Rental Terms and Conditions
General Terms for Equipment Hire
These Terms apply to all Equipment hired by U Be Fit Pty Ltd ACN 129 190 450 as trustee for the Stallworthy Business Trust trading as Your Reformer (the Company or Your Reformer) to the customer specified in the Application Form (the Customer or you). By completing or executing the Application Form or submitting an order, you agree to be bound by these Terms.
1. Definitions
In the Terms, unless expressed or implied to the contrary, the following words have the following meanings:
Application Form means the application form submitted by the Customer to rent the Equipment from the Company.
Deposit means the deposit amount set out in the Application Form and/or Order confirmation.
Business Day means any day other than a Saturday, Sunday, or a bank holiday or a public holiday in Auckland, New Zealand and a reference to a date which does not fall on a Business Day is to be construed as a reference to the next Business Day.
Collection Fee means the collection fee specified in the Application Form.
Commencement Date means the date set out in Application Form.
Company means the entity referred to as the Company in the Parties section of the Application Form.
Customer means the person hiring the Equipment the subject of these Terms.
Delivery Fee means the delivery fee specified in the Application Form.
Equipment means the equipment set out in the Application Form.
Expiration Date means the date set out in Application Form (if specified).
Hire Fee means the hire fee specified in Application Form, or such other amount specified by the Company from time to time.
Hire Period means the period from the Commencement Date to the Expiration Date (both dates inclusive) as specified in Application Form, unless otherwise terminated in accordance with these Terms.
Interest Rate means the interest rate set by the Interest on Money Claims Act 2016.
Inventory means "inventory" as defined by the PPSA.
Location means the address where the Equipment is held by the Customer as set out in Application Form.
NZCL means New Zealand consumer laws, including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.
Parts means any and all appliances, parts, instruments, accessories and other equipment of whatever nature constituting part of the Equipment or which may from time to time be incorporated or installed in, or attached to the Equipment.
PPSA means the Personal Property Securities Act 1999.
PPSR means the Personal Property Securities Register established pursuant to the PPSA.
Security Interest means an interest in personal property provided for by a transaction that, in substance, secures payment of money or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property), and also includes a transaction which the PPSA treats as a security interest whether or not the transaction concerned, in substance, secures payment or performance of an obligation.
Secured Property means all goods that are supplied to the Customer by the Company (whether now or in the future) including the Equipment and for the avoidance of doubt the proceeds of any sale of those goods.
Terms means these terms and conditions of equipment hire.
In these Terms, unless expressed or implied to the contrary, terms defined in the PPSA, have the same meaning.
2. Hire of Equipment
2.1 The Company will hire to the Customer the Equipment in accordance with these Terms.
2.2 This agreement commences on the earlier of either the Commencement Date, or the day that the Customer takes possession of the Equipment.
2.3 This agreement will terminate on the Expiration Date (if specified), or until terminated in accordance with these Terms.
2.4 The minimum Hire Period is twelve (12) weeks.
3. Supply and Return of Equipment
3.1 Except as otherwise agreed in writing with the Company, the Company will assist the Customer with the coordination of delivery using the Company's delivery partner.
3.2 Within 10 Business Days from the end of the Hire Period, the Customer must contact the Company to arrange a time for the Company (through its delivery partner) to collect the Equipment from the Customer's Location during business hours.
3.3 The Customer agrees to allow the Company or its delivery partner access to the Location to collect the Equipment.
3.4 Delivery of the Equipment to the Location and return of the Equipment to the Company is at the Customer’s own expense.
3.5 The Customer must pay the Company the Delivery Fee and the Collection Fee at the time of ordering the Equipment.
3.6 The Company accepts no responsibility for any accidental damage caused to the Equipment during the course of delivery, installation or pickup of the Equipment.
3.7 Subject to normal wear and tear expected from use of the Equipment indoors, if the Equipment is not returned to the Company in a clean condition and/or good working order, the Customer will be charged the Company's costs in bringing the Equipment back to such condition.
4. Acceptance, Risk and Title
4.1 As at the Commencement Date, the Customer acknowledges that the Customer has inspected the Equipment and is satisfied as to the condition, quality and safety of the Equipment, its fitness for the Customer’s purposes and its compliance with its description.
4.2 The Customer will be deemed to have accepted the Equipment and risk will have passed to the Customer:
(a) where the Company delivers the Equipment, upon delivery of the Equipment to the Location; or
(b) upon the Customer or its agent taking possession of the Equipment.
4.3 The Customer acknowledges that the Company owns the Equipment and in all circumstances the Company retains title to the Equipment. The Customer's rights to use the Equipment are as a bailee only.
4.4 The Customer must not, and must not attempt to, sell or offer for sale, assign, mortgage, pledge, charge, encumber, or otherwise dispose of or part with the Equipment or any part thereof in the Hire Period without the Company's prior written consent.
5. Installation and Location of Equipment
5.1 The Customer must not attach the Equipment to any property without the Company's prior written consent. If the Equipment is attached to land, the Equipment will not become a fixture and may be removed by the Company in accordance with these Terms.
5.2 The Customer must keep the Equipment indoors at the Location at all times during the Hire Period.
5.3 The Customer must not remove the Equipment from the Location or part with possession of the Equipment without the Company's prior written consent.
6. Customer's Obligations
6.1 Cleaning and Maintenance: The Customer agrees and warrants that it will:
(a) keep the Equipment in proper working order and condition and in good and substantial repair at the Customer's own cost;
(b) not do or cause anything to be done that may endanger the safety or condition of the Equipment and must use all reasonable measures to protect the Equipment against theft and vandalism;
(c) not in any way alter, modify, tamper with, damage or repair the Equipment without the Company's prior written consent; and
(d) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment.
6.2 Operation of Equipment: The Customer agrees and warrants that it:
(a) will operate the Equipment safely, only for its intended use and in accordance with the manufacturer's instructions;
(b) acknowledges and accepts that operation of the Equipment may cause physical injury, and the Company will not be liable for this physical injury except as provided for in clauses 14 and 15; and
(c) will display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by users of the Equipment.
7. Breakdown of Equipment
7.1 In the event that the Equipment breaks, requires repair or replacement parts, or becomes unsafe to use during the Hire Period, the Customer must:
(a) notify the Company immediately;
(b) immediately stop using the Equipment;
(c) take all necessary steps to prevent injuries to any persons or damage to any property as a result of the condition of the Equipment; and
(d) not repair, or attempt to repair, the Equipment or replace any parts without the Company's prior written consent.
7.2 If the Equipment breaks or becomes unsafe through no fault of the Customer, and the Customer has notified the Company pursuant to clause 7.1 above, the Company will replace or repair the Equipment at the Company's option.
7.3 If the Equipment has broken or becomes unsafe to use as a result of the Customer's acts or omissions (or its employees or contractors), the Company will repair or replace (at the Company's option) but the Customer will be liable for:
(a) any costs incurred by the Company to repair or replace the Equipment; and
(b) the Hire Fee for that portion of the Hire Period during which the Equipment is being repaired or replaced.
7.4 Subject to clause 7.2, if the Customer notifies the Company immediately of a breakdown, the Company may determine not to charge the Hire Fee during the time in which the Equipment is not working.
8. Loss, Damage or Theft of Equipment
8.1 In the event that the Equipment becomes lost, damaged or stolen, the Customer must immediately notify the Company.
8.2 If the Equipment is lost, damaged beyond fair wear and tear or stolen during the Hire Period, the Customer will be liable for:
(a) any costs incurred by the Company to recover the Equipment; and
(b) all other costs listed in clause 7.3.
9. Sub-hire of the Equipment
9.1 The Customer must not sub-hire or loan the Equipment to any third party without the prior written consent of the Company, at its absolute discretion.
10. Amount Payable by the Customer
10.1 The Customer must pay the Company the Hire Fee in accordance with these Terms.
10.2 The Customer must pay the Deposit to the Company on the Commencement Date. The Deposit will be refunded to the Customer within 14 days of the Expiration Date or the effective date of termination, less:
(a) any Hire Fees in arrears; and
(b) where the Company has repaired the Equipment, the cost of that repair.
10.3 In addition to the fees provided in clause 10.1 and 10.2, the Customer agrees to pay:
(a) any and all rates, and other taxes such as GST (but excluding any income tax payable by the Company), outgoings, penalties, fines, demands, charges or costs, stamp and other duties;
(b) all repair and operating expenses in respect of the Equipment including (without limitation) and the cost of replacement Parts; and
(c) all other costs and expenses required under these Terms.
10.4 In the event that these Terms are terminated prior to the Expiration Date due to the default of the Customer, the Customer acknowledges that the remaining Hire Fee up to the Expiration Date is payable by the Customer to the Company.
11. Payment Terms
11.1 Unless otherwise provided for in these Terms, all amounts payable by the Customer to the Company are payable in accordance with the payment terms set out in the Application Form, and if no payment terms are provided, all amounts payable to the Company are payable within 7 days of any invoice provided by the Company or its agent.
11.2 If the Customer defaults in making payment to the Company in accordance with these Terms, the Company may in its absolute discretion:
(a) charge the Customer interest at the Interest Rate on the overdue amount; and
(b) require the Customer to reimburse the Company for all collection costs (on a full indemnity basis) incurred by the Company.
12. GST
12.1 In this clause:
(a) GST Act means the Goods and Services Tax Act 1985 (as amended) and any related tax legislation or regulation;
(b) GST means goods and services tax within the meaning of the GST Act and, except where the contrary intention appears, expressions used in this clause have the meanings given to them in the GST Act.
12.2 If the party to these Terms (Supplier) makes a taxable supply (Supply) under these Terms, then the recipient of that Supply must also pay to the Supplier, at the same time as the consideration for the Supply is paid or otherwise given to the Supplier, an additional amount equal to any GST payable in connection with that Supply.
12.3 The Supplier warrants that it is registered for GST under the GST Act.
12.4 The Supplier’s right to payment under clause 12.2 is subject to taxable supply information (as that term is defined in the GST Act) being delivered to the recipient of that Supply to enable the recipient to claim input tax credits for the Supply.
12.5 If an adjustment due to an adjustment event results in the GST being different from that paid to the Supplier under clause 12.2 the Supplier:
(a) must refund to the recipient any excess; and
(b) may recover from the recipient any shortfall.
13. PPSA
13.1 If the Company determines, in its absolute discretion, that the PPSA applies to a transaction under these Terms, the Customer agrees to:
(a) grant the Company a Security Interest in the Secured Property; and
(i) do all things necessary or reasonably requested by the Company to enable the Company to:
(ii) register and perfect its Security Interest in the Secured Property on the PPSR;
(iii) exercise its rights in connection with the Secured Property; and
(iv) confirm whether the Customer has complied with these Terms.
13.2 The Customer acknowledges and agrees that in relation to any part of the Secured Property that is Inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property (for the benefit of any person other than the Company) unless the Company has perfected its Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
13.3 To the full extent permitted by law, the parties agree that for the purposes of section 107(1) and 107(2) of the PPSA:
(a) the Customer waives any rights it may have under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA; and
(b) sections 114(1)(a), 133 and 134 of the PPSA shall not apply.
13.4 If the PPSA is amended after the date of these Terms to permit the Company and the Customer to agree to exclude or to not comply with any other provisions of the PPSA, the Company may notify the Customer that any of these provisions are excluded, or that the Company need not comply with any of those provisions as notified to the Customer by the Company.
13.5 The Customer agrees to immediately notify the Company of any of the following:
(a) the Customer changes to its name or address (as specified in these Terms);
(b) the Customer intends to make any material change in the nature or scope of its business as presently concluded;
(c) the Customer intends to change its registered address for service, or move its principal place of business outside of New Zealand;
(d) if the Customer does not have an NZBN, or the Customer is a trustee of a trust without an NZBN, or the Customer is a partner in a partnership without an NZBN, the Customer, trust or partnership acquires an NZBN; and
(e) if the Customer has an NZBN (or is the trustee of a trust that has an NZBN or is a partner in a partnership that has an NZBN), as soon as possible after the Customer becomes aware that the NZBN will change or cease to apply.
13.6 The Customer shall pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by the Company under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 177 of the PPSA.
13.7 Any notices or documents which are required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
13.8 The Customer waives the right to receive any notice under the PPSA (including any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to these Terms) unless the notice is required by the PPSA and cannot be excluded.
14. Exclusion of Liability
14.1 Nothing in these Terms is intended to exclude, restrict, or modify any guarantee, term, condition or warranty implied or imposed by law (including NZCL) which cannot be lawfully excluded or limited (Non-Excludable Guarantees).
14.2 The Customer acknowledges that with respect to any Non-Excludable Guarantees, the Company's liability is, where permitted, limited to providing the remedies required by the NZCL.
14.3 Subject to the Company's obligations under the Non-Excludable Guarantees, and to the maximum extent permitted by law, the Company's maximum aggregate liability for all claims arising under or relating to these Terms or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the Hire Fee paid by the Customer under these Terms.
14.4 Subject to clause 14.1, to the extent permitted by law (unless otherwise expressly set out in these Terms), all terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to the Company's obligations under these Terms are excluded.
14.5 To the maximum extent permitted by law, neither party will have any liability to the other for fines, penalties, taxes (except GST) and any exemplary, aggravated or punitive damages, liquidated damages or any indirect or consequential loss (including but not limited to loss of business, loss of revenue, loss of contract, loss of production, lost opportunity costs), legal costs and expenses (except reasonable legal costs awarded by a court) except where such losses are covered by an insurance policy held by the party.
14.6 To the maximum extent permitted by law, the Company will not have any liability or responsibility for any personal injury, fatigue or property damage sustained by or through use of the Equipment.
14.7 Except to the extent excluded by law, the Customer indemnifies the Company against any losses, damages, claims, liabilities, expenses, payments or outgoings (Liabilities) incurred by the Company to the extent the Liabilities were caused by the Customer's, or its agent's, officers', sub-contractors' or employees', acts or omissions or its breach of its obligations under these Terms.
14.8 The Customer accepts the Equipment at its own risk except where the Company owes a duty of care at law in the absence of these Terms and, save as set out in these Terms, the Company will not be liable to the Customer for any loss, damage, injury or death sustained by any person or to any property howsoever caused.
15. Indemnity
15.1 Except in the case of legal liability caused solely by the gross negligence of the Company, the Customer indemnifies the Company for any legal liability for personal injury arising out of, or in connection with, use of the Equipment.
16. Termination
16.1 Either party may terminate these Terms with immediate effect by serving a written notice on the other party if:
(a) the other party becomes unable to lawfully perform its obligations under these Terms;
(b) the other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business; or
(c) commits a breach of these Terms which it does not remedy (if capable of remedy) within 5 Business Days of receiving written notice of breach.
16.2 The Company may terminate these Terms at any time for any reason for convenience by giving the Customer at least 10 Business Days' written notice.
16.3 The Customer may terminate these Terms at any time after the 12 week anniversary of the commencement of the Hire Period by giving the Company at least 10 Business Days' written notice.
16.4 The Company may terminate these Terms immediately if the Customer or any third party has made a false statement in the Application Form.
16.5 These rights of termination are in addition to any other rights either party has under these Terms and does not exclude any right or remedy under law or equity.
17. General
17.1 The only contractual terms which are binding upon the Company are those set out in these Terms, the Application Form or otherwise agreed to in writing by the Company and those, if any, which are imposed by law and which cannot be excluded by these Terms. Any terms and conditions of the Customer included on documents submitted to the Company are expressly excluded and do not apply.
17.2 All previous negotiations, representations, warranties, arrangements and statements (if any) whether expressed or implied, including any collateral agreement or warranty between the Customer and the Company, are excluded and cancelled.
17.3 If any of these Terms are found to be void, voidable or unenforceable the validity and enforceability of the remaining provisions shall not in any way be affected or impaired.
17.4 A waiver by either party of any breach or failure to enforce or to insist upon the observance of a condition of these Terms will not be a waiver of any other or of any subsequent breach.
17.5 These Terms can only be amended, supplemented or replaced by another document signed by the Customer and the Company.
17.6 The Customer may not assign these Terms without the Company's prior written consent.
17.7 Time is of the essence in relation to these Terms.
17.8 These Terms and any agreement including them shall be governed by the laws of New Zealand and the Company and the Customer submit to the jurisdiction of the Courts of New Zealand.
17.9 To the extent of any inconsistency between these Terms and the Application Form, the following order of preference will apply:
(a) Application Form
(b) these Terms.
18. OnDemand App
Your Reformer's OnDemand App (hereinafter referred to as the “App”) is designed to provide you with high quality video of fitness classes, strength and stretch routines, foundational moves, information about fitness and bringing together a community of people that are interested in Pilates. This App is not directed to persons under eighteen (18) years of age. The App is owned by Your Reformer. Your use of the App is subject to the App Terms of Use, available on the Your Reformer website and on the App.
19. Safety Disclaimer
Physical exercise, in all of its forms and with or without the use of equipment such as blocks, straps or any other equipment that may be suggested by a Your Reformer Pilates instructor, is a strenuous physical activity. Accordingly, you are urged and advised to seek the advice of a physician before beginning any physical exercise regimen, routine, program or using any suggested equipment, shown in any of the video clips on the App. Your Reformer is not a medical organisation and its instructors or staff cannot give you medical advice or diagnosis. All suggestions and comments relating to the use of equipment, poses, moves and instruction are not required to be performed by you and are carried out at your election while viewing the Your Reformer OnDemand videos. Nothing contained in this App should be construed as any form of such medical advice or diagnosis.
By using the App you represent that you understand that physical exercise involves strenuous physical movement, and that such activity carries the risk of injury whether physical or mental. You understand that it is your responsibility to judge your physical and mental capabilities for such activities. It is your responsibility to ensure that by participating in classes and activities from Your Reformer, you will not exceed your limits while performing such activity, and you will select the appropriate level of classes for your skills and abilities, as well as for any mental or physical conditions and/or limitations you have. You understand that, from time to time instructors may suggest physical adjustments or the use of equipment and it is your sole responsibility to determine if any such suggested adjustment or equipment is appropriate for your level of ability and physical and mental condition. You expressly waive and release any claim that you may have at any time for injury of any kind against Your Reformer, or any person or entity involved with Your Reformer, including without limitation its directors, principals, instructors, independent contractors, employees, agents, contractors, affiliates and representatives.
When participating in Your Reformer OnDemand Classes ensure you always:
· Check that you have sufficient space to practice
· Check there are no trip/slip hazards
· Check there are no objects you may fall on or come in contact with
· Check there are no sharp objects or hot surfaces near by
· Ensure you have sufficient lighting
· Ensure your camera/screen and other electrical appliances, including cables, are on a levelled surface and not in your training space causing a trip hazard
· Ensure the room has sufficient ventilation
· Ensure you have water to keep hydrated
· Remember to seek medical advice before training if you have any existing injuries or other medical conditions
· Ensure all household members are aware of the training and avoid entering the space
· The YR Original Bed and Studio Beds can support users up to 120kgs and 160kgs respectively.
· The minimum age requirement is 18 years old.
20. Limitation on Liability
To the maximum extent permitted by law, in no event shall Your Reformer, its officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from any (I) errors, mistakes, or inaccuracies of content, (II) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the App, (III) any unauthorised access to or use of Your Reformer secure servers and/or any and all personal information and/or financial information stored therein, (IV) any interruption or cessation of transmission to or from the App, (V) any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the App by any third party, and/or (VI) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the App, whether based on warranty, contract, tort, or any other legal theory, and whether or not the Your Reformer OnDemand App is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law.
You specifically acknowledge that Your Reformer shall not be liable for content posted by users or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you. Any reference to a person, entity, product, or service on this App does not constitute an endorsement or recommendation by Your Reformer or any of its employees. Your Reformer is not responsible for any third party content on the App or third party web page accessed from this App, nor does Your Reformer warrant the accuracy of any information contained in a third party website or its fitness for any particular purpose. No communication of any kind between you and Your Reformer or a representative of Your Reformer's shall constitute a waiver of any limitations of liability hereunder or create any additional warranty not expressly stated in the terms of use. Your Reformer reserves the right to remove any material posted on the App that it determines in its sole discretion is violative of any law or right of any person, infringes the rights of any person, or is otherwise inappropriate for posting on the App.