1.     DEFINITIONS

 

1.1     “TFS” shall mean Tauranga Freight Services, or 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 contracting services from TFS.

 

1.3    “Services” shall mean all services, materials or advice provided by TFS to the customer including without limitation the hireage of cranes with operators, carriage of goods, transport, transporters 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 TFS to the customer.

 

1.4    “Price” shall mean the cost of the equipment and services as agreed between TFS and the customer subject to clause 2 of this contract.

 

1.5    “Site” shall mean the place or area where the Equipment and Services is to be used for the purposes of this contract.

 

1.6    “Crane” shall mean crane as defined in the Pressure Equipment, Cranes and Passenger Ropeway Regulations 1999.

 

2.     ACCEPTANCE

 

2.1    Any instructions received by TFS from the Customer for the supply of equipment and services shall constitute a binding contract and acceptance of the terms and conditions contained in these Terms and Conditions of Trade.

 

2.     PAYMENT

 

2.1    No Retentions.

 

2.2    Unless otherwise agreed all equipment and services must be paid in full on the 20th of the Month.

 

2.3    Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part month.

 

2.4    Any expenses, disbursements and legal costs incurred by TFS 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.

 

2.5    Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

 

3.     QUOTATION

 

3.1    Where a written quotation is given by TFS for services:

 

3.1.1   The quotation shall be valid for thirty (30) days from the date of issue; and

 

3.1.2   The quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary.

 

3.2    Where services are required in addition to the quotation the customer agrees to pay for the additional cost of such equipment and services.

 

3.3    Any quoted prices may be subject to certain requirements provided by TFS to the Customer which are to be read in addition to these terms and conditions of trade. Only written quotations are binding on TFS.

 

4.     DISPUTES

 

4.1    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.

 

4.2    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.

 

4.3    The Customer and TFS shall bear the costs of the mediator equally.

 

4.4    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.

 

5.     ORAL AGREEMENTS AND STIPULATIONS

 

5.1    No oral agreement, promise, collateral stipulation, representation, condition or warranty given or entered into by TFS or by TFS and not in conformity with the TFS Terms and Conditions of Trade shall be binding upon TFS unless confirmed in writing by TFS.

 

6.     LIABILITY

 

6.1    The Consumer Guarantees Act 1993, the Commerce Act 1986, the Fair Trading Act 1986, Carriage of Goods Act 1979 and other statutes may imply warranties or conditions or impose obligations upon TFS 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, TFS 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.

 

6.2    Except as otherwise provided by clause 6.1 TFS shall not be liable for:

 

6.2.1   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 TFS to the customer; and

 

6.2.2   The Customer shall indemnify TFS 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 TFS or otherwise), brought by any person in connection with any matter, act, omission, or error by TFS its agents or employees in connection with the equipment and services.

 

6.3    TFS 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.

 

6.4    Unless otherwise agreed in writing, all contracts of carriage shall be "at limited carriers risk" pursuant to the Carriage of Goods Act 1979.

 

6.5    Unless otherwise agreed in writing, for all contracts of carriage TFS will not be insuring the goods. Insurance of the goods is the sole responsibility of the Customer and all goods shall be deemed to have been delivered when they are physically delivered to the delivery address specified on the consignment note.

 

6.6    No party shall have any claim against TFS nor shall TFS be liable for any matter arising from or relating to these Terms and Conditions generally.

 

7.     CUSTOMER’S HEALTH & SAFETY OBLIGATIONS

 

7.1   TFS Standard Operating Procedures sets out certain responsibilities relating to the health and safety responsibilities of the Customer.

 

7.2    These responsibilities are to be read together with and form part of this contract.

 

7.3   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 for:

 

(a)  Employees and contractors of TFS and the customer; and

 

(b)  Third parties entering or on the site

 

8. Damage to Goods

 

8.1 TFS 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 service except for loss or damage arising out of any negligent act or default of TFS.

 

9. Damage to Services and Property

 

9.1 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.

 

10.  Stoppages

 

10.1 TFS shall not be responsible for any loss or damage arising out of any stoppage or delay occasioned by a cause beyond TFS control including but not limited to weather conditions, ground conditions, strikes and industrial disputes.

 

11.  Site Security

 

11.1 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 TFS 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.