1.1 “DM Bobcats” means DM Bobcats Ltd, its successors and assigns or any person acting on behalf of and with the authority of DM Bobcats Ltd.
1.2 “Client” means the person/s requesting the Services and/or hiring the Equipment, as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Services” means all Services provided by DM Bobcats to the Client at the Client’s request from time to time and includes means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by DM Bobcats in the course of it conducting, or providing to the Client, any Services.
1.4 “Equipment” means all Equipment (including any accessories) supplied on hire by DM Bobcats to the Client, at the Client’s request from time to time, and:
(a) where the context so permits shall include any incidental supply of Services;
(b) the Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by DM Bobcats to the Client; and
(c) DM Bobcats may, at its sole discretion, decline to supply the Equipment to the Client.
1.5 “Minimum Hire Period” means a period of four (4) hours which shall be applicable to all Equipment hired by the Client from DM Bobcats.
1.6 “Price” means the Price payable for the provision of Services and/or the hire of the Equipment by DM Bobcats to the Client as agreed between DM Bobcats and the Client in accordance with clause 5
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts the provision of the Services and/or Equipment on hire.
2.2 These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and DM Bobcats.
2.3 Any time specified by DM Bobcats for provision of the Services and/or Equipment is an estimate only and DM Bobcats will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Services and/or Equipment to be provided at the time and place as was arranged between both parties. In the event that DM Bobcats is unable to provide the Services and/or Equipment as agreed solely due to any action or inaction of the Client then DM Bobcats shall be entitled to charge a reasonable fee for re-providing the Services and/or Equipment at a later time and date.
2.4 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.
3.1 Unless otherwise limited as per clause 2, the Client agrees that should the Client introduce any third party to DM Bobcats as the Client’s duly authorised representative, that, once introduced, that person shall have the full authority of the Client to order any Equipment and/or variation thereto, on the Client’s behalf, and such authority shall continue until the return of all hired Equipment to DM Bobcats, or the Client otherwise notifies DM Bobcats, in writing, that said person is no longer the Client’s duly authorised, representative.3.2 In the event that the Client’s duly authorised representative, as per clause 1, is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise DM Bobcats, in writing, of the parameters of the limited authority granted to its representative.
3.3 The Client specifically acknowledges and accepts that it will be solely liable to DM Bobcats for all additional costs incurred by DM Bobcats (including DM Bobcats’ profit margin) in supplying any Equipment, or variation/s thereto, requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2, if any).
Change in Control
4.1 The Client shall give DM Bobcats not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by DM Bobcats as a result of the Client’s failure to comply with this clause.
Price and Payment
5.1 At DM Bobcats’ sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by DM Bobcats to the Client; or
(b)DM Bobcats’ quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 DM Bobcats reserves the right to change the Price:
(a) if a variation to the Equipment which are to be provided is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, hard rock barriers below the surface or iron reinforcing rods in concrete, obscured site defects, safety considerations, prerequisite work by any third party not being completed, or hidden pipes and wiring, etc.) which are only discovered on commencement of the Services; or
(d) in the event of increases to DM Bobcats in the cost of labour, etc., which are beyond DM Bobcats’ control.
5.3 At DM Bobcats’ sole discretion, a deposit may be required.
5.4 Time for payment for the Services and/or Equipment being of the essence, the Price will be payable by the Client on the date/s determined by DM Bobcats, which may be:
(a) by way of instalments/progress payments in accordance with DM Bobcats’ payment schedule;
(b) for certain approved Clients, due twenty (20) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by DM Bobcats.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and DM Bobcats.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to DM Bobcats an amount equal to any GST DM Bobcats must pay for any provision of Services and/or Equipment on hire by DM Bobcats under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.
5.7 Receipt by DM Bobcats 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, and until then DM Bobcats’ ownership and rights in regard to the Services, and this agreement, shall continue.
5.8 No allowance has been made in the Price for the deduction of retentions. In the event that retentions are made, DM Bobcats reserves the right to treat all retentions as placing the Client’s account into default.
Provision of the Services
6.1 Subject to clause 2, it is DM Bobcats’ responsibility to ensure that the Services start as soon as it is reasonably possible.6.2 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that DM Bobcats claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond DM Bobcats’ control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Services; or
(c) notify DM Bobcats that the site is ready.6.3 DM Bobcats may provide the Services in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.4 The Client shall ensure that DM Bobcats has clear and free access to the site at all times to enable them to undertake the Services. DM Bobcats shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of DM Bobcats.
6.5 Prior to DM Bobcats commencing the Services the Client must advise DM Bobcats of the precise location of all underground services on the site and clearly mark the same. The underground mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site. Whilst DM Bobcats will take all care to avoid damage to any underground services the Client agrees to indemnify DM Bobcats in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per this clause 5.
6.6 The Client and DM Bobcats shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
6.7 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
6.8 DM Bobcats shall have public liability insurance of at least $5m. It is the Client’s responsibility to ensure that they are similarly insured.
Hire of Equipment
7.1 Delivery of the Equipment is taken to occur at the time that DM Bobcats (or DM Bobcats’ nominated carrier) delivers the Equipment to the Client’s nominated address even if the Client is not present at the address. At DM Bobcats’ sole discretion, the cost of delivery is included in the Price.
7.2 The Equipment is and will at all times remain the absolute property of DM Bobcats, however the Client:
(a) accepts full responsibility for the safekeeping of the Equipment and indemnifies DM Bobcats for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Client; and
(b) shall keep DM Bobcats indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons; and
(c) will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
7.3 The Equipment is, and will at all times remain, the absolute property of DM Bobcats.
7.4 If the Client fails to return the Equipment to DM Bobcats then DM Bobcats or DM Bobcats’ agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
7.5 The Client is not authorised to pledge DM Bobcats’ credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
7.6 Hire charges:
(a) shall commence from the time the Equipment departs from DM Bobcats’ premises and will continue until the return of the Equipment to DM Bobcats’ premises, and/or until the expiry of any applicable minimum hire period, whichever last occurs. The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire; or
(b) (for Equipment in which a timing device is installed) shall be based on the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession
7.7 The Client shall:
(a) satisfy itself at commencement that the Equipment is suitable for its purposes;
(b) maintain the Equipment as is required by DM Bobcats (including, but not limited to, maintaining water, oil and fluid levels and tyre pressures);
(c) operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by DM Bobcats or posted on the Equipment;
(d) ensure that all persons operating the Equipment are suitably instructed in its safe and proper use and are fully licensed to operate the Equipment (and shall provide evidence of the same to DM Bobcats upon request);
(e) comply with all occupational health and safety laws relating to the Equipment and its operation;
(f) keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to lien over the Equipment;
(g) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
(h) employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
(i) not exceed the recommended or legal load and capacity limits of the Equipment;
(j) not use or carry any illegal, prohibited or dangerous substance in or on the Equipment;
(k) notify DM Bobcats immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Client is not absolved from the requirements to safeguard the Equipment by giving such notification;
(l) on termination of the hire, deliver up the Equipment, complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to DM Bobcats;
(m) not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
7.8 Immediately on request by DM Bobcats the Client will pay:
(a) the cost of fuels and consumables provided by DM Bobcats and used by the Client;
(b) any lost hire fees DM Bobcats would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
(c) any insurance excess payable in relation to a claim made by either Client or DM Bobcats in relation to any damage caused by, or to, the Equipment whilst the same is
hired by the Client, and irrespective of whether charged by the Client’s insurers or DM Bobcats’.
Personal Property Securities Act 1999 (“PPSA”)
8.1 Upon assenting to these terms and conditions in writing the Client 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 Equipment and/or collateral (account) – being a monetary obligation of the Client to DM Bobcats for Services – that has previously been provided (if any) and that will be provided in the future by DM Bobcats to the Client.
8.2 The Client 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 DM Bobcats may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, DM Bobcats for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register a financing change statement or a change demand without the prior written consent of DM Bobcats.
8.3 DM Bobcats and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by DM Bobcats, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 The Client shall unconditionally ratify any actions taken by DM Bobcats under clauses 1 to 8.5.
8.7 Only to the extent that the hire of the Equipment exceeds a six (6) month hire period (with the right of renewal) shall this 8 apply, and this contract a security agreement for the purposes of PPSA generally, and in particular Section 36.
9.1 The Client hereby disclaims any right to rescind, or cancel any contract with DM Bobcats or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by DM Bobcats and the Client acknowledges that the Services are bought and/or Equipment is hired relying solely upon the Client’s skill and judgment.
Defects, Errors and Omissions
10.1 The Client shall inspect the Services on completion and/or the Equipment on delivery and/or pick up, and agrees to notify DM Bobcats immediately (time being of the essence) of any alleged evident defect/damage, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford DM Bobcats an opportunity to inspect/review the Services and/or Equipment within a reasonable time following such notification if the Client believes the Services and/or Equipment are defective in any way. If the Client shall fail to comply with these provisions the Services and/or Equipment shall be presumed to be free from any defect or damage. For defective Services and/or Equipment, which DM Bobcats has agreed in writing that the Client is entitled to reject, DM Bobcats’ liability is limited to either (at DM Bobcats’ discretion) rectifying or re-providing the Services and/or replacing or repairing the Equipment.
11.1 To the extent permitted by statute, no warranty is given by DM Bobcats as to the quality or suitability of the Services and/or Equipment for any purpose and any implied warranty, is expressly excluded. DM Bobcats shall not be responsible for any loss or damage to the Services, or caused by the Services and/or Equipment, or any part thereof however arising.
Consumer Guarantees Act 1993
12.1 If the Client is acquiring/hiring Services and/or Equipment for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services and/or Equipment by DM Bobcats to the Client.
13.1 Where DM Bobcats has designed, drawn, written plans or a schedule of Services for the Client, then the copyright in all such designs, drawings, documents, plans and schedules shall remain vested in DM Bobcats, and shall only be used by the Client at DM Bobcats’ discretion.
13.2 The Client warrants that all specifications or instructions given to DM Bobcats will not cause DM Bobcats to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DM Bobcats against any action taken by a third party against DM Bobcats in respect of any such infringement.
13.3 The Client agrees that DM Bobcats may (at no cost) use for the purposes of marketing or entry into any competition, any digital media of the Services and/or Equipment which DM Bobcats has provided to the Client.
Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at DM Bobcats’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes DM Bobcats any money the Client shall indemnify DM Bobcats from and against all costs and disbursements incurred by DM Bobcats in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DM Bobcats’ collection agency costs, and bank dishonour fees).
14.3 Further to any other rights or remedies DM Bobcats may have under this contract if a Client has made payment to DM Bobcats, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by DM Bobcats under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
14.4 Without prejudice to any other remedies DM Bobcats may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DM Bobcats may suspend or terminate the provision of Services and/or Equipment to the Client (and/or DM Bobcats may repossess the Equipment as per clause 3). DM Bobcats will not be liable to the Client for any loss or damage the Client suffers because DM Bobcats has exercised its rights under this clause.
14.5 Without prejudice to DM Bobcats’ other remedies at law DM Bobcats shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DM Bobcats shall, whether or not due for payment, become immediately payable if:
(a) any money payable to DM Bobcats becomes overdue, or in DM Bobcats’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by DM Bobcats;
(c) the Client 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 Client or any asset of the Client.
15.1 If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. The arbitration should be under a single arbitrator agreed upon by both parties, or failing agreement, by two arbitrators (one to be appointed by each party) and their umpire (appointed by them prior to arbitration), such arbitration to be carried out in accordance with provisions of the Arbitration Act 1996.
16.1 DM Bobcats may cancel any contract to which these terms and conditions apply or cancel provision of the Services and/or Equipment at any time before the Services have commenced and/or the Equipment is delivered by giving written notice to the Client. On giving such notice DM Bobcats shall repay to the Client any money paid by the Client for the Services and/or hire of Equipment. DM Bobcats shall not be liable for any loss or damage whatsoever arising from such cancellation.16.2 In the event that the Client cancels provision of the Services and/or Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by DM Bobcats as a direct result of the cancellation (including, but not limited to, any loss of profits).
Privacy Act 1993
17.1 The Client authorises DM Bobcats or DM Bobcats’ agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by DM Bobcats from the Client directly or obtained by DM Bobcats 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 Client.
17.2 Where the Client is an individual the authorities under clause 1 are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Client shall have the right to request DM Bobcats for a copy of the information about the Client retained by DM Bobcats and the right to request DM Bobcats to correct any incorrect information about the Client held by DM Bobcats.
Construction Contracts Act 2002
18.1 The Client hereby expressly acknowledges that:
(a) DM Bobcats has the right to suspend the Services within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(ii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to DM Bobcats by a particular date; and
(iv) DM Bobcats has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if DM Bobcats suspends the Services, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming through the Client; and
(iii)is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s determination has not been complied with.
(c) if DM Bobcats exercises the right to suspend the Services, the exercise of that right does not:
(i) affect any rights that would otherwise have been available to DM Bobcats under the Contractual Remedies Act 1979; or
(ii) enable the Client to exercise any rights that may otherwise have been available to the Client under that Act as a direct consequence of DM Bobcats suspending the Services under this provision.
Service of Notices
19.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 The failure by either party DM Bobcats 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.
20.2 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 Hamilton Courts of New Zealand.
20.3 DM Bobcats shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by DM Bobcats of these terms and conditions (alternatively DM Bobcats’ liability shall be limited to damages which under no circumstances shall exceed the Price).
20.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by DM Bobcats nor to withhold payment of any invoice because part of that invoice is in dispute.
20.5 Neither party shall assign or sub-contract all or any part of their rights and obligations under this agreement without the written consent of the other party.
20.6 The Client agrees that DM Bobcats may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for DM Bobcats to provide Services to the Client.
20.7 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.
20.8 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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