Agreement
These General Terms and Conditions (General Terms) apply to every hire of Equipment from us to you. The details of each hireage (Hire Details) shall be recorded separately at the time of hire in a Hire Agreement (Hire Agreement). In these General Terms, capitalised terms have the meaning given to them and otherwise have the meaning set out in the relevant Hire Details.
We may impose any Specific Terms and Conditions (Special Terms) on the hireage of any Equipment. Specific Terms are as recorded in the Hire Details and otherwise as agreed in writing, and prevail over the General Terms.
Any terms set out in your purchase order or your request to hire or otherwise asserted by you shall not apply unless they are expressly included in the Hire Agreement.
Term
In consideration for paying the Hire Fees, you are entitled to the possession and use of the Equipment from the Start Date until the Return Date (the Hire Period) on the terms of the Hire Agreement (unless terminated earlier).
Your obligations to us under the Hire Agreement continue until the later of:
the Return Date;
the date that all amounts due and payable to us under the Hire Agreement have been paid; and
the date that the Equipment is returned to us in the manner and condition required by the Hire Agreement.
We may extend the Hire Period by agreement with you. Any extension of the Hire Period must be recorded in writing (including by way of emails to and from the our respective authorised representatives).
You may shorten the Hire Period by giving us at least 24 hours’ written notice and the Return Date shall be adjusted accordingly, provided that the adjusted Return Date must be a business day (so that we are able to receive the Equipment on that date). If you wish to shorten the Hire Period but require us to collect the Equipment, we will use our reasonable endeaovours to arrange collection from the Site on the requested date, however the amended Return Date shall be the date that we collect the Equipment and, unless agreed otherwise, you will remain liable for and shall pay the Hire Fees for the period up until we collect the Equipment.
Delivery and return of Equipment
We will deliver the Equipment to you at the Site on the Start Date. We shall not be liable for any delay in delivery beyond the Start Date, except that you will not be liable to pay Hire Fees for the period between the Start Date and the date the Equipment is delivered. If you are collecting the Equipment you must collect it on the Start Date at your cost. If there is any delay in collection you will still be charged the Hire Fees from the Start Date.
You must return the Equipment to our place of business or to a place directed by us in writing, on or before the Return Date at your cost. If the Equipment is returned late, you will be liable for and shall pay the Hire Fees until the date that the Equipment is returned to us.
If we are to collect the Equipment at the end of the Hire Period, we will arrange to collect the Equipment on the Return Date. We shall not be liable for any delay in collection, except that you will not be liable to pay the Hire Fees for the period from the scheduled Return Date to the actual collection date.
Unless the parties have expressly arranged an after hours delivery, collection or return, the Equipment must be delivered, collected or returned during regular business hours on a business day.
The Equipment must be returned in the same order and condition that it was supplied to you (fair wear and tear excepted) and in a reasonably clean state having regard to the cleanliness of the Equipment when it was supplied to you (and you may otherwise be liable for cleaning charges). If the Equipment is to be collected by us, the Equipment must meet these requirements immediately prior to our collection.
Procedures upon delivery/collection at the Start Date
Before the Equipment may be collected or delivered you must ensure that, if required by us, a suitably qualified or experienced authorised representative acting on your behalf:
attends any instructional briefings or demonstrations on the safe use of the Equipment;
successfully passes any Equipment specific safety or competency tests;
assists with any pre-hire inspection of the Equipment;
signs all applicable acknowledgements and confirmations; and
complies with and/or passes all other conditions we may require relating to the safe transport, use, operation and secure storage of the Equipment.
You or your authorised representative must acknowledge receipt of the Equipment in writing upon taking possession of the Equipment delivery or collection.
Condition of Equipment upon delivery
You must notify us of any defects immediately upon taking possession of the Equipment receipt of the Equipment. If you do not notify us within 2 business days of receipt, then you are deemed to have acknowledged that the Equipment has been received in very good condition. If a defect arises or mechanical breakdown occurs during the Hire Period, you will notify us of the defect or breakdown immediately and clause 19 below shall apply.
If you notify us of a defect under clause 5.1, you must notify us immediately and cease using the Equipment. We reserve the right to inspect the Equipment for that defect. We will bear the costs of the inspection unless the inspection shows that the Equipment is not defective, in which case you will bear our reasonable costs of the inspection (including time of staff). For Equipment that we have agreed is defective, our liability is limited to (at our discretion) the repair or replacement of the defective Equipment for the remainder of the Hire Period. Where any Equipment is replaced or if additional or different Equipment is provided to you, it is provided on the same terms and conditions as set out in the Hire Agreement, and the Hire Agreement will be updated to include the details of the replaced or different Equipment provided to you.
Your obligations
You must use the Equipment solely for the purpose for which it is designed and in accordance with any manufacturer or supplier instructions.
Unless specified otherwise in the Hire Details, you must, at your expense:
maintain the Equipment in very good working condition (fair wear and tear excepted) and in a clean state, ensuring that it is properly operated, maintained and cleaned in accordance with the manufacturer’s or supplier’s instructions, and any specific maintenance requirements referred to in the Hire Details,; and
carry out daily checks, inspections and servicing of the Equipment before using the Equipment, including ensuring adequate tyre pressures, fuel, oil, grease and water levels.
You must take all reasonable steps to prevent the Equipment from being damaged or lost.
You must keep the Equipment securely stored when not in use.
You must ensure that only suitably qualified, experienced and, if applicable, appropriately licensed personnel who you reasonably consider can safely use the Equipment are permitted to do so.
Where practicable, every user of the Equipment must have attended an operational use and safety briefing conducted by us. Before allowing any person who did not attend an operational use and safety briefing conducted by us to use the Equipment, you must be satisfied (acting reasonably) that the person is competent in using the Equipment and able to do so safely and in accordance with all applicable health and safety policies. If we become aware that a person that is under your control operates the Equipment but does not meet the requirements of clause 6.5 or this clause 6.6, we may direct you to ensure that person ceases to use the Equipment and any failure to comply with that direction is a material breach of the Hire Agreement.
You must not permit any person to use the Equipment under the infulence of alcohol or drugs, or any medication causing drowsiness or for which a warning not to drive or operate machinery or equipment applies.
You must familiarise yourself with and comply with all relevant laws relating to the use, storage and possession of the Equipment including but not limited to the Health and Safety at Work Act 2015 and the Land Transport Act 1998.
You must not undertake any repairs or modifications to the Equipment without our written approval, unless urgent repairs are necessary to prevent further damage (provided the nature and scope of such repairs are fully documented, including part numbers and suppliers, and notified to us immediately.
Health and Safety
Before using the Equipment you will:
ensure that all safety checks appropriate for the use of the Equipment are carried out; and
conduct and be satisfied as to a risk assessment of all work sites at which the Equipment will operate, including identifying possible hazards for its employees and other persons operating, or in the vicinity of, the Equipment.
carry out prestart daily inspection reports in accordance with our specifications from time to time. These inspection reports must be made available to us on request.
You acknowledge and agree that by the nature of an offsite hire arrangement we are not able to effectively monitor the safe use and operation of the Equipment while it is at the Site or othewise in your possession, and that you are primarily responsible for ensuring that the Equipment is used safely and in accordance with an appropriate Health and Safety policy implemented by you at the Site.
You acknowledge and agree that you are aware of your obligations and duties under the Health and Safety at Work Act 2015 and warrant to us that you:
have written rules and procedures relating to health and safety which the Customer will follow to ensure the safety of its employees and all persons operating, or in the vicinity of, the Equipment;
will ensure that all persons who use the Equipment are competent to do so and will use it in the manner it was designed to be used, follow any directions from Lightning Lifts Limited, local authorities, codes of practice or from the manufacturer of the Equipment relating to the use and safety of the Equipment, and will comply with all obligations in relation to the use and control of the Equipment and ensure persons using the Equipment comply with the Health and Safety at Work Act 2015 and all other relevant legislation;
are responsible for all health and safety obligations in respect of the use of the Equipment and will take all practicable steps to eliminate, isolate, and minimize any hazards or risks for its employees or other persons operating, or in the vicinity of, the Equipment, and ensure the safety of any person operating the Equipment or other persons in the vicinity of the Equipment; and
will maintain a register of accidents and conform with any code of practice and regulations which relate to the use of the Equipment.
Procedures upon return/collection at the Return Date
You agree to comply with our return/collection procedures in force at the relevant time. We will acknowledge receipt of the Equipment in writing upon return or collection. Acknowledgement of receipt does not constitute acceptance by us of the condition of the returned Equipment.
We will inspect the Equipment promptly after it has been returned to us and will endeavour to do so within 24 hours of return (or if collected, upon its return to our premises). However, we reserve the right to conduct that inspection at any time within 5 business days following its return or collection.
We further reserve the right to restore, repair or replace part or all of the Equipment as may be required to bring the Equipment up to the standard required under clause 6.2(b), and claim our reasonable expenses from you (subject to the limitation on your liability relating to loss, damage or destruction in clause 21).
If the Equipment runs on petrol or diesel (or other biofuel), the Equipment must be returned with its fuel tank full. If not returned full, you will be charged for the shortfall of fuel and an adminitration fee at the Additional Rates set out in the Hire Details or, if none are set out, at our then current rates.
Inspection If we ask you to, you will promptly make the Equipment available to us so that we may inspect or test the Equipment. You will give us all reasonable assistance to enable us to inspect or test the Equipment and, in particular, you will allow us access onto any premises where the Equipment is kept. You are not entitled to any compensation arising from (and we shall have no liability for) lack of use of the Equipment while it is being inspected or resulting from inspection.
Site Unless we agree otherwise in writing, the Equipment must be situated at the Site at all times during the Term. You will immediately notify us in writing if the Equipment is removed from that Site, or if you wish to use the Equipment at another site.
Alterations / Accessories You must not allow any accessories or extra parts to be added to or included with the Equipment, or alter the Equipment in any way, without first obtaining our written consent. If any accessories or extra parts (including any replacement parts) are added to or included with the Equipment, those accessories or parts will for the purposes of the Hire Agreement become part of the Equipment.
Title and risk
We retain ownership of the Equipment at all times and nothing in the Hire Agreement will give any form of ownership or interest of the Equipment to you, other than as a bailee only of the Equipment during the Term. You only have rights to use the Equipment in accordance with the Hire Agreement.
We will obtain and maintain an insurance policy in respect of loss, damage or destruction of the Equipment with a reputable insurer.
All risk in and responsibility for the Equipment passes to you at the time the Equipment is delivered to you (or collected by you, if applicable).
Hire Fees
You must pay us the Hire Fees (plus GST) specified in the Hire Details, in the manner and at the times specified in the Hire Details, without set-off or deduction of any kind. The Estimated Total Hire Fees in the Hire Details are an estimate only. For the avoidance of doubt, you will be charged and you will pay the actual Hire Fees incurred (and a wash up invoice or credit note will be raised if required).
If no payment terms are specified in the Hire Details, we will invoice Hire Fees on a monthly basis and payment shall be due no later than the 20th of the month following the invoice date.
At any time we may change or cancel any credit provided to you and we reserve the right to demand payment in advance. We may, as a condition of increasing the amount of credit we provide you, require additional security in respect of your obligations under the Hire Agreement and we may suspend the provision of Equipment until that security is provided.
You will not be entitled to a refund or a reduced hire charge if you return the Equipment before the end of the agreed Hire Period unless you have given us the notice required under clause 2.4 above.
The Rental Rates in the Hire Fees exclude GST, transport costs, fuel, cleaning charges, costs of repairs, consumables, default interest and other service charges, which shall be charged separately and may change without notice.
Consumables You are responsible for the costs of all consumables used in conjunction with the Equipment. You may only use consumables that are approved by us, the manufacturer or the supplier (as applicable), or that you can demonstrate comply with any requirements prescribed by us, the manufacturer or the supplier. You are liable for any loss or damage arising from using any unauthorised or non-compliant consumables.
Payment Default If any payment is not made by the due date we may demand, and you shall be liable for and pay, interest on the outstanding amount at 12% per annum, with interest to accrue daily from the due date of payment until the date we receive full payment of all outstanding amounts (including interest).
Security Interests
You acknowledge that each Hire Agreement constitutes a security agreement for the purpose of the Personal Property Securities Act 1999 (PPSA) and that we have a security interest in the Equipment. You must not grant any other security interest to any other person or allow any security interest or encumbrance to be created over the Equipment.
Furthermore, you grant to us a security interest in all of your present and after acquired property, as security for the performance of your obligations under each Hire Agreement you enter into with us.
You agree to sign any further documents and/or provide any further information which we may reasonably require to register a financing statement on the Personal Property Securities Register. You irrevocably waive any rights you may have at any time, including under section 148 of the PPSA, to receive a copy of any verification statement (as that term is defined for the purposes of the PPSA). Further, to the extent permitted by law you agree that:
sections 114(1)(a), 133 and 134 of the PPSA shall not apply to the Hire Agreement.
you waive your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
you contract out of the rights referred to in s107(2) of the PPSA.
recognising that you are not and are not entitled to become the owner of the Equipment, pursuant to sections 117 and 119 of the PPSA you are not entitled to any surplus amounts which may result from any sale of the Equipment by us and nothing in section 132 of the PPSA entitles you to redeem the Equipment in such a manner as to take or claim title to the Equipment.
You must notify us immediately in writing if you change your name or address or if there are any changes to any of the data required for us to register a financing statement under the PPSA in respect of the Hire Agreement.
Our Rights to terminate the Hire Agreement
We may exercise our enforcement rights under the Hire Agreement if any of the following events happen (whether or not such event is still continuing):
you are in default of any payment obligation under the Hire Agreement or any other Hire Agreement you have entered into with us, or are in material default of performance of any of your obligations under the Hire Agreement or any other Hire Agreement with us; or
you made a false statement to us when or before you entered into the Hire Agreement; or
a receiver is appointed in respect of any of your assets; or
you make any arrangement or enter into any compromise with any of your creditors; or
you fail to operate or maintain the Equipment in accordance with the Hire Agreement;
the Equipment is destroyed or damaged to such an extent that the Equipment must be written off as a total loss; or
the Equipment is stolen and is not recovered; or
(if you are a natural person) you commit an act of bankruptcy or you become bankrupt or die; or
you do anything that prejudices our rights in the Equipment or the Hire Agreement or we have reasonable grounds to believe that the Equipment is at risk; or
you go into liquidation or a petition to liquidate or a notice of intention to propose a resolution to liquidate is presented to you.
If we terminate the Hire Agreement, all of your obligations under the Hire Agreement will still continue. In particular, you will be required to pay to us immediately:
the unpaid balance of the Hire Fees payable up to the Return Date (less any amount we agree to deduct to reflect that the Hire Agreement has been ended before the scheduled Return Date);
the cost of our reasonable expenses incurred in relation to ending the Hire Agreement; and
a reasonable estimate of our loss incurred as a result of your acts or omissions. Once we end the Agreement, you will have no more rights under the Hire Agreement.
If any of the events described in clause 17.1 happens, then we may terminate the Hire Agreement by giving you notice in writing to that effect, and/or retake possession of the Equipment. For the purposes of exercising our powers of repossession you agree to permit us , and any persons who work for us or who are our agents (or procure that a third party in charge of the relevant premises permit us and personnel or agents) to enter the Site or any other premises you occupy. You also agree to give us, as your agent, the right to enter the premises of any other person or corporation to search for and repossess the Equipment without being liable to you or anyone claiming under you.
Exclusion of Warranties
You warrant that you are familiar with the capabilities of the Equipment and the purposes for which the Equipment was designed for, and you have made your own assessment and are relying entirely on your own judgement as to the suitability of the Equipment for your purposes. You release us from any liability arising from the Equipment not being suitable for any purpose you use the Equipment for.
If you are hiring the Equipment for the purposes of a business, you agree that the provisions of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 do not apply to the maximum extent permitted by law, and that in the circumstances it is fair and reasonable to exclude those provisions.
All other conditions, guarantees and warranties implied by law or custom are excluded to the maximum extent permitted by law.
Theft, Damage, Breakdown and Repair
If for any reason the Equipment is stolen, damaged, partially or wholly destroyed, suffers a mechanical breakdown, or otherwise requires repair, you must immediately cease to use the Equipment and you must immediately advise us of the relevant details.
Subject to the limits on your liability in clause 21.1 below, you must pay all costs and comply with our directions in connection with recovery of the Equipment, if stolen, and/or repairing any damage or the replacing of the Equipment or any parts.
If the Equipment suffers a mechanical breakdown that is the direct result of our negligence or us recklessly supplying you with defective Equipment, you will not be liable for the Hire Fees for the period that the Equipment is being repaired or until a replacement is delivered, and our liabiltity to you is limited to the cost of repair or replacement of the Equipment. In all other cases, you must continue to pay the Hire Fees while the Equipment is being repaired or replaced, or in the event of theft, while the Equipment is missing.
We will not be liable to you or to any other person in any way for the unavailability of, or interruption to your use of, the Equipment during the Hire Period that arises from any mechanical breakdown, theft, loss or other damage to the Equipment, other than where the unavailabilty or interruption is due to a mechanical breakdown that is the direct result of our negligence or us recklessly supplying you with defective Equipment, in which case our liabiltity to you is limited to the cost of repair or replacement of the Equipment.
Where any Equipment is replaced or if additional or different Equipment is provided to you during the Hire Period, it is provided on the same terms and conditions as set out in the Hire Agreement, and the Hire Agreement will be updated to include the details of the replaced or different Equipment provided to you.
Indemnity
Subject to the limits on your liability in clause 21.1 below, you agree to indemnify us on demand against any loss, cost, liability or expense incurred at any time by us arising:
out of your possession and use of the Equipment; or
as a direct or indirect result of our enforcement of any of our rights or remedies in the Hire Agreement, or
as a direct result of a breach of any of your obligations under the Hire Agreement, including all costs and expenses incurred by us in repairing or restoring the Equipment under clause 6.2.
Limitation on your liability for Loss, Damage or Destruction of Equipment
Unless clause 21.2 applies, your total liability to us for the partial or whole loss, damage or destruction of Equipment provided under the Hire Agreement is limited for each event or series of events to the amount of our applicable insurance excess for our material damage policy, initially as set out in the Hire Details but subject to change. This limitation of liability applies only to loss, damage or destruction of Equipment and does not limit any other liability you have under the Hire Agreement, including your responsibility to pay all Hire Fees and other amounts payable to us under the Hire Agreement. For the avoidance of doubt, you are liable for any repair costs incurred as a result of your use or possession of the Equipment under this Hire Agreement up to the amount of our applicable insurance excess per event or series of events.
If any Equipment is lost, damaged or destroyed and our insurance policy is either invalidated or does not respond with full compensation for the relevant loss, damage or destruction up to the insured value of the Equipment as a result of any act or omission by you or your personnel or agents (including as a result of acts and omissions that fall within an exclusion on our policy), the limitation of liability in clause 21.1 shall not apply and you shall be liable to us for the full cost of restoration, repair or replacement (less any insurance proceeds that are received under our insurance policy for the loss, damage or destruction).
Limitation on our liability to you Except to the extent required by law or as expressly set out in these General Terms, we are not liable to you or anyone else for any loss, damage, expense or claim, whether direct, indirect or consequential arising out of your hire and use of the Equipment, or the Hire Agreement generally, provided that this does not affect any rights you may have under any applicable consumer legislation that cannot lawfully be contracted out of. Notwithstanding the foregoing, if a court determines that we are liable to you in any way, our maximum aggregate liability to you under the Hire Agreement shall be limited to the total Hire Fees paid to us under the Hire Agreement at the time the liability arose or, if consumer leglistion applies to the supply of the equipment to you, the amount of damages payable to you under that consumer legislation.
General
Assignment We may assign some or all of our rights and obligations in the Hire Agreement or in the Equipment to any other person without your consent. You may not assign or transfer all or any of your rights, interests and obligations under a Hire Agreement without first obtaining our written consent. We are under no obligation to provide our consent to the assignment.
Notices All notices and other communications between us shall be in writing and shall be delivered by hand or sent by email, fax or post to the office address or email address (as appropriate) specified in the Hire Details or as advised from time to time in accordance with the Hire Agreement. A notice shall be deemed to have been received by us or you:
if delivered by hand, upon delivery;
if sent by post within New Zealand, 5 business days after, but not including, the day of posting;
if sent by post from outside New Zealand, 10 business days after, but not including, the day of posting;
if sent by email, at the time of transmission provided no notification of failed or delayed delivery is received,
provided that any notice or communication received or deemed to be received after 5.00pm on a business day in the place to which it is sent, or on a day which was not a working day in that place, will be deemed not to have been received until the next working day in that place.
Set Off We may, at any time, set off any amount which we owe to you against any amount which you owe to us under the Hire Agreement or otherwise.
Severance Each term of the Hire Agreement is separately binding. If for any reason we cannot enforce any term, all the other terms will remain binding.
No Waiver We will not be taken to have waived any of our rights or remedies under the terms of a Hire Agreement unless the waiver is in writing. The fact that we may delay or not exercise any right or remedy does not affect our ability to enforce that right or remedy at a later time.
Variation We may vary these General Terms at any time. We will give you notice of any changes to these General Terms either by posting them on our website or by giving you written notice of the updated General Terms to you in accordance with clause 23.2 above. Any such variation of the General Terms shall not apply to current Hire Agreements, but shall apply to any new Hire Agreements you enter into. Any variation to the Hire Details must be approved by us in writing.
Governing Law Each Hire Agreement is governed by the laws of New Zealand.
