TERMS & CONDITIONS OF TRADE
The following terms and conditions are recommendations only. Where XXXX appears companies should insert their own company name.
"Crane" means a crane hired by XXXX to the Customer (whether the original crane hired or any substitute), and includes all accessories and other Equipment belonging to XXXX attached to the crane or to be used in connection with it. For the purposes of these Terms and Conditions, the crane shall be deemed to be the property of XXXX, whether such is the fact or not.
1.2 XXXX means XXXX, or any agents or employees thereof.
1.3 "Customer" means any person, corporation or other entity hiring Equipment and Services, their agents and employees, successors, assigns or any person acting on behalf of that person, corporation or entity.
1.4 "Equipment" means all equipment and materials provided by XXXX to the Customer including, without limitation, all Cranes (with or without operators), hoists, vehicles and pre-cast buildings and any fee or charge associated with the supply of such equipment.
1.5 "Services" means any services provided by XXXX to the Customer in relation to the Equipment including, without limitation, any transport services, labour hire or advice and any fee or charge associated with the supply of such services.
1.6 "Price"means the cost of the Equipment and Services as agreed between XXXX and the Customer subject to clause 4 of these Terms and Conditions.
1a HIRE OF EQUIPMENT AND SERVICES
The Customer agrees to hire the Equipment and otherwise accept the supply of the Services from XXXX in accordance with these Terms and Conditions.
2.1 Any instructions received by XXXX from the Customer for the supply of Equipment and Services including Equipment and Services that XXXX has ordered or is required to order from overseas shall constitute a binding contract and acceptance of these Terms and Conditions.
- COLLECTION AND USE OF INFORMATION
3.1 The Customer authorises XXXX to collect, retain and use any information about the Customer, or for the purpose of assessing the Customer's credit worthiness, enforcing any rights under this contract, or marketing any Equipment and Services provided by XXXX to any other party.
3.2 The Customer authorises XXXX to disclose any information obtained to any person for the purposes set out in clause 3.1.
3.3 Where the Customer is a natural person, the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.1 Where no Price is stated in writing, the Equipment and Services shall be deemed to be hired at the current amount as such Equipment and Services are hired by XXXX at the time of the contract.
4.2 The Price may be increased by the amount of any reasonable increase in the cost of supply of the Equipment and Services that is beyond the control of XXXX between the date of the contract and delivery of the Equipment and Services.
4.3 XXXX may require the payment of a deposit, the sum of which will be determined by XXXX in its sole discretion.
4.4 XXXX reserves the right to revise its rates of hire and related charges without notice.
5.1 Unless otherwise agreed, all Equipment and Services supplied must be paid for in full on or before seven (7) days following the date of the invoice ("the Due Date").
5.2 Interest may be charged on any amount owing after the Due Date at the rate of 2.5% per month or part month, and will, if so charged, be paid by the Customer.
5.3 Without limiting clause 8.3, the Customer shall upon demand, pay or reimburse the Equipment owner for any expenses, disbursements and legal costs incurred by XXXX, in the enforcement of any rights, powers or remedies under or in relation to these Terms and Conditions, including, without limitation, any reasonable solicitor's fees, other legal and court costs and debt recovery expenses.
5.4 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
5.5 A deposit may be required before the provision of Equipment and Services.
6.1 Where a written quotation is given by XXXX for Equipment and Services:
6.1.1 The quotation shall be valid for thirty (30) days from the date of issue; and
6.2 Where Equipment and Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Equipment and Services.
6.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
6.3 Any quoted prices may be subject to certain requirements provided by XXXX to the Customer which are to be read in addition to these Terms and Conditions. Only written quotations are binding on XXXX.
7.1 No claim relating to Equipment and Services will be considered unless made within seven (7) days of delivery or, where appropriate, supply and erection.
7.2 In the event of any dispute or difference arising between the parties in respect of any matter concerning these Terms and Conditions, the parties shall in good faith in the first instance use their best endeavours to resolve the matter themselves.
7.3 In the event that the parties are not able to resolve the matter themselves, the parties may agree upon a formal mediation to be conducted by a mediator acceptable to both parties.
7.4 The Customer and XXXX shall bear the costs of the mediator equally.
7.5 In the event that:
the dispute shall be referred to arbitration under and in accordance with the Arbitration Act 1996.
- the parties do not agree upon the appointment of a mediator within a reasonable period; or
- the parties are unable to resolve the dispute by mediation,
8.1 The Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon XXXX which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on XXXX, XXXX's liability shall only apply to the minimum extent required by the relevant statute.
8.2 Except as otherwise provided by clause 8.1, XXXX shall not be liable for any loss or damage of any kind whatsoever whether suffered or incurred by the Customer or another person and whether in contract, or tort, or otherwise and whether such loss or damage arises directly or indirectly from Equipment and Services provided by XXXX to the Customer except where such loss or damage arises directly from the negligence or default of XXXX. XXXX shall not in any circumstances be liable for any indirect or consequential loss or damage (including, without limitation, loss of profits or revenue) incurred by the Customer or any other person.
8.3 The Customer shall indemnify XXXX against all claims and loss of any kind whatsoever however caused or arising brought by any person in connection with any matter, act, omission, or error in connection with the Equipment and Services unless XXXX is responsible for such claims or losses under Clause 8.1 or 8.2.
8.4 XXXX will not be liable for any loss or damage of any kind whatsoever arising from any Equipment not arriving on time or from deficiencies in the performance or reliability of any Equipment.
8.5 No party shall have any claim against the Power Crane Association of New Zealand (Inc) nor shall the Power Crane Association of New Zealand (Inc) be liable for any matter arising from or relating to the Crane Hire Agreement or these Terms and Conditions generally.
- CUSTOMER'S HEALTH & SAFETY OBLIGATIONS
9.1 XXXX's staff, customer and sub-contractor handbook ("the Handbook") sets out certain responsibilities relating to the health and safety responsibilities of the Customer. The Customer shall, when using the Equipment and Services, comply with the responsibilities in the Handbook, which shall be made available to the Customer on request to XXXX. The contents of the Handbook are to be read together with and form part of this contract.
9.2 The Customer shall comply with its obligations under the Health and Safety in Employment Act 1992 (and any applicable regulations or codes of practice made pursuant to that Act including, but not limited to, the HSE (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999) to ensure that, in performing its obligations under this contract, a safe working environment exists for:
- employees and contractors of XXXX and the Customer; and
- third parties entering or on the site.
- HIRE OF EQUIPMENT AND SERVICES
10.1 Where Equipment is hired from XXXX:
10.1.1 The Customer shall not part with possession of the Equipment AND shall not sublet, sell, or attempt to alienate the Equipment in any way, or grant a security interest in, or deal with the Equipment in any way that may be prejudicial to XXXX;
10.1.2 Except as otherwise provided by these Terms and Conditions, the Customer shall be liable for any damage to, or loss of, the Equipment however caused AND in the event of any Equipment being damaged or lost the Customer shall pay to XXXX the cost of making good the repair to the Equipment or the cost of replacing the Equipment whichever is the lesser;
XXXX will supply its standard selection of slings and lifting Equipment but accepts no responsibility for loss or delay if these are found to be unsuitable for the purpose required. All slings and ancillary Equipment shall be used by the Customer at the sole risk of the Customer. XXXX does not accept responsibility for the correct use of slings or lifting Equipment or for the method of slinging. If any slings or lifting Equipment belonging to XXXX are destroyed or damaged, the Customer shall pay to XXXX the cost of replacement or repair (as the case may be) resulting from that destruction or damage;
10.1.4 Site Conditions and Access:
- The Customer will ensure:
- that the ground at the site is adequate to support the Crane under its wheels, tracks and or outriggers;
- that the ground giving access to the site is stable and firm and of a gradient no steeper than 1 in 10; and
- that clearance of 4 metres is afforded in respect of all overhead wires and that footpaths, kerbs and channels are suitably planked;
- Should the Crane need to be towed into or out of the site, the cost shall be additional to the rate quoted and will be to the Customer's account;
10.1.5 Use and Handling of Crane:
- The Crane operator shall be under the direction and control of XXXX. The Customer alone shall be responsible for all claims arising in connection with the operation of the Crane by the operator;
- The Customer shall not:
- require, permit or suffer the Crane operator to do anything contrary to any act, regulation, by-law, requirement, code of practice or recognised convention;
- allow any other person to operate the Crane without first obtaining the written consent of XXXX;
- permit or suffer the operation or direction of the Crane by any person who by reason of intake of drink or drugs has his or her faculties impaired;
- use or permit the use of the Crane to lift any load which is beyond the rated lifting capacity of the Crane or for any purpose other than for which XXXX has permitted it to be hired. For the avoidance of doubt, XXXX does not warrant that the Crane is fit or suitable for any such purpose; or
- Issue instructions to the Crane operator which conflict with the directions of XXXX, the Crane operator's employment obligations, or would otherwise breach these Terms and Conditions or cause any risk to persons or property;
- XXXX reserves the right to provide a supervisor to the site if XXXX in its sole discretion considers it necessary. If XXXX does so the charges payable by the Customer shall be increased accordingly;
- The Customer warrants that the weight of the object or objects to be lifted in any one lift and the radius of the proposed lift (measured from the radial point of the Crane) will not be exceeded at any time. Where the weight is getting close to the maximum lifting capacity of the Crane, as stated by the Crane's safe load indicator, the XXXX operator or supervisor has absolute discretion whether to complete the lift as planned or use a safer alternative. A larger capacity Crane may be required and that will be at a cost agreed before completion of the lift;
- Where the Customer has understated the weight or dimensions of the goods to be lifted by the Crane and XXXX has relied on the weight, dimensions or working radius stated, the Customer shall be responsible for all extra cost and risk incurred by XXXX by reason of XXXX's reliance upon such stated weight, dimensions or working radius;
- The Customer shall be responsible for all loss or damage whatsoever caused while the Crane is entering, leaving or on the site, including the cost of repairs suffered or incurred by XXXX in consequence of any breakdown or damage to the Crane where such breakdown or damage is caused by any negligent act, omission, misdirection, or misuse of the Crane on the part of the Customer or the Customer's servants, agents, contractors or subcontractors and in particular shall be responsible for the payment of hire at the appropriate negotiated rate during the period that the Crane is necessarily idle as a result of any such negligent act, omission, misdirection or misuse of the Crane;
10.1.6 Damage to Goods:
XXXX is not liable for loss or damage to goods being handled by the Crane or damaged by the Crane however caused during the period of the hire;
10.1.7 Damage to Services and Property:
The Customer shall be solely responsible for all damage which may be caused to underground and overhead services, footpaths, driveways, grounds, lawns, fences, structures, vehicles or any other property whatsoever caused by the Customer during the period of hire;
XXXX shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond XXXX 's control including, but not limited to, weather conditions, ground conditions, strikes and industrial disputes;
10.1.9 Period of Hire:
The period of hire shall be calculated on a depot to depot basis and shall therefore be the elapsed time in any day from the time of the delivery of the Crane to the Customer at XXXX's depot to the time of re-delivery of the Crane by the Customer to XXXX's depot on that or any other day. Hire shall be charged accordingly;
10.1.10 Additional Jib Sections and Crane Equipment:
Where transport of additional jib sections and Crane equipment is required, the cost of it will be additional to the hire rates quoted and will be to the Customer's account, together with the cost of rigging and de-rigging;
Additional charges will be payable by the Customer in accordance with XXXX's current hire price list for all work performed outside normal working hours and on Saturdays, Sundays or public holidays. A minimum charge of three hours for the operator applies to work carried out on callback Saturdays, Sundays or public holidays;
10.1.12 Site Allowance:
Where site allowances are payable, there will be an additional charge to the Customer; and
10.1.13 Crane Operator's Accommodation:
Where the site is at a distance from the depot so that overnight accommodation for the Crane operator and any other accompanying personnel is necessary, the cost of the accommodation and meals will be to the Customer's account.
- CONSUMER GUARANTEES ACT
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer hires Cranes or otherwise acquires Equipment and Services from XXXX for the purposes of a business in terms of section 2 and 43 of that Act.
- PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
12.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for XXXX agreeing to supply Equipment and Services and grant credit to the Customer, also sign this contract in their personal capacity and jointly and severally personally guarantee and undertake to XXXX the payment of any and all other monies now or hereafter owed by the Customer to XXXX. Any personal guarantee made by any party shall not exclude the Customer in any way whatsoever from the liabilities and obligations contained in this contract. The guarantors and the Customer shall be jointly and severally liable under the terms and conditions of this contract.
13.1 XXXX may immediately and without notice terminate the supply of Equipment and Services if:
13.1.1 the Customer fails to pay any money due or to perform any of its obligations under these Terms and Conditions;
13.2 Any such termination shall be without prejudice to the rights of XXXX in respect of any breach of these Terms and Conditions
13.1.2 XXXX believes on reasonable grounds that the Customer is about to breach or has breached any of these Terms and Conditions and that such breach may endanger any person or property;
13.1.3 the Crane is destroyed or damaged to such an extent that it is inoperable or unsafe for use;
13.1.4 the Customer does anything that in XXXX's opinion prejudices XXXX's rights in the Crane under this contract;
13.1.5 the Customer, if it is a company, goes into liquidation or a petition to liquidate or a notice of intention to propose a resolution to liquidate is presented to the Customer; or
13.1.6 the Customer, if it is a person, becomes bankrupt or dies.
- PERSONAL PROPERTY SECURITIES ACT 1999
14.1 The Customer acknowledges that:
14.1.1 these Terms and Conditions create a security interest (as defined in the Personal Property Securities Act 1999) in favour of XXXX in Equipment hired to the Customer by XXXX for a term of more than 1 year (within the meaning of the term "lease for a term of more than 1 year" as defined in the Personal Property Securities Act 1999);
14.2 In addition to the security interest referred to in clause 14.1.1, the Customer also grants a security interest in all present and after acquired Equipment as security for all moneys now and in the future owing by the Customer to XXXX.
14.1.2 the Customer undertakes to do such acts and provide such information as in the opinion of XXXX may be necessary or desirable to enable XXXX to perfect any security interest created or provided for by these Terms and Conditions, as a perfected security interest with first priority. The Customer shall act immediately when requested by XXXX; and
14.1.3 to the fullest extent permitted by law, the Customer waives any rights it may have now or in the future to receive a copy of any verification statement or other confirmation related to any security interest created or provided for by, or perfected in the manner contemplated by these Terms and Conditions.
15.1 XXXX may, at its own expense, arrange and maintain such insurance as it, in its discretion, considers is required in respect of any Equipment and Service, including (without limitation) public liability insurance for the goods being handled by any Equipment, to such an amount as XXXX considers appropriate in the circumstances.
15.2 During the course of the hire, the Customer shall not do, or omit to do, anything that may allow the insurance cover referred to in Clause 15.1 or claims under that insurance cover to be cancelled or refused.
- MAINTENANCE OF CRANE
16.1 The Customer shall be responsible for the day to day maintenance of a Crane where such Crane is in the possession of a Customer including, without limitation, the supply of fuel for the operation of the Crane.
- NOTICE OF ACCIDENTS
17.1 If any Crane is involved in any accident resulting in injury to any person or damage to any property (including damage to the Crane itself), the Customer must give immediate notice of the accident to XXXX by telephone and later provide details of the accident to XXXX in writing.
18.1 XXXX shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
18.2 Failure by XXXX to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations XXXX has under this contract.
18.3 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.4 No amendment to these Terms and Conditions will be effective unless it is in writing signed by both parties.
18.5 Neither party may assign, transfer or deal in any manner with the benefit or burden of these Terms and Conditions without the prior consent of the other party.
18.6 These Terms and Conditions may be executed in two counterparts, each which will be deemed an original, but both of which will constitute one and the same instrument. A party may enter into this contract by signing a counterpart.
18.7 These Terms and Conditions, together with the Guarantee and Indemnity, Credit Account Application Form and the Handbook constitute the entire agreement between the parties on the supply of the Equipment and Services. Together they replace all earlier agreements, conditions and warranties, whether oral or written, between the parties relating to the supply of the Equipment and Services.