These Terms and Conditions apply to you (being the person named in the Booking) when you make a booking to rent Equipment from us (being CycleWorx NZ Limited (company number 8335020)), together the Parties and each a Party.

Background

    A. We own the Equipment. You have requested to rent the Equipment from us, and we have agreed to rent the Equipment to you, in accordance with the details of your Booking and these Terms.

1. Acceptance, Term and Rental Period

1.1 You accept these Terms by the earlier of:

(a) making a Booking, whether via phone, in person, or through our app or website; and 

(b) making part or full payment of the Deposit, Bond or the Rental Fee.

1.2 We may, at our absolute discretion, accept or reject any request to provide the Equipment for whatever reason.

1.3 You agree to rent the Equipment for the Rental Period. 

1.4 Subject to clause 1.1, these Terms will apply to you from the Commencement Date, and end on the date that the Rental Period under your Booking finishes, unless otherwise terminated earlier in accordance with its terms (the Term). 

2. Our obligations

2.1 In consideration of you paying the Rental Fee and you complying with these Terms, we agree to provide the Equipment to you for the Rental Period, and otherwise in accordance with your Booking and these Terms.

2.2 We will have no obligation to supply the Equipment to you until we have received the payment of the Deposit and Bond in full (as applicable).

3. Variations and Reschedule

3.1 You may request a variation or change to your Booking, including the type of the Equipment to be supplied and the date and time of your Rental Period (Variation), by calling or emailing us, with details of the Variation (Variation Request). 

(a) We will not be obliged to comply with a Variation Request unless we confirm our acceptance by updating your Booking. The Parties agree to comply with any updated Booking agreed to by the Parties.  

(b) We will endeavour to accept all Variation Requests that are provided to us at least 48 hours before the commencement of the Rental Period, provided we are reasonably able to accommodate the Variation Request, noting that due to pre-existing bookings this may not always be possible. Where we cannot accommodate a Variation Request in this timeframe, you shall be entitled to terminate your Booking and receive a full refund of any Fees paid.

(c) Any Variation Requests received within 48 hours of the commencement of your Rental Period will be considered at our sole and absolute discretion and, where we are unable to accept the Variation Request, you shall be entitled to terminate your Booking and receive a full refund of any Fees paid minus the Deposit (which is non-refundable in these circumstances).

3.2 If we reasonably consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 3.1.

3.3 Where a reliable weather source has indicated that the weather for the chosen Rental Period is of a nature which may make using the Equipment unsafe, we agree to exchange the dates for the Rental Period to another suitable time, subject to availability of the Equipment (Weather Event). You acknowledge and agree that we require 48 hours notice to adjust the Rental Period due to a forecasted weather event. Where less than 48 hours’ notice is given, clause 3.1(c) applies.  

4. Your obligations

4.1 You agree to: 

(a) pay us the Fees applicable to your Booking;

(b) comply with these Terms, our reasonable requests or requirements, and all applicable laws; and

(c) provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations under these Terms and at law.

4.2 You agree we are not required to provide you with the Equipment under your Booking unless you provide us with proof of your identity that we can take a copy of, in the form of a New Zealand Drivers Licence or a passport (NZ or international). We will manage your personal information in accordance with our privacy policy.

4.3 You agree to use the Equipment in a manner that is not seen as reckless or negligent and does not place yourself, others or the Equipment at risk. Where we consider non-compliance has occurred with this clause, at our sole and absolute discretion, we may terminate your Booking in accordance with clause 18.

4.4 We will provide you with a session immediately prior to the Rental Period, explaining how the Equipment is to be used (Information Session). You acknowledge and agree to listen and partake in the Information Session, and your failure to do so is at your risk.

4.5 If there are any issues with the Equipment during the Rental Period, you agree to contact us immediately so we can assist with any repairs (or replacement, as the case may require of the Equipment). Where we consider the issue is due to your use of the Equipment in a reckless or negligent manner we may deduct the repair costs from your Bond.

5. Payment

5.1 In consideration for us supplying the Equipment, you agree to pay us the Fees set out in your Booking and any other amount payable to us under these Terms, in accordance with these Terms. 

5.2 When applicable, GST is payable on the Fees and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.

5.3 You agree to provide us with your credit card details and allow us to place a hold on your card as a form of Bond, for any Late Fees or damage caused to the Equipment by you.

5.4 The Deposit is due and payable by you when you make a Booking and will be non-refundable if you cancel less than 48 hours prior to the commencement of the Rental Period. You agree that the non-refundable Deposit is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your termination of your Booking within 48 hours.

5.5 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion and without prejudice to any of our rights or remedies under these Terms or at law) charge interest at a rate equal to the Reserve Bank of New Zealand’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

6. Damage Cover

6.1 Except as otherwise stated in your Booking or these Terms, where:

    (a) the Equipment is stolen; 

    (b) involved in an Accident; or

    (c) damaged due to negligent or reckless actions by you,

during the period of time between when you collect the Equipment from the Collection Location and when you return the Equipment to us at the same location, you agree that you will be liable to pay the insurance excess of $1500 that we hold on the Equipment, or the costs to repair the Equipment to us, whichever is the lesser, plus any reasonable administrative costs and the estimated commercial loss we will experience while the Equipment is being repaired or replaced.

7. Collection, delivery and return of Equipment

7.1 If the Parties agree that:

(a) you are to collect the Equipment from us, you agree to collect the Equipment from the Collection Location and by the collection time agreed between the Parties; 

(b) we are to deliver the Equipment to you, we agree to use our reasonable endeavours to deliver the Equipment to the delivery location by the delivery time agreed between the Parties and/or specified in the Booking. 

7.2 You agree to return the Equipment to us to the Collection Location or make the Equipment available for collection by us (as agreed between the Parties) in the Original Condition by the return time agreed between the Parties and/or specified in the Booking.

7.3 If the Parties agree that:

    (a) you are to return the Equipment to us at the expiry of the Rental Period, you agree that if you do not return the Equipment to the Collection Location by the return time agreed between the Parties, we may after a grace period of two hours charge you the relevant Late Fee depending on the time you return the Equipment to us;

    (b) we are to collect the Equipment from you at the expiry of the Rental Period, you agree that if we arrive at the agreed location for collection and the Equipment is not immediately available for our collection, we may charge you the relevant Late Fee depending on the time the Equipment is available for collection by us. 

7.4 You agree that the Late Fee applied in the circumstances is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your delay in returning the Equipment. 

7.5 You agree to comply with any requirements, policies or procedures which apply at the Collection Location or any other pick up or drop off location agreed between the Parties (as applicable). 

7.6 As between the Parties, you agree to pay for the reasonable costs of delivery or collection of the Equipment.

8. Condition of Equipment

8.1 You agree that you are solely responsible for determining whether the Equipment will be suitable and fit for your particular purposes.

9. Warranties and Representations

9.1 You represent, warrant and agree that:

(a) all information and documentation that you provide to us in connection with your Booking is true, correct and complete;

(b) you will report any Accident, traffic infringement or parking infringement which occurs during the Rental Period to us as soon as possible after it occurs;

(c) the Equipment is provided to you solely for your benefit and you will not (or you will not attempt to) share our Equipment with, or provide access to our Equipment to, third parties without our prior written consent;

(d) you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperate and access reasonably necessary to enable us to supply the Equipment and meeting our obligations in respect of your Booking;

(e) you will not use the Equipment, or allow the Equipment to be used, in breach of any laws; and

(f) you will keep the Equipment under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Equipment to any other person.

10. Accidents and Breakdowns

10.1 If an Accident occurs during the Rental Period, you agree to:

    (a) immediately notify us of the Accident; and

    (b) provide us with an accurate description of the incident and its location.

10.2 If the Equipment breaks down or requires repair during the Rental Period, you must notify us immediately, move the Equipment to a safe and secure place and await our further instructions. If the Equipment requires repair or replacement, the decision to supply another piece of equipment to you is at our sole discretion.

11. Maintenance and Repairs

11.1 During the Rental Period, in addition to and without limiting any other obligation under these Terms, you agree to:

(a) only allow our Personnel to service or repair the Equipment, unless otherwise agreed to by us;

(b) contact us immediately if there are any technical or mechanical issues with the Equipment;

(c) protect and keep the Equipment in the Original Condition (including being in good working order and condition), subject to any fair wear or tear; and 

(d) prevent the Equipment from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Equipment is stolen, lost, destroyed, damaged or involved in an Accident. 

11.2 You agree that you are responsible for the costs of any repair or replacement of the Equipment that is necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Equipment during the Rental Period.  Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.

12. Title and Risk 

12.1 You agree that once you have collected the Equipment from us (whether at the Collection Location or some other location as agreed between the Parties and/or specified in your Booking), you will be solely responsible for the Equipment until it is returned to us and it is in our full custody and control.

12.2 Title in the Equipment will at all times remain with us, and you take the Equipment as a bare bailee only.

13. Security Interest 

13.1 You agree to not create an encumbrance, lien, charge, or other interest on or over the Equipment.

13.2 You agree that we hold a general lien over the Equipment, for the satisfactory performance by you of your obligations in respect of your Booking (including under these Terms) and that, where applicable, these Terms and your obligations under these Terms creates a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).

13.3 This clause 13 will survive termination or expiry of your Booking.

14. Confidential Information

14.1 Subject to clause 14.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party. 

14.2 Clause 14.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with your Booking and provided that the disclosing party ensures the adviser complied with the terms of clause 14.1. 

14.3 This clause 14 will survive the termination or expiry of your Booking.

15. New Zealand Consumer Law

15.1 Certain legislation, including New Zealand Consumer Law (NZCL) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Equipment which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in these Terms excludes your Consumer Law Rights as a consumer under the NZCL.

15.2 You agree that our Liability for the Equipment is governed solely by the NZCL and these Terms.

15.3 Subject to your Consumer Law Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Equipment) are provided to you without warranties, representations and guarantees of any kind, except where expressly provided in these Terms. 

15.4 Where you return the Equipment to us to seek a remedy under the NZCL, you will need to cover any associated costs (for example delivery costs) of you returning the Equipment (or the relevant part of the Equipment) to us unless we are required to collect them under the NZCL, in which case we will collect them at our expense. 

15.5 Where your claim is a valid claim under NZCL, we will refund your return delivery costs and, depending on the failure, either dispatch a new, equivalent piece of Equipment or repaired replacement of the Equipment (or relevant part of the Equipment) or refund you the Rental Fee for your hire of the relevant Equipment. 

15.6 This clause 15 will survive the termination or expiry of your Booking.

16. Limitation on Liability

16.1 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:

(a) neither Party will be liable for Consequential Loss;

(b) a Party’s liability for any Liability under your Booking and these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

(c) our aggregate liability for any Liability arising from or in connection with your Booking will be limited to the amount of the Fees paid by you to us in respect of the supply of the relevant Equipment to which the Liability relates.  

16.2 You acknowledge and agree that you use the Equipment at your own risk, and we accept no liability in relation to same. 

16.3 As part of the Information Session we will advise adequate clothing and footwear that should be worn while using the Equipment. Your failure to follow this suggestion is at your own risk and we accept no liability in relation to same.

16.4 This clause 16 will survive the termination or expiry of your Booking.

17. Indemnity

17.1 To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with: 

(a) A material breach by you of your obligations in connection with your Booking and under these Terms;

(b) any property loss or damage, death or personal injury, arising from or in connection with your use of the Equipment; 

(c) any loss (including theft) of, or damage to, the Equipment when you are responsible for the risk in the Equipment in accordance with clause 12;

(d) any failure to return the Equipment in its Original Condition; and

(e) all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with these Terms.

17.2 This clause 17 will survive the termination or expiry of your Booking.

18. Termination

18.1 We may terminate your Booking immediately upon notice from us to you where: 

(a) you breach a material term of your Booking, including these Terms; or

(b) prior to the Rental Period, we determine that we are unable to provide you with the Equipment the subject of your Booking for operational reasons.

18.2 Upon termination of your Booking pursuant to clause 18.1(a):

(a) we will immediately cease supplying the Equipment to you;

(b) without limiting your Consumer Law Rights, you agree that any Fees paid by you to us are not refundable to you;

(c) you are to pay for any Fees due and payable prior to termination, and all other amounts due and payable under this Agreement;

(d) you also agree to pay our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and

(e) you agree to grant us such rights of access to any premises where the Equipment is located to allow us (or our Personnel) to immediately recover or repossess the Equipment.

18.3 Upon termination of your Booking pursuant to clause 18.1(b), we will refund you any Fees paid by you to us pursuant to your Booking up to the date of termination.

18.4 Termination of your Booking will not affect any rights or liabilities that a Party has accrued under it.

18.5 This clause 18 will survive the termination or expiry of your Booking.

19. General

19.1 Amendment: Subject to clause 3, these Terms may only be amended by written instrument executed by the Parties.

19.2 Assignment: Subject to clause 19.3, a Party must not assign or deal with the whole or any part of its rights or obligations in respect of your Booking without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

19.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with your Booking, to a debt collector, debt collection agency, or other third party.

19.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, your Booking (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 19.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Arbitrators’ and Mediators’ Institute of New Zealand. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

19.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations in respect of your Booking if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

            (a) as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

            (b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. 

Where the Force Majeure Event prevents a Party from performing a material obligation in respect of your Booking for a period in excess of 60 days, then the other Party may by notice terminate your Booking, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party in respect of your Booking. 

19.6 Governing law: Your Booking and these Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

19.7 Notices: Any notice given under these Terms in respect of your Booking must be in writing addressed to the addresses set out in your Booking, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

19.8 Relationship of Parties: Your Booking is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

20. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Accident means any collision or contact between the Equipment and any other object, including but not limited to a vehicle, animal or person, or any incident or occurrence that results in the Equipment being damaged, lost or destroyed or any other vehicle, property, thing, animal or person being injured, killed, damaged, lost or destroyed (as applicable).

Bond means the amount held on your credit card for us, provided at the time of booking the Equipment.

Booking means your booking with us for rental of the Equipment requested by you in your booking application and as otherwise specified in that application.

Business Days means a day on which banks are open for general banking business in New Zealand, excluding Saturdays, Sundays and public holidays.

Collection Location means our premises at 9/38 Ashley Place, Papamoa, or another address provided by us for collection of the Equipment.

Commencement Date means the date you make a Booking with us.

Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise: 

    (a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into your Booking as the probable results of the relevant breach, act or omission; and/or

    (b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.

However, the Parties agree that your obligation to pay us the Fees under in respect of your Booking will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 15.1.

Deposit means 50% of the Rental Fee charged to you upon making your Booking, which is non refundable.

Dispute has the meaning given in clause 19.4.

Equipment means the e-bike and any accessories rented by you in your Booking.

Fees means any fees payable by you to us in respect of your Booking (including, but not limited to, the Deposit, the Rental Fee, and any Late Fees).

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Information Session has the meaning given in clause 4.4.

Late fee means $60 per hour charged on the late return of the Equipment in accordance with clause 7.3 and 7.4.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Original Condition means in good working order and condition, clean, free from major damage or defect, fit for purpose and in accordance with these Terms.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Rental Fee means the daily or hourly rate advised to you in your Booking, for use of the Equipment for the Rental Period.

Rental Period means the period which you have rented the Equipment for, as specified in your Booking.