Terms and Conditions
1.1. "Crane" means a crane hired by Hoist-N-Haul to the Customer (whether the original crane hired or any substitute), and includes all accessories, trailer and other equipment belonging to Hoist-N-Haul 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 Hoist-N-Haul, whether such is the fact or not.
1.2. Hoist-N-Haul means Hoist-N-Haul, or any agents or employees thereof.
1.3. "Customer" means any person, corporation or other entity hiring 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 Hoist-N-Haul to the Customer including, without limitation, all Cranes or hoists, and any fee or charge associated with the supply of such equipment.
1.5. "Services" means any services provided by Hoist-N-Haul 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 Services as agreed between Hoist-N-Haul and the Customer subject to clause 4 of these Terms and Conditions.
1a. HIRE OF SERVICES
The Customer agrees to accept the supply of the Services from Hoist-N-Haul in accordance with these Terms and Conditions.
2.1. Any instructions received by Hoist-N-Haul from the Customer for the supply of Services including Services that Hoist-N-Haul has ordered or is required to order shall constitute a binding contract and acceptance of these Terms and Conditions.
3. COLLECTION AND USE OF INFORMATION
3.1. The Customer authorises Hoist-N-Haul 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 Services provided by Hoist-N-Haul to any other party.
3.2. The Customer authorises Hoist-N-Haul 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 Services shall be deemed to be hired at the current amount as such Services are hired by Hoist-N-Haul 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 Services that is beyond the control of Hoist-N-Haul between the date of the contract and delivery of the Services.
4.3. Hoist-N-Haul may require the payment of a deposit, the sum of which will be determined by Hoist-N-Haul in its sole discretion and shall constitute a part payment of the total cost of Services hired.
4.4. Hoist-N-Haul will be entitled to charge at its descretion a surcharge for all works, or Services the Customer requires on a public holiday.
4.5. Hoist-N-Haul reserves the right to revise its rates of hire and related charges without notice.
5.1. Unless otherwise agreed, all Services supplied must be paid for in full no later than 7 days after delivery of services.
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 Hoist-N-Haul, 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. Where the Customer cancels the Services less than 24 hours prior to the commencement of hire (communication of such cancellation to be provided verbally and in writing to a Hoist-N-Haulrepresentative), the Customer shall be liable to pay Hoist-N-Haul up to 80% of the Service costs. Such sum to be determined by Hoist-N-Haulin its sole discretion.
6.1. Where a written quotation is given by Hoist-N-Haul for Services:
6.1.1. The quotation shall be valid for sixty (60) 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 Services are required in addition to the quotation, the Customer agrees to pay for the additional cost of such Services.
6.3. Any quoted prices may be subject to certain requirements provided by Hoist-N-Haul to the Customer which are to be read in addition to these Terms and Conditions. Only written quotations are binding on Hoist-N-Haul.
7.1. No claim relating to Services will be considered unless made within seven (7) days of delivery.
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 Hoist-N-Haul 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.
8.1. The Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Hoist-N-Haul 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 Hoist-N-Haul, Hoist-N-Haul's liability shall only apply to the minimum extent required by the relevant statute.
8.2. Except as otherwise provided by clause 8.1, Hoist-N-Haul 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 Services provided by Hoist-N-Haul to the Customer except where such loss or damage arises directly from the negligence or default of Hoist-N-Haul. Hoist-N-Haul 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 Hoist-N-Haul 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/or Services unless Hoist-N-Haul is responsible for such claims or losses under Clause 8.1 or 8.4.Hoist-N-Haul 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 Hoist-N-Haul nor shall Hoist-N-Haul be liable for any matter arising from or relating to the Crane Hire Agreement or these Terms and Conditions generally.
9. CUSTOMER'S HEALTH & SAFETY OBLIGATIONS
9.1. 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 Hoist-N-Hauland the Customer; and
b) third parties entering or on the site.
10. HIRE OF SERVICES
10.1. Where Services are hired from Hoist-N-Haul:
10.1.2. Site Conditions and Access:
a) The Customer will ensure:
i) that the ground at the site is adequate to support the Crane under its wheels 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; and
iii) that clearance of 4 metres is afforded in respect of all overhead wires and that footpaths, kerbs and channels are suitably planked;
10.1.5. Use and Handling of Crane:
a) The Crane operator shall be provided by Hoist-N-Haul. Not withstanding this, the Customer shall be responsible for all claims arising in connection with the operation of the Crane by the operator where such operation is under the direction of the Customer;
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 Hoist-N-Haul;
iii. 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;
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 Hoist-N-Haul has permitted it to be hired. For the avoidance of doubt, Hoist-N-Haul does not warrant that the Crane is fit or suitable for any such purpose; or
v. Issue instructions to the Crane operator which conflict with the directions of Hoist-N-Haul, the Crane operator's employment obligations, or would otherwise breach these Terms and Conditions or cause any risk to persons or property;
c) Hoist-N-Haul reserves the right to provide a supervisor to the site if Hoist-N-Haul in its sole discretion considers it necessary. If Hoist-N-Haul 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 Hoist-N-Haul 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;
e) Where the Customer has understated the weight or dimensions of the goods to be lifted by the Crane and Hoist-N-Haul has relied on the weight, dimensions or working radius stated, the Customer shall be responsible for all extra cost and risk incurred by Hoist-N-Haul by reason of Hoist-N-Haul's 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 Hoist-N-Haul 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:
Hoist-N-Haul 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 crane during the period of hire except where such loss or damage arises directly as a result of the negligence or default of Hoist-N-Haul. For the avoidance of doubt, the Customer shall be responsible for fully complying with clause 10.1.4 above and for advising and informing Hoist-N-Haul of any site hazards, ground instability or other issues that may interfere with the proper operation of the crane during the period of hire;
Hoist-N-Haul shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond Hoist-N-Haul'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 time on site basis with 60 minutes minimum change then 6 minute intervals from 1 hour onwards plus a documented mileage allowance.
11. 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/or Services from Hoist-N-Haul for the purposes of a business in terms of section 2 and 43 of that Act.
12. 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 Hoist-N-Haul agreeing to supply Services and grant credit to the Customer, also sign this contract in their personal capacity and jointly and severally personally guarantee and undertake to Hoist-N-Haul the payment of any and all other monies now or hereafter owed by the Customer to Hoist-N-Haul. 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. Hoist-N-Haul may immediately and without notice terminate the supply of 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;
13.1.2. Hoist-N-Haul 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 Hoist-N-Haul's opinion prejudices Hoist-N-Haul'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.
13.2. Any such termination shall be without prejudice to the rights of Hoist-N-Haul in respect of any breach of these Terms and Conditions
14.1. Hoist-N-Haul 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 Hoist-N-Haul considers appropriate in the circumstances.
14.2. 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.
15.1. Hoist-N-Haul shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
15.2. Failure by Hoist-N-Haul 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 Hoist-N-Haul has under this contract.
15.3. 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.
15.4. No amendment to these Terms and Conditions will be effective unless it is in writing signed by both parties.
15.5. 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.
15.6. 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.
15.7. These Terms and Conditions, together with the Guarantee and Indemnity 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 Services.