GENERAL TERMS AND CONDITIONS

DEFINITIONS
In these terms and conditions:

"Agreement" means these terms and conditions, together with the Order Form.
"Customer" means you and includes your successors or Representatives.
"Equipment" means the Equipment sold or hired by Whio to the Customer (whether the original equipment or any substitute) and includes all accessories and other equipment of Whio attached to the equipment or to be used in connection with it.
"Order Form" means the online or physical order from under which the Customer places its order to hire or purchase the Equipment from Whio.
"Representative" of a party includes an employee, agent, officer, director, auditor, advisor, partner, consultant, contractor, or subcontractor of that party and in the case of the Customer includes any person authorised by the Customer to use the Equipment.
"Whio" means Whio Packrafting Limited.

CONDITIONS

The terms and conditions set out in this Agreement shall apply and are incorporated into any contract for sale or hire between Whio and the Customer. Whio reserves the right to change any of the terms and conditions of this Agreement provided that Whio shall act reasonably when exercising such right. Any amended terms and conditions will be placed on Whio's website and shall apply with effect 10 working days following the date that such amended terms and conditions are placed on the website unless a later date is specified from which the amended terms and conditions are to apply.
The terms and conditions set out in clauses 3 to 11 shall specifically apply to any contract for the hire of Equipment between Whio and the Customer and not to any contract for the sale of Equipment between Whio and the Customer.
The terms and conditions set out in clauses 12 to 16 shall specifically apply to any contract for the sale of Equipment between Whio and the Customer and not to any contract for the hire of Equipment between Whio and the Customer.
The terms and conditions set out in clauses 17 to 25 shall apply to any contract for sale or hire between Whio and the Customer.

PART 1: HIRE TERMS

HIRE

The hire period begins from the earlier of the time that the Order Form provides that the Equipment will be available for collection or the time the Equipment leaves Whio's premises with the Customer or for delivery to the Customer and runs until the Equipment is returned to Whio at the place of hire or this Agreement is terminated pursuant to Clause 12.
If Whio agrees to a request by the Customer to have the Equipment delivered to the Customer, Delivery and removal charges are payable by the Customer in addition to the hire costs.
In some circumstances, Equipment which the Customer has booked to hire may be unavailable (for example where the Equipment has been damaged by previous hirers). In such circumstances, the deposit paid by the Customer shall be fully refunded but Whio shall have no further liability to the Customer in relation to the cancellation.

CUSTOMER'S OBLIGATIONS

The Customer shall notify Whio in writing immediately if the Equipment is lost or damaged and shall follow all reasonable instructions of Whio.
In the case of damage to the Equipment, however caused, the Customer shall be responsible for and shall indemnify Whio for the full cost of all repairs to restore the Equipment to the condition it was in at the time of hire.
In the case of loss of or irreparable damage to the Equipment, however caused, the Customer shall be responsible for and shall indemnify Whio for the full cost to Whio of replacing the Equipment.
In addition to the costs set out in Clauses 4(a) to 4(c) above the Customer shall be responsible for and shall indemnify Whio for any loss of revenue suffered by Whio due to the unavailability of the Equipment for hire due to loss or damage. The costs for loss of revenue shall not exceed the equivalent prevailing rate for 7 days hire of the Equipment.
The Customer shall:

Take proper and reasonable care of the Equipment and return it to the place of hire in good order and condition; and
Satisfy itself that the Equipment is suitable for the intended use; and
Take all necessary steps to prevent injury to any person and all property because of the condition of the Equipment; and
Use the Equipment in a skilful and lawful manner with due regard to all laws and regulations pertaining to the use of such Equipment; and
Immediately notify Whio by telephone if the Equipment breaks down or becomes unsafe; and
Except as permitted by the Consumer Guarantees Act 1993 not bring or threaten to bring any claim against Whio for loss or damage incurred or threatened against the Customer or arising directly or indirectly from the Customer's use of the Equipment; and
Observe and comply with the provisions of all Acts, regulations, by-laws, and codes of practice in force during the period of hire in relation to the Equipment and with all orders and directions lawfully given by any competent authority; and
Ensure that the Equipment is stored and used safely and securely and is protected from theft. This Clause 4(e)(viii) applies even if the Equipment has been de-hired for so long as the Equipment remains in the Customer's possession.

The Customer warrants that each person who uses the Equipment shall be competent to use the Equipment shall use the Equipment in the manner it was designed to be used, and follow any directions from Whio, local authorities, or instructions from the manufacturer of the Equipment relating to the use and safety of the Equipment and if applicable shall comply with all obligations in relation to the use and control of the Equipment under the Health and Safety at Work Act 2015 and all other relevant legislation.
If the Customer is not an individual, the person who signs this Agreement on behalf of the Customer warrants that they have authority to bind the Customer. Each person so signing hereby indemnifies Whio against all losses and costs that may be incurred by Whio arising out of the person so signing this Agreement failing to have such power or authority.
The Customer shall not do, permit or suffer to be done anything in connection with the Equipment or its use whereby any policy or policies of insurance effected in connection with the Equipment, or its use may become void or voidable or whereby the premiums thereon may be increased.
If the Equipment is involved in any accident resulting in injury to any person or damage to any property, the Customer must give immediate notice to Whio by telephone followed up by letter or e-mail to Whio.

USE AND HANDLING OF EQUIPMENT

The Customer shall not:

require, permit or suffer the Equipment to be used for anything contrary to any Act, regulation, by-law, requirement, code of practice or recognised convention;
repair or attempt to repair the Equipment without Whio's consent;
use the equipment for any commercial venture and may only use the Equipment for personal recreational purposes; nor
permit or suffer the operation, use or direction of the Equipment by any person who by reason of intake of alcohol or drugs has his or her faculties impaired.

The Equipment shall be at the sole risk of the Customer throughout the period of hire.

PERSONAL PROPERTY SECURITIES ACT 1999 ("PPSA")

The Customer acknowledges that title to the Equipment remains with Whio at all times.
Whio may create a security interest in the Equipment. If so, the provisions of this Clause 6 shall apply. All terms in this Clause 6 have the meaning given in the PPSA.
On the request of Whio, the Customer shall promptly execute all documents, provide all necessary information, and do anything else required by Whio to ensure that the security interest created under this Agreement constitutes a perfected security interest in the Equipment which will have priority over all other security interests in the Equipment.
The Customer waives its rights under Sections 114 (1) (a), 116, 117, 119, 120 (2), 121, 125, 126, 127, 129, 131 to 134 (inclusive) and 148 of the PPSA.

ASSIGNMENT AND SUBLETTING

This Agreement is personal to the Customer and is not capable of assignment whether in whole or in part by the Customer.
The Customer shall not sub-hire or otherwise part with possession of the Equipment or any part thereof to any third party without first obtaining the written consent of Whio which may be granted or refused in the sole discretion of Whio. The Customer may allow the use of the Equipment by persons authorised by the Customer provided such use is under the supervision of the Customer. The Customer at the Customer's own expense shall protect and defend Whio from all claims, liens and legal processes of creditors of the Customer and shall keep the Equipment and any part thereof free and clear of any such claims.

PAYMENT

The Customer shall pay to Whio the charges and fees invoiced by Whio to the Customer. These charges and fees include the charges for hire of the Equipment and may include additional charges relating to damage to or loss of the Equipment, delivery and/or removal costs, default interest for late payment, and any other costs payable under the terms of this Agreement.
Unless otherwise agreed, the Customer must pay the entire hire fee at the time of completion of the Order Form. Any other amounts payable, must be paid within 10 working days following the date of invoice. If payment is not made by that date, interest will accrue from the date of the invoice on any amount outstanding at the rate of 2.5% per month or part thereof. Any amount becoming due and payable in terms of this Clause shall be a liquidated debt and Whio shall be entitled at any time to commence proceedings against the Customer for payment of the debt including legal and collection costs incurred by Whio.

REFUNDS

Whio may, at their discretion, provide a refund to the Customer for cancelled hire orders to the value of:

100% for orders cancelled more than 10 days before the start of the hire period.
50% for orders cancelled 7 - 10 days before the start of the hire period.
0% for orders cancelled less than 7 days before the start of the hire period.

INSURANCE

The Customer may purchase insurance for damage caused to the Equipment.
Purchasing insurance indemnifies the Customer from their obligations under clauses 4(b) and 4(d).
This insurance covers:

Repairable damage to the Equipment.

This insurance does not cover:

Total loss of the equipment, or
Irreparable damage to the Equipment
Damage caused by use of the Equipment not in accordance with clauses 4.5, 4.6 and 4.8.

TERMINATION OF AGREEMENT

Whio may immediately and without notice terminate this Agreement and retake possession of the Equipment if:

the Customer makes default in the observance or performance of any of the terms and conditions of this Agreement;
Whio believes on reasonable grounds that the Customer is about to breach the terms and conditions of this Agreement and that such breach might endanger any person or property; or
the Equipment for any reason is damaged so as to be inoperable or unsafe for use; or
the Customer commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer.

Any determination to terminate this Agreement and retake possession of the Equipment shall be without prejudice to the rights of Whio in respect of any breach of this Agreement.
The Customer grants Whio or will procure that Whio is granted an irrevocable right and authority to enter at any time any place where the Equipment is situated or thought to be situated to remove the Equipment in the event this Agreement is terminated.
The Customer indemnifies Whio against any cost, claim, damage, expense or liability suffered or incurred by Whio whether arising directly or indirectly from Whio exercising its rights under this Clause 9 or otherwise acting to recover any Equipment hired or monies payable by the Customer pursuant to this Agreement.
Whio will not be liable to the Customer or any other person for any loss suffered, or liability incurred arising from termination of this Agreement or repossession of the Equipment.
If the Customer breaches any term of this Agreement resulting in Whio terminating this Agreement, then without prejudice from Whio's other legal rights at law and under the terms of this Agreement, Whio may charge the Customer hire costs for the balance of the term of the hire requested by the Customer on the Order From. The Customer acknowledges that this represents a genuine pre-estimate of Whio's losses if the Customer breaches the terms of this Agreement.

PART 2: SALE TERMS

PRICING

Whilst all effort is made to keep pricing on Whio's website up to date it is possible at times it may be out of date. As such prices on Whio's website should only be considered as an "invitation to treat" rather than as an offer to provide the Equipment at the displayed prices. The Customer's order and payment for the Equipment will be deemed to be an offer and acceptance only occurs when Whio accepts the order.
Whio's website may automatically send the Customer an order confirmation email. Such email merely acknowledges that Whio has received the order but does not commit Whio to supply the Equipment at the prices contained in the Order Form. Acceptance of the Customer's offer will be communicated separately.
Whio may produce a formal quotation for the Customer for the Equipment. The quotation shall be valid for a period of 30 days from the date of the quotation (unless otherwise specified). The Customer may accept the quotation by notice to Whio. The acceptance of the quotation in the manner specified in this clause shall constitute a binding contract and acceptance of this Agreement. The Customer must pay any deposit specified in accordance with the quotation before Whio is bound by such quotation.
Delivery charges are payable by the Customer in addition to the agreed price for the Equipment.

PAYMENT

Invoices for Equipment shall be issued in accordance with the terms set out in any quotation or following receipt of the Order Form.
Unless otherwise agreed, the Customer must pay a 20% deposit at the time of completion of the Order Form and the balance of the purchase price must be paid on or before collection or delivery of the Equipment. Any other amounts payable, must be paid within 10 working days following the date of invoice. If payment is not made by that date, interest will accrue from the date of the invoice on any amount outstanding at the rate of 2.5% per month or part thereof. Any amount becoming due and payable in terms of this Clause shall be a liquidated debt and Whio shall be entitled at any time to commence proceedings against the Customer for payment of the debt including legal and collection costs incurred by Whio.

DELIVERY

Delivery of the Equipment shall be made to the Customer's nominated address. The Customer shall make all arrangements necessary to take delivery of the Equipment whenever they are tendered for delivery.
Delivery of the Equipment to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of Whio for the purpose of transmission to the Customer, is deemed to be a delivery of the Equipment to the Customer.
Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.

RISK

The Equipment will be at the Customer's risk immediately on delivery.

DEFECTS / RETURNS

The Customer shall inspect the Equipment on delivery and shall within fourteen (14) days of delivery notify Whio of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Whio an opportunity to inspect the Equipment within a reasonable time following delivery if the Customer believes the Equipment is defective in any way. If the Customer shall fail to comply with these provisions the Equipment shall be conclusively presumed to be in accordance with this Agreement and free from any defect or damage.
Whio provides no warranty for any airtight and / or waterproof zip installed into the Equipment.
For defective Equipment which Whio has agreed in writing that the Customer is entitled to reject, Whio's liability is limited to (at Whio's discretion):

replacing the Equipment;
repairing the Equipment; or
refunding the price paid for the Equipment.

PART 3: REPAIR TERMS

REPAIR

Whio may, at their discretion, undertake repairs of a Customer's Equipment.
Whio provides no warranty or guarantee of the effectiveness or durability of any repairs undertaken.

PART 4: GENERAL TERMS

WARRANTY AND ACCEPTANCE

The Customer acknowledges that Whio has entered into this Agreement based on information supplied to Whio by the Customer and the Customer warrants that the information supplied is accurate and complete.
Acceptance by the Customer of the Equipment shall be deemed to be acceptance of the terms and conditions of this Agreement (as amended from time to time).

INDEMNITY

The Customer shall indemnify and keep indemnified Whio from and against all damage or loss:

Suffered or incurred in consequence of:

Any breach of the terms of this Agreement by the Customer; or
Any negligent act or omission on the part of the Customer; or

Otherwise caused by the Customer or the Customer's Representatives during the term of this Agreement.

LIMITATION OF LIABILITY

In entering into this Agreement, the Customer acknowledges that Whio has no liability to the Customer for any indirect or consequential loss or damage or for any loss of profit (or any other form of economic loss) arising in connection with this Agreement (whether in contract or in tort) including that resulting from the negligence of Whio or arising by operation of law.
Subject to the exclusion of liability in Clause 17(a) above, the maximum aggregate liability of Whio for all claims made by the Customer, whether as a result of any breach of this Agreement or on any other ground or terms whatsoever (including, but not limited to, liability as a result of tort, including negligence) will not exceed the lesser of the hire charges or purchase price paid by the Customer to Whio pursuant to this Agreement.
The Customer will indemnify Whio against any liability, losses, damages or expenses incurred or suffered by Whio as a result of any claim made by a third person against Whio in respect of any loss or liability arising from this Agreement or arising out of the use of the Equipment by the Customer.
Clauses 17(a) and 17(c) are subject to any liability which arises under the Consumer Guarantees Act 1993.

ORAL AGREEMENTS AND STIPULATIONS

No oral agreement, promise, collateral stipulations, representation, condition, or warranty given or entered into by Whio or by any Representative of Whio and not in conformity with this Agreement shall be binding upon Whio unless confirmed in writing by Whio.

WAIVER

All the rights, powers, and remedies of Whio shall remain in full force notwithstanding any neglect, forbearance or delay by Whio in the enforcement of them.

GOVERNING LAW

This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand.

CONTRACTING OUT

This Agreement contains the whole of the terms of the contract between the parties and all other terms, conditions and warranties which might otherwise have been implied or have any application are hereby to the maximum extent permitted by law expressly excluded.

PRIVACY ACT 2020

The Customer authorises Whio to collect retain and use any information about the Customer and this information is principally collected for the purpose of assessing the Customer's creditworthiness and enforcing any rights under this Agreement.
The Customer and each person who signs or completes the Order From for and on behalf of the Customer authorises Whio:

To collect, retain and use information about the Customer or such other signatory from any person for the purposes of assessing the Customer's or such other signatory's credit worthiness;
To disclose information about the Customer or such other signatory to any person who guarantees, or who provides insurance, or who provides any credit support in relation to the Customer's obligations to Whio and to such persons as may be necessary or desirable to enable Whio to exercise any power, enforcement or attempted enforcement of Whio's rights, remedies and powers under this Agreement.

Where the Customer is a natural person the authorities under clauses 22(a) and 22(b) are authorities or consents for the purposes of the Privacy Act 2020.

DISPUTE RESOLUTION

A party may notify the other party ("Dispute Notice") if that party considers that a dispute exists between the parties in relation to the terms of this Agreement ("Dispute"). As soon as reasonably practicable after the Dispute Notice has been given, the parties shall co-operate and negotiate in good faith in an endeavour to resolve the Dispute. A party may refer the Dispute to mediation under this Agreement if the parties are unable to resolve the Dispute within 7 days after the date on which the Dispute Notice is delivered.
Mediation under this Agreement will be governed in all respects by the terms of the Resolution Institute standard mediation agreement (NZ version). The mediation must be conducted by a mediator and for a fee determined by the parties or (failing agreement within 7 days after referral to mediation) the Chairperson for the time being of the Resolution Institute. Subject to anything to the contrary in this Agreement, the parties must act in good faith in the mediation in an endeavour to resolve the Dispute expeditiously.
Nothing in this Clause 25 precludes a party seeking or obtaining any order or relief by way of injunction or declaration or other equitable or statutory remedy against the other party to the Dispute or any other person where the party believes the order or relief is necessary for the urgent protection of that party's rights or property.
For the avoidance of doubt, the existence of a Dispute shall not relieve a party from the requirement to perform its obligations under this Agreement generally and, notwithstanding the Dispute, each party must continue to perform its obligations under this Agreement to the maximum extent possible (having regard to the nature of the Dispute).
All steps under this Clause 25 to resolve a Dispute shall take place in Christchurch.