EQUIPMENT HIRE AGREEMENT
This Agreement (Agreement) is entered into between IOANET NZ Ltd (NZCN 8181342) and you, together the Parties and each a Party.
In these Terms, you means the person or entity registered with us as an Account holder.
1. Acceptance, Term, and Hire Period
1.1 You accept this Agreement by checking the box and clicking “I accept” when making a request for Equipment and Services via our Website.
1.2 We may, at our absolute discretion, accept or reject such a request to provide the Services and the Equipment for whatever reason.
1.3 If we accept your request, you agree to hire the Equipment for the Hire Period.
1.4 This Agreement will commence on the date this Agreement is accepted in accordance with its terms, 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 subject to your compliance with this Agreement, we agree to provide the Services and the Equipment to you for the Hire Period, and in accordance with this Agreement.
2.2 If this Agreement expresses a time within which the Services and the Equipment are to be supplied, we will use reasonable endeavours to provide the Services and the Equipment by such time, but you agree that such time is an estimate only, and creates no obligation on us to supply the Services and the Equipment by that time.
3. Variations
3.1 You may request a variation or change to the Services and the Equipment to be supplied, including the timing for the supply of the Services and the Equipment (Variation), by providing written notice (including by email) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by the any Variation Request accepted in writing.
3.2 If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 3.1.
4. Your obligations
4.1 You agree to:
(a) comply with this Agreement, 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 You agree to pay us the Hire Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms as set out on our Website.
5.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) after a period of 5 Business Days, cease providing the Services and the Equipment and enter any premises where the Equipment is located, and 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 legal fees, debt collector fees and mercantile agent fees); 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 deliver the Equipment to you and 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/make the Equipment available for collection by us (as agreed between the Parties) in the Original Condition, at the return location and by the return time agreed between the Parties.
6.3 You agree to comply with any requirements, policies or procedures which apply at the collection location and the return location (as applicable).
6.4 You agree to pay for the reasonable costs of delivery or collection of the Equipment.
7. Warranties and Representations
7.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
(b) that this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
7.2 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) subject to your Consumer Law Rights, you have not relied on any representations or warranties made by us in relation to the Services and the Equipment (including as to whether the Services and the Equipment will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
(c) the Equipment may only be used by you; and
(d) you will keep the Equipment under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Equipment to any other person.
8. Maintenance
8.1 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, damaged.
9. Damage and Safekeeping
9.1 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 of 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.
10. Title and Risk
10.1 Risk in the Equipment will pass to you when the Equipment is delivered to the delivery location (as applicable and as agreed between the Parties). You agree that once the Equipment has been delivered to the delivery location (as applicable and as agreed between the Parties), you will be solely responsible for the Equipment until it is returned to us and it is in our full custody and control.
10.2 Title in the Equipment will at all times remain with us, and you take the
Equipment as a bare bailee only.
11. Access and Security Interest
11.1 You agree to provide us (and our Personnel) with reasonable access to any premises where the Equipment is located, and any other premises reasonably necessary for us to provide the Services, free from harm or risk to health or safety:
(a) at the times and on the dates requested by us to enable us to exercise any rights we may have under this Agreement; and/or
(b) to enable us to comply with our obligations under this Agreement or at law.
11.2 You agree to not create an encumbrance, lien, charge or other interest on or over the Equipment.
11.3 You agree that this Agreement and your obligations under this Agreement creates a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with this Agreement) being registered on any relevant securities register (and you must do all things to enable us to do so).
12. New Zealand Consumer Law
12.1 Certain consumer protection laws (such as the Consumer Guarantees Act 1993 and the Fair Trading Act 1986) and regulations may confer you with rights, warranties, guarantees, and remedies relating to the provision of our services which cannot be excluded, restricted, or modified (Consumer Law Rights).
12.2 If such laws apply to you as a consumer, nothing in this Agreement excludes your Consumer Law Rights. You agree that our Liability for the Services provided to an entity defined as a consumer under legislation is governed solely by that legislation and this Agreement.
12.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or any other basis. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
12.4 If you are acquiring the Services for the purposes of trade, we and you agree that:
(a) to the maximum extent permitted by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services or this Agreement; and
(b) it is fair and reasonable that us and you are bound by this Agreement including this clause.
12.5 This clause 12 will survive termination or expiry of this Agreement.
13. Liability
13.1 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
(a) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services and the Equipment to you or, in our sole discretion, to us repaying you the amount of the Hire Fees paid by you to us in respect of the supply of the relevant Equipment the Services and to which the Liability relates.
13.2 This clause 13 will survive the termination or expiry of this Agreement.
14. Termination
14.1 Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party.
14.2 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) 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; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
14.3 Upon expiry or termination of this Agreement:
(a) we will immediately cease supplying the Services and the Equipment to you;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for any Hire Fees due and payable prior to termination, and all other amounts due and payable under this Agreement; and
(d) you agree to grant us such rights of access, in accordance with clause 11.1, to any premises where the Equipment is located to allow us (or our Personnel) to immediately recover or repossess the Equipment.
14.4 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied acceptance of this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.
14.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
14.6 This clause 14 will survive the termination or expiry of this Agreement.
15. General
15.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.
15.2 Assignment: Subject to clause 15.3, 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).
15.3 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.
15.4 Confidential Information: You agree to keep the terms of this Agreement confidential.
15.5 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
15.6 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 meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the New Zealand Law Society to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
15.7 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you.
15.8 Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties, and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
15.9 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
15.10 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 any event or circumstance which is beyond a Party’s reasonable control. 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.
15.11 GST: If and when applicable, GST payable on the Hire Fee will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Hire Fee.
15.12 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.
15.13 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
15.14 Online Execution: This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
15.15 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
15.16 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
16. Definitions
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given:
Agreement means these terms and conditions and any documents, attached to, or referred to, in it.
Business Days means a day on which banks are open for general banking business in New Zealand excluding Saturdays, Sundays and public holidays.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Hire Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.
Consumer Law Rights has the meaning given in clause 12.1.
Dispute has the meaning given in clause 15.6.
Equipment means the equipment and any hardware the subject of this Agreement, as particularised on our Website.
Hire Fee means the fees you have accepted to pay in return for hiring Equipment from us, as set out on our Website.
Hire Period means the period of time you have agreed to hire the Equipment from us, as set out in your request for Equipment and Services.
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 means, in respect of the Equipment, that it is in good condition, clean, free from major damage or defect, fit for purpose and in accordance with this Agreement.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Services means the services that we agree to perform under this Agreement, as further particularised on our Website.
Website means the website owned and operated by us through which you sign up for the Services, being www.ioanet.com or www.ioanet.nz (as applicable), or such other website operated by us through which you can sign up for the Services from time to time.
17. Interpretation
In this Agreement, unless the context otherwise requires:
(a) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(b) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(c) words like including and for example are not words of limitation;
(d) a reference to time is to local time in New Zealand; and
(e) a reference to $ or dollars refers to the currency of New Zealand from time to time.
