Hire & Sales Consumer Contract terms and Conditions (“Consumer Conditions”)
November 2020

1. CONSUMER CONDITIONS
1.1 The Consumer Conditions set out below shall apply to and are
incorporated into any contract for the hire and/or sale of goods
(“equipment”) as detailed in the contract details page (“Contract
Details”) between South Auckland Digger Hire Limited (the “Owner”)
and the consumer hiring or buying the equipment (“Hirer”) (together,
the “Contract”).
1.2 For the purposes of this Contract, “consumer” means a Hirer who is
a “consumer” for the purposes of the Consumer Guarantees Act
1993 and/or the Fair Trading Act 1986.
1.3 Nothing in this Contract affects, or attempts to exclude in any way,
the Hirer’s rights under the Consumer Guarantees Act 1993.
1.4 If the Hirer is in trade (within the meaning of the Consumer
Guarantees Act 1993) and the equipment is supplied to the Hirer
and acquired by the Hirer in trade, the Owner and the Hirer
confirm, acknowledge and agree that:
(a) these Consumer Conditions will be substituted with the
South Auckland Digger Hire Ltd Hire & Sales Trade Contract
Terms and Conditions (“Trade Conditions”); and
(b) the statutory guarantees and implied terms, covenants and
conditions contained in the Consumer Guarantees Act 1993 do
not apply.
1.5 It is not intended that any Contract will be either a consumer credit
contract or a consumer lease for the purposes of the Credit
Contracts and Consumer Finance Act 2003.

2. AMENDMENTS
2.1 The Owner may amend any terms of the Consumer
Conditions at any time, in its sole discretion, by posting
updated Consumer Conditions on its website.
(www.southaucklanddiggerhire.co.nz)
2.2 Notwithstanding clause 2.1, the Hirer will continue to be subject
to the Consumer Conditions attached to, and in effect at the time
the Hirer entered into, the Contract. Any amended Consumer
Conditions shall only apply to a new contract for the hire and/or
sale of goods entered into between the Owner and the Hirer.

3. HIRE CHARGES
3.1 Equipment may be hired for: a) Half Day; b) Daily; c) Weekly;
d) Monthly; or e) as otherwise agreed to in writing. The Hirer
agrees that the Owner may charge extra on a pro-rata basis for any
equipment usage in excess of the agreed hire
periods or the maximum usage times (in the case of metered
equipment) as set out in clause 3.2 or otherwise agreed to
in writing. Certain equipment may carry minimum hiring periods
and maximum usage times and these will be notified to the Hirer and
itemised in the Contract Details at the time the relevant equipment is
hired.
3.2 The “hire periods” and “maximum usage times” are: “Half
Day” means 4 hours or overnight provided the
equipment is picked up after 4.00pm and returned by 8.30am
the following day (maximum usage time 4 hours); “Daily”
means 24 hours (maximum usage time 8 hours);
“Weekly” means 7 days (maximum usage time 40 hours); and
“Monthly” means 28 days (e.g. if pick up occurs on the 1st of a
month, return is to be by 4.00pm on the 28th of the month
(maximum usage time 160 hours)).
3.3 The hire period begins from the time the equipment leaves the
Owner’s premises and runs until the equipment is either returned to
the Owner at the place of hire, removed by the Owner pursuant to
clause 5, or the Contract is terminated pursuant to clause 6.
3.4 The Hirer shall pay as invoiced for the following charges itemised
in the Contract Details or otherwise notified to the Hirer:
(a) the hire charges for the hire period of all equipment used;
(b) a bond of 150% of the estimated total charges if
applicable (see clause 4.2 below);
(c) the damage waiver charges (unless the Owner has agreed
otherwise in writing);
(d) delivery/removal charges (if applicable);
(e) excess use charges (if applicable);
(f) any damage to or loss of the equipment not covered by the
damage waiver (if applicable);
(g) cleaning fees (if applicable); and
(h) default interest for late payment (if applicable).
3.5 If the Weekly charge rate is less than the accumulated Daily charge
rate over the same hire period, the Weekly charge rate will apply.
3.6 Cleaning fees will be assessed and charged if the Hirer returns
equipment that the Owner deems (in its sole discretion
but acting reasonably) to be excessively dirty. If the Owner
determines on this basis that the equipment will require
additional cleaning, the Owner will advise the Hirer at the time the
equipment is returned and notify the Hirer of the relevant cleaning
fees either:
(a) at the time the Hirer returns the equipment; or
(b) as soon as reasonably practicable after the Hirer returns the
equipment if assessment of the cost of cleaning cannot be
determined at the time the Hirer returns the equipment.

4. PAYMENT AND DEFAULT INTEREST
4.1 All charges will specify whether they are inclusive or exclusive of
GST and the Contract Details will set out the charges and
applicable GST payable by the Hirer.
4.2 For hire of equipment, unless the Hirer has a credit account with
the Owner:
(a) the Hirer will be required to pay a bond of 150% of the
estimated total charges; and
(b) on return of the equipment in good order and condition, the
actual total charges will be calculated and the Hirer will either
pay the balance outstanding, or be refunded with the
difference between the bond paid by the Hirer and the actual
total charges.
4.3 Unless otherwise agreed in writing by the Owner, the Hirer must
pay, or the Hirer’s account will be charged with, the cost of the
damage waiver for hired equipment, the amount of which is
specified in the Contract Details (see clause 10 for further details on
the damage waiver).
4.4 For purchase of equipment, the Hirer will pay the Owner the agreed
price. Risk in this equipment passes to the Hirer on delivery of the
equipment and title will pass on payment in full to the Owner.
4.5 For credit account customers, the Owner will send the Hirer an
invoice for charges incurred. The Hirer must pay the invoice by the
20th of the month following the date of invoice. The Owner reserves
the right to reverse any previously agreed discount for credit account
customers if the account is not paid in full by the due date.
4.6 All Hirer queries or issues with invoiced amounts must be
raised with the Owner within one month of the date on the
relevant invoice so that any such queries or issues can be
promptly reviewed and resolved.
4.7 The Owner reserves the right to apply payments received in any
manner the Owner determines.
4.8 Without prejudice to the Owner’s other remedies under these
Consumer Conditions, at law or otherwise, the Hirer will pay default
interest at the rate of 2% above the Owner’s overdraft rate per
calendar month on all outstanding amounts from the end of the
agreed hire period (for cash customers) or from the 20th of the
month following date of invoice (for credit account customers), until
all monies have been paid in full.
4.9 The Hirer must make all payments due under the Contract (time
being of the essence) without set-off or deduction of any kind.
4.10No credit shall be extended on overdue accounts.
4.11 The Hirer must immediately notify the Owner of any occurrence of
mechanical defect, break down, theft, accident or damage to the
equipment. Subject to clause 4.12, provided that:
(a) the Owner can replace the equipment; and
(b) the hire period is not affected,
the Hirer’s obligations to pay charges and any other sums to the
Owner shall continue despite any mechanical defect, break
down, theft of, or accident or damage caused to the equipment.
Where replacement equipment cannot be supplied by the Owner
and/or the hire period is affected, the charges payable by the
Hirer will be adjusted to reflect the reduced hire period.
4.12Notwithstanding anything else in the Contract, where any
occurrence of mechanical defect, break down, theft, accident or
damage to the equipment is a result of the negligent or reckless
acts or omissions of the Hirer, the Owner will be under no
obligation to replace the equipment and the Hirer’s obligations to
pay charges and any other sums to the Owner shall continue.

5. DELIVERY AND REMOVAL
5.1 Delivery and removal charges itemised in the Contract Details are
payable by the Hirer and are in addition to the hire/ purchase
charges.
5.2 If hired equipment is to be removed by the Owner, hired
equipment must be packed up and ready for loading at the prearranged time and place and assistance rendered for loading.
5.3 The Hirer grants to the Owner, or will procure that the Owner is
granted, an irrevocable right and authority to enter, and for the
Owner to bring vehicles at any time onto, the place where the
equipment is to be used or is located to deliver and/
or remove hired equipment either on the expiry of the hire period or
on termination of the Contract.
5.4 Any requests for removal of hired equipment must be arranged
with the relevant branch prior to completion of the hire either by
telephone or email. The relevant removal
cost will be notified to the Hirer and itemised in the Contract Details.
5.5 The Owner must provide the Hirer with either an offhire number,
pick up ticket number or return slip when hired equipment has
either been finished with and is awaiting pickup or has been
returned to the place of hire, and the Hirer must retain such
document or number as evidence that the equipment has been
returned.

6. RIGHT TO TERMINATE
6.1 The Hirer may terminate the Contract by notice with immediate
effect if the Owner fails to comply with any term of the Contract,
in which case the Hirer will be entitled to receive a refund of
charges paid to the Owner which may be pro-rated to reflect the
reduced hire period.
6.2 The Owner may terminate the Contract by notice with
immediate effect if:
(a) the Hirer fails to comply with any material term of the
Contract;
(b) the Owner believes on reasonable grounds that hired
equipment may be at risk for any reason whatsoever,
including the manner of its use by the Hirer, adverse weather
or work conditions, or the Hirer is unable to, or might be unable
to, pay any charge, cost, purchase price or fee in connection
with the equipment under these Consumer Conditions;
(c) it becomes apparent that for any reason (including
through the resignation of a Guarantor) there will be no
personal guarantees given in respect of the Hirer’s
obligations under the Contract; or
(d) any step is taken to appoint a receiver, manager, trustee in
administration, liquidator, provisional liquidator,
statutory manager, administrator or other like person over the
whole or any part of the Hirer’s assets or business.
6.3 Where the Owner terminates the Contract pursuant to clause 6.2, the
Hirer indemnifies the Owner against, and shall pay to the Owner
upon demand, any cost (including legal costs),
claim, damage, expense or liability suffered or incurred by the Owner
whether arising directly or indirectly from the Owner acting to recover
any equipment hired or monies payable by the Hirer pursuant to the
Contract.
6.4 Upon termination of this Contract the Hirer shall forthwith deliver up
any hired equipment to the Owner and shall pay to the Owner:
(a) all hire charges and other moneys due to the Owner at the date of
termination; and
(b) the balance of all hire charges yet to accrue from the date of
termination to the expiry of the term of the Contract discounted
for early payment in such amount as the Owner at its sole
discretion allows, provided that the Owner has terminated the
Contract:
(i) due to the negligent or reckless acts or omissions of the
Hirer or breach by the Hirer of the Contract; and
(ii) such acts, omissions or breach resulted in the Owner
not being able to hire the equipment out to other
customers.
6.5 Termination of the Contract by the Owner is without prejudice to any
rights that the Owner may have under this Contract.

7. ASSIGNMENT
7.1 The Hirer shall not assign any of the Hirer’s rights or interests under
the Contract to any person, and shall not assign, sublet, charge or
part with possession of hired equipment or any part of it.
7.2 The Owner may at any time assign its rights or interests, or any
part thereof, (whether absolutely, or by way of security) or transfer
its obligations or any part thereof under the Contract, to any
person.

8. HIRER’S OBLIGATIONS
8.1 The Hirer shall:
(a) if hired equipment is intended to be used in a location or
manner which is outside its usual or ordinary use, advise the
Owner of the intended location and/or nature of use at the time of
hiring the equipment;
(b) comply with any special conditions or exclusions (which may
apply to specific equipment or the nature or location of the
Hirer’s intended use of such equipment) notified
to the Hirer prior to the equipment leaving the Owner’s
premises and detailed in the Contract Details;
(c) take proper and reasonable care of hired equipment
(including keeping the equipment locked and secured when
not in use) and return it to the Owner at the end of the hire
period (to the place of hire, unless otherwise specified in the
Contract Details) in the same order and condition as at the
commencement of the hire (fair wear
and tear excepted) and in a reasonably clean state (taking into
account the cleanliness of the equipment at the outset of the hire
period);
(d) carry out all necessary daily servicing of hired equipment,
(including the inspection and/or the supply of all necessary tyre
pressures, water, oils, grease and fuel as may reasonably be
required as part of the daily operation of the hired equipment) at
the HIRER’S OWN EXPENSE;
(e) subject to clause 8.1(a) and any discussions between the
Owner and Hirer regarding the Hirer’s intended use, satisfy itself
that the hired equipment is suitable for the Hirer’s intended use;
(f) use hired equipment in a lawful manner with due regard to all
laws and regulations pertaining to the use of such equipment;
(g) if the equipment is hired, immediately cease operating the
equipment and notify the Owner by telephone if the equipment
is faulty, breaks down or if any warning light
or buzzer is activated, or if any certificates or licenses required
by law or regulation (for example, registration, warrant of fitness
or road user charges) are due to expire during the period of hire;
(h) notify the Owner immediately if hired equipment is lost, stolen or
damaged and follow all reasonable instructions of the Owner;
(i) unless such loss is covered by the damage waiver pursuant to
clause 10, be responsible, and indemnify the Owner, for any
loss, theft or damage to hired equipment that occurs as a result
of the negligent or reckless acts
or omissions of the Hirer from the time the Hirer takes
possession of the equipment until it is returned to the
Owner’s possession including:
(i) in the case of damage, the full cost of all repairs to
restore the equipment to the condition it was in at the
time of hire; and
(ii) in the case of loss, theft or irreparable damage to the
equipment, the market value of the equipment;
(j) unless such loss is covered by the damage waiver pursuant to
clause 10, in addition to the costs set out in clause 8.1(i), be
responsible for and indemnify the Owner for any loss of revenue
suffered by the Owner due to the unavailability of the equipment
for hire due to loss, theft or damage caused as a result of the
negligent or reckless acts or omissions of the Hirer; and
(k) not remove, deface or obscure any marks of identification or
ownership or registration on hired equipment.
8.2 The Hirer warrants that all persons who use hired equipment shall be
COMPETENT and QUALIFIED to use the equipment, shall only use
the equipment in the manner it was designed to be used, and follow
any directions from the Owner, local authorities, codes of practice
and/or the manufacturer of the equipment relating to the use and
safety of the equipment and shall comply with all obligations in
relation to the use and control of the equipment and the persons
using said equipment in accordance with the Health and Safety at
Work Act 2015 (if applicable) and all other relevant legislation and
applicable regulations.
8.3 The Hirer shall, on reasonable notice by the Owner, advise the Owner
of the whereabouts of hired equipment and allow the Owner
reasonable time to inspect and test the equipment and for such
purposes the Hirer gives irrevocable leave
and license to the Owner to enter any premises where the
equipment or any part of the equipment may be and take
possession of and/or remove the equipment where continued use of
the equipment may pose a health and safety risk to
the Hirer (to be determined by the Owner acting reasonably). Where
the hire period is disrupted, and replacement equipment cannot be
provided by the Owner, the charges payable by the Hirer will be
amended to reflect the reduced hire period and where the Hirer has
paid in advance for the hire of the equipment, the Hirer will be
entitled to a pro-rated refund.

9. PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)
9.1 The Hirer acknowledges that title to hired equipment remains with the
Owner at all times. Equipment purchased from the Owner remains
the property of the Owner until paid for in full.
9.2 The Hirer agrees that the hire of the equipment may, and that the
acquisition of the equipment does, create a security interest in the
equipment to secure the full payment of
all moneys payable to the Owner and the performance by the
Hirer of all of its other obligations to the Owner. If the Contract
(including these Consumer Conditions) constitutes a security
interest, this document constitutes a security agreement for the
purposes of the PPSA and the provisions of clauses 9.3 to 9.5
apply. Unless otherwise defined in the Contract (including these
Consumer Conditions), all terms in
this clause 9 have the meaning given to them in the PPSA and section
references are sections to sections of the PPSA.
9.3 On the request of the Owner, the Hirer shall promptly execute any
documents, provide all necessary information and do anything
else required by the Owner to ensure that the security interest
created under the Contract (including these Consumer Conditions)
constitutes a perfected security interest in the equipment and their
proceeds which will have priority over all other security interests in
the equipment.
9.4 The Owner may allocate all amounts received by the Hirer in any
manner it determines including any manner required to preserve
any purchase money security interests in the equipment.
9.5 The Hirer will pay to the Owner all fees and expenses incurred by the
Owner in relation to the filing and maintenance of a financing
statement in connection with the Contract.
9.6 The Hirer waives its rights under sections 114(1)(a),116, 120(2), 121,
125, 126, 127, 129, 131, 133 and 148 of the PPSA.
9.7 Nothing in this clause 9 affects the Owner’s rights as an unpaid
seller in relation to equipment purchased from the Owner.

10. HIRE DAMAGE WAIVER
10.1 The Hirer must pay for the damage waiver unless the Owner has
agreed otherwise in writing (in which case clause 10.7 applies).
The Hirer is not entering into a contract of insurance with the Owner
by paying for the damage waiver.
10.2Excess: In the event of any loss, theft or damage to the equipment
which is covered by the damage waiver, the Hirer must also pay an
excess charge. The excess charge is 25%
of the market value of the equipment (up to a maximum of
$5,000) plus GST for any one item of equipment, or as otherwise
agreed between the parties and detailed in the Contract Details.
10.3Subject to the exclusions set out in clause 10.4, the Hirer shall not be
liable to the Owner for any loss of or damage to the hired
equipment during the term of hire PROVIDED THAT the Hirer:
(a) has at all times acted reasonably and with reasonable care;
(b) has delivered to the Owner (within 12 hours of the time when
the Hirer first becomes aware of the loss of or damage to the
equipment) a complete, correct, written report of the
circumstances of such loss of or damage to the equipment,
including, in the case of any loss appearing to result from any
criminal act, an applicable police complaint
acknowledgement form; and
(c) has complied with its obligations under clause 8.1; and
(d) has assisted the Owner (on the Owner’s reasonable request) for
the purposes of enabling the Owner to recover such loss or
damage.
10.4 Exclusions: The damage waiver does not cover:
(a) theft of or criminal damage to equipment unless
reasonably locked and secured;
(b) damage or loss due to misuse, abuse or overloading of
the equipment or failure to take reasonable care of it
(including any overloading of any motors or other
electrical appliances or devices);
(c) damage caused to tyres and tubes by blowout, bruises, cuts,
kerbing or other causes arising from the use of the equipment;
(d) loss or damage to the hired equipment resulting from lack of
lubrication or other normal servicing of the equipment;
(e) loss or damage of tools, digger buckets, accessories, grease
guns, hoses and similar, electrical cords, welding cable,
oxygen and/or acetylene bottles, pneumatic tools, steels and
other similar accessories;
(f) loss or damage to the hired equipment where such loss or
damage is due to any incident or accident involving (in any
way) water;
(g) loss or damage to any equipment or items on which the
damage waiver is not charged;
(h) loss or damage of the equipment arising from a breach by the
Hirer of the conditions of the Contract;
(i) loss or damage due to the Hirer’s breach of any special
conditions or exclusions notified to the Hirer in accordance
with clause 8.1(b); or
(j) loss or damage from the use of the equipment in violation of any
statute, regulation or by-law.
10.5 The parties agree that section 11 of the Insurance Law Reform Act
1977 will apply with respect to the exclusions in clause
10.4 as if this clause 10 constituted a contract of insurance
(notwithstanding that this clause 10 is not a contract of
insurance).
10.6 If the damage waiver does not cover or does not apply to the Hirer
under clauses 10.3 or 10.4, without limiting any other rights or
remedies that may be available to the Owner at law or under the
Contract, the Hirer shall pay to the Owner:
(a) in the case of loss or irreparable damage, the market value of the
equipment; and
(b) in the case of damage, the full cost of all repairs to restore the
equipment to the condition it was in at the time of hire.
10.7 If the Owner has agreed in writing to allow the Hirer not to
purchase the damage waiver:
(a) the Hirer hires the equipment at the Hirer’s own risk; and
(b) indemnifies the Owner against any and all loss in respect of any
loss of or damage to the equipment (except where the loss or
liability has arisen due to the negligence of the Owner or where
the Owner has willfully, negligently or recklessly supplied
defective equipment to the Hirer).

11. LIMITATION OF LIABILITY, INJURY OR DAMAGE TO HIRER,
THIRD PERSON OR PROPERTY
11.1As a consumer, the Hirer is entitled to certain rights and
remedies under the Consumer Guarantees Act 1993. For the
avoidance of doubt, nothing in this Contract affects, or attempts to
exclude in any way, the Hirer’s rights under the Consumer
Guarantees Act 1993.
11.2Other than for claims made under the Consumer Guarantees Act
1993, the maximum aggregate liability of the Owner for all claims
made by the Hirer will not exceed:
(a) in the case of any equipment purchased by the Hirer, an
amount of $2,500; and
(b) in the case of any equipment hired, the lesser of the hire charges
paid by the Hirer to the Owner pursuant to the Contract and
three months’ hire charges paid by the Hirer to the Owner
pursuant to the Contract,
except where such liability arises as a result of the negligence
of the Owner or where the owner has willfully, negligently or
recklessly supplied defective equipment to the Hirer.
11.3Unless such loss is covered by the damage waiver under
clause 10, the Hirer will indemnify the Owner against any
liability, losses, damages or expenses incurred or suffered by
the Owner as a result of any claim made by a third person against
the Owner in respect of any loss or liability arising from the
Contract or arising out of the use of the equipment hired or
purchased by the Hirer, except where the loss or liability has
arisen due to the negligence of the Owner or where the Owner
has willfully, negligently or recklessly supplied defective
equipment to the Hirer.
11.4Subject to clause 10, the maximum aggregate liability of the Hirer
under these Consumer Conditions, will not exceed:
(a) in the case of damage to hired equipment, the full cost of all
repairs to restore the equipment to the condition it was in at the
time of hire; and
(b) in the case of loss, theft or irreparable damage to the
equipment, the market value of the equipment.

12. NOTICES
12.1Notices shall be properly served on a person if delivered by hand or
left at or posted in any prepaid letter addressed to that person at
either the job address or any other address of the Hirer specified on
the Contract Details page. Service by post shall be deemed to be
effected on the second day after the day on which the notice was
posted.

13. GENERAL
13.1Headings are inserted for convenience and shall not affect the
construction of the Contract. The singular includes the plural and
vice versa. Words with initial capitals have the meaning ascribed to
them in context or as defined in clause 3.1. Persons include
incorporated and unincorporated entities. Words implying one
gender include the other. A reference to a clause or sub clause is a
reference to a clause or sub clause hereof. A reference to Owner
includes its servants, agents, successors and assigns. The word
“including” does not imply limitation.
13.2 If at any time any provision of the Contract is or becomes illegal,
invalid or unenforceable in any respect under the law of New
Zealand, that will not affect or impair the legality, validity or
enforceability of any other provision of this Contract.
13.3Nothing expressed or implied in this Contract will constitute either
party as the partner, agent, employee or officer of, or joint venturer
with, the other party.
13.4 This Contract is governed by the laws of New Zealand. The
parties agree to submit to the non-exclusive jurisdiction of the
courts of New Zealand.

14. PRIVACY ACT 1993
14.1 The Owner requires personal information and will collect and
hold personal information about the Hirer, principally for the
purpose of evaluating the hire of equipment by the Hirer. The
Hirer’s application to hire equipment may be declined or the hire
terminated if the Hirer fails to provide requested personal
information. The Hirer can access and
seek correction of any personal information by contacting the Owner.
The Hirer agrees that its personal information may be used by the
Owner to advise the Hirer of the Owner’s other goods and services.
The Hirer authorises the disclosure of personal information held by
any other party regarding any previous hire contracts entered into
by the Hirer.
14.2 The Hirer and each person who signs the Owner’s Application for
Credit authorises the Owner:
(a) to collect, retain and use information about the Hirer or such
other signatory from any person for the purpose of
assessing the Hirer’s or such other signatory’s
creditworthiness;
(b) to disclose information about the Hirer or such other
signatory:
(i) to any person who guarantees, or who provides
insurance, or who provides any other credit support, in
relation to the Hirer’s obligations to the Owner; and/or
(ii) to such persons as may be necessary or desirable to
enable the Owner to exercise any rights under the
Contract.