“Owner” shall mean TK Hire 2020 Ltd, its successors and assigns or any person acting on behalf of and with the authority of the Owner.
“Hirer” means the person/s or any person acting on behalf of and with the authority of the Hirer, and includes any person(s) specified in this agreement, or any other forms as provided by the Owner to the Hirer, as being an authorised driver of the Vehicle for the Owner to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Hirer, is a reference to each Hirer jointly and severally: and (b) f the Hirer is a part of a Trust, shall be bound in their capacity as a trustee; an (c) includes the Hirer executors, administrators, successors and permitted assigns.
“Vehicle” shall mean any vehicle (including but not limited to, car/s, motorcycle/s, scooter/s, van, motorhome, caravan, bus, trucks or any road worthy vehicle and/or any associated accessories), and/or Services supplied by the Owner to the Hirer at the Hirer’s request from time to time, documents, designs, drawings or goods supplied, consumed, created or deposited incidentally by the Owner in the course of it conducting, or providing to the Hirer, any Services (where the context so permits the terms ‘Vehicle’ or ‘Services’ shall be interchangeable for the other). The Vehicle shall be described in this agreement or on any other forms as provided by the Owner to the Hirer, and includes any parts, components, accessories and contents supplied by the Owner.
“Hire” shall mean any or all hired Vehicle/s supplied by the Owner to the Hirer and includes any advice or recommendations.
“Hire Period” shall mean the period commending on the date as shown in this agreement and ending on the date the Hirer returns the Vehicle to the Owner.
“Price” shall mean the cost of the hire (plus any GST where applicable) of the Vehicle and/or supply of Services as agreed between the Owner and the Hirer in accordance clause 3 of this contract
Acceptance
This agreement between the Owner and the Hirer is entered into on the date as shown herein (or on any other forms as provided by the Owner to the Hirer) in respect of the Hire of the Vehicle.
The Hirer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Hirer places an order for, or accepts Services provided by the Owner.
These terms and conditions may only be amended with both party’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Hirer and the Owner.
The Hirer warrants that he/she is at least over the age of eighteen (18) years at the time of entering in this agreement and provides the Owner with proof of identity and age.
The Owner shall provide the Hirer with at least one (1) copy of the Hire Agreement; a copy must be kept in the Vehicle through the hire period and produced on demand by any law enforcement officer.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Errors & Omissions
The Hirer acknowledges and accepts that the Owner shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by the Owner in the formation and/or administration of this contract; and/or (b) contained/omitted in/from any literature (hard copy and/or electronic) supplied by the Owner in respect of the Services.
In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Owner; the Hirer shall not be entitled to treat this contract as repudiated nor render it invalid.
Change in Control
The Hirer shall give the Owner not less than fourteen (14) days prior written notice of any proposed change of ownership of the Hirer and/or any other change in the Hirer’s details (including but not limited to, changes in the Hirer’s name, address, and contact phone or fax number/s, change of trustees or business practice). The Hirer shall be liable for any loss incurred by the Owner as a result of the Hirer’s failure to comply with this clause.
Price and Payment
At the Owner’s sole discretion, the Price shall be either. (a) as indicated on invoices provided by the Owner to the Hirer in respect of Vehicle supplied; or (b) the Price as at the date of delivery of the Services according to the Owner’s current price list; or (c) the Owner’s quoted Price (subject to clause 5.2) which shall be binding upon the Owner provided that the Hirer shall accept in writing the Owner’s quotation within thirty (30) days.
The Owner reserves the right to change the Price if a variation to the Owner’s quotation is requested, or in the event of increases to the Owner in the cost of labour or materials which are beyond the Owner’s control.
The Hirer accepts that a “Day” is calculated as a twenty-four (24) hours from the time of pick-up or delivery of the Vehicle. The third hour over the previous twenty-four (24) hour period is calculated at the applicable daily rate.
The Owner may charge for Hire by an hourly or kilometre rate (or a combination of both).
At the Owner’s sole discretion: (a) a non-refundable deposit may be required; and/or (b) a security bond may be required prior to Delivery, which will be forfeit (either partially or fully, depending on the circumstances) in the event of any loss or damage to the Vehicle, or where additional costs are incurred by the Hirer under clause 9.4.
At the Owner’s sole discretion. (a) the date specified on any invoice or other form as being the date for payment; or (b) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Hirer by the Owner.
Payment will be made by cash, or by bank cheque, or by direct credit, credit card (plus a surcharge may apply per transaction), or by any other method as agreed to between the Hirer and the Owner.
The Price shall not be subject to any set-off or deduction for any reason whatsoever (including for any sums owed or claimed to be owed to the Hirer by the Owner) and, without limiting the generality of the forgoing the Hirer shall not be entitled to withhold payment of any invoice because part of that invoice is in dispute. In the event the Hirer disputes any part (or all) of any invoice, such dispute must detailed in writing and given to the Owner within seven (7) days of the date of the invoice. If the Hirer shall fail to comply with this provision, any non-payment of an invoice (in whole or in part) shall entitle, the Owner to (at its sole discretion) place the Hirer’s account into default.
The Owner may license or sub-contract all or any part of its rights and obligations without the Hirer’s consent.
Unless otherwise stated the Price does not include GST. In addition to the Price the Hirer must pay to the Owner an amount equal to any GST the Owner must pay for any supply by the Owner under this or any other agreement for the hire of the Vehicle. The Hirer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Hirer pays the Price. In addition, the Hirer 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
Receipt by the Owner 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.
Delivery of Vehicle
Delivery of the Vehicle (“Delivery”) is taken to occur at the time that the Hirer, or the Hirer’s nominated carrier, takes possession of the Vehicle at the Owner’s premises. The Owner (or the Owner’s nominated carrier) may agree to make Delivery and/or collection of the Vehicle to and/or from the Hirer’s nominated address, and the Hirer will pay to the Owner any charges and expenses incurred thereby where applicable, the costs of delivering and/or collecting the Vehicle.
Any time specified by the Owner for delivery of the Vehicle is an estimate only and the Owner will not be liable for any loss or damage incurred by the Hirer as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Vehicle to be delivered at the time and place as was arranged between both parties. In the event that the Owner is unable to supply the Vehicle as agreed solely due to any action or inaction of the Hirer, then the Owner shall be entitled to charge a reasonable fee for redelivery and/or storage.
Persons who may drive Vehicle
The Vehicle may be driven during the Hire Period only by the Hirer and only if: they hold a current driver’s license for a period of not less than twelve (12) months (and which is an (a) appropriate license for the Vehicle), excluding any time under a learner’s permit or a provisional license) at the time when they are driving the Vehicle; and (b) they are not under twenty-one (21) years of age. At the sole discretion of the Owner, Hirer’s aged between 21-25 may be subject to an additional charge due to insurance requirements; and (c) they have not had their driver’s license cancelled, endorsed or suspended within the last three (3) years.
If the need arises, consent is given to the Owner to check validity and currency of any driver’s license used in connection with this agreement.
When the Hirer is a Company, then they shall ensure all authorised drivers have a valid driver’s license for the Hire Period.
Hire Period
The Hire Period shall be for the term as described overleaf and herein.
When Vehicle is left at any other place than the premises of the Owner then termination shall be when the Vehicle inspection shall occur at the time of the collection. The Hirer will be responsible for the Vehicle up until this time of termination, inspection, and collection.
Should the Hirer terminate the Hire before the stated date and time, the stated rate and term will be amended at the sole discretion of the Owner.
No allowance whatsoever can be made for time during which the Vehicle is not in use for any reason, unless the Owner confirms special prior arrangements in writing. In the event of any breakdown of the Vehicle, provided the Hirer notifies the Owner immediately, Charges will not be payable during the time the Vehicle is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Hirer.
Should the Vehicle not be returned within the agreed time stipulated and the Hirer is unable to be made contact with, it will be deemed the Hirer to have lost/stolen the Vehicle and the Owner will take steps to regain possession (as per clause 15.3), including Police action. An additional cost will be charged for a late return if not prearranged.
Hire and Use of the Vehicle
The Owner’s Obligations (a) the Owner shall supply the Vehicle in a safe and roadworthy condition. (b) the Owner shall be responsible for all ordinary and extraordinary costs of running the Vehicle during the term of the hire except to the extent that by the terms of this agreement those costs are payable by the Hirer.
The Hirer shall: (a) satisfy itself at commencement that the Vehicle is suitable for their purposes. (b) notify the Owner immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Hirer is not absolved from the requirements to safeguard the Vehicle by giving such notification. (c) only use the appropriate fuel/oil as determined by the Owner and maintain at the appropriate levels at all times. Upon completion of the hire period, the Vehicle must be return with all tanks full. (d) be responsible for checking and ensuring that the tow Vehicle meets the legal towing requirements of the Vehicle (including, but not limited to, current registration and warrant of fitness), and the driver of such Vehicle has a current New Zealand driver’s license of the appropriate class;
The Hirer shall not: (a) drive the Vehicle if the Owner has so directed the Hirer. (b) carry any animals in any Vehicle without the written permission of the Owner. (c) allow any person(s) to smoke in the Vehicle. (d) operate the Vehicle in any race, speed test, rally, performance or contest, or on any closed road or non-public roadway, unless otherwise agreed. (e) arrange or undertake any repairs or salvage without the authorisation of the Owner to do so. It is the Hirer’s responsibility to obtain an original tax invoice/receipt as the Owner requires verification of the cost of repairs for audit and GST purposes. the Owner will reimburse the Hirer for any authorised repairs to the Vehicle, provided that the cost of the repairs is verified to the Owner’s satisfaction. (f) not use the Vehicle for any illegal purpose or any use which would cause damage thereto, or store any firearms, illegal, prohibited, or unprotected corrosive/explosive substances or bulk commodities in or on the Vehicle which may corrode, oxidise, explode, dent, puncture, contaminate, stain or damage the interior or exterior of the Vehicle; (g) keep the Vehicle in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Vehicle. (h) not alter or make any additions to the Vehicle (including, but without limitation, altering, make any additions to, defacing or erasing any identifying mark, plate or serial number on or in the Vehicle), or in any other manner interfere with the Vehicle without the express written approval of the Owner; (i) not fix the Vehicle in such a manner as to make it legally a fixture forming part of any freehold. (j) on termination of the hire period, return the Vehicle to the Owner complete with all parts and accessories, clean and in good, serviceable condition as delivered, fair wear and tear accepted and remove any rubbish (and appropriately dispose of it) or personal items.
The Hirer shall be liable for any: (a) parking, toll charges or traffic infringement and will supply relevant details as required by the Police and/or the Owner relating to any such parking or traffic infringement and offences, impoundment, towage and storage; and (b) unauthorised repairs to the Vehicle. (c) subject to clause 10, the new list price of any Vehicle that are for whatever reason destroyed, written off or not returned to the Owner; (d) all costs incurred in cleaning the Vehicle. (e) subject to clause 10, all costs of repairing any damage caused by: (i) the ordinary use of the Vehicle up to an amount equal to ten percent (10%) of the new list price of the Vehicle. (ii) the negligence of the Hirer or the Hirer’s agent (including swamping, over-revving, redlining or exceeding the bearing load limits of the engine, etc.). (iii) overhead damage or underbody damage (including, without limitation, damage which occurs if the Hirer drives the Vehicle into a bridge, a tunnel, a tree or the roof or boom gate of a car park; or damage to the exhaust systems, suspension and chassis caused by carelessly riving over gutters or kerbs or driving along poor quality roads at excessive speeds); (iv) water damage to the Vehicle caused by total or partial inundation or immersion of the Vehicle in water or exposure of the Vehicle to salt water (including, without limitation, damage which occurs if the Hirer drives the Vehicle through floods, creeks or rivers); (v) vandalism, or (in the Owner’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Vehicle by the Hirer.
(f) any costs incurred by the Owner in collecting and returning the Vehicle to the Owner’s premises if the Hirer does not return the Vehicle to the Owner’s premises or any pre-agreed collection location when it was originally agreed that the Hirer would do so; (g) the return of the Vehicle in the same clean (washed) and tidy condition at the expiry of the term of hire or a surcharge for cleaning may be imposed upon the Hirer for such cleaning (including but not limited cleaning to extract any offensive odours such as smoking damage). No refund can be made until a Vehicle has been cleaned and inspected for any damage. (h) the cost of refuelling the Vehicle in the event of the Hirer’s failure to adhere to clause 9.2(c); (i) any lost hire fees the Owner would have otherwise been entitled to for the Vehicle, under this, or any other hire agreement.
The Hirer acknowledges that they are responsible for the refuelling of the Vehicle prior to its return from Hire. In the event the Vehicle needs to be refueled upon its return from Hire then the costs of refueling shall be in addition to the Price and shall be immediately due and payable by the Hirer.
The Hirer shall not (without the express written approval of the Owner): (a) allow the Vehicle to: (i) be operated by any person under the influence of alcohol or any drug or intoxicating substance that affects their ability to operate the Vehicle. (ii) convey, propel or tow any other Vehicle or object other than those supplied by the Owner, or agreed to in writing by the Owner. (iii) carry more passengers or a greater load (weight) than the legal capacity of the Vehicle. (iv) carry passengers for hire or reward of any kind. (v) be used when it is damaged or unsafe. (vi) be used in such a manner as would permit an insurer to decline any claim. (vii) towed on a road which is not properly formed and constructed as a sealed road.
Furthermore, the Hirer shall not allow the Vehicle to: be used in contravention of any law. be operated without their authority, and then only by an authorised driver named herein. be driven by any person if, at the time of them driving the Vehicle, the Hirer or other person is not the holder of current driver's licence appropriate for the Vehicle. be operated by any driver under the influence of alcohol or any drug that affects their ability to drive the Vehicle, or have a blood alcohol content that exceeds the legal limits of New Zealand in which the Vehicle is driven; convey, propel or tow any trailer, other Vehicle, or any other object, or load which is incorrectly loaded or secured or is in excess of that for which the Vehicle was manufactured. transport more passengers than may be properly accommodated by the seat belt restraints provided in the Vehicle, or a greater load (weight) than that for which the Vehicle was manufactured. carry passengers for hire or reward of any kind, or carry any flammable substance, or any other explosive or corrosive materials. be used when it is damaged or unsafe. be used to transport plant, except in compliance with all necessary approvals, permits, licenses, government requirements (to be obtained at the Hirer’s cost), and in accordance with the manufacturer’s and the Owner’s recommendations. sublet or Hire the Vehicle to any other person.
Insurance
Subject to the exclusions set out below, the Hirer, and any driver authorised to drive the Vehicle, is fully indemnified in respect of any liability they might have to the Owner in respect of the loss or damage to the Vehicle and its accessories and spare parts and any consequential loss of revenue or other expenses of the Owner, including towing and salvage costs associated with the recovery of the Vehicle and its accessories and spare parts.
Subject to the exclusions set out below and herein, the Hirer, and any driver authorised to drive the Vehicle, is indemnified to the extent of the amount stipulated in the Hire Agreement in respect of any liability they might have for damage to any property (including injury to any animal) belonging to any other person and arising out of the use of the Vehicle.
The indemnities referred to above shall not apply where the damage, injury, or loss arises when – (a) the driver is under the influence of alcohol, or any drug that affects their ability to drive the Vehicle. (b) the driver is in breach of the Transport Act 1962, the Traffic Regulations 1976, or any other Act, regulations, or bylaws relating to road traffic. (c) subject to the Vehicle being deemed safe and roadworthy on the commencement of the hire period, where the Vehicle becomes (during the hire period) in an unsafe or unroadworthy condition which has caused or contributed to the damage or loss, and the Hirer (or driver) was aware, or ought to have been aware, of the unsafe or unroadworthy condition of the Vehicle; (d) the Vehicle is used in any race, speed test, rally, or contest. (e) the Vehicle is driven by any person who at the time of driving the Vehicle is disqualified from holding or has never held a driver’s licence appropriate for the Vehicle. (f) the Vehicle is wilfully or recklessly damaged by the Hirer (or any other person nominated in the Hire Agreement or driving the Vehicle under the authority of the Hirer), or is lost as the result of wilful or reckless behaviour of the Hirer or any such person. (g) the Vehicle is used outside the hire period, or any agreed extension of that term.
It is agreed between the Owner and the Hirer that Section 11 of the Insurance Law Reform Act 1977 shall apply with respect to the above exclusions as if this clause constituted a contract of insurance. The general effect of this provision is that an exclusion will not apply if the Hirer proves on the balance of probability that the damage or loss was not caused or contributed to by the matters to which the exclusion refers.
Rejection of Insurance
If insurance is rejected, the Hirer acknowledges by signing on the front of this agreement that the Vehicle is hired at the Hirers sole risk and accepts that they shall be liable to the Owner for any loss of, or damage to, the Vehicle (howsoever arising) plus any consequential loss incurred by the Owner.
If insurance is rejected by the Hirer, the Hirer acknowledges by their signature on the front of this form that they have no insurance cover whatsoever under this agreement in respect of any damage, injury, or loss caused to any person or property.
Where the Hirer nominates their own insurance company for cover then the Hirer shall provide to the Owner proof and currency of policy prior to the commencement of Hire.
Default and Consequences of Default
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
If the Hirer owes the Owner any money the Hirer shall indemnify the Owner from and against all costs and disbursements incurred by the Owner in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Owner’s contract default costs, and bank dishonour fees).
Further to any other rights or remedies the Owner may have under this contract, if a Hirer has made payment to the Owner by credit card, and the transaction is subsequently reversed, the Hirer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Owner under this clause 11 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Hirer’s obligations under this agreement.
Without prejudice to the Owner’s other remedies at law the Owner shall be entitled to cancel all or any part of any order of the Hirer which remains unperformed in addition to and without prejudice to any other remedies the Owner may have and all amounts owing to the Owner shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to the Owner becomes overdue, or in the Owner’s opinion the Hirer will be unable to meet its payments as they fall due; or (b) the Hirer has exceeded any applicable credit limit provided by the Owner. (c) the Hirer 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 (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Hirer or any asset of the Hirer.
Cancellation
Without prejudice to any other remedies the Owner may have, if at any time the Hirer is in breach of any obligation (including those relating to payment) the Owner may suspend or terminate the supply of Vehicle to the Hirer and any of its other obligations under the terms and conditions.
The Owner will not be liable to the Hirer for any loss or damage the Hirer suffers because the Owner has exercised its rights under this clause. The Owner may cancel any contract to which these terms and conditions apply, cancel Delivery before the Vehicle is delivered or repossess the Vehicle at any time (without being liable for any loss or damage whatsoever arising from such cancellation) by giving notice to the Hirer: (a) if, for a specific reason, the Vehicle is not available for hire due to circumstances beyond the control of the Owner. (b) due to adverse weather conditions. if the Owner, on Delivery, is not satisfied with the ability of the Hirer to handle and/or respect Vehicle. (c) if, at any time during the hire period, the Hirer’s actions endanger themselves, the Vehicle or a third party. In this instance, the Vehicle will be recalled for collection and no refund will be given.
In the event that the Hirer cancels Delivery, the Hirer shall be liable for any and all loss incurred (whether direct or indirect) by the Owner as a direct result of the cancellation (including, but not limited to, any loss of profits) and the Owner reserves the right to charge a cancellation fee and/or retain any monies paid by the Hirer.
Privacy Act 1993
The Hirer authorises the Owner or the Owner’s agent to: (a) access, collect, retain and use any information about the Hirer. (i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Hirer’s creditworthiness; or (ii) for the purpose of marketing products and services to the Hirer. (b) disclose information about the Hirer, whether collected by the Owner from the Hirer directly or obtained by the Owner 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 Hirer.
Where the Hirer is an individual the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Hirer shall have the right to request the Owner for a copy of the information about the Hirer retained by the Owner and the right to request the Owner to correct any incorrect information about the Hirer held by the Owner.
Title
The Vehicle is, and will at all times remain, the absolute property of the Owner, however the Hirer shall keep the Owner indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, or otherwise arising out of the use of the Vehicle during the hire period and whether or not arising from any negligence, failure or omission of the Hirer or any other persons.
The Hirer is not authorised to pledge the Owner’s credit for repairs to the Vehicle or to create a lien over the Vehicle in respect of any repairs.
At the expiration of any hire period hereby granted, or as a result of default by the Hirer (including, but not limited to, any default under clause 12 or where the Hirer fails to return the Vehicle to the Owner), the Hirer grants the Owner (or their agent) the right to (as the invitee of the Hirer) enter upon and into land and premises owned, occupied or used by the Hirer, or any premises where the Vehicle is situated and take possession thereof (including any personal property of the Hirer stored therein). The Owner shall have a lien on any property stored in the Vehicle for all sums payable by the Hirer to the Owner, and the Owner shall have the right to sell such property by public auction or private treaty after giving seven (7) days’ notice to the Hirer. The Owner shall be entitled to retain the sums due to it, in addition to the charges incurred in the storage and sale of such property, from the proceeds of sale and shall render any surplus to the entitled person. Any such sale shall not prejudice or affect the Owner’s right to recover from the Hirer any Charges due or payable in respect of the hire of the Vehicle or such storage and sale of the Hirer’s property.
Personal Property Securities Act 1999 (“PPSA”)
Upon assenting to these terms and conditions in writing the Hirer acknowledges and agrees that: (a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and (b) a security interest is taken in all Vehicle/s and/or collateral (account) – being a monetary obligation of the Hirer to the Owner for Services previously supplied by the Owner to the Hirer (if any) and all Vehicle/s that will be supplied in the future by the Owner to the Hirer.
The Hirer undertakes to: (a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Owner may reasonably require b) to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, the Owner for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities (c) Register or releasing any registration charged thereby. not register a financing change statement or a change demand without the prior written consent of the Owner; and (d) immediately advise the Owner of any material change in its business practices of selling the Vehicle which would result in a change in the nature of proceeds derived from such sales.
The Owner and the Hirer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
The Hirer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA. Unless otherwise agreed to in writing by the Owner, the Hirer waives its right to receive a verification statement in accordance with section 148 of the PPSA.
The Hirer shall unconditionally ratify any actions taken by the Owner under clauses 16.1 to 16.5.
Unclaimed Property
The Hirer acknowledges that any property owned by the Hirer that is left (or remains) in the Vehicle whilst in the possession of the Owner will be held for one (1) month, after which the Owner shall be entitled to dispose of the property. The Owner shall have the power to sell the property to recover any outstanding payment owed by the Hirer.
Security and Charge
Despite anything to the contrary contained herein or any other rights which the Owner may have howsoever: (a) where the Hirer is the owner of land, realty or any other asset capable of being charged, both the Hirer agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Owner or the Owner’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Hirer acknowledge and agree that the Owner (or the Owner’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. (b) should the Owner elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Hirer and/or Guarantor shall indemnify the Owner from and against all the Owner’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Hirer agree to irrevocably nominate constitute and appoint the Owner or the Owner’s nominee as the Hirer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 18.1.
Limitation of Liability
It is a condition of the Hire Agreement that, to the extent permitted by law, the owner shall be under no liability whatsoever to the Hirer for any indirect and/or consequential loss and/or expense (including damages, inconvenience, loss of income/revenue, profit, goodwill or anticipated savings, or any rectification costs), or any third party claims, suffered by the Hirer in connection with the hire, possession or use of the Vehicle, or arising out of any act, omission, default or delay (whether negligent or not), or any breakdown of the Vehicle (whether caused by fair wear and tear, lack of repair or negligence on the part of Owner, or any other reason whatsoever). Alternatively, the Owner’s liability shall be limited to damages which under no circumstances shall exceed the Price.
The Owner may assist the Hirer with the installation of a child restraint; however, the Owner shall not be liable for any loss or damage (including injury or death) incurred by the Hirer (or any third party) in relation to such child restraints. It is the legal responsibility of the child’s parent or guardian to ensure that their child is properly restrained.
General
Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
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.
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 courts nearest to the Owner’s principal place of business.
If the Hirer is acquiring Vehicle for the purposes of a trade or business, the Hirer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Vehicle by the Owner to the Hirer.
The Hirer agrees that the Owner may amend these terms and conditions by notifying the Hirer in writing. These changes shall be deemed to take effect from the date on which the Hirer accepts such changes, or otherwise at such time as the Hirer makes a further request for the Owner to provide Vehicle to the Hirer.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
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