1. Definitions and Interpretation
"Agreement" means the Hire Agreement (including the Hire Details, Pre-Hire Condition Report and signature page) read together with these Terms and Conditions, which are incorporated into every Hire Agreement by reference.
"Ownership of Equipment" — All Equipment supplied under this Agreement remains the sole and exclusive property of Floris Excavator Hire at all times. The Hirer acknowledges that this Agreement is a hire agreement only and does not transfer any ownership, title, or other proprietary interest in the Equipment to the Hirer. The Hirer must not sell, lease, mortgage, charge, encumber, dispose of, or otherwise deal with the Equipment in any way that is inconsistent with Floris Excavator Hire's ownership rights.
"Business Day" means a day other than Saturday, Sunday, or a New Zealand public holiday.
"Casual Customer" means a Hirer who has not been approved for a Commercial Account and who pays for hire charges in full prior to, or at, commencement of the Hire Period, in accordance with clause 3.1.
"Commercial Account Customer" means a Hirer approved by us, at our discretion, to hire Equipment on M20 Terms (payment due on the 20th day of the month following invoice) in accordance with clause 3.2.
"Equipment" means all excavators, trailers, attachments, buckets, accessories and other plant supplied by us under an Agreement.
"Excess" means the first amount of any insurance claim, per incident, for which the Hirer is responsible under clause 11.3.
"GST" means goods and services tax under the Goods and Services Tax Act 1985.
"Hire Period" has the meaning given in clause 5.
"Loss of Hire Charge" means the charge described in clause 11.5, compensating us for lost hire income while Equipment is unavailable for hire as a result of an event for which the Hirer is responsible.
"M20 Terms" means "Month 20th" payment terms — the payment terms available to Commercial Account Customers under which all hire charges and other amounts invoiced in a calendar month are due for payment in full on the 20th day of the following calendar month, as further described in clause 3.2.
"Off-Hire Confirmation" means the unique confirmation number issued by us, whether by phone, email or our booking system, on logging the return of the Equipment, as described in clause 5.
"PPSA" means the Personal Property Securities Act 1999.
"Resupply Equipment" has the meaning given in clause 11.6.
"we", "us", "our" means Floris Excavator Hire.
"Hirer", "you", "your" means the person or entity named in the Hire Agreement.
Headings are for convenience only and do not affect interpretation. Where the Hirer comprises more than one person or entity, their obligations under this Agreement are joint and several.
2. Application of these Terms
These Terms and Conditions apply to every hire of Equipment from Floris Excavator Hire and are incorporated into, and form part of, each Hire Agreement.
By signing a Hire Agreement, making a booking, paying an invoice, collecting Equipment or accepting delivery, the Hirer agrees to be bound by these Terms and Conditions.
In the event of any inconsistency between these Terms and Conditions and the Hire Agreement, the Hire Agreement's specific commercial terms (rates, dates, equipment items) prevail, but all other clauses of these Terms and Conditions continue to apply in full.
3. Booking, Quotes and Payment
All bookings are subject to availability and our acceptance. We reserve the right to refuse or cancel any booking prior to commencement of the Hire Period, including where satisfactory identification, licensing or credit information cannot be verified.
Prices are in New Zealand Dollars and exclude GST unless stated otherwise, and GST is added at the prevailing rate where applicable.
3.1 Casual Customers — payment in advance
Unless the Hirer has been approved as a Commercial Account Customer under clause 3.2, the Hirer is a Casual Customer.
A booking by a Casual Customer is not confirmed until full payment of all estimated hire charges, and any bond we require, has been received, and payment in full is required at or before commencement of the Hire Period.
We may require a Casual Customer to pay a refundable bond of $500 in addition to hire charges, to be held against the Excess, fuel, cleaning or late-return charges and refunded within 7 Business Days of the Return Time, less any amounts properly deducted under these Terms.
3.2 Commercial Account Customers — M20 Terms
A business or trade Hirer may apply for a Commercial Account by completing our Commercial Account Application and providing any trade references, company details and credit information we reasonably require.
Approval of a Commercial Account, and any credit limit applying to it, is at our discretion, and we may suspend or withdraw a Commercial Account at any time by written notice, including where an account falls into arrears.
Where a Commercial Account Customer is approved for M20 Terms, all hire charges, fees and other amounts properly invoiced in a calendar month are due for payment in full, without deduction or set-off, on the 20th day of the calendar month immediately following the month of invoice (the "M20 Due Date").
M20 Terms apply only up to any approved credit limit. Charges in excess of the credit limit, or amounts owing on an account that is in arrears, may be required to be paid in advance in the manner described in clause 3.1.
Amounts not paid by the M20 Due Date are overdue and subject to default interest and recovery costs under clause 23, and may result in suspension of the Commercial Account.
3.3 General
If payment is made for dates that are unavailable, a full refund will be issued within 7 Business Days.
We may vary a Hirer's customer type at any time on reasonable notice.
Nothing in this clause 3 limits our rights under clause 16 (Right of Entry and Repossession) or clause 23 (Default, Interest and Debt Recovery) in respect of any unpaid amount, however invoiced.
4. Contracting Out — Business Customers
4.1 Consumer Guarantees Act 1993
Nothing in these Terms excludes, restricts or modifies any right or remedy conferred on the Hirer by the Consumer Guarantees Act 1993 ("CGA") where the Hirer is acquiring the Equipment or services as a consumer for the purposes of the CGA and that Act applies.
Where the Hirer acquires the Equipment or services for business, trade, professional or other commercial purposes, and where permitted by section 43 of the Consumer Guarantees Act 1993, the Hirer and Floris Excavator Hire agree in writing that the provisions of the CGA are excluded from this Agreement.
The parties acknowledge that this contracting-out provision applies only to the extent permitted by law and only where the requirements for contracting out under the CGA have been satisfied.
4.2 Fair Trading Act 1986
Where the Hirer is acquiring the Equipment for business purposes, and to the extent permitted by section 5D of the Fair Trading Act 1986, the parties agree that the provisions of that Act which may lawfully be contracted out of do not apply to this Agreement.
This exclusion applies only where the requirements of section 5D have been satisfied and does not apply to any provision of the Fair Trading Act 1986 that cannot lawfully be excluded.
Nothing in this clause permits misleading or deceptive conduct or any other conduct that cannot lawfully be contracted out of.
5. Delivery, Collection, Commencement and End of Hire Period
5.1 Commencement
The Hire Period begins on delivery of the Equipment to the Hirer, or on collection of the Equipment by the Hirer or its authorised representative, whichever occurs first.
5.2 End of Hire Period — the billing clock
The Hire Period, for the purposes of calculating hire charges, ends at the earlier of:
(a) the time the Equipment is physically returned to our yard or collected from the Hirer's site by us during agreed business hours; or
(b) the time an Off-Hire Confirmation is logged with us.
Hire charges do not continue to accrue merely because our post-hire inspection under clause 6 has not yet occurred.
5.3 Off-Hire outside business hours
Where Equipment is left at an agreed drop-off point outside business hours, the Hirer must notify us by phone or our nominated after-hours channel at the time of drop-off and obtain an Off-Hire Confirmation as soon as reasonably practicable, and in any event by the start of the next Business Day.
5.4 Latent damage and cleaning review window
We may inspect the Equipment for damage, excessive wear, or cleaning requirements within 24 Business Hours of the Return Time (the "Inspection Window").
Any additional charges arising from that inspection are separate from, and do not extend, the hire charges calculated under clause 5.2.
5.5 Maximum Hire Period
The maximum Hire Period under any single Hire Agreement is 364 days from the Hire Start date.
Clause 17 explains why this cap applies and how extensions are handled.
6. Condition of Equipment and Inspection
The Hirer acknowledges that the Equipment has been inspected prior to hire, using the Pre-Hire Condition Report on the Hire Agreement, and is accepted in good working order except as recorded on that report.
The Hirer must inspect the Equipment before use and immediately report any defect, fault or pre-existing damage not already recorded. Failure to report existing damage prior to use constitutes acceptance of the Equipment's condition as recorded.
We will complete a Post-Hire Inspection within the Inspection Window described in clause 5.4 and will notify the Hirer of any damage, cleaning or fuel charges identified, together with supporting photographs on request.
7. Hirer's Obligations and Permitted Use
The Hirer agrees to:
- Operate, or ensure the Equipment is operated, safely, responsibly and only for its intended purpose.
- Ensure all operators are competent, appropriately licensed, and legally permitted to operate the Equipment.
- Follow the manufacturer's operating instructions at all times.
- Carry out daily checks of fuel, engine oil, hydraulic oil, coolant and grease points.
- Secure the Equipment whenever it is unattended, and take reasonable steps to prevent theft, vandalism or unauthorised use.
- Immediately report any breakdown, fault, damage, accident, theft or loss to us.
- Return the Equipment clean, free of excessive mud and debris, and with a full fuel tank.
- Not sub-hire, loan or permit use of the Equipment by any person other than an approved competent operator, without our prior written consent.
- Acknowledge that they have received sufficient operating instructions and will operate the Equipment in accordance with the manufacturer's recommendations.
8. Prohibited Use
The Equipment must not be:
- Operated by any person who is not competent or legally permitted to operate the Equipment.
- Operated by any person under the influence of alcohol or drugs.
- Modified, altered, or have safety features removed or bypassed.
- Used for demolition work unless approved by us in writing.
- Used for asbestos removal or in connection with hazardous material unless expressly approved by us in writing.
- Used outside the Canterbury region without our prior written approval.
- Used in a manner that is unlawful, reckless, or contrary to the manufacturer's specifications.
- Sub-hired, loaned, or possessed by any third party without our prior written permission.
- Used in tidal areas, rivers, beaches, seawater or saltwater unless approved in writing by Floris Excavator Hire.
- Used for any purpose for which the Equipment is not reasonably suited or designed.
9. Health and Safety
The Hirer is responsible for managing the health and safety risks arising from its worksite and its use of the Equipment, including ensuring operators are competent, hazards are identified and applicable health and safety requirements are met.
The Hirer must maintain a safe worksite and comply with all applicable health and safety legislation and any PCBU obligations arising from the Hirer's use of the Equipment.
The Hirer must provide us with any relevant information about the worksite or known hazards that may affect the safe delivery, collection or use of the Equipment.
Nothing in this Agreement excludes or limits any duty or liability that cannot lawfully be excluded or transferred.
10. Underground Services
The Hirer is responsible for identifying and locating all underground services, including water, sewer, stormwater, gas, electricity, fibre and telecommunications infrastructure, before any excavation.
We strongly recommend that the Hirer obtain current BeforeUdig plans and any other relevant service-location information prior to commencing excavation work.
The Hirer is responsible for damage to underground services caused by the Hirer's operation, negligence or failure to properly identify, locate or protect those services.
The Hirer must immediately notify us of any contact with, or suspected damage to, an underground service.
Nothing in this clause limits any liability that cannot lawfully be excluded.
11. Insurance, Excess and Liability for Loss or Damage
11.1 Hirer's responsibility
The Hirer is responsible for the Equipment from the commencement of the Hire Period until the Equipment is returned to us or collected by us.
The Hirer must take all reasonable care of the Equipment and is responsible for any loss, theft or damage occurring during the Hire Period, except for fair wear and tear or loss or damage caused solely by a mechanical failure covered by clause 13.
11.2 Insurance held by Floris Excavator Hire
We maintain commercial plant and equipment insurance covering the Equipment against accidental physical loss or damage, subject to the terms, conditions, exclusions and excesses of our insurance policy.
The Hirer is not required to arrange separate insurance for the Equipment unless otherwise agreed in writing.
The Hirer remains responsible for arranging any public liability, contract works or other insurance appropriate to the Hirer's activities, worksite and operations.
We do not provide public liability or contract works insurance for the Hirer.
11.3 Insurance Excess
Where loss or damage to the Equipment occurs during the Hire Period and our insurance responds to the claim, the Hirer is responsible for the applicable insurance excess, currently NZ$1,000 per claim, unless a different excess is stated in the Hire Agreement.
The Hirer remains responsible for the excess regardless of whether the Equipment is repaired or replaced.
11.4 Circumstances where the Hirer is responsible for the full cost
The excess limitation in clause 11.3 does not apply where loss, theft or damage arises from, or is materially contributed to by:
(a) operation by an unauthorised, unlicensed or incompetent operator;
(b) operation while under the influence of alcohol or drugs;
(c) use of the Equipment in breach of clause 8;
(d) reckless, deliberate or grossly negligent conduct;
(e) failure to properly secure the Equipment or take reasonable precautions against theft;
(f) theft where keys have been left in or on the Equipment, or where the Equipment has otherwise been left unsecured;
(g) sub-hire, loan or possession of the Equipment by an unauthorised person;
(h) failure to promptly report loss, theft, damage or a serious fault;
(i) operation contrary to the manufacturer's instructions or specifications; or
(j) any other act or omission by the Hirer which causes our insurer to decline or reduce cover.
In any such circumstances, the Hirer is responsible for the reasonable costs of repair or replacement, together with any reasonable recovery, transport or other direct costs incurred by us as a result of the loss or damage.
11.5 Loss of Hire
Where the Equipment is unavailable for hire as a result of loss or damage for which the Hirer is responsible under these Terms, the Hirer is also responsible for a Loss of Hire Charge calculated at the Equipment's standard daily hire rate for each day, or part day, that the Equipment is reasonably unavailable for hire as a result of that event.
We will take reasonable steps to minimise the period for which the Equipment is unavailable for hire.
11.6 Resupply Equipment
Where the Equipment becomes unavailable as a result of an event for which the Hirer is responsible and we reasonably require replacement or equivalent equipment to fulfil an existing booking, the Hirer is responsible for the reasonable cost of hiring or sourcing that replacement equipment.
We will provide reasonable supporting documentation for any amount claimed under this clause.
12. Recovery Costs
Where the Equipment becomes bogged, stuck, submerged, rolled over, abandoned, or otherwise requires recovery during the Hire Period, the Hirer is responsible for all reasonable recovery, towing, transport, crane, salvage, trailer retrieval and associated transport costs to the extent that the need for recovery arises from the Hirer's use, actions, negligence or failure to take reasonable care.
This clause does not apply to recovery required solely as a result of a genuine mechanical failure covered by clause 13.
13. Mechanical Breakdown
Where the Equipment experiences a genuine mechanical failure due to normal fair wear and tear, and not due to misuse, negligence or breach of these Terms, we will arrange repair or replacement as soon as reasonably practicable, and hire charges will not apply for the period the Equipment is unusable solely as a result of that failure.
This clause does not apply where the breakdown results from misuse, negligence, unauthorised use, or a failure to carry out the daily checks required under clause 7.
14. Cleaning and Fuel
The Equipment must be returned clean, free of excessive mud and debris, and with a full fuel tank.
A minimum cleaning fee of $20 may apply where the Equipment is returned excessively dirty, including excessive mud, clay, concrete, vegetation or debris requiring additional cleaning time.
Fuel shortfalls will be charged at twice our reasonable replacement fuel cost.
15. Late Return and Overdue Equipment
Equipment returned after the agreed Hire Finish time may incur additional hire charges calculated pro-rata at the applicable daily or hourly rate.
Continued possession or use of the Equipment after the agreed Hire Finish time does not create an automatic extension or renewal of the Hire Period.
Where Equipment is not returned and we reasonably believe it has been wrongfully retained, we may exercise our rights under clause 16 (Right of Entry and Repossession) in addition to any other remedy available to us.
16. Right of Entry and Repossession
If the Hirer fails to return the Equipment on the agreed Hire Finish date, breaches these Terms, or if we reasonably believe the Equipment is at risk of damage, loss or further deterioration, we may, where legally permitted, recover or repossess the Equipment.
The Hirer authorises us and our employees, contractors or agents to take reasonable steps to locate, recover and repossess the Equipment, provided that such recovery is carried out lawfully and without unnecessary damage to property.
Where reasonably practicable, we may give the Hirer notice before taking recovery action. However, notice is not required where we reasonably believe that the Equipment is at immediate risk of loss, theft, damage or further deterioration, or where immediate action is otherwise reasonably necessary.
Repossession or recovery under this clause does not affect our right to recover outstanding hire charges, damage costs, recovery costs or other amounts owing under this Agreement, nor does it limit any other remedy available to us at law.
17. Security Interest — Personal Property Securities Act 1999
17.1 Nature of interest
To the extent that this Agreement creates a security interest in the Equipment or in any other property of the Hirer for the purposes of the Personal Property Securities Act 1999 ("PPSA"), the Hirer acknowledges and agrees to that security interest and consents to us registering a financing statement on the Personal Property Securities Register.
The Hirer agrees to provide any information and do anything reasonably required by us to establish, maintain, register, perfect or enforce any security interest arising under this Agreement.
To the extent permitted by law, the Hirer waives its right to receive a copy of any verification statement confirming registration.
17.2 364-day maximum term
The maximum Hire Period under any single Hire Agreement is 364 days, as stated in clause 5.5.
This Agreement does not provide for automatic rolling extension or renewal beyond the agreed Hire Finish date.
Any extension of the Hire Period must be agreed in a new written Hire Agreement or signed variation.
17.3 Continuous or successive hires
Where the Hirer enters into successive Hire Agreements for the same or substantially the same Equipment such that the cumulative period of hire may exceed 364 days, the parties agree that each Hire Agreement is a separate and distinct hire arrangement.
We may, at our discretion, require a new Agreement, updated Hirer details, and a fresh Pre-Hire Condition Report before any such renewal takes effect.
18. Cancellations and Refunds
Cancellation notice periods and applicable refunds:
| Notice Before Hire Start | Refund |
|---|
| More than 7 days | Full refund |
| 3–6 days | 50% refund |
| Less than 3 days | No refund |
If we cancel a confirmed booking for any reason other than the Hirer's breach, a full refund will be issued to the original payment method within 7 Business Days.
19. Limitation of Liability and Consequential Loss
19.1 Consequential loss
To the fullest extent permitted by New Zealand law, Floris Excavator Hire is not liable to the Hirer for any indirect, consequential or special loss arising from or in connection with the hire, delivery, collection, breakdown, repair, delay or unavailability of the Equipment.
This includes loss of profit, loss of income, loss of business, business interruption, delay costs, standby costs, additional labour costs, or any penalties, damages or other amounts payable by the Hirer to a third party.
19.2 Hirer's work and obligations
The Hirer is responsible for determining that the Equipment is suitable for its intended use and for making its own arrangements in relation to its worksite, operators, labour, materials, contractors and project requirements.
The Hirer acknowledges that we do not guarantee that the Equipment will be available for any particular period beyond the agreed Hire Period or that the Hirer will be able to complete any particular work within a specified timeframe.
19.3 Hirer's operation of Equipment
We are not responsible for loss or damage arising from the Hirer's operation, misuse or unauthorised use of the Equipment, including damage to underground services or third-party property where that loss or damage results from the Hirer's act, omission or failure to comply with these Terms.
The Hirer's responsibilities in relation to underground services are set out in clause 10, and the Hirer's responsibility for recovery costs is set out in clause 12.
19.4 Mechanical failure
Our liability in relation to genuine mechanical failure caused by normal fair wear and tear is dealt with under clause 13.
Nothing in this clause limits our obligations under clause 13 where the Equipment becomes unusable due to a genuine mechanical failure not caused by the Hirer.
19.5 Liability not capable of exclusion
Nothing in these Terms excludes, restricts or limits any liability or obligation that cannot lawfully be excluded, restricted or limited under New Zealand law.
Subject to this, where Floris Excavator Hire is liable to the Hirer for a direct loss arising from our breach of these Terms, our liability will, to the fullest extent permitted by law, be limited to the amount paid by the Hirer for the affected hire.
19.6 No double recovery
The Hirer is not entitled to recover more than once for the same loss or damage under this Agreement or otherwise.
20. Indemnity
To the fullest extent permitted by New Zealand law, the Hirer indemnifies Floris Excavator Hire against claims, costs, damages, losses and liabilities (including reasonable legal costs) arising from or in connection with:
(a) the Hirer's possession, transportation or operation of the Equipment;
(b) the Hirer's negligence, misuse or unauthorised use of the Equipment;
(c) damage to property or third-party claims arising from the Hirer's use of the Equipment;
(d) any breach of these Terms by the Hirer; or
(e) any act or omission by the Hirer or any person authorised by the Hirer to possess or operate the Equipment.
The indemnity does not apply to the extent that the relevant loss or liability is caused solely by our negligence or wilful default.
Nothing in this clause requires the Hirer to indemnify us for any liability that cannot lawfully be transferred or excluded.
21. Privacy Act 2020
Personal information collected from the Hirer is used for booking administration, identity and licence verification, payment processing, customer communication, PPSR registration where applicable, legal compliance, and managing the hire relationship.
Information will not be disclosed to third parties except where required or permitted by law, to enforce this Agreement, process payments, or recover outstanding debts.
The Hirer may request access to or correction of their personal information in accordance with the Privacy Act 2020.
22. Force Majeure
We are not liable for any delay or failure to perform our obligations arising from events beyond our reasonable control, including severe weather, flooding, earthquakes, fire, industrial action, transport disruption or government restrictions.
Where a force majeure event affects a confirmed booking, we will take reasonable steps to notify the Hirer and, where reasonably practicable, offer an alternative hire date or other appropriate arrangement.
23. Default, Interest and Debt Recovery
Outstanding invoices accrue interest at 2% per month, calculated daily, from the due date until payment in full.
The Hirer agrees to pay all reasonable debt collection, legal and enforcement costs we incur in recovering unpaid amounts, including any costs associated with recovery or repossession under clause 16.
We may suspend or terminate any Commercial Account where amounts remain overdue and may require payment in advance before accepting further bookings.
24. Assignment and Sub-hire
The Hirer must not assign, novate, or transfer any right or obligation under this Agreement, and must not sub-hire, loan or part with possession of the Equipment, without our prior written consent.
We may assign our rights under this Agreement, including any security interest, at our discretion.
25. Notices
Any notice under this Agreement must be given in writing and may be delivered by hand, email, or post to the contact details recorded in the Hire Agreement, or such other address as either party notifies to the other in writing.
A notice sent by email is deemed received when it enters the recipient's email system, unless the sender receives an automated notification that the email was not delivered.
26. Severability
If any provision of these Terms is held to be invalid, illegal or unenforceable, that provision will be severed or modified to the minimum extent necessary, and the remaining provisions will continue in full force and effect.
27. Governing Law and Jurisdiction
These Terms and Conditions, and every Hire Agreement incorporating them, are governed by the laws of New Zealand.
The parties submit to the jurisdiction of the New Zealand courts.
28. Acceptance
Payment of an invoice, confirmation of a booking, collection of Equipment, acceptance of delivery, or use of the Equipment constitutes acceptance of these Terms and Conditions.
Where the Hirer signs the Hire Agreement, the Hirer acknowledges that it has received or been given access to these Terms and Conditions and agrees to be bound by them.
The Hirer acknowledges that it has had the opportunity to inspect the Equipment and that the condition of the Equipment is recorded in the Pre-Hire Condition Report.
Where the Hirer is a business customer, the Hirer must complete any applicable business-purpose acknowledgement and contracting-out acknowledgement contained in the Hire Agreement where required under clause 4.
Acceptance of these Terms alone does not replace any specific acknowledgement, declaration or signature required under the Hire Agreement.
