Terms and Conditions of Hire

CRANE AND MECHANICAL LIMITED T/A A & K CRANES

TERMS AND CONDITIONS FOR CRANE HIRE

DEFINITIONS AND INTERPRETATION

In these terms and conditions and in any Contract to which these terms and conditions apply, unless the context otherwise requires:
1. Company means Crane & Mechanical Limited, with company number 7011158, at Christchurch trading as A & K Cranes and includes its successors or assigns and all of its subsidiaries, whether partly or wholly owned;
1. Contract means a contract for the hire of a Crane and performance of Services by the Company for the Customer, comprised of these Terms and a Job Request, Quote, or Purchase Order (as the case may be), accepted by the Company;
1. Crane means the crane, plant, vehicles and other associated equipment required for the operation of the crane, plant or vehicles, owned and operated by the Company and hired by the Customer on these Terms to perform the Services;
1. Customer means the customer hiring the Crane for the Services;
1. Job Request means a request for the hire of a Crane and the performance of Services, placed by the Customer in the form set out on the front page of these Terms;
1. Purchase Order means a request for the hire of a Crane to perform the Services placed by the Customer whether by phone, email, in person or otherwise;
1. Quote means a quote provided by the Company to the Customer for the Crane hire and performance of Services;
1. Services means the services performed or to be performed by the Company under a Contract and includes any transport services, labour hire and Crane services, including the provision of the Operator;
1. Terms means these terms and conditions, to be read and construed with each Job Request, Quote or Purchase Order (as the case may be) accepted by the Company;and
1. Working Day means a day which is not a Saturday, Sunday or a Public Holiday in Canterbury and on which registered banks are open for general banking business in Timaru and Christchurch, New Zealand.
1. Unless the Company and the Customer otherwise agree in writing these Terms will apply to all hire of Cranes and performance of Services and no other terms or conditions will apply.
1. These Terms supersede any previous terms agreed to by the parties.

CRANE HIRE AND PERFORMANCE OF SERVICES

The Company will:
- hire the Crane to the Customer; and
- perform the Services for the Customer,

and the Customer will request and pay for the hire of the Crane and the performance of the Services, pursuant to any Contract.

The parties agree that this Contract is for full-hire and the Company will provide an operator for the Crane (Operator).

FORMATION OF CONTRACT

By the Company giving written acceptance to the Customer by accepting a Purchase Order or other document, accepting a Job Request or by commencement of the performance of the Services, the Company and the Customer will be deemed to understand and agree that these Terms will bind both parties and will, together with the Purchase Order, Quote or Job Request or other acceptance document, constitute the Contract.
- These Terms apply in respect of the hire of a Crane or provision of Services to a Customer by the Company, notwithstanding that they may not have been signed by a Customer or the Company.
- Without limiting clause 21.5, no other terms and conditions whether oral or written, including, without limitation the Customer’s terms and conditions, whether precedent or subsequent in time will have any force or effect unless specifically agreed to in writing by both parties.

PRICE AND PAYMENT

Unless otherwise agreed in writing between the Customer and the Company, payment will be made to the Company by the Customer within 14 days of the date of issue of the Company’s valid GST invoice.
- The Customer will pay the full amount owing to the Company on the due date, without set-off and free of any deductions.
- The Company will charge the Customer at an hourly rate for each hour the Crane is away from the Company’s premises during working hours, is being used for the Services or is on a stoppage as contemplated by clause 8.5, unless otherwise agreed. The Company may, at its discretion, charge a fee per kilometre, for kilometres travelled to and from the site on which the Services are to be performed and may also charge for third party expenses such as traffic management costs and additional permits and for additional Operators where they are required for the specific Services. The Customer will not be separately charged for fuel or other consumables unless otherwise agreed as this forms part of the hourly rate.
- Unless otherwise specified, all prices in the invoice are in New Zealand Dollars, excluding GST.
- If full payment for the Crane hire or Services is not made on the due date, then without prejudice to any other remedies available:
  - the Company may cancel or withhold hiring the Crane or performing the Services and remove the Crane from the premises;
  - the Company may charge interest on monies overdue, accruing on a daily basis and to be calculated at the rate of 15% per annum during such default; and
  - the Customer will be responsible for all costs incurred by the Company in recovering such monies.
- The Company may from time to time set or vary a Customer’s credit limit at its discretion, in relation to requests for Crane hire or Services. If any purchase would be in excess of the Customer’s credit limit, the Company reserves the right to require, prior to the hire of the Crane or performance of Services, payment in cash of the amount by which the cost exceeds the Customer’s credit limit. Before hiring the Crane or performing the Services, the Company may, in its sole discretion require all or any of the following:
  - payment in advance;
  - a guarantee of payment;
  - a deposit;
  - progress payment; or
  - a letter of credit.

PERFORMANCE OF THE SERVICES

In performing the Services, the Company will procure that the Operator exercises the degree of skill, care and diligence normally expected of a competent professional and devote such time and resources as is reasonably necessary for the proper and efficient provision of the Services.
- The Company will procure that the Operator perform the Services as an independent contractor and not as an employee of the Customer. Nothing in these Terms will be deemed to create an employer/employee relationship between the Customer and the Operator.

QUOTES

Quotes issued by the Company to a Customer:
- will be in writing;
- are based on the information provided to the Company by the Customer;
- will be valid for 30 days from the date of issue, unless otherwise specified by the Company;
- are provided subject to the Company’s right to alter the Quote due to circumstances beyond its control or increases in business operating costs or labour; and
- do not include any subsequent variations or extension of the Services or Crane hire as may be requested by the Customer.
- Where it becomes apparent during and/or after the performance of the Services, that the work required will be greater than initially perceived (for example, the Customer requests a variation, or a change in the scope of the Service is necessary including where a matter arises that was unforeseen by the Company) the Company reserves the right to invoice the Customer for any extra work over and above the amount set out in the Quote.
- The Company reserves the right to correct any typographical or clerical errors contained in the Quote.

SITE ACCESS AND CONDITIONS

The Customer will be responsible for ensuring that:
- the Company will have suitable access to the site where the Services are to be performed;
- the ground is firm, stable and has a gradient no steeper than 1 in 10;
- the weight to be lifted by the Crane does not exceed the maximum limit for which the Crane was manufactured to lift;
- a minimum clearance of four metres should be allowed in respect of overhead wires and a minimum clearance of six metres should be allowed in respect of transmission wires as per electrical standards; and
- sufficient clearance must be allowed for objects such as kerbs, footpaths, driveways, telephone line posts and other obstructing objects.
- If the site is found to be unsuitable or unsatisfactory for performance of the Services, the Customer will be responsible for all costs incurred in Crane recovery.
- The Customer will use its reasonable endeavours and take reasonable steps and precautions to ensure the safety and security of the Crane, at all times, whilst it is on the Customer’s property, including adhering to any requirements of the Company in this regard.

USE AND HANDLING OF CRANE

The Company warrants that the Crane is in good working order and fit for the purpose for which it was manufactured.
- The Customer must not:
  - direct, permit or require the Operator of the Crane to act in a manner which is unsafe or inconsistent with the Job Request, Quote or Purchase Order, any law, by-law or regulation;
  - allow any person other than the Operator to operate or drive the Crane.
- The Company (or the Operator) will not be held responsible for (and the Customer indemnifies the Company and Operator from any and all liability for) any loss or damage caused to any underground or overground services, surfaces or structures in the performance of the Services, or arising from the Crane entering, leaving or manoeuvring at the site, or from the use or recovery of the Crane, including but not limited to damage to any footpaths, driveways, lawns, pathways, telecommunication lines, water or sewerage pipes, street lights, kerbs, fences, structures or other property or services whatsoever. The Customer acknowledges and agrees that such damage or loss may occur as a consequence of the proper provision of the Services or the use or recovery of the Crane and not necessarily only arising from any negligence or breach by the Company.
- In the event of stoppages due to weather, delay as a result of the Customer’s actions or omissions, or due to other reasons beyond the Company’s reasonable control, the Company may, at its discretion:
  - continue to charge for stoppage time at its standard hourly rate; or
  - cease the performance of the Services (until such time that the Services can be performed) at no charge to the Customer.
- The Customer acknowledges and agrees that the Operator will be entitled to his or her usual rest and meal breaks as required by law.
- In performing the Services, the Company uses ancillary equipment such as steel chains and soft fibre slings (Equipment). The Customer agrees that any damage to any of the Equipment that is not caused by the negligence of the Company (or its Operator) will be the responsibility of the Customer, and the Company will be entitled to on-charge the cost of any repair or replacement Equipment. The Customer further acknowledges that the Company must undertake all repairs or replacements in order to ensure that the Equipment is appropriately repaired or replaced (as the case may be) and certified, and where this results in a stoppage, the provisions of clause 8.5 above apply.

INSURANCE

The Company will take out and maintain public liability insurance at a level recommended by an appropriately qualified advisor.

CANCELLATION

Once accepted by the Company, the Customer may not cancel any Purchase Order, Quote or Job Request for Crane hire or Services or part of it without the Company’s prior written consent.
1. The Company may, without incurring liability, cancel a Contract if:
  1. the Customer becomes insolvent, enters into a scheme of arrangement with creditors (other than with the Company’s priorconsent) or ceases or threatens to cease to carry on all or a material part of its business, or has a receiver or administrator appointed in respect of any or all of its assets or other steps are taken for its dissolution;
  1. either party is refused any licences, consents or permits in respect of the Cranes or Services;
  1. an extraordinary event occurs or a material change affecting the affairs or the financial condition of the Customer occurs, which gives the Company reasonable grounds to conclude that the Customer may not, or may be unable to, perform or observe its obligations under a Contract;
  1. the Crane is destroyed, damaged or rendered inoperable or unsafe for use in performing the Services; or
  1. the Customer breaches any of these Terms and fails to remedy such breach within five Working Days of receiving written notice of such breach.

WARRANTIES AND INDEMNITY

To the fullest extent permitted by law and except to the extent of written warranties given by the Company to the Customer in a Contract, all warranties and representations including those expressed or implied by law, in respect of the Crane hire and/or Services are excluded.
1. Notwithstanding any other provision of these Terms, the Company shall not be liable:
  1. for loss caused by any factors beyond the control of the Company; or
  1. for any indirect or consequential loss of any kind.
1. To the fullest extent permitted by law, the Customer indemnifies the Company against all costs, claims, demands, expenses and liabilities of whatsoever nature, including without prejudice to the generality of the foregoing, damage to property and consequential loss (including loss of profits or intellectual property), which may be made against the Company or which the Company may sustain, pay or incur as a result of or in connection with the hire of the Crane and/or performance of the Services unless such cost, claim, demand, expense or liability shall be directly and solely attributable to the negligence of the Company or the negligence of a duly authorised employee or agent of the Company.
1. In the event the Company is held to be liable to the Customer, the liability of the Company shall be limited to the total price payable under the Contract or the cost of repairing/replacing the damage or making good the loss, whichever is less.

INTELLECTUAL PROPERTY AND CONFIDENTIALITY

All confidential information received by the Company from the Customer shall be used solely for the Crane hire and/or performance of Services under a Contract.

The Customer warrants not to use any of the Company’s intellectual property or confidential information other than with the written consent of the Company.
HEALTH AND SAFETY

The parties agree to, at all times, ensure that the parties strictly comply in all respects with the relevant provisions of the Health and Safety at Work Act 2015 (HASAW), associated Regulations and any relevant Codes of Practice, as they may be amended from time to time.
1. All practicable steps must be taken by the Company and the Customer in relation to ensuring that there is a safe workplace including (but not limited to) the safety of the Operator and the Customer’s and/or the Company’s employees, subcontractors or other personnel working at the respective party’s workplace(s).
1. When visiting any workplace of the Customer, the Company will ensure that its employees and agents abide by and co-operate with all health and safety requirements of the Customer.
1. The parties agree to:
  1. comply with any reasonable directions received from each other as applicable in relation to health and safety, which may include following any policies, procedures and/or specific site rules in relation to the health and safety of the site; and
  1. consult, co-operate and co-ordinate activities where the parties share health and safety duties pursuant to the HASAW.
1. The Customer, prior to hiring the Crane and having the Services performed by the Company, will inform the Company of any known hazards at the applicable workplace of the Customer or the site at which the Services are being performed.

COMPLIANCE WITH LAWS

In relation to Crane hire and/or performance of Services, each party will:
1. comply with all relevant laws applicable to the hire of Cranes and/or the performance of Services and the operation of any ancillary equipment used in the performance of the Services; and
1. obtain all necessary licences, consents or permits required in respect of the use of the Cranes and/or the performance of Services.

RISK AND TITLE

The Company retains title to the Crane at all times during performance of the Services under the Contract.
1. The Customer bears all risk for the Crane whilst the Services are being performed by the Company and will be responsible for any damage or loss in accordance with clause 8.4.

FORCE MAJEURE

If the Company is prevented from hiring the Crane and/or performing the Services or from performing any other obligation under a Contract as a result of fire, flood, storm, explosion, act of war, earthquake, theft, tempest, riot, war, government restriction, vandalism, terrorist action, transport delay, breakdown of plant or machinery, act of god, shortage of labour, strike, lockout, or any other cause beyond the reasonable control of the Company (Force Majeure), then the failure or delay in performance will be deemed not to be a breach of the Company’s obligations under the Contract and the Company will not be liable for any damage or loss caused.
1. Promptly following the occurrence of a Force Majeure, the Company and the Customer will hold discussions in good faith to agree upon actions to be taken to avoid further failure or delay in the performance of the Contract.
1. If no agreement is reached after the Force Majeure, or if the Company is excused from performance of its obligations under the Contract for a continuous period of one month from the date of the occurrence of the Force Majeure, then either party may terminate the Contract by written notice to the other.

17.2.
1. In the event that the Dispute is not resolved by negotiation, the matter may be referred to mediation by any party by written notice. In the event that the matter is referred to mediation, the parties will, within five Working Days of the matter being referred to mediation, agree on a mediator. If a mediator cannot be agreed on between the parties, a mediator will be appointed by the then President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). In the event the Dispute is not resolved by a completed mediation within a further 20 Working Days, any party may refer the matter to arbitration by written notice.
1. If a Dispute is not settled under clauses 17.1 and 17.2, then either party may submit the Dispute to be settled by arbitration by a sole arbitrator in accordance with the provisions of the Arbitration Act 1996. The arbitrator will be appointed by the then President of AMINZ. The arbitration will be conducted within the provisions of the Arbitration Act 1996. Arbitration will take place in either Timaru or Christchurch, New Zealand, at the discretion of the Company. The parties agree that the decision reached at arbitration will be final and binding on the parties.
1. The parties agree that all Disputes will be resolved in accordance with the procedures set out in this clause 17, however this clause 17 does not prevent any party from seeking urgent interlocutory or declaratory relief from a competent jurisdiction where, in that party’s reasonable opinion, that action is necessary to protect that party’s rights.

PERSONAL PROPERTY SECURITIES ACT 1999 (PPSA)

1. The Company can register or perfect the security interest recognised under clause 18.1 in any means possible in the jurisdiction of the Customer (and any other jurisdiction the Company deems necessary or desirable) to ensure that the Company has an enforceable security interest against the Customer for all amounts due under the Contract, including any future amounts.
1. Everything the Customer is required to do or the Company is permitted to do under clause 18.3 above is at the Customer’s expense. The Customer agrees to pay or reimburse the Company for any or all of those costs.
1. To the extent that Part 9 of the PPSA applies:
  1. the Customer agrees that the provisions of sections 114(1)(a), 120, 122, 133 and 134 of the PPSA which are for the Customers benefit, or any provisions which place any obligations on the Company in the Customer’s favour, shall not apply; and where the Company has rights in addition to those in Part 9 of the PPSA, those rights shall continue to apply; and
  1. without limiting anything in the previous paragraph, the Customer hereby waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA, and its rights to receive a copy of a verification statement under section 148 of the PPSA in respect of any financing statement or financing change statement registered by the Company.

CONSUMER GUARANTEES ACT 1993

Where the provisions of the Consumer Guarantees Act 1993 (CGA) apply, the provisions of these Terms will be subject to that CGA and in the case of any inconsistency, the provisions of the CGA will apply.

19.2 Where the Customer is a not a “consumer” defined by the CGA, the Customer agrees that the Crane hire and/or the performance of the Services are acquired or performed for the purposes of a business and the CGA does not apply.

PRIVACY

The Customer agrees that the Company may collect, hold, use and disclose personal information in respect of the Customer, its staff or its clients, for the purpose of enforcing its rights and carrying out its obligations under these Terms.
- The Company may also collect, hold, use and disclose personal information for the purpose of keeping the Customer up to date with its services (i.e. marketing), any purpose advised to the Customer at the time of collection, or as otherwise permitted under the Privacy Act 1993. Where the Customer provides information relating to any individual, the Customer will ensure it has all relevant consents required for such purposes.
- Where personal information is held by the Company, the individual shall have the right to request access to, and correction of, such personal information. Personal information collected by the Company is held by the Company. The Company’s address is 790 Maddisons Road, Weedons 7675, RD 5, Christchurch.

MISCELLANEOUS

If any part of these Terms are held to be unenforceable, the part concerned will be deleted or modified to the minimum possible extent necessary and the remainder of the Terms enforceable will remain in force.
- No delay or failure by the Company to exercise its rights under a Contract operates as a waiver of those rights.
- The Customer may not assign or transfer any of its rights or obligations under or in connection with any Contract to any third party without the prior written consent of the Company.
- The Company reserves the right to assign, transfer or sub-contract the performance of any Contract or any part of the Contract to any other person.
- The Customer agrees that the Company may obtain information about the Customer from any source including credit assessment and debt collecting and the Customer consents to any person providing the Company with such information.
- The Customer will pay all costs and expenses (including legal fees) incurred by the Company in exercising any of its rights under any Contract.
- Any notice given by one party to the other will be deemed to have been delivered 48 hours after posting to the recipient’s registered office or last known address and immediately, if transmitted by email.
- All Contracts made between the Company and the Customer will be governed by and construed in accordance with the laws of New Zealand and the Customer agrees to submit to the exclusive jurisdiction of the New Zealand Courts.