TERMS & CONDITIONS OF TRADE
1.1 “McLeod Cranes” shall mean McLeod Cranes Ltd, or any agents or employees thereof.
1.2 “Customer” shall mean the customer, any person acting on behalf of and with the authority of the customer, or any person purchasing equipment and services from McLeod Cranes.
1.3 “Equipment and Services” shall mean all equipment and services, materials or advice provided by McLeod Cranes to the customer including without limitation the hireage of cranes (with or without operators), transport, transporters, precast concrete, labour hire, other equipment hire and associated services and all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of equipment and services by McLeod Cranes to the customer.
1.4 “Price” shall mean the cost of the equipment and services as agreed between McLeod Cranes and the customer subject to clause 4 of this contract.
1.5 “Site” means the place or area where the Equipment and Services is to be used for the purposes of this contract.
2.1 Any instructions received by McLeod Cranes from the customer for the supply of equipment and services including equipment and services that McLeod Cranes have ordered or are required to order from overseas shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3. COLLECTION AND USE OF INFORMATION
3.1 The customer authorises McLeod Cranes 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 McLeod Cranes to any other party.
3.2 The customer authorises McLeod Cranes 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 or agreed to orally the equipment and services shall be deemed to be sold at the current amount as such equipment and services are sold by McLeod Cranes 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 McLeod Cranes between the date of the contract and delivery of the equipment and services.
4.3 McLeod Cranes may require the payment of a deposit, the sum of which will be determined by McLeod Cranes in its sole discretion.
4.4 McLeod Cranes reserves the right to revise its rates of hire and related charges without notice.
5.1 Unless otherwise agreed all equipment and services must be paid in full on the 20th of the month following supply.
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.
5.3 Any expenses, disbursements and legal costs incurred by McLeod Cranes in the enforcement of any rights contained in this contract shall be paid by the customer, including any reasonable solicitor’s fees or debt collection agency fees.
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 McLeod Cranes for equipment and services:
6.1.1 The quotation shall be valid for thirty (30) days from the date of issue; and
6.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.
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.
6.3 Any quoted prices may be subject to certain requirements provided by McLeod Cranes to the Customer which are to be read in addition to these terms and conditions of trade. Only written quotations are binding on McLeod Cranes.
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 or 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 McLeod Cranes shall bear the costs of the mediator equally.
7.5 In the event that: (a) the parties do not agree upon the appointment of a mediator within a reasonable period; or (b) the parties are unable to resolve the dispute by mediation, the dispute shall be referred to arbitration under and in accordance with the Arbitration Act 1996.
8. ORAL AGREEMENTS AND STIPULATIONS
8.1 No oral agreement, promise, collateral stipulation, representation, condition or warranty given or entered into by McLeod Cranes or by McLeod Cranes and not in conformity with the McLeod Cranes Terms and Conditions of Trade shall be binding upon McLeod Cranes unless confirmed in writing by McLeod Cranes.
9.1 The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon McLeod Cranes 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 McLeod Cranes, McLeod Cranes liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
9.2 Except as otherwise provided by clause 9.1 McLeod Cranes shall not be liable for:
9.2.1 Any loss or damage of any kind whatsoever including consequential loss 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 McLeod Cranes to the customer; and
9.2.2 The customer shall indemnify McLeod Cranes against all claims and loss of any kind whatsoever however caused or arising (and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of McLeod Cranes or otherwise), brought by any person in connection with any matter, act, omission, or error by McLeod Cranes its agents or employees in connection with the equipment and services.
9.3 McLeod Cranes will not be liable for any loss or damage of any kind whatsoever arising from equipment hired not arriving on time or from deficiencies in the performance or reliability of equipment hired.
9.4 No party shall have any claim against McLeod Cranes nor shall McLeod Cranes be liable for any matter arising from or relating to these Terms and Conditions generally.
10. CUSTOMER’S HEALTH & SAFETY OBLIGATIONS
10.1 McLeod Cranes Standard Operating Procedures sets out certain responsibilities relating to the health and safety responsibilities of the customer and is available on request.
10.2 These responsibilities are to be read together with and form part of this contract.
10.3 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:
(a) employees and contractors of McLeod Cranes and the Customer; and
(b) third parties entering or on the site
11. HIRE OF EQUIPMENT
11.1 Where equipment is hired from McLeod Cranes:
11.1.1 The customer shall not part with the possession of the equipment AND shall not sublet, or sell, or attempt to alienate the equipment in any way, or deal with the equipment in any way that may be prejudicial to McLeod Cranes; and
11.1.2 Except where waivered in this contract 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 McLeod Cranes the cost of making good the repair to the equipment or the cost of replacing the equipment whichever is the lesser; and
McLeod Cranes 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. McLeod Cranes 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 McLeod Cranes is destroyed or damaged, the customer shall pay to McLeod Cranes the cost of replacement or repair (as the case may be) resulting from that destruction or damage.
11.1.4 Site Conditions and Access:
(a) The customer will ensure:
(i) that the ground at the site is adequate to support the crane or transporter under its wheels, tracks and or outriggers;
(ii) that the ground giving access to the site is stable and firm and of a gradient no steeper than 1 in 10;
(iii) that clearance of 4 metres is afforded in respect of all overhead wires and that footpaths, kerbs and channels are suitably planked.
(b) Should the crane or transporter 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.
11.1.5 Use and Handling of Crane:
(a) The crane operator shall be under the direction and control of the Customer and shall for all purposes of this contract be regarded as the servant or agent of the Customer. The customer alone shall be responsible for all claims arising in connection with the operation of the crane by the operator.
(b) The customer shall not:
(i) require, permit or suffer the crane operator to do anything contrary to any act, regulation, by-law, requirement, code of practice or recognised convention;
(ii) allow any other person to operate the crane without first obtaining the written consent of McLeod Cranes;
(iii) permit or suffer the operation or direction of the crane by any person who permit or suffer the operation or direction of the crane by any person who has any detectable alcohol or drugs in their system that may impair their ability to operate or direct the crane.;
(iv) 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 it is hired pursuant to this agreement;
(c) McLeod Cranes reserves the right to provide a supervisor to the site if McLeod Cranes in its sole discretion considers it necessary. If McLeod Cranes does so the charges payable by the customer shall be increased accordingly.
(d) 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 McLeod Cranes operator or supervisor has absolute discretion whether to complete the lift as planned or use a safer alternative. A larger capacity machine may be required and that will be at a cost agreed before completion of the lift.
(e) Where the customer has understated the weight or dimensions of the goods to be lifted by the crane and McLeod Cranes has relied on the weight, dimensions or working radius stated, the customer shall be responsible for all extra cost and risk incurred by McLeod Cranes by reason of McLeod Cranes reliance upon such stated weight, dimensions or working radius.
(f) 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 McLeod Cranes in consequence of any breakdown or damage to the crane where such breakdown or damage is caused by any negligent act or omission or misdirection of 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 the crane is necessarily idle as a result of any such negligent act or omission or misdirection or misuse of the crane.
11.1.6 Damage to Goods:
McLeod Cranes accepts no responsibility for loss or damage to goods being handled by the crane or damaged by the crane however caused during the period of the hire except for loss or damage arising out of any negligent act or default of McLeod Cranes.
11.1.7 Damage to Services and Property:
The Customer is responsible for providing legal, clear and unrestricted access to the Site and ensuring that the access and Site are adequate to support the Crane, transporter and or vehicles. The Customer shall be solely responsible for all damage which may be caused to underground and overhead services, footpaths, driveways, grounds, lawns, fences, structures, cranes, transporters and or vehicles or any other property caused by the vehicles whilst entering or leaving Site, or manoeuvring whether on or off Site or otherwise.
McLeod Cranes shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond McLeod Cranes control including but not limited to weather conditions, ground conditions, strikes and industrial disputes.
11.1.9 Site Security:
It is the Customers responsibility to ensure the security of the Crane, Transporters or Equipment whilst the Crane, Transporters or equipment is on Site. The Customer shall be responsible for all losses or damage whatsoever caused while the Crane, Transporters or Equipment is left on the Site, including the cost of repairing damage suffered or incurred by McLeod Cranes as a consequence of any damage caused by any act- or omission on the part of the Customer or the Customer’s servants, agents, contractors, sub-contractors or members of the public and in particular shall be responsible for the payment of hire at the appropriate Price during the period the Crane, Transporter or Equipment is idle as a result of any such act or omission.
11.1.10 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, Transporter or Equipment to the customer at McLeod Cranes depot to the time of re-delivery of the Crane, Transporter or Equipment by the customer to McLeod Cranes depot on that or any other day. Hire shall be charged accordingly and may include a minimum of one hour of elapsed time on site. McLeod Cranes may opt for a Km rate on a depot to depot basis rather than a time rate.
11.1.11 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 McLeod Cranes current hire price list for all work performed outside normal working hours and on Saturdays, Sundays or public holidays. A minimum charge of four hours for the operator applies to work carried out on Saturdays, Sundays or call back on Saturdays/Sundays. A minimum charge of eight hours for the operator applies to work carried out on public holidays or call back on public holidays.
11.1.13 Site Allowance:
Where site allowances are payable, there will be an additional charge to the customer.
11.1.14 Operator’s Accommodation:
Where the site is at a distance from the depot so that overnight accommodation for the operator and any other accompanying personnel is necessary, the cost of the accommodation and meals will be to the customer’s account.
12. CONSUMER GUARANTEES ACT
12.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the customer acquires equipment and services from McLeod Cranes for the purposes of a business in terms of section 2 and 43 of that Act.
13. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
13.1 If the customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for McLeod Cranes 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 McLeod Cranes the payment of any and all other monies now or hereafter owed by the customer to McLeod Cranes. 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 customer shall be jointly and severally liable under the terms and conditions of this contract.
14.1 McLeod Cranes may immediately and without notice terminate the supply of Equipment and Services if:
14.1.1 the Customer fails to pay any money due or to perform any of its obligations under these Terms and Conditions;
14.1.2 McLeod Cranes 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;
14.1.3 the Crane or Transporter is destroyed or damaged to such an extent that it is inoperable or unsafe for use;
14.1.4 the Customer does anything that in McLeod Cranes opinion prejudices McLeod Cranes rights in the Crane or Transporter under this contract;
14.1.5 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
14.1.6 the Customer, if it is a person, becomes bankrupt or dies.
14.2 Any such termination shall be without prejudice to the rights of McLeod Cranes in respect of any breach of these Terms and Conditions.
15. PERSONAL PROPERTY SECURITIES ACT 1999
15.1 The Customer acknowledges that:
15.1.1 these Terms and Conditions create a security interest (as defined in the Personal Property Securities Act 1999) in favour of McLeod Cranes in Equipment hired to the Customer by McLeod Cranes 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);
15.1.2 the Customer undertakes to do such acts and provide such information as in the opinion of McLeod Cranes may be necessary or desirable to enable McLeod Cranes 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 McLeod Cranes; and
15.1.3 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.
15.2 In addition to the security interest referred to in clause 15.1.1, 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 McLeod Cranes.
16.1 McLeod Cranes 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 McLeod Cranes considers appropriate in the circumstances.
16.2 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 16.1 or claims under that insurance cover to be void, cancelled or refused or whereby the premiums thereon may be increased.
17. MAINTENANCE OF CRANE
17.1 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.
18.1 McLeod Cranes 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 McLeod Cranes 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 McLeod Cranes 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 These Terms and Conditions replace all other agreements, conditions and warranties, whether oral or written, between the parties relating to the supply of the Equipment and Services
19. GOVERNING LAW
19.1 This contract shall be governed and interpreted in accordance with the laws of New Zealand. The Customer shall observe and comply with the provisions or all Acts, regulations, bylaws and codes of practice in force during the period of hire in relation to the work on which the Equipment and Services is to be employed and in the manner of performance of that work and in relation to the Site and with all orders and directions lawfully given by any competent authority.