1. HIRE CONDITIONS
1.1 Hire Agreement: Bay of Plenty Boat Hire Limited (“the Owner”) agrees to hire the vessel to the Hirer on the terms and conditions set out in this document as well as the agreement form completed and signed by the Hirer and/or the Skipper at the commencement of the hire (together referred to as “the Hire Agreement”).
1.2 Collection of Vessel: The vessel is hired to the Hirer on a day hire basis. The day hire period is from 7am to 7pm on the date of hire. Within this hire period the Hirer must allow approximately 1 hour following the commencement of the hire for a briefing and additional travel time to and from the boat launch site. This timeframe remains the same whether or not the Owner is delivering the vessel to and/or collecting the vessel from the launch site.
1.3 Return of Vessel: The vessel must be returned to the location set out in the delivery instructions at or before 7pm on the date of hire. If the vessel is returned after 7pm on the date of hire a late fee will be charged to the Hirer at the rate of $100.00 per half hour (“Late Fee”). If the vessel is returned later than 2 hours after the due time then the Owner shall be entitled to charge an additional day’s hire to the Hirer. If the Owner has received no contact from the Hirer by 7pm on the date of hire or 30 minutes following the pre-arranged off the water time, then the Owner shall initiate emergency procedures at the Hirer’s sole cost. Where the circumstances of the late return are due to circumstances outside of the Hirer’s control, then the Owner may decide to waive the late fee and any other costs at the Owner’s sole discretion. Upon the return of the vessel the Hirer shall ensure that all rubbish is removed from the vessel and disposed of appropriately at the Hirer’s cost.
1.4 Designated Areas and Itinerary: The Hirer must only operate the vessel within the designated areas specified in the Ship’s Manual. The Hirer must advise the Owner of the itinerary and location of the Hirer’s planned trip prior to collecting the vessel. The Hirer must advise the Owner of any changes to this itinerary throughout the hire period. The Hirer acknowledges that the Owner will track the vessel using GPS throughout the hire period in order to monitor the position of the vessel.
1.5 Number of Passengers: The Hirer must obtain the Owner’s prior approval of the number of passengers to be on board the vessel during the hire (including the Hirer), and shall ensure that the number of passengers on board the vessel does not exceed the number approved by the Owner.
1.6 Use of Petrol: The Hirer shall pay for all petrol used by the vessel during the hire period. The Hirer must only use the appropriate fuel specified in the Ship’s Manual and shall maintain the fuel at appropriate levels in order to ensure the safe operation of the vessel at all times. All tote tanks on the vessel must be full when the vessel is returned to the Owner. If any tote tank is not returned to the Owner full, then the Owner reserves the right to charge to the Hirer an administration fee of $75.00 plus the pump price of the fuel required to be purchased to fill the tanks (“Fuel Fee”).
1.7 Payment: The Hirer must make payment to the Owner prior to the commencement of the Hire in accordance with the payment details provided to the Hirer and the terms set out in the Hire Agreement.
1.8 Damage: The Hirer must immediately advise the Owner if the vessel is damaged or requires repair or salvage, and shall immediately return the vessel to the Owner at the place of delivery or any other place agreed to by the Owner.
1.9 Use of Vessel and Hired Equipment: The Hirer warrants that all persons who use the vessel and/or the hired equipment shall, in respect of the vessel and/or hired equipment:
(a) be competent and qualified in their use;
(b) shall only use them in the manner for which they were designed to be used;
(c) shall follow any directions from the Owner, authorities, code of practice and/or the manufacturer relating to the use and safety of them; and
(d) shall comply with all obligations in relation to the use and control of them and the persons using them in accordance with the health and Safety at Work Act 2015 (if applicable) and all other relevant legislation and applicable regulations.
1.10 Medical Conditions: The Hirer and the Skipper warrant that they have disclosed the presence of any medical condition suffered by the Hirer and/or Skipper that may impact in any way upon the safe operation or use of the vessel or hired equipment.
2. SKIPPER’S OBLIGATIONS
2.1 Obligations of Skipper: Where the Hirer is different from the person who will be handling, navigating and controlling the vessel during the hire period (“the Skipper”), then both the Hirer and the Skipper shall be obliged to meet the obligations set out in these Terms & Conditions. Both the Hirer and the Skipper (if different persons) will be asked to sign a copy of these Terms and Conditions.
2.2 Identity of Skipper: The Skipper must be 20 years of age or older and must if requested by the Owner provide proof of the Skipper’s identity and age in the form of New Zealand Government-Issued photo identification such as a Driver’s Licence or Passport.
2.3 Control of Vessel and observance of Laws: The Skipper shall maintain control of the vessel at all times and shall ensure that all passengers of the vessel comply with all relevant New Zealand laws and regulations including but not limited to the Maritime Transport Act 1994 and any Regulations made under that Act, and the Health and Safety at Work Act 2015. Any passenger under the age of 18 years old shall be supervised at all times by the Skipper or another adult passenger.
2.4 Prohibited Activites: Whilst in control of the vessel the Skipper must:
(a) remain sober and free from the influence of alcohol, drugs or any other intoxicating substance;
(b) not allow smoking by any passenger on board the vessel;
(c) not allow any passenger to possess or use a firearm on board the vessel;
(d) not operate or permit the vessel to be operated in any race, speed test or competition;
(e) not allow the vessel to propel or tow any other vessel or object other than those vessels or objects supplied by the Owner for that express purpose;
(f) ensure that life jackets are worn by all passengers on board the vessel.
(h) ensure that proper and reasonable care is taken in the use, handling, mooring and storage of the vessel;
(i) not operate the vessel in darkness unless there is an emergency or the Skipper has the express prior permission of the Owner;
(j) not allow the VHF Radio to be used for transmission other than in an emergency unless the user is a licenced VHF Radio Operator;
(k) not allow the vessel to be used for the carriage of passengers for hire or reward;
(l) not cross the Whakatane bar unless the Skipper meets the following requirements:
(i) At least 1 year of experience crossing bars; and
(ii) Membership of Coastguard; and
(iii) Holder of a VHF Licence.
3.1 Hire Fee: The Hirer must pay one half of the Hire Fee to the Owner immediately upon booking the hire of the vessel with the Owner. The Hirer must pay the balance of the Hire Fee to the Owner prior to collecting the vessel on the day of hire.
3.2 Security Bond: The Hirer must pay a security bond of $500.00 to the Owner prior to 7am on the date of hire. The security bond shall be paid in cash or by credit card imprint. The security bond will be processed and deducted by the Owner if the vessel or any other item of hired equipment is damaged or lost. If the vessel or other hired equipment is damaged or lost then the Owner will notify the Hirer and the costs of repairing the damage (and in the case of hired equipment, the full retail price of the item of equipment) will be charged to the Hirer’s credit card or deducted from the security bond paid.
3.2 Authority to Deduct Funds from Bond: The Hirer authorises the Owner to deduct from the security bond and to charge any sum in excess of the bond amount any monies payable by the Hirer under this agreement, including but not limited to any outstanding amount of the Hire Fee, Late Fees, and Fuel Fees, Cancellation Fees, Insurance Excess Fees and any valuation fees incurred in surveying damage caused to the vessel.
4.1 Owner’s Right to Cancel: The Owner may in the Owner’s sole discretion terminate the Hire Agreement by notice with immediate effect in the following circumstances:
(a) If the vessel is unavailable for hire;
(b) Adverse weather conditions;
(c) If at the commencement of the hire the Owner is not satisfied with the ability of the Hirer or the Skipper (if a different person) to handle, navigate and/or respect the vessel;
(d) If at any time during the hire period the Hirer and/or the Skipper endanger themselves, the vessel or a third party;
(e) If the Hirer and/or Skipper commit any breach of these terms and conditions.
4.2 Cancellation without refund: If paragraphs 4.1(d) and/or (e) of these terms and conditions apply, then the Owner may terminate the Hire Agreement and require the Hirer to return the vessel to the launching site without the Hirer being entitled to any payment of compensation or refund of the Hire Fee.
4.3 Cancellation by Hirer: The Owner reserves the right to charge a Cancellation Fee In circumstances where the Hirer cancels the hire of the vessel as follows:
(a) If cancellation is notified to the Owner up to (but not including) 60 days prior to the date of hire then the Owner shall refund the Hire Fee to the Hirer less a Cancellation Fee of $100.00;
(b) If cancellation is notified to the Owner between 60 to 30 days prior to the date of hire (inclusive) then the Owner shall refund the Hire Fee to the Hirer less a Cancellation Fee of one third of the Hire Fee;
(c) If the cancellation is notified to the Owner between 29 and 14 days prior to the date of hire (inclusive) then the Owner shall refund the Hire Fee to the Hirer less a Cancellation Fee of two thirds of the Hire Fee; and
(d) If the cancellation is notified to the Owner less than 14 days prior to the date of hire, including circumstances where the Hirer does not arrive to collect the vessel at the commencement of the hire period on the date of hire, then the Hirer forfeits the full Hire Fee to the Owner and the Hirer shall not be entitled to any refund of the Hire Fee.
4.4 Alternative Booking: Where the Owner receives notice of cancellation from the Hirer, the Owner will endeavour to accommodate an alternative hire period for the Hirer of the same value, provided however that the Owner shall not be obliged to do so.
5.1 Indemnification of Owner: The Hirer indemnifies the Owner from and against all claims, actions, costs, liabilities and losses incurred or suffered by the Owner (including legal costs) as a result of any claim made by a third person against the Owner in respect of any loss or liability arising from the Hire Agreement or arising out of the use of the vessel or hired equipment hired by the Hirer, except where the loss or liability has arisen due to the negligence of the Owner or where the Owner has wilfully, negligently or recklessly supplied a defective vessel or equipment to the Hirer.
5.2 Illegal Fishing: To the full extent permitted by law, the Hirer indemnifies the Owner from and against all fines and the seizure or confiscation of the vessel or hired equipment arising from any illegal use of the vessel or hired equipment by the Hirer, including but not limited to fishing in prohibited or restricted areas or non-compliance with any recreational fishing size and catch limits imposed under the Fisheries (Amateur Fishing) Regulations 2013 or any other legislation.
5.3 Consumer Guarantees Act 1993: Insofar as the Hirer is a consumer, the Hirer is entitled to certain rights and remedies under the Consumer Guarantees Act 1993 (“the CGA”). For the avoidance of doubt, nothing in the Hire Agreement affects, or attempts to exclude in any way, the Hirer’s rights under the CGA.
5.4 Limitation of Liability: Other than for claims made under the Consumer Guarantees Act 1993, the maximum aggregate liability of the Owner for all claims made by the Hirer will not exceed the Hire Fee paid by the Hirer to the Owner pursuant to the Hire Agreement, except where such liability arises as a result of the negligence of the Owner or where the Owner has wilfully, negligently or recklessly supplied a defective vessel or equipment to the Hirer.
6.1 Owner’s Insurance: The Owner has taken out policies of insurance to cover the Hirer for loss or damage to the vessel and equipment and public liability insurance subject to the terms of the Hire Agreement.
6.2 Insurance Excess: The Hirer shall pay an insurance excess fee of $1,500.00 (“Insurance Excess Fee”) to the Owner in the event of any loss, theft or damage to the vessel or equipment that is covered by the Owner’s policies of insurance.
6.3 Hirer Limitation of Liability: Subject to the exclusions set out at paragraph 6.4, the Hirer shall not be liable to the Owner for any loss of or damage to the vessel or hired equipment during the period of hire to the extent that the loss or damage is covered by the Owner’s policy of insurance, provided that:
(a) the Hirer has at all times acted reasonably and with reasonable care;
(b) the Hirer has delivered to the Owner (within 12 hours of the time when the Hirer first becomes aware of the loss of or damage to the vessel or hired equipment) a complete, correct, written report of the circumstances of such loss of or damage to the vessel or hired equipment, including, in the case of any loss appearing to result from any criminal act, an applicable police complaint acknowledgement form;
(c) the Hirer has complied with the Hirer’s obligations under the Hire Agreement;
(d) the Hirer has assisted the Owner (on the Owner’s reasonable request) for the purposes of enabling the Owner to recover such loss or damage;
(e) the Hirer has paid the Insurance Excess Fee to the Owner.
6.4 Exclusions to Insurance Cover: The Hirer shall be fully liable to the Owner for any loss or damage to the vessel or hired equipment in the following circumstances:
(a) theft of or criminal damage to the vessel or hired equipment unless reasonably locked and secured;
(b) damage or loss due to misuse, abuse or overloading of the vessel or hired equipment or failure to take reasonable care of it (including any overloading of any motors or other electrical appliances or devices);
(c) damage caused to tyres or tubes by blowout, bruises, cuts, kerbing or other causes arising from the use of the vessel trailer;
(d) loss or damage to the vessel or hired equipment arising from a breach of the Hire Agreement by the Hirer;
(e) loss or damage to the vessel or hired equipment in violation of any statute, regulation or by-law;
(f) where, as a consequence of the Hirer’s use of the vessel or hired equipment, the Owner does not receive payment in full from the Owner’s insurer;
(g) where any loss or damage to the vessel or hired equipment occurs as a result of the negligent or reckless acts or omissions of the Hirer.
6.5 Damage or Loss during Transit: The Hirer shall not be covered by the Owner’s policies of insurance in respect of damage or loss caused to the vessel or hired equipment during transit to or from the water in which case the driver and/or owner of the vehicle towing the vessel shall be responsible for any insurance claims under their own policy of insurance. The Hirer agrees to indemnify the Owner against the cost of repairing such damage caused to the vessel or hired equipment, or replacing the vessel or hired equipment if lost, if the driver and/or owner of the vehicle is unable to obtain cover under their policy of insurance.
6.6 No third party cover: The Owner’s insurance policies do not cover the Hirer for loss or damage caused to third parties, and any such loss or damage shall be the sole responsibility of the Hirer in all respects.
7. OWNERSHIP OF VESSEL
7.1 Title: The Hirer acknowledges that title to the vessel and hired equipment remains with the Owner at all times.
8.1 Collection of Personal Information: The Owner requires personal information and will collect and hold personal information about the Hirer, principally for the purpose of evaluating the hire of the vessel and hired equipment by the Hirer. The Hirer’s application to hire the vessel may be declined or the Hire Agreement terminated by the Owner if the Hirer fails to provide the requested personal information. The Hirer can access and seek correction of any personal information by contacting the Owner. The Hirer agrees that its personal information may be used by the Owner to advise the Hirer of the Owner’s other goods and services. The Hirer authorises the disclosure to the Owner of personal information held by any other party regarding any previous hire contracts entered into by the Hirer.
8.2 Authority to Disclose: The Hirer and each other person who signs the application for hire (including, if a different person, the Skipper) authorises the Owner to disclose the personal information to:
(a) debt collection agencies in the event that they Hirer defaults in the payment of any monies owing to the Owner under the Hire Agreement;
(b) other parties involved in an accident with the vessel or hired equipment during the hire period; and
(c) any organisations responsible for the processing or handling of traffic or maritime related infringements.
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