your Personnel.
7.5 Survival: This clause 7 will survive the termination or expiry of this Agreement. - TERMINATION
8.1 This Agreement will apply for the Term, unless terminated earlier in accordance with its terms.
8.2 Either Party may terminate this Agreement immediately if the other Party breaches a material term of this Agreement.
8.3 On termination or expiry of this Agreement:
(a) we will cease leasing the Equipment to you;
(b) you agree to provide us (and our Personnel) with unfettered access to any premises where the Equipment is located, free from harm or risk to health or safety, to allow us to immediately recover or repossess the Equipment; and
(c) you are to pay for any Hire Fee due and payable prior to termination, and all other amounts due and payable under this Agreement.
8.4 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
8.5 This clause 8 will survive the termination or expiry of this Agreement. - GENERAL
9.1 Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause). This clause 9.1 will survive the termination or expiry of this Agreement.
9.2 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
9.3 Governing law: This Agreement is governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand.
9.4 GST: If and when applicable, GST payable on the Hire Fee will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Hire Fee.
9.5 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email, or if it is not during business hours, 9am on the next business day.
9.6 Online Execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
9.7 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement. - INTERPRETATION & DEFINITIONS
10.1 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule (if applicable), this Agreement and:
Bond means as described in the Schedule or on our website (as applicable).
Consequential Loss includes any consequential loss, indirect loss real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Hire Fee and any other amounts due and payable by you to us under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
End Time means as described in the Schedule or the date set out in your request for the Equipment on our website (as applicable).
Equipment means as described in the Schedule or the Equipment set out in your request for hire on our website (as applicable).
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Hire Fee means as described in the Schedule or as calculated in accordance with the hire fees set out on our website (as applicable) as at the date of your request.
Hire Period means the period of time commencing at the Start Time and ending at the End Time.
Late Fee means as described in the Schedule or as calculated in accordance with the hire fees set out on our website (as applicable) as at the date of your request.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Payment Terms means as described in the Schedule or our website (as applicable).
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Schedule means the schedule attached to this Agreement (if any).
Start Time means as described in the Schedule or the date set out in your request for the Equipment on our website (as applicable).
Term means the period commencing on the date this Agreement is accepted in accordance with its terms and will continue until the Equipment is returned to us in accordance with this Agreement.