WAIHEKE FENCING TERMS & CONDITIONS
1. APPLICATION OF TERMS AND CONDITIONS
1.1 Please carefully read the following website Terms and Conditions before using and obtaining any information through this website.
1.2 Access to any information on this website and use of this website is conditional on your acceptance of these Terms.
2. HIRE CHARGES
2.1 The Hire Period for each piece of Equipment begins on the date of its delivery to the relevant Site and runs until the End Date, unless otherwise terminated in accordance with the Contract. The Hirer agrees that Waiheke Fencing may charge additional hire charges where the Hirer retains possession of the Equipment past the End Date. The Hirer shall not be entitled to a refund or reduced hire charge if the Hirer chooses to return the Equipment to Waiheke Fencing before the End Date unless given prior approval from Waiheke Fencing.
3. DEFAULT AND INTEREST
3.1 Without prejudice to Waiheke Fencing other rights and remedies under the Contract, the Hirer will pay default interest at the rate of 2% per calendar month on all outstanding amounts due to Waiheke Fencing under the Contract from the Due Date until all monies have been paid in full.
3.2 The Hirer shall be liable for all costs and expenses incurred by Waiheke Fencing in recovering money due from the Hirer under the Contract or in connection with the pursuit of any of Waiheke Fencing rights or remedies under the Contract, including collection fees, commissions and legal costs on a solicitor/client basis.
4. DELIVERY AND REMOVAL OF EQUIPMENT
4.1 Delivery and removal charges for the Equipment are payable by the Hirer in addition to the hireage costs and form part of the Hire Charges, unless otherwise agreed in writing between the parties. All delivery and removal charges will be set out in the Hirer’s invoice.
4.2 The Hirer authorises Waiheke Fencing to deliver the Equipment to the address provided for delivery and grants Waiheke Fencing, or will procure that Waiheke Fencing is granted, an irrevocable right and authority to enter at any time onto any place where the Equipment is situated or thought to be situated to remove the Equipment in the event that the Contract is terminated or the goods are “at risk” as defined in the PPSA. The Hirer indemnifies Waiheke Fencing against any cost, claim, damage, expense or liability suffered or incurred by Waiheke Fencing whether arising directly or indirectly from Waiheke Fencing actions to deliver or remove the Equipment at any time.
4.3 At the End Date, the Hirer must telephone Waiheke Fencing where the Equipment was hired from and request the removal of the Equipment.
5. DAMAGED AND MISSING EQUIPMENT
5.1 If Equipment is returned or collected in a condition which in the reasonable opinion of Waiheke Fencing renders it unusable for hire, or if Equipment is stolen or missing, Hirer must pay Waiheke Fencing on demand the cost of replacement or repair of the Equipment calculated in accordance with the relevant Damaged & Lost Materials price list as published on Waiheke Fencing website, www.waihekefencing.co.nz from time to time. In no circumstances will title to the Equipment or any part of it pass to Hirer.
5.2 Other than for the cost of replacing or repairing the Equipment, which will be dealt with under clause 5.1, Hirer will be liable for all costs, expenses, damages and loss (including consequential loss), incurred by Waiheke Fencing arising out of the Equipment not being returned or collected, including where the Equipment has been stolen or is missing.
6. WAIHEKE FENCING RIGHT TO CANCEL
6.1 Waiheke Fencing may terminate the Contract by notice with immediate effect at Waiheke Fencing sole discretion and retrieve the Equipment from wherever it may be located without delay.
6.2 Waiheke fencing may terminate the Contract by notice with immediate effect where Waiheke Fencing believes the Equipment to be “at risk” for any reason whatsoever including the manner of its use by the Hirer, adverse weather or work conditions, or that Waiheke Fencing considers that the Hirer is unable to, or might be unable to, pay the Hire Charges.
6.3 Waiheke Fencing may terminate the Contract by notice with immediate effect if any step is taken to appoint a receiver, manager, trustee in bankruptcy, liquidator, provisional liquidator, enter into a composition with its creditors, appoint an administrator or other like person of the whole or any part of the Hirer’s assets or business.
6.4 Upon termination of the Contract by either party, the Hirer shall do all things necessary to enable Waiheke Fencing to immediately retrieve the Equipment provided under the Contract if required. This may include but is not limited to providing Waiheke Fencing with the current location details of the Equipment, providing Waiheke Fencing with access to any sites where the Equipment may be located and providing Waiheke Fencing with any other assistance that may be required to enable Waiheke Fencing to retrieve the Equipment without delay. The Hirer grants Waiheke Fencing, or will procure that Waiheke Fencing is granted, an irrevocable right and authority to enter at any time onto any place where the Equipment is situated or thought to be situated to remove the Equipment. The Hirer indemnifies Waiheke Fencing against any cost, claim, damage, expense or liability suffered or incurred by Waiheke Fencing whether arising directly or indirectly from Waiheke Fencing actions to: Retrieve any Equipment hired at any time, from any place; Exercise its other rights upon termination; or Recover any monies payable by the Hirer pursuant to the Contract.
6.5 Waiheke Fencing will not be liable to the Hirer or any other person for any loss suffered or liability incurred arising from termination of the Contract or repossession of the Equipment.
6.6 Cancellation of the Contract by Waiheke Fencing is without prejudice to any rights that Waiheke Fencing may have under this Contract.
7. NO ASSIGNMENT
7.1 The Contract is personal to the Hirer and is not capable of assignment whether in whole or in part by the Hirer. The Hirer shall not sublease, assign, hire or otherwise release possession of the equipment to any other person provided that this clause shall not prevent Employees of the Hirer using the equipment in conformity with these Conditions.
8. RECEIPT OF EQUIPEMNT
8.1 On Delivery of the Equipment, Hirer must satisfy itself that:
(1) it has received the Equipment in good condition in the quantity ordered;
(2) it, and any employee or contractor using the Equipment, has been fully instructed in the use of the Equipment and understands its proper use and means of installation and removal; and
(3) the Equipment is suitable and fit for the purpose for which Hirer intends to use it,
and must notify Waiheke Fencing within 24 hours if it is not so satisfied. Failing such notification, Hirer will be deemed to have accepted the Equipment in the condition in which it was provided and as suitable and fit for the purpose for which Hirer intends to use the Equipment.
8.2 Hirer acknowledges that it is responsible for properly securing the Equipment for the purpose of transportation so as to ensure its safe transport to and from the location where the Equipment will be used by Hirer.
9. USE OF THE EQUIPMENT
9.1 Hirer must ensure that the Equipment is Used strictly in accordance with Waiheke Fencing instructions and any procedures recommended by Waiheke Fencing from time to time.
9.2 Hirer must at all times keep the Equipment in good condition and must not, without Waiheke Fencing prior written consent alter or make additions to the Equipment, or deface, remove or conceal any Waiheke Fencing logo, identifying mark or number, or indication of Waiheke Fencing ownership of the Equipment.
9.3 Hirer must at all times ensure that the Equipment is Used in a safe manner, and must not deliberately damage, abuse or mistreat Equipment or allow Equipment to be deliberately damaged, abused, or mistreated.
9.4 If any damage, loss, theft or destruction of the Equipment occurs, whether Hirer was responsible or not, Hirer must, immediately notify Waiheke Fencing and provide full details of the damage, loss theft or destruction.
9.5 Hirer must ensure that Use of the Equipment is at all times strictly in accordance with:
(1) all applicable laws, and
(2) any relevant industry usage, custom and standards for goods similar to the Equipment.
9.6 Hirer must obtain and maintain, at its own expense, any insurance, permit or license that may be required under any law or by any statutory or other authority for the Use of the Equipment, including its installation or removal. Without limiting Hirer’s obligations under this clause, Hirer must obtain all permits required under the Building Act 2004 and any relevant planning, environment or health and safety legislation, and must ensure that its personnel are appropriately inducted, trained and supervised so as to ensure the safe and lawful Use of the Equipment.
10. HEALTH AND SAFETY
10.1 The Hirer will ensure the safety of Waiheke Fencing staff and contractors on their Sites. This includes identifying any significant hazards, putting in place control measures and developing procedures for potential emergencies. The Hirer will inform Waiheke Fencing staff and contractors about health and safety issues and any health and safety procedures on their Site.
10.2 Waiheke Fencing shall ensure that its staff and contractors comply with the Hirer’s and Waiheke Fencing health and safety rules, policies and guidelines and follow any reasonable instructions of the Hirer regarding the Site and the delivery and removal of Equipment from the Site.
10.3 Waiheke Fencing shall:
(a) ensure that its staff and contractors wear a High Visibility vest at all times on any Site;
(b) provide a copy of its health and safety programme to the Hirer upon request;
(c) attend safety training sessions as reasonably requested by the Hirer (at the cost of the Hirer);
(d) complete any accident, incident or Occupational Health and Safety reports as reasonably required by the Hirer;
(e) as reasonably required by the Hirer, co-operate with and assist the Hirer in carrying out any investigations relating to incidents causing personal injury at the Site; and
(f) ensure that all its vehicles are parked within the Site or on a public roadway.
11. LIABILITY AND INDEMNITY
11.1 Hirer is liable for all costs, expenses, damages or loss (including consequential loss) whether caused by Hirer or any other third party, arising directly or indirectly out of the Use of the Equipment.
11.2 To the maximum extent permitted by law, the maximum amount recoverable by Hirer from Waiheke Fencing under or in connection with this Agreement is limited to the hire fees paid by Hirer to Waiheke Fencing under this Agreement.
11.3 Hirer agrees to indemnify and keep indemnified Waiheke Fencing and Waiheke Fencing employees, agents and contractors from all costs, expenses, damages, suits, actions, claims and demands which they may suffer or incur arising either directly or indirectly out of the Use of the Equipment.
11.4 Hirer must not do or allow to be done any act matter or thing which may invalidate or prejudice any:
(1) insurance policy effected by Waiheke Fencing,
(2) Waiheke Fencing defence or prosecution of any claim, or
(3) right Waiheke Fencing may have against any person.
12. DISPUTE RESOLUTION
12.1 In the event of a dispute, the Hirer shall first attempt to resolve the matter by negotiating directly with Waiheke Fencing and if unsuccessful by mediation with an agreed mediator prior to any formal court action being commenced. Waiheke Fencing may in its sole discretion elect to commence formal proceedings to enforce its rights under the Contract or resolve any dispute at any time and shall not be bound to participate in any alternative dispute resolution with the Hirer unless it chooses to do so.
13. WARRANTIES AND GUARANTEES
13.1 Where the Equipment is supplied for the purposes of a business in terms of sections 2 and 43 of the Consumer Guarantees Act 1993, this Agreement is not subject to the guarantees contained in that Act.
13.2 Subject to clause 1.5 and to the maximum extent permitted by law:
(1) Waiheke Fencing excludes all conditions, warranties, guarantees or representations (expressed or implied) in relation to this Agreement or its subject matter, including all warranties and guarantees as to the quality, suitability or fitness of the Equipment for any particular purpose;
(2) Waiheke Fencing is not responsible to Hirer or to any other person for any loss (including consequential loss), damage, or injury, caused by, resulting from or in any way connected with, the Use of the Equipment, howsoever caused, including due to Waiheke Fencing negligence, breach of contract, breach of any law, in equity, or under any indemnity, and
(3) Waiheke Fencing will not be responsible for failure or delay in Delivery, pick up, installation or removal and will have no liability to Hirer or any other person for any loss (including any consequential loss) arising out of such failure or delay.
14. LOCATION AND USE OF EQUIPMENT
14.1 Hirer must expressly inform Waiheke Fencing of the location of the Equipment during the Rental Period.
14.2 Hirer must not:
(1) part with possession of the Equipment;
(2) allow any other person to use the Equipment; or
(3) permit removal of the Equipment from the location at which Hirer represented it would be located;
without the prior written consent of Waiheke Fencing.
14.3 Hirer must store the Equipment in a safe place, and do all other things necessary to ensure the continued safety and preservation of the Equipment.
15. CHANGES TO TERMS AND CONDITIONSOCATION AND USE OF EQUIPMENT
15.1 Waiheke Fencing may amend these Terms and Conditions at any time by publishing the amendments on its website www.waihekefencing.co.nz or otherwise notifying Hirer in writing. Such amended Terms and Conditions will govern each subsequent hire of equipment by Waiheke Fencing to Hirer.
16.1 Waiheke Fencing complies with the New Zealand Privacy Act 2020 (the Act) when dealing with personal information. Personal information is information about an identifiable individual (a natural person).
This policy does not limit or exclude any of your rights under the Act. If you wish to seek further information on the Act, see www.privacy.org.nz.
These terms were last updated 30 March 2021.