Terms and Conditions
Terms & Conditions
1 DEFINITIONS
1.1 “McIntosh Cranes” shall mean McIntosh Cranes Limited.
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 McIntosh Cranes.
1.3 “Equipment and Services” shall mean all equipment and services, materials or advice provided by McIntosh Cranes to the customer, including without limitation the hirage of cranes (with or without operators), transport, precast building, 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 McIntosh Cranes to the customer.
1.4 "Price" shall mean the cost of the equipment and services as agreed between McIntosh Cranes and the Customer subject to the provisions of these terms and conditions.
1.5 “Site” means the place or location where the Equipment and Services are to be provided or operated.
2 ACCEPTANCE
2.1 Any instructions received by McIntosh Cranes from the Customer for the supply of equipment and services including equipment and services that McIntosh Cranes have ordered or are required to order shall constitute a binding contract and acceptance of these terms and conditions contained herein.
3 COLLECTION AND USE OF INFORMATION
3.1 The customer authorises McIntosh 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 McIntosh Cranes Limited to any other party.
3.2 The Customer authorises McIntosh 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 PRICE/DEPOSIT
4.1 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 McIntosh Cranes between the date of the contract and delivery of the Equipment and Services.
4.2 McIntosh Cranes may require the payment of a deposit, the sum of which will be determined McIntosh Cranes in its sole discretion.
4.3 McIntosh Cranes reserves the right to revise its rates of hire and related charges by giving the Customer 7 days’ notice in writing.
4.4 All prices will be in New Zealand Dollars and subject to Goods and Services Tax.
5 PAYMENT
5.1 Unless otherwise agreed all Equipment and Services must be paid for in full on or before the 20th of the month following the date of invoice (“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.
5.3 Any expenses, disbursements and legal costs incurred by McIntosh 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.
6 QUOTATION
6.1 Where a written quotation is given by McIntosh Cranes for Equipment and Services
6.1.1 The quotation shall be valid for thirty days (30) 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 that specified in 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 McIntosh Cranes to the Customer which are to be read in addition to these terms and conditions of trade.
7 DISPUTES/PLACE OF COURT HEARING
7.1 Any dispute or claim by the customer is to be notified to McIntosh Cranes as soon as reasonably practical following the event.
7.2 In the event of any dispute or claim, McIntosh Cranes and the Customer agree that any dispute or claim shall be filed in the Palmerston North Registry of the Court.
8 LIABILITY
8.1 The Consumer Guarantees Act 1993, The Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon McIntosh 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 McIntosh Cranes, McIntosh 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.
8.2 Except as otherwise provided by clause 8.1, McIntosh Cranes shall not be liable for:
8.2.1 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 of damage arises directly or indirectly from equipment and services provided by McIntosh Cranes to the customer; and
8.2.2 The customer shall indemnify McIntosh 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 McIntosh Cranes or otherwise) brought by any person in connection with any matter, act, omission, or error by McIntosh Cranes, its agents or employees in connection with the equipment and services.
8.3 McIntosh Cranes will not be liable for any loss or damage of any kind whatsoever arising from any equipment hired not arriving on time or from deficiencies in the performance or reliability of equipment hired.
9 CUSTOMER'S HEALTH & SAFETY OBLIGATIONS
9.1 The Customer shall comply with its 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, to ensure that in performing its obligations under this contract a safe working environment exists.
10 HIRE OF EQUIPMENT
10.1 Where equipment is hired from McIntosh Cranes:
10.1.1 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 McIntosh Cranes; and
10.1.2 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 McIntosh Cranes the cost of making good the repair to the equipment or the cost of replacing the equipment whichever is the lesser; and
10.1.3 McIntosh Cranes will supply its standard selection of slings, chains and ancillary lifting equipment but accepts no responsibility for loss or delay if these are found to be unsuitable for the purpose required. All slings, chains and ancillary equipment shall be used by the Customer at the sole risk of the Customer. McIntosh Cranes does not accept responsibility for the correct use of slings, chains or lifting equipment or the method of slinging. If any slings, chains or lifting equipment belonging to McIntosh Cranes is destroyed or damaged, the Customer shall pay to McIntosh Cranes the cost of replacement or repair (as the case may be) resulting from that destruction or damage.
10.1.4 Unless otherwise agreed, this agreement is a full-hire contract. This means that Mcintosh Cranes provides the Equipment to the Customer in good and certified working order. McIntosh Cranes is to provide the Operator, fuel and lubricants for the Equipment and attend to everyday maintenance requirements.
10.1.5 Site Conditions and Access
a) The customer will ensure that:
i) The site is adequate to support the Equipment under its wheels, tracks and/or outriggers;
ii) The ground giving access to the site is stable and firm and of a gradient no steeper than 1 in 10;
iii) Clearance of 4 metres is afforded in respect of all overhead wires and that footpaths, kerbs and channels are suitably planked;
iv) The Customer shall be responsible for all loss or damage whatsoever caused while the Equipment is entering, leaving or on the site, including the cost of repairs suffered or incurred by McIntosh Cranes in consequence of any breakdown or damage to the Equipment where such breakdown or damage is caused by any negligent act, omission, misdirection, or misuse of the Equipment on the part of the Customer or the Customer’s servants, agents, contractors or subcontractors.
v) The Customer will inform McIntosh Cranes of all underground services in the site area.
b) Should the Equipment need to be towed into or out of the site, the cost shall be additional to the rate quoted and will be added to the Customer's account.
10.1.6 Use and Handling of Equipment
a) The Equipment operator shall be under the direction and control of McIntosh Cranes. The Customer alone shall be responsible for all claims arising in connection with the operation of the Equipment by the operator.
b) The Customer shall not:
i) Require, permit or suffer the Equipment operator to do anything contrary to any act, regulation, by-law requirement, code of practice or recognized convention.
ii) Allow any other person to operate the Equipment without first obtaining the written consent of McIntosh Cranes.
iii) Permit or suffer the operation or direction of the Equipment by any person who has consumed alcohol or drugs.
iv) Use or permit the use of the Equipment to lift any load which is beyond the rated lifting capacity of the Equipment for any purpose other than for which it is hired pursuant to this agreement.
c) McIntosh Cranes reserves the right to provide a supervisor to the site if McIntosh Cranes in its sole discretion considers it necessary. If McIntosh Cranes does so the charges payable by the Customer shall be increased to reflect the supervision.
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 Equipment, as stated by the Equipment’s safe lifting indicator, the McIntosh 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 to be agreed before completion of the lift.
e) Where the Customer has understated the weight or dimensions of the goods to be lifted by the Equipment and McIntosh Cranes has relied on the weight, dimensions or working radius stated, the Customer shall be responsible for all extra cost and risk incurred by McIntosh Cranes by reason of McIntosh Cranes reliance upon such stated weight, dimensions or working radius.
f) The Customer shall be responsible for all loss or damage caused while the Equipment is entering, leaving or on site, including the cost of repairs suffered or incurred by McIntosh 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 or misuse of the Equipment 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 Equipment is necessarily idle as a result of any such negligent act, omission, misdirection or misuse of the Equipment.
10.1.7 Damage to Goods
McIntosh Cranes accepts no responsibility for loss or damage to goods being handled by the Equipment or damaged by the Equipment however caused during the period of the hire except for loss or damage arising out of any negligent act or default of McIntosh Cranes.
10.1.8 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, structures, vehicles or any other property whatsoever caused by the Customer during the period of hire.
10.1.9 Stoppages
McIntosh Cranes shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond McIntosh Cranes control including but not limited to weather conditions, ground conditions, machinery breakdowns, strikes and industrial disputes.
10.1.10 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 Equipment to the Customer at McIntosh Cranes depot to the time of re-delivery of the Equipment by the Customer to McIntosh Cranes’ depot on that or any other day. Hire shall be charged accordingly.
10.1.11 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.
10.1.12 Overtime
Additional charges will be payable by the Customer in accordance with McIntosh Cranes’ 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 Equipment Operator applies to callouts on Saturdays, Sundays or Public Holidays.
10.1.13 Equipment Operator's Accommodation
Where the site is at a distance from the depot so that overnight accommodation for the Equipment Operator and any other accompanying personnel is necessary, the cost of the accommodation and meals will be to the customer's account.
11 PERSONAL PROPERTIES SECURITIES ACT 1999
11.1 The Customer acknowledges that:
i. These general terms and conditions create a security interest (as defined in the Personal Properties Security Act 1999) in favour of McIntosh Cranes in Equipment hired to the Customer by McIntosh 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); and
ii. The Customer undertakes to do such acts and provide such information as in the opinion of McIntosh Cranes may be necessary or desirable to enable McIntosh Cranes to perfect any security interest created or provided for these General terms and conditions, as a perfected security interest with first priority; and
iii. The Customer shall act immediately when requested by McIntosh Cranes; and
iv. 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 any other confirmation related to any security interest created or provided for by, or perfected in the manner contemplated by these General terms and conditions.
11.2 In addition to the security interest referred to in clause 11.1 the Customer also grants a security interest in all the Customer’s present and after acquired property as security for all moneys owing and in the future owing by the Customer to McIntosh Cranes.
12 CONSUMER GUARANTEES ACT
11.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Equipment and Services from McIntosh Cranes for the purposes of a business in terms of Sections 2 & 43 of that Act.
13 TERMINATION
13.1 McIntosh Cranes may immediately and without notice terminate the supply of Equipment and Services if:
i. The Customer fails to pay any money due or to perform any of its obligations under these general terms and conditions; or
ii. McIntosh Cranes believes on reasonable grounds that the Customer is about to breach or has breached any of these general terms and conditions and that such breach may endanger any person or property; or
iii. The Equipment is destroyed or damaged to such an extent that it is inoperable or unsafe for use; or
iv. The Customer does anything that in McIntosh Cranes’ opinion prejudices McIntosh Cranes’ rights in the Equipment under this contract; or
v. 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
vi. The Customer, if it is a person, becomes bankrupt or dies.
13.2 Any such termination shall be without prejudice to the rights of McIntosh Cranes in respect of these general terms and conditions.
14 RIGHT TO DEAL WITH PRINCIPALS FOR ACCESS TO REMOVE EQUIPMENT
14.1 The Customer acknowledges that it has no legal or equitable interest in the McIntosh Cranes’ 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 McIntosh Cranes, the Customer authorises McIntosh Cranes to deal directly with the Customer’s Principals to secure the immediate release of McIntosh Cranes’ Equipment.
14.2 In the event of such lock down or denial of access to McIntosh Cranes to remove its equipment, the Customer indemnifies McIntosh Cranes for any loss or damage of any kind whatsoever whether suffered or incurred by McIntosh Cranes, and whether in contract, or tort, or otherwise, and whether such loss or damage arises directly or indirectly from equipment and services provided by McIntosh Cranes to the Customer
15 NOTICE OF INCIDENTS/ACCIDENTS
15.1 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 McIntosh Cranes by telephone and provide details of the accident/incident to McIntosh Cranes within 24 hours in writing.
16 PERSONAL GUARANTEE
16.1 The person(s) signing the contract, in consideration for McIntosh Cranes agreeing to supply Equipment and Services and grant credit to the customer, also sign(s) the contract in their personal capacity and jointly and severally personally guarantee and undertake to McIntosh Cranes the payment of any and all other monies, now or hereafter owed by the customer to McIntosh 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.
17 MISCELLANEOUS
17.1 McIntosh 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.
17.2 Failure by McIntosh 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 McIntosh Cranes has under this contract.
17.3 No amendment to these general terms and conditions will be effective unless it is in writing and signed by both McIntosh Cranes and the Customer.
17.4 Neither party may assign, transfer nor deal in any manner with the benefit or burden of these general terms and conditions without the prior consent of the other party.
17.5 These general terms and conditions are subject to the Laws of New Zealand unless stated otherwise.
17.6 If any provisions 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.