GISBORNE HIABS TERMS & CONDITIONS OF TRADE
1.1 “Gisborne Hiabs” shall mean Gisborne Hiabs Ltd, as the context requires, 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 Gisborne Hiabs.
1.3. “Equipment” means all equipment and materials provided by Gisborne Hiabs to the Customer, including without limitation all Hiabs (with or without operators), forklift, transport, transporters, hoists and vehicles.
1.4 “Services” shall mean all services or advice provided by Gisborne Hiabs to the Customer including without limitation all charges for labour and work, hire charges, insurance charges, or any fee or charge associated with the supply of equipment and services by Gisborne Hiabs to the Customer.
1.5 “Price” shall mean the cost of the equipment and services as agreed between Gisborne Hiabs and the Customer subject to clause 5 of this contract.
1.6 “Site” shall mean the place or area where the Equipment and Services is to be used for the purposes of this contract.
1.7 “Hiab or Crane” means a hiab/crane hired by Gisborne Hiabs to the Customer (whether the original hiab/crane hired or any substituted hiab) and includes all accessories and other Equipment belonging to Gisborne Hiabs attached to the hiab or to be used in connection with it. For the purposes of these Terms and Conditions the hiab shall be deemed to be the property of Gisborne Hiabs.
2. HIRE OF EQUIPMENT AND SERVICES
2.1 The Customer agrees to hire the Equipment & Services and accepts the supply of the Equipment and Services from Gisborne Hiabs in accordance with these Terms and Conditions of Trade.
2.2 The Customer agrees that it has used its own skill and knowledge in selecting the Equipment and Services to be provided by Gisborne Hiabs so that the Equipment and Services are fit for their intended purpose.
3.1 Any instructions received by Gisborne Hiabs from the Customer for the supply of equipment and services, including equipment and services that Gisborne Hiabs has ordered or is required to order from New Zealand wide shall constitute a binding contract and acceptance of these Terms and Conditions of Trade.
4. COLLECTION AND USE OF INFORMATION
4.1 The Customer authorises Gisborne Hiabs 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 Gisborne Hiabs to any other party.
4.2 The Customer authorises Gisborne Hiabs to disclose any information obtained to any person for the purposes set out in clause 4.1.
4.3 Where the Customer is a natural person the authorities under clauses 4.1 and 4.2 are authorities or consents for the purposes of the Privacy Act 1993.
5.1 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 Gisborne Hiabs at the time of entering the contract.
5.2 In the event that the Customer cancels delivery of goods or services within one working day of the agreed upon delivery or commencement date, the Customer shall be liable for the greater of:
5.2.1 Any and all loss incurred (whether direct or indirect) by Gisborne Hiabs as a result of the cancellation (including, but not limited to, any expenses or loss of profits); or
5.2.2 80% of the Price or quoted price, as the case may be.
6.1 Unless agreed otherwise all Equipment & Services supplied must be paid for in full on or before seven calendar (7) days following the date of the invoice (“the Due Date”), without deduction.
6.2 Compounding monthly interest may be charged on any amount owing after the Due Date at the rate of 2.5% per month or part thereof. This clause 6.2 excludes any disputed amounts, subject to those disputed amounts being resolved within thirty (20) days of notification of the disputed payments by the Customer to Gisborne Hiabs, after which the aforementioned interest charge may apply
6.3 Without limiting any other obligation under these Terms and Conditions of Trade, the Customer shall upon demand pay or reimburse Gisborne Hiabs for any expenses, disbursements and legal costs incurred by Gisborne Hiabs in the enforcement of any rights, powers or remedies under or in relation to these Terms and Conditions of Trade, including, and without limitation, any reasonable solicitor’s fees, other legal and court costs and debt recovery expenses.
6.4 Payment is not deemed to be effected until any payment appears as cleared funds in Gisborne Hiabs bank account.
6.5 A deposit may be required before the provision of Equipment & Services.
7.1 Where a written quotation is given by Gisborne Hiabs for Equipment & Services:
7.1.1 The quotation shall be valid for thirty (30) days from the date of issue; and
7.1.2 The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary; and
7.1.3 Only written quotations are binding on Gisborne Hiabs.
7.2 Any quoted prices may be subject to certain requirements provided by Gisborne Hiabs to the Customer which are to be read in addition to these terms and conditions of trade.
8.1 No claim relating to Equipment & Services will be considered unless made within three (3) calendar days of delivery of the Equipment & Services, or where appropriate, supply and erection of other works.
8.2 In the event of any dispute or difference arising between the parties in respect of any matter concerning these Terms and Conditions of Trade, the parties shall in good faith in the first instance use their best endeavours to resolve the matter themselves.
8.3 If 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. The Customer and Gisborne Hiabs shall bear the costs of the mediator equally.
8.4 If 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, the dispute shall be referred to Expert Determination.
8.5 The Expert shall be appointed by the President of AMINZ. The Customer and Gisborne Hiabs shall bear the costs of the Expert equally.
8.6 The Customer and Gisborne Hiabs agree that the Expert’s Determination is final and binding on the Customer and Gisborne Hiabs.
9. ORAL AGREEMENTS AND STIPULATIONS
9.1 No oral agreement, promise, collateral stipulation, representation, condition or warranty given or entered into by Gisborne Hiabs and not in conformity with the Gisborne Hiabs Terms and Conditions of Trade shall be binding upon Gisborne Hiabsunless confirmed in writing by Gisborne Hiabs.
10.1 In respect of any implied warranties, conditions or terms imposed on Gisborne Hiabs by statute or law, Gisborne Hiabs’s liability shall only apply to the minimum extent required by the relevant statute or law.
10.2 All carriage shall be in accordance with Contract and Commercial Law Act 2017 at limited carrier’s risk unless otherwise agreed in writing.
10.3 Except as otherwise provided by clause 10.1. Gisborne Hiabs 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 & Services provided by Gisborne Hiabs to the Customer, except where such loss or damage arises directly from the negligence or default of Gisborne Hiabs.
10.4 Gisborne Hiabs 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.
10.5 The Customer shall indemnify Gisborne Hiabs 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 & Services, unless Gisborne Hiabs is responsible for such claims or losses as provided under clause 10.3.
10.6 Gisborne Hiabs will not be liable for any loss or damage of any kind whatsoever arising from any Equipment & Service not arriving on time, or from deficiencies in the performance or reliability of any Equipment & Service, unless such deficiencies in the performance or reliability are as a result of any wilful act or omission by Gisborne Hiabs or its servants, agents, contractors or subcontractors.
10.7 No party shall have any claim against Gisborne Hiabs nor shall Gisborne Hiabsbe liable for any matter arising from or relating to these Terms and Conditions of Trade.
11. CUSTOMER’S HEALTH & SAFETY OBLIGATIONS
11.1 Gisborne Hiabs Lift Plans, Site Specific Safety Plan (SSSP), Task Analysis (TA) and Safe Operating Procedures (SOP) set out 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 these safe operation documents, which shall be made available to the Customer on request to Gisborne Hiabs. The contents of the safe operation documents are to be read together with and form part of this contract
11.2 The Customer and Gisborne Hiabs shall comply with their respective obligations under the Health and Safety at Work Act 2015 (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) and Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 to ensure that, in performing their respective obligations under this contract, a safe working environment exists for:
11.2.1 employees and contractors of Gisborne Hiabs and the Customer; and
11.2.2 third parties entering or on the Site
12. CONDITIONS OF USE AND HIRE OF EQUIPMENT AND SERVICES
12.1 Where equipment is dry hired from Gisborne Hiabs:
12.1.1 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 Gisborne Hiabs; and
12.1.2 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 (but excluding fair wear and tear) AND in the event of any Equipment being damaged or lost the Customer shall pay to Gisborne Hiabs the cost of making good the repair to the Equipment or the cost of replacing the Equipment whichever is the lesser.
12.2 Site Conditions and Access – The Customer will ensure:
12.2.1 That the ground at the site is adequate to support the crane or transporter under its wheels, tracks and or outriggers; and
12.2.2 That the ground giving access to the site is stable and firm and of a gradient no steeper than 1 in 10
12.2.3 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 cost.
12.3 Slings, chains and rigging – The customer understands that:
12.3.1 Gisborne Hiabs 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.
12.3.2 All slings and ancillary equipment shall be used by the customer at the sole risk of the customer.
12.3.4 If any slings or lifting equipment belonging to Gisborne Hiabs is destroyed or damaged, the customer shall pay to Gisborne Hiabs the cost of replacement or repair (as the case may be) resulting from that destruction or damage.
12.4 Use and Handling of Crane:
12.4.1 When the Crane Operator is under the direct direction and control of the Customer and is acting as instructed the Customer alone shall be responsible for all claims arising in connection with the operation of the crane by the Crane Operator.
12.4.2 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 Gisborne Hiabs;
(iii) Permit or suffer the operation or direction of the Crane by any person who is under the influence of drugs or alcohol; or;
(iv) Use or permit the use of the Hiab to lift any load which is beyond the rated lifting capacity of the Hiab or for any purpose other than for which Gisborne Hiabshas permitted it to be hired. For the avoidance of doubt Gisborne Hiabs does not warrant that the Crane is fit or suitable for any such purpose; or
(v) Issue instructions to the Hiab operator which conflict with the directions of Gisborne Hiabs, the Hiab operator’s employment obligations, or would otherwise breach these Terms and Conditions of Trade or cause any risk to persons or property
12.4.3 Gisborne Hiabs reserves the right to provide a supervisor to the site if Gisborne Hiabs in its sole discretion considers it necessary. The Customer is required to pay the cost of the supervisor to Gisborne Hiabs.
12.4.4 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 Hiab) will not be exceeded at any time. Where the weight is getting close to the maximum lifting capacity of the Hiab, as stated by the Crane’s safe load indicator, Gisborne Hiabs’s operator or supervisor has absolute discretion whether to complete the lift as planned or use a safer alternative. A larger capacity Hiab may be required and that will be at a cost agreed before completion of the lift.
12.4.5 Where the Customer has understated the weight or dimensions of the goods to be lifted by the Hiab, and Gisborne Hiabs has relied on the weight, dimensions or working radius stated, the Customer shall be responsible for all extra cost and risk incurred by Gisborne Hiabs by reason of Gisborne Hiabs’s reliance upon such stated weight, dimensions or working radius.
12.4.6 The Customer shall be responsible for all loss or damage whatsoever caused while the Hiab is entering, leaving or on the site, including the cost of repairs suffered or incurred by Gisborne Hiabs in consequence of any breakdown or damage to the Hiab where such breakdown or damage is caused by any negligent act, omission, misdirection, or misuse of the Hiab on the part of the Customer or the Customer’s servants, agents, contractors or subcontractors. The Customer’s liability in respect of this clause 12.4.6 will be reduced proportionately to the extent that any loss or damage is as a result of a wilful act or omission by Gisborne Hiabs or its servants, agents, contractors or subcontractors.
12.4.7 The Customer shall be responsible for all damage caused when requiring lifts by the hiab to reach into buildings from outside of the building such as that which occurs during plaster board deliveries due to the high-risk nature of this activity.
12.4.8 The Customer shall be solely responsible for the strength and suitability of all lift points used to secure rigging for lifting.
12.4.9 The Customer agrees that the wind speed on site determines if the lift is safe to proceed based on the crane manufacturers limit, the Hiab operators limit, the Gisborne Hiabs company wind limit, the limit imposed by the load and the Site wind limit. If the work cannot proceed due to wind speed the Customer shall be responsible for all extra cost incurred by Gisborne Hiabs.
12.5 Use and Handling of “Transporter” (Hiab Trucks, Semi-Truck, Rigid Trucks and Trailers):
The Customer shall be responsible for all loss or damage whatsoever caused while the Transporter is entering, leaving or on the site, including the cost of repairs suffered or incurred by Gisborne Hiabs in consequence of any breakdown or damage to the Transporter where such breakdown or damage is caused by any negligent act, omission, misdirection, or misuse of the Transporter on the part of the Customer or the Customer’s servants, agents, contractors or subcontractors. The Customer’s liability in respect of this clause 12.5 will be reduced proportionately to the extent that any loss or damage is as a result of a wilful act or omission by Gisborne Hiabs or its servants, agents, contractors or subcontractors
12.6 Equipment Loss of Traction and Recovery: The Customer shall be fully responsible for the recovery of all Equipment that becomes stuck or losses traction on the Site.
12.7 Damage to Goods: Gisborne Hiabs accepts no responsibility for loss or damage to goods being handled by the hiab or damaged by the hiab however caused during the period of the hire.
12.8 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.
12.9 Stoppages: Gisborne Hiabs shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond Gisborne Hiabscontrol including but not limited to weather conditions, ground conditions, strikes and industrial disputes.
12.10 Site Security: It is the Customers responsibility to ensure the security of Equipment. 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 Gisborne Hiabs as a consequence of any damage caused by any act- or omission on the part of the Customer or the Customer’s contractors, sub-contractors or members of the public and shall be responsible for the payment of hire at the appropriate cost during the period the Equipment is idle as a result of any such act or omission.
12.11 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 dispatch of the Equipment to the Customer from the Gisborne Hiabs depot to the time of re-delivery of the Equipment by the Customer to Gisborne Hiabs depot on that or any other day. Hire cost may include a minimum of one hour of elapsed time on site. Gisborne Hiabsmay choose to use a Km rate on a depot to depot basis rather than a time rate.
12.13 Overtime: Additional charges will be payable by the Customer in accordance with Gisborne Hiabs current hire price list for all work performed outside normal working hours 7am to 6pm and on Saturdays, Sundays or public holidays. A minimum charge of two 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.
12.14 Site Allowance: Where site allowances are payable, there will be an additional charge to the Customer.
12.15 Operator’s Accommodation: Where the site is at a distance from the depot so that overnight accommodation for the Hiab operator and any other accompanying personnel is necessary, the cost of travel between the accommodation and the site, the accommodation and meals will be at the Customer’s cost.
13. CONSUMER GUARANTEES ACT
13.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires equipment and services from Gisborne Hiabs for the purposes of a business in terms of section 2 and 43 of that Act.
14. PERSONAL GUARANTEE OF COMPANY DIRECTORS OR TRUSTEES
14.1 If the Customer is a company or trust, the director(s) or trustee(s) signing this contract, in consideration for Gisborne Hiabs agreeing to supply Equipment and Services and grant credit to the Customer, the director(s) or trustee(s) also sign this contract in their personal capacity and jointly and severally personally guarantee and undertake to Gisborne Hiabs the payment of any and all present and future monies owed by the Customer to Gisborne Hiabs.
14.2. Any personal guarantee made by any party shall relieve the Customer in any way whatsoever from the liabilities and obligations contained in these Terms and Conditions. The guarantors and the Customer shall be jointly and severally liable under the Terms and Conditions of this contract.
15.1 Gisborne Hiabs may immediately and without notice terminate the supply of Equipment and Services if:
15.1.1 The Customer fails to pay any money due or to perform any of its obligations under these Terms and Conditions of Trade;
15.1.2 Gisborne Hiabs believes on reasonable grounds that the Customer is about to breach or has breached any of these Terms and Conditions of Trade and that such breach may endanger any person or property;
15.1.3 The Equipment is destroyed or damaged to such an extent that it is inoperable or unsafe for use;
15.1.4 The Customer does anything that in Gisborne Hiabs opinion prejudices Gisborne Hiabs rights in the Equipment under this contract;
15.1.5 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
15.1.6 The Customer, if it is a person, becomes bankrupt or dies.
15.2 Any such termination shall be without prejudice to the rights of Gisborne Hiabs in respect of any breach of these Terms and Conditions of Trade.
16. RIGHT TO DEAL WITH PRINCIPALS FOR ACCESS TO REMOVE EQUIPMENT
16.1 The Customer acknowledges that it has no legal or equitable interest in the Gisborne Hiabs Equipment, and that in the event that any site or premises where the Equipment is hired, stored, used or the like are locked down, or access is denied to Gisborne Hiabs, the Customer authorises Gisborne Hiabs to deal directly with Customer’s Principals to secure the immediate release of Gisborne Hiabs Equipment.
17. PERSONAL PROPERTY SECURITIES ACT 1999
17.1 The Customer acknowledges that:
17.1.1 These Terms and Conditions create a security interest (as defined in the Personal Property Securities Act 1999) in favour of Gisborne Hiabs in Equipment hired to the Customer by Gisborne Hiabs 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);
17.1.2 The Customer undertakes to do such acts and provide such information as in the opinion of Gisborne Hiabs may be necessary or desirable to enable Gisborne Hiabs to protect any security interest created or provided for by these Terms and Conditions, as a protected security interest with first priority.
17.1.3 The Customer shall act immediately when requested by Gisborne Hiabs; and
17.1.4 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 protected in the manner contemplated by these Terms and Conditions.
17.2 In addition to the security interest referred to in clause 16.1.1, the Customer also grants a security interest in all present and after acquired Equipment, against which monies are owed, as security for all moneys now and in the future owing by the Customer to Gisborne Hiabs.
18.1 Subject to clause 10.5, Gisborne Hiabs 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 Gisborne Hiabsconsiders appropriate in the circumstances.
18.2 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.
18.3 Where the Customer is required to obtain its own insurance for the Equipment and Service, it will name Gisborne Hiabs as a co-owner of the policy and provide Gisborne Hiabs with a copy of the policy at least 1 working day prior to the commencement of the hire.
19. NOTICE OF INCIDENTS/ACCIDENTS
19.1. If any Equipment is involved in any accident resulting in injury to any person or damage to any property (including damage to the Equipment itself), or any incident that could have resulted in injury to any person or damage to any property (including damage to the Equipment itself), the Customer must give immediate notice of the accident/incident to Gisborne Hiabs by telephone and provide details of the accident/incident to Gisborne Hiabs within 24 hours in writing.
20.1 Failure by either party to enforce any of the Terms and Conditions of Trade contained in this contract shall not be deemed to be a waiver of any of the rights or obligations that party has under this contract.
20.2 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.
20.3 No amendment to these Terms and Conditions will be effective unless it is in writing signed by both parties.
20.4 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.
20.5 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.
20.6 These Terms and Conditions of Trade, 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.
20.7 These Terms and Conditions of Trade are subject to the Laws of New Zealand unless stated otherwise.
20.8 All amounts due are payable in New Zealand Dollars unless stated otherwise.