1.Acceptance, Term and Hire Period

1.1.You accept this Agreement by the earlier of:

(a)confirming that you accept this Agreement through our Website;

(b)completing and sending the Booking Form through our Website; or

(c)making part or full payment of the Hire Fee.

1.2.We may, at our absolute discretion, accept or reject any request to provide the Equipment for whatever reason.

1.3.You agree to hire the Equipment for the Hire Period.

1.4.Subject to clause 1.2, this Agreement will commence on the Commencement Date, and end on the date that the Hire Period finishes, unless otherwise terminated earlier in accordance with its terms (the Term).

2.Our obligations

2.1.In consideration of you paying the Hire Fee and you complying with this Agreement, we agree to provide the Equipment to you for the Hire Period, and in accordance with this Agreement.

3.Variations 

3.1.All variations to the Equipment to be supplied must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.

4.Your obligations

4.1.You agree to:

(a)comply with this Agreement, any instructions we provide in relation to the Equipment, our reasonable requests or requirements, and all applicable laws; and

(b)provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations under this Agreement and at law.

5.Payment

5.1.In consideration for us supplying the Equipment, you agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms.

5.2.When applicable, GST is payable on the Fees and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.

5.3.If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion and without prejudice to any of our rights or remedies under this Agreement or at law):

(a)after a period of 5 Business Days, cease providing the Equipment and enter any premises where the Equipment is located to recover or repossess the Equipment (and you agree to provide any access, items and consents required to enable us to do so), and recover, as a debt due and immediately payable from you, our additional costs of doing so (including all recovery costs); and/or

(b)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, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

6.Collection, delivery and return of Equipment

6.1.We agree to use our reasonable endeavours to deliver the Equipment to the delivery location by the delivery time agreed between the Parties.

6.2.You agree to return the Equipment to us in the Original Condition, at the return location and by the return time agreed between the Parties.

6.3.You agree to return the Equipment to us at the expiry of the Hire Period. You agree that if you do not return the Equipment to the return location by the return time agreed between the Parties, we may after a grace period of 5 days charge you a fee of $5 per day (Late Fee) until you have returned the Equipment to us.

6.4.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.

6.5.You agree to comply with any requirements, policies or procedures which apply at the collection location and the return location (as applicable).

7.Condition of Equipment

7.1.You agree that you are solely responsible for determining whether the Equipment will be suitable and fit for your particular purposes.

7.2.Unless you notify us within 24 hours of the delivery of the Equipment, demonstrating that the Equipment does not comply with this Agreement, you agree that the Equipment is in good condition, clean, free from damage or defect, fit for purpose and in accordance with this Agreement (Original Condition).

8.Warranties and Representations

8.1.You represent, warrant and agree that:

(a)all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;

(b)you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperate and access reasonably necessary to enable us to supply the Equipment;

(c)you will not use the Equipment, or allow the Equipment to be used, in breach of any laws; and

(d)you will not sell  the Equipment to any other person.

9.Maintenance

9.1.During the Hire Period, in addition to and without limiting any other obligation under this Agreement, you agree to:

(a)only allow our Personnel to service or repair the Equipment, unless otherwise agreed to by us;

(b)contact us immediately if there are any technical or mechanical issues with the Equipment;

(c)protect and keep the Equipment in the Original Condition (including being in good working order and condition), subject to any fair wear or tear; and

(d)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.

10. Servicing and Repairs

10.1.You agree that you are responsible for the costs of any repair or replacement of the Equipment that is necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Equipment during the Hire Period.  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.

11.Title and Risk 

11.1.Risk in the Equipment will pass to you when we have delivered the Equipment to the location agreed between the Parties.

11.2.You agree that once the Equipment has been delivered to the delivery location, you will be solely responsible for the Equipment until it is returned to us and it is in our full custody and control.

11.3.Title in the Equipment will at all times remain with us, and you take the Equipment as a bare bailee only.

12.Security Interest 

12.1.You acknowledge and agree that:

(a)this Agreement is a ‘security agreement’ under the PPSA;

(b)this clause 12 creates a security interest in the Equipment, and any proceeds from any sale or disposal of the Equipment, as security for your obligations to us;

(c)we are a secured party in relation to the Equipment and any proceeds in respect of any sale or disposal of the Equipment, and we are entitled to register our interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’, and you must do all things necessary to assist us in effecting the registration;

(d)you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Equipment and the proceeds is enforceable, and to perfect, or better secure our position under this Agreement, or ensure our priority over all other security interests.

12.2.You agree, to the extent permitted by Law, that you will have no rights under the following provisions of Part 9 of the PPSA to:

(a)receive a notice under section 114(1)(a);

(b)receive a statement of account under section 116;

(c)receive notice of any proposal by us to retain collateral under section 120(2);

(d)object to any proposal by us to retain collateral under section 121;

(e)not have goods damaged in the event that we were to remove an accession under section 125;

(f)refuse permission to remove an accession under section 127;

(g)receive notice of the removal of an accession under section 129;

(h)apply to a court for an order concerning the removal of an accession under section 131; and

(i)reinstate the Agreement under sections 133 and 134.

12.3.You further agree that where we have rights in addition to those under Part 9 of the PPSA, those rights will continue to apply.

12.4.You waive your right under the PPSA to receive a copy of any ‘verification statement’ (as that term is defined in the PPSA).

12.5.Nothing in this clause 12 is intended as an agreement to subordinate a security interest arising under this Agreement and conditions in favour of any person.

12.6.In this clause 12 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

12.7.In this clause 12 terms used in this clause but not defined have the same meaning as in the PPSA.

12.8.This clause 12 will survive the termination or expiry of this Agreement.

13.Confidential Information

13.1.Subject to clause 13.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party.

13.2.Clause 13.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing party ensures the adviser complied with the terms of clause 13.1.

13.3.This clause 13 will survive the termination of this Agreement.

14.Consumer Law 

14.1.You agree and represent that you are acquiring the Goods for the purposes of trade. The Parties agree that:

(a)to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 do not apply to the supply of the Goods or the Agreement; and

(b)it is fair and reasonable that the Parties are bound by this Agreement, including this clause.

14.2.This clause 14 will survive the termination or expiry of this Agreement.

15.Limitation on Liability

15.1.Despite anything to the contrary, to the maximum extent permitted by law:

(a)neither Party will 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 Liability is limited (at our discretion) to:

(1)replacing the Equipment or the supply of equivalent Equipment, or the payment of the cost of replacing the Equipment or of supplying equivalent Equipment; and

(2)the repair of the Equipment, or the payment of the cost of having the Equipment repaired.

(d)our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the amount of the Fees paid by you to us in respect of the supply of the relevant Equipment to which the Liability relates.

2.2.This clause 15 will survive the termination or expiry of this Agreement.

16.Indemnity

16.1.To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which 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 when you are responsible for the risk in the Equipment in accordance with clause 11; and

(b)any failure to return the Equipment in its Original Condition.

16.2.This clause 16 will survive the termination or expiry of this Agreement.

17.Termination

17.1.This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.

17.2.Upon expiry or termination of this Agreement:

(a)we will immediately cease supplying the Equipment to you;

(b)you agree that any payments made by you to us are not refundable to you;

(c)you are to pay for any Fees due and payable prior to termination, and all other amounts due and payable under this Agreement; and

(d)by us pursuant to clause 17.1 you also agree to pay our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees).

17.3.Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

17.4.This clause 17 will survive the termination or expiry of this Agreement.

18.General

18.1.Amendment: Subject to clause 3, this Agreement may only be amended by written instrument executed by the Parties.

18.2.Assignment: Subject to clause 18.3 and 18.6, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

18.3.Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

18.4.Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 18.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the New Zealand Disputes Resolution Centre, who will decide on the time, place and rules for mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

18.5.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, provided that the Party seeking to rely on the benefit of this clause:

(a)as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

(b)uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. 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.

18.6.Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

18.7.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 and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

18.8.Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. 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.

18.9.Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

19.Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Booking Form, and:

Agreement means these terms and conditions and any documents, attached to, or referred to, in it.

Booking Form means the booking form on our Website.

Business Days means a day on which banks are open for general banking business in New Zealand, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date this Agreement is accepted in accordance with its terms.

Consequential Loss includes any consequential loss, special or 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. However, the Parties agree that your obligation to pay us the Price under this Agreement will not constitute “Consequential Loss”.

Equipment means the equipment and any accessories the subject of this Agreement, as particularised in the Booking Form.

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 the fee you agree to pay to hire the Equipment for the Hire Period as set out in the Booking Form.

Hire Period means the period commencing on the Commencement Date and continuing for the period as specified in the Booking Form, unless otherwise agreed between the Parties in writing.

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.

Original Condition has the meaning given in clause 8.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

PPSA means the Personal Property Securities Act 1999.

Website means our website, available at https://recalibratenz.com/.