Terms & conditions

INSURANCE Equipment is not insured whilst on hire. If you do not have insurance cover in place a quote can be provided by Loco Gear. EARLY RETURNS -The equipment rental rate is based on the period of this quote. If equipment is returned early we reserve the right to adjust the quoted amount at our discretion.

Definitions

1. “Contract” means the terms and conditions contained herein, together with any quotation, hire form, invoice or other document or amendments expressed to be supplemental to this Contract.
2. “Loco Gear” shall mean NingLTC Limited T/A Loco Gear, its successors and assigns or any person acting on behalf of and with the authority of NingLTC Limited T/A Loco Gear.
3. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Loco Gear to provide the services as specified in any proposal, quotation, order, invoice or other documentation, and:
- 3.1. If there is more than one client, it shall bind each partner jointly and severally; and
- 3.2. if the Client is a partnership, it shall bind each partner jointly and severally; and
- 3.3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
- 3.4. includes the Client’s executors, administrators, successors and permitted assigns.
4. “Equipment and/or Vehicle” shall mean all Equipment and/or Vehicle (including any accessories, lights, rigging etc) supplied on hire by Loco Gear to the Client (and where the context so permits shall include any incidental supply of services). The Equipment and/or Vehicle shall be as described on the invoices, quotation, authority to hire, or any
5. “Minimum Hire Period” shall mean the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by Loco Gear to the Client.
6. “Site” means the location/s at which the Equipment and/or Vehicle and/or Vehicle is to be used and/or operated.
7. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
8. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using Loco Gear’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
9. Charges” shall mean the cost of the hire (including any Goods and Services Tax (GST) where applicable) of the Equipment and/or Vehicle and/or Vehicle as agreed between Loco Gear and the Client subject to clause 5 of this Contract.
10. “Business Days” shall mean Monday to Friday and shall not include Saturday or Sunday and/or a public holiday in the area of the Site or throughout New Zealand (whether a whole or part of a day).

2. Acceptance

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 Delivery of any Equipment and/or Vehicle.
2.2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4. The Client acknowledges and agrees that:
- 2.4.1. the supply of Equipment and/or Vehicle on credit shall not take effect until the Client has completed a credit application with Loco Gear and it has been approved with a credit limit established for the account;
- 2.4.2. in the event that the supply of Equipment and/or Vehicle requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, Loco Gear reserves the right to refuse Delivery;
- 2.4.3. Vehicle kilometer’s will be charged as specified in the attached schedule plus GST per kilometre travelled. The Client shall be responsible for consumables i.e replacement bulbs, petrol, diesel and/or Vehicle oils;
- 2.4.4. all quotes supplied by Loco Gear for Equipment and/or Vehicle/s are based on a five (5) day working week (travel, prep and wrap days are excluded); and
- 2.4.5. in the absence of any special arrangements to the contrary all Equipment is subject to a daily hire rate (inclusive of, Saturday, Sunday and/or public holidays)
2.5. The Client acknowledges and agrees that the location and use of all Equipment supplied by Loco Gear (and any associated Loco Gear Equipment) is within New Zealand only; use outside the New Zealand market is prohibited, unless written consent is granted by Loco Gear.
2.6. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1. The Client acknowledges and accepts that Loco Gear shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- 3.1.1. resulting from an inadvertent mistake made by Loco Gear in the formation and/or administration of this Contract; and/or
- 3.1.2. contained in/omitted from any literature (hard copy and/or electronic) supplied by Loco Gear in respect of the Equipment and/or Vehicle hire and/or/services.
3.2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or willful misconduct of Loco Gear; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in Control.

4.1. The Client shall give Loco Gear 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by Loco Gear as a result of the Client’s failure to comply with this clause.

5. Charges and Payment

5.1. At Loco Gear’s sole discretion, the Charges shall be either;
- 5.1.1. as indicated on invoices and/or as per the attached schedule provided by Loco Gear to the Client; or
- 5.1.2. Loco Gear’s quoted price (subject to clause 5.2) which shall be binding upon Loco Gear provided that the Client shall accept Loco Gear’s quotation in writing within twenty (20) days.
5.2. Loco Gear reserves the right to change the Price:
- 5.2.1. if a variation to the Equipment which are to be supplied is requested (including but not limited to, product swap out or additional equipment etc); or
- 5.2.2. any relocation (including outside of New Zealand) and/or alteration of the Equipment and/or Vehicle/s; or
- 5.2.3. in the event that overseas transactions increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges or increases to Loco Gear in the cost of labour or materials which are beyond Loco Gear’s control.
5.3. Variations will be charged for on the basis of Loco Gear’s quotation, and will be detailed in writing, and shown as variations on Loco Gear’s invoice. The Client shall be required to respond to any variation submitted by Loco Gear within ten (10) Business Days. Failure to do so will entitle Loco Gear to add the cost of the variation to the Charges.
5.4. At Loco Gear’s sole discretion, a deposit (in the form of a bond) shall be required at the commencement of this Contract, which shall be refunded to the Client by within thirty (30) days of the return of the Equipment and/or Vehicle, provided that the Client has complied with their obligations hereunder. The deposit may be used to offset any applicable Charges payable by the Client under clause 12.3, and any outstanding balance thereof shall be due as per clause 5.5.
5.5. Time for payment for the Equipment and/or Vehicle being of the essence, the Charges will be payable by the Client on the date/s determined by Loco Gear, which may be:
- 5.5.1. the date specified on any invoice or other form as being the date for payment; or
- 5.5.2. by way of instalments in accordance with Loco Gear’s payment schedule;
- 5.5.3. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Loco Gear.
5.6. Any discounts applicable to the Price shall become null and void if payment is not made by the due date stated on the invoice and/or statement.
5.7. Loco Gear may in its discretion allocate any payment received from the Client towards any invoice that Loco Gear determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Loco Gear may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Loco Gear, payment will be deemed to be allocated in such manner as preserves the maximum value of Loco Gear’s Purchase Money Security Interest (as defined in the PPSA) in the Equipment and/or Vehicle.
5.8. Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Loco Gear. Payment is to be direct credited to the following account: Westpac Ponsonby 03-0255- 0265246-00.
5.9. Receipt by Loco Gear 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.
5.10. The Client shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Client by Loco Gear nor to withhold payment of any invoice because part of that invoice is in dispute.
5.11. Unless otherwise stated the Charges does not include GST. In addition to the Charges, the Client must pay to Loco Gear an amount equal to any GST Loco Gear must pay for any supply by Loco Gear under this or any other agreement for the hire of the Equipment and/or Vehicle. 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 Charges. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Charges except where they are expressly included in the Charges.

6. Hire Period

6.1. Hire Charges (including but not limited to, any freight charges from and to Loco Gear’s warehouse or depot) shall commence from the time the Equipment and/or Vehicle departs from Loco Gear’s premises and will continue until the return of the Equipment and/or Vehicle to Loco Gear’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
6.2. For Equipment and/or Vehicle in which a device is installed and it has not been agreed that bulb time is not included the hire period shall be the number of hours or part thereof recorded on the timing device whilst the Equipment is in the Client’s possession.
6.3. The date upon which the Client advises of termination shall in all cases be treated as a full day’s hire.
6.4. Loco Gear shall, at their sole discretion, extend or reduce the hire term in the event that there are changes in the Client’s production schedule, (including but not limited to, production exigencies or unforeseen delays due to adverse weather, additional time required for the completion of scenes etc) providing that the Client gives Loco Gear two (2) weeks written notice at any time within six (6) months after the expiry of the term.
6.5. Upon written approval from Loco Gear and in the event that the Contract terms have been:
- 6.5.1. extended, then the Client shall pay Loco Gear the rate for the additional hire periods as per Clause 5; or
- 6.5.2. Reduced by the client, Loco Gear will re-calculate the hire charges at a pro-rata rate.
6.6. No allowance whatever can be made for time during which the Equipment and/or Vehicle is not in use for any reason, unless Loco Gear confirms special prior arrangements in writing. In the event of Equipment and/or Vehicle breakdown provided the Client notifies Loco Gear immediately, hiring Charges will not be payable during the time the Equipment and/or Vehicle is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Client.

7. Delivery

7.1. Delivery (“Delivery”) of the Equipment and/or Vehicle is taken to occur at the time that the Client or the Client’s nominated carrier takes possession of the Equipment and/or Vehicle at Loco Gear’s address.
7.2. At Loco Gear’s sole discretion, the cost of Delivery is in addition to the Charges.
7.3. Equipment and/or Vehicle may be delivered by separate installments.
7.4. Any time specified by Loco Gear for Delivery of the Equipment and/or Vehicle is an estimate only and Loco Gear will not be liable for any loss or damage incurred by the Client as a result of Delivery being late. However, both parties agree that they shall make every endeavour to enable the Equipment and/or Vehicle to be supplied at the time and place as was arranged between both parties. In the event that Loco Gear is unable to supply the Equipment and/or Vehicle as agreed solely due to any action or inaction of the Client, then Loco Gear shall be entitled to charge a reasonable fee for re-supplying the Equipment and/or Vehicle at a later time and date, and/or for storage of the Equipment and/or Vehicle.

8. Risk and Insurance

8.1. Loco Gear retains property in the Equipment and/or Vehicle nonetheless; all risk for the Equipment and/or Vehicle passes to the Client on Delivery.
8.2. The Client accepts full responsibility for the safekeeping of the Equipment and/or Vehicle and indemnifies Loco Gear for all loss theft or damage to the Equipment and/or Vehicle 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.
8.3. Loco Gear provides a comprehensive insurance cover and, in the event, that the Client chooses to be covered by the insurance cover offered by Loco Gear, Loco Gear will provide a quotation for the insurance premium.
8.4. In the event that the Client elects to have their own insurance cover, the Client will insure Loco Gear’s interest in the Equipment and/or Vehicle against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment and/or Vehicle. Further the Client will not use the Equipment and/or Vehicle nor permit it to be used in such a manner as would permit an insurer to decline any claim. The Client shall upon request from Loco Gear provide evidence of the insurance cover.
8.5. Immediately on request by Loco Gear the Client will pay any insurance excess payable in relation to a claim made by either the Client or Loco Gear in relation to any damage caused by, or to, the hire Equipment and/or Vehicle whilst the same is hired by the Client and irrespective of whether charged by the Client’s insurers or Loco Gear’s.
8.6. The Client accepts full responsibility for and shall keep Loco Gear 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 and/or Vehicle during the hire period and whether or not arising from any negligence, failure or omission of the Client or any other persons.

9. Title

9.1. The Equipment and/or Vehicle is and will at all time remain the absolute property of Loco Gear.
9.2. If the Client fails to return the Equipment and/or Vehicle to Loco Gear then Loco Gear or Loco Gear’s agent may (as the invitee of the Client) enter upon and into land and premises .0.
9.3. The Client is not authorised to pledge Loco Gear’s credit for repairs to the Equipment and/or Vehicle or to create a lien over the Equipment and/or Vehicle in respect of any repairs.

10. Personal Property Securities Act 1999 (“PPSA”)

Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

10.1.1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
10.1.2. a security interest is taken in all Equipment and/or Vehicle and/or collateral (account) – being a monetary obligation of the Client to Loco Gear for services – that have previously been supplied and that will be supplied in the future by Loco Gear to the Client.

10.2. 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 Loco Gear may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; (b) indemnify, and upon demand reimburse, Loco Gear for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Equipment and/or Vehicle charged thereby; (c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment and/or Vehicle and/or collateral (account) in favour of a third party without the prior written consent of Loco Gear.
10.3. Loco Gear and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
10.4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
10.5. Unless otherwise agreed to in writing by Loco Gear, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
10.6. The Client shall unconditionally ratify any actions taken by Loco Gear under clauses 10.1 to 10.5.
10.7. Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10.8. Only to the extent that the hire of the Equipment and/or Vehicle exceeds a twelve (12) month hire period (or a six (6) month hire period with the right of renewal), shall clause 10 apply as a security agreement in the form of a PPS Lease in respect of Section 36 of the PPSA, in all other matters this clause 10 will apply generally for the purposes of the PPSA.

11. Security and Charge

11.1. In consideration of Loco Gear agreeing to supply the Equipment and/or Vehicle, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2. The Client indemnifies Loco Gear from and against all Loco Gear’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Loco Gear’s rights under this clause.
11.3. The Client irrevocably appoints Loco Gear and each director of Loco Gear as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.

12. Client’s Responsibilities

12.1. The Client shall:(a) only use the Equipment and Vehicle for the production that this Contract pertains to; (b) satisfy itself at commencement that the Equipment and/or Vehicle is suitable for its purposes; (c) notify Loco Gear 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 and/or Vehicle by giving such notification; (d) maintain the Equipment and/or Vehicle as is required by Loco Gear (including, but not limited to, maintaining (where applicable) water, oil and fluid levels and tyre pressures); (e) comply with the NZTA operator regulations regarding the use of the Equipment and/or Vehicle including but not limited to, having a Transport Service Licence when hiring a vehicle where one is required; (f) operate the Equipment and/or Vehicle safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by Loco Gear or posted on the Equipment and/or Vehicle; (g) not allow the Equipment and/or Vehicle to be operated in breach of the Land Transport Act, the Transport Act 1962, Land Transport (Road User) Law 2004, or any other act, regulations, rules or by-laws relating to road traffic; (h) not operate the Vehicle or allow it to be operated for the transport of more than the number of passengers or more than the gross vehicle mass specified in the certificate of loading for the Vehicle; (i) ensure that:

(i) all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to Loco Gear upon request;

(ii) all persons driving the Vehicle are suitably instructed in the Vehicle’s safe and proper use, and are fully licensed to drive the Vehicle (i.e. holding a valid and current overseas driver’s licence, NZ full driver’s licence, restricted licence or licence class for the Vehicle), and shall provide evidence of the same to Loco Gear upon request;
(iii) that all persons driving the Vehicle holding an NZ restricted licence will comply with all NZTA rules and regulations;
(iv) the Vehicle will not be operated in a race, speed test, rally or contest;
(v) the operator of any Equipment and/or Vehicle is not under the influence of alcohol or any drug that may impair their ability to operate the Equipment and/or Vehicle that may constitute an offence against Sections 56,57 or 58 of the Land Transport Act;
(vi) all reasonable care is taken by the driver in handling and/or parking the Equipment and/or Vehicle and that the Equipment and/or Vehicle is left locked and/or securely stored when not in use.

(j) be liable for any parking or traffic infringement, impoundment, towage and storage costs incurred during the hire period and will supply relevant details as required by the Police and/or Loco Gear relating to any such matters or occurrences;
(k) comply with all workplace health and safety laws relating to the Equipment and/or Vehicle and its operation;(l) on termination of the hire, deliver the Equipment and/or Vehicle complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Loco Gear’s premises at: 1 Waikaukau Rd, AUCKLAND; (m) refuel the Equipment and/or Vehicle prior to its return from hire. In the event the Equipment and/or Vehicle needs to be refuelled upon its return from hire then the costs of refuelling shall be charged to the Client in addition to the costs of the Equipment and/or Vehicle hire; (n) keep the Equipment and/or Vehicle in their own possession and control and shall not assign the benefit of the hire Contract nor be entitled to lien over the Equipment and/or Vehicle;
(o) employ the Equipment and/or Vehicle solely in its own work and shall not permit the Equipment and/or Vehicle of any part thereof to be used by any other party for any other work; and
(p) indemnify and hold harmless Loco Gear in respect of all claims arising out of the Client’s use of the Equipment and/or Vehicle.

12.2. The Client shall not:
- 12.2.1. alter or make any additions to the Equipment and/or Vehicle including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment and/or Vehicle or in any other manner interfere with the Equipment and/or Vehicle; or
- 12.2.2. exceed the recommended or legal load and capacity limits of the Equipment and/or Vehicle; or
- 12.2.3. use or carry any illegal, prohibited or dangerous substance in or on the Equipment and/or Vehicle; or
- 12.2.4. fix any of the Equipment and/or Vehicle in such a manner as to make it legally a fixture forming part of any freehold;
- 12.2.5. not move the Equipment and/or Vehicle from the agreed location in New Zealand, except with the express approval of Loco Gear. Any relocation of the Equipment and/or Vehicle shall attract an additional fee, and all risk for the performance of such shall rest with the Client (as per clause 5.2).
12.3. Immediately on request by Loco Gear the Client will pay:
- 12.3.1. the new list price of any Equipment and/or Vehicle that is for whatever reason destroyed, written off or not returned to Loco Gear;
- 12.3.2. all costs incurred in cleaning the Equipment and/or Vehicle;
- 12.3.3. all costs of repairing any damage caused by:(i) the ordinary use of the Equipment and/or Vehicle; (ii) the negligence of the Client or the Client’s agent; (iii) vandalism, or (in Loco Gear’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment and/or Vehicle by the Client.
- 12.3.4. the cost of fuels (petrol or diesel), replacement bulbs, and consumables provided by Loco Gear and used by the Client; and
- 12.3.5. (i) lost hire fees Loco Gear would have otherwise been entitled to for the Equipment and/or Vehicle, under this, or any other hire agreement;

(ii) costs incurred by Loco Gear in picking up and returning the Equipment and/or Vehicle to Loco Gear’s premises if the Client does not return the Equipment and/or Vehicle to Loco Gear’s premises or any pre-agreed pickup location when it was originally agreed that the Client would do so.

13. Defects

13.1. The Client shall inspect the Equipment and/or Vehicle on Delivery and shall within forty- eight (48) hours notify Loco Gear of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Loco Gear an opportunity to inspect the Equipment and/or Vehicle within a reasonable time following Delivery if the Client believes the Equipment and/or Vehicle is defective in any way. If the Client shall fail to comply with these provisions the Equipment and/or Vehicle shall be presumed to be free from any defect or damage. For defective Equipment and/or Vehicle, which Loco Gear has agreed in writing that the Client is entitled to reject, Loco Gear’s liability is limited to replacing the Equipment and/or Vehicle.

14. Consumer Guarantees Act 1993

14.1. This Contract is subject to the provisions of the Consumer Guarantees Act 1993 in all cases except where the Client is contracting within the terms of a trade/business (which cases are specifically excluded).

15. Default and Consequences of Default

15.1. 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 Loco Gear’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2. If the Client owes Loco Gear any money the Client shall indemnify Loco Gear from and against all costs and disbursements incurred by Loco Gear in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Loco Gear’s collection agency costs, and bank dishonour fees).
15.3. Further to any other rights or remedies Loco Gear may have under this Contract, if the Client has made payment to Loco Gear, 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 Loco Gear under this clause 15 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
15.4. Without prejudice to Loco Gear’s other remedies at law Loco Gear shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Loco Gear shall, whether or not due for payment, become immediately payable if:
- 15.4.1. any money payable to Loco Gear becomes overdue, or in Loco Gear’s opinion the Client will be unable to make a payment when it falls due;
- 15.4.2. the Client has exceeded any applicable credit limit provided by Loco Gear;
- 15.4.3. the Client becomes insolvent or bankrupt, 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
- 15.4.4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

16. Cancellation

16.1. Without prejudice to any other remedies Loco Gear may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Loco Gear may suspend or terminate the supply of Equipment and/or Vehicle on hire to the Client. Loco Gear will not be liable to the Client for any loss or damage the Client suffers because Loco Gear has exercised its rights under this clause.
16.2. Either party may cancel these terms and conditions or cancel Delivery of Equipment and/or Vehicle at any time before the Equipment and/or Vehicle is delivered by giving a five (5) day written notice. On giving such notice Loco Gear shall repay to the Client any sums paid in respect of the Charges. Loco Gear shall not be liable for any loss or damage whatever arising from such cancellation.
16.3. Loco Gear may, in addition to their right to cancel under clause 16:
- 16.3.1. do so at any time:(a) prior to the commencement of the Services, by giving notice to the Client. On giving such notice Loco Gear shall repay to the Client any sums paid in respect of the Charges, less any amounts owing by the Client to Loco Gear for Services already performed. Loco Gear shall not be liable for any loss or damage whatsoever arising from such cancellation; or (b) in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy; or (c) the other party becoming insolvent; or in the event a receiver or manager of any asset of the other party being appointed or an order made or resolution passed for the liquidation of the other party.

16.4. In the event of the premature cancellation of this Contract (including by notification from the Client, (at least two (2) weeks prior to the expiration date of the Contract term), or as a result of Default, but
- 16.4.1. the Client shall be responsible for the immediate payment of the following sums: (i) all monies due and payable up to the date of cancellation, noting applicable rates may change if the Contract term is shorter than that noted in the quotation; and(ii) all other sums owing by the Client under this Contract (or any other Contract with the Client) as a result of the Default and cancellation of this Contract, including consequential damages and any and all loss of profits, costs, charges and expenses incurred by Loco Gear in connection with (and resulting from) the premature cancellation of this Contract, which shall be calculated at a minimum of thirty percent (30%) of the remainder of the Charges under this Contract where a fixed term applies.

17. Privacy Policy

17.1. All emails, documents, images or other recorded information held or used by Loco Gear is Personal Information as defined and referred to in clause 17.3 and therefore considered confidential. Loco Gear acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Loco Gear acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by Loco Gear that may result in serious harm to the Client, Loco Gear will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
17.2. Notwithstanding clause 17.1, privacy limitations will extend to Loco Gear in respect of Cookies where the Client utilises Loco Gear’s website to make enquiries. Loco Gear agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:(a) IP address, browser, email client type and other similar details; (b) tracking website usage and traffic; and (c) reports are available to Loco Gear when Loco Gear sends an email to the Client, so Loco Gear may collect and review that information (“collectively Personal Information”) If the Client consents to Loco Gear’s use of Cookies on Loco Gear’s website and later wishes to withdraw that consent, the Client may manage and control Loco Gear’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
17.3. The Client authorises Loco Gear or Loco Gear’s agent to: access, collect, retain and use any information about the Client;
- 17.3.1. (i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or 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.
- 17.3.2. disclose information about the Client, whether collected by Loco Gear from the Client directly or obtained by Loco Gear 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.
17.4. Where the Client is an individual the authorities under clause 17.3 are authorities or consents for the purposes of the Privacy Act 1993.
17.5. The Client shall have the right to request Loco Gear for a copy of the Personal Information about the Client retained by Loco Gear and the right to request Loco Gear to correct any incorrect Personal Information about the Client held by Loco Gear.

18. Service of Notices

18.1. 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.
18.2. 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.

19. Trusts

19.1. If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Loco Gear may have notice of the Trust, the Client covenants with Loco Gear as follows: (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund; (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity; (c) the Client will not without consent in writing of Loco Gear (Loco Gear will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:(i) the removal, replacement or retirement of the Client as trustee of the Trust; (ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

20. General

20.1. The failure by either party 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 Auckland Courts of New Zealand.
20.3. Loco Gear shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Loco Gear of these terms and conditions (alternatively Loco Gear’s liability shall be limited to damages which under no circumstances shall exceed the Charges).
20.4. Loco Gear may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
20.5. The Client cannot assign or licence without the written approval of Loco Gear.
20.6. Loco Gear may elect to subcontract out any part of the provision services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Loco Gear’s sub-contractors without the authority of Loco Gear.
20.7. The Client agrees that Loco Gear may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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 Loco Gear to provide Equipment and/or Vehicle to the Client.
20.8. 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.
20.9. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.