Terms and Conditions of Service
Fern Group Ltd
These Terms and Conditions form part of the Proposal referenced above. By signing, or by instructing Fern Group.
Limited (“Fern Group”) to proceed with the Services, the client named above (“Client”) agrees to be bound by them.
1. DEFINITIONS
1.1 “Agreement” means the Proposal together with these Terms and Conditions.
1.2 “Equipment” means the height safety equipment, PPE, ladders, mobile scaffold towers, eyewash and safety
shower units, spill kits, and related items covered by the Services.
1.3 “Proposal” means the written proposal, quote, or scope of work issued by Fern Group to which these Terms and
Conditions are attached or referred.
1.4 “Services” means the inspection, testing, supply, repair, and/or replacement services described in the Proposal.
1.5 “Standard(s)” means the applicable Australian/New Zealand Standards or other codes referenced in the Proposal,
including AS/NZS 1891.1, AS/NZS 1891.4, AS/NZS 1892, AS/NZS 1576.1, AS/NZS 1576.3, and AS 4775:2007.
2. SCOPE OF SERVICES
2.1 Fern Group will provide the Services described in the Proposal, which may include:
(a) Height Safety Equipment & PPE inspection, checked against AS/NZS 1891.1 and AS/NZS 1891.4;
(b) Emergency Eyewash & Safety Shower inspection and performance testing, checked against AS 4775:2007;
(c) Spill kit inspection and restocking;
(d) Ladder inspection, checked against AS/NZS 1892 (Portable Ladders);
(e) Mobile scaffold tower inspection, checked against AS/NZS 1576.1 and AS/NZS 1576.3 (Prefabricated Scaffolding), and tagged in accordance with WorkSafe New Zealand guidance; and
(f) Supply, repair, and replacement of height safety equipment and consumables as required.
2.2 Every item is checked against a documented checklist for that equipment type and recorded as pass, fail, or removed from service. Fern Group will provide the Client with a written report and, where applicable, photographic evidence of any defect identified.
2.3 Fern Group will tag and remove from service any item that fails inspection and will log this in the Client’s asset register.
3. CLIENT OBLIGATIONS
3.1 The Client will provide Fern Group’s personnel with safe, timely access to all sites, Equipment, and asset registers or records reasonably required to carry out the Services.
3.2 The Client is responsible for ensuring the site is safe for Fern Group’s personnel to attend, including isolating any hazards outside the scope of the Services.
3.3 The Client will provide accurate and complete information about the Equipment, including its location, usage history, and any known defects.
3.4 A pass result at inspection confirms the Equipment met the applicable Standard at the time of inspection only. It does not replace the Client’s own daily pre-use checks, and Equipment must not be used if defects are found between inspections.
3.5 The Client remains responsible, as a PCBU under the Health and Safety at Work Act 2015, for the ongoing health and safety of its workers and others affected by its work, including in the periods between scheduled inspections.
3.6 Where Fern Group is unable to access, locate, or gain entry to any Equipment or site at the scheduled time for reasons outside Fern Group’s control — including restricted site access, Equipment being relocated, or Equipment not being made available — Fern Group is not responsible for that Equipment becoming overdue for inspection, and the Client remains responsible for its compliance status until the inspection can be completed.
4. FEES AND PAYMENT
4.1 Fees for the Services are set out in the Proposal, plus GST (where applicable).
4.2 Fern Group will invoice the Client on completion of each visit, and payment is due within 14 days of the invoice date, unless otherwise agreed in writing.
4.3 Interest accrues on overdue amounts at 2% per month, or the maximum rate permitted by law if lower, calculated daily from the due date until paid.
5. ANNUAL PRICE REVIEW
5.1 Fees will increase automatically on each anniversary of the Agreement’s commencement date by whichever is the greater of:
(a) 3% per annum; or
(b) the percentage increase in the All Groups Consumer Price Index (CPI) for New Zealand, as published by Statistics New Zealand, over the preceding 12 months.
5.2 Fern Group will give the Client at least 30 days’ written notice of the adjusted fees, which will take effect from the next invoice issued on or after the anniversary date.
6. NATURE OF INSPECTION
6.1 Inspections are carried out using visual examination and functional testing appropriate to the Equipment type and the relevant Standard, in accordance with Fern Group’s documented inspection checklists.
6.2 Inspection findings reflect the condition of the Equipment at the time of inspection only, and are based on inspection methods that are reasonably practicable given the Equipment’s design. They do not guarantee the discovery of every latent, internal, or concealed defect.
6.3 The Services do not constitute a warranty, guarantee, or certification that the Equipment will remain fit for use or free from defect at any time after the inspection.
7. LIMITATION OF LIABILITY
7.1 Fern Group’s total liability to the Client for any claim relating to the Services is capped at the fees the Client paid for those Services in the 12 months before the claim arose.
7.2 Fern Group is not liable for any indirect, consequential, or special loss, including loss of profits, revenue, business, or data, even if Fern Group was advised of the possibility of such loss.
7.3 Nothing in this Agreement excludes, limits, or modifies:
(a) any duty owed, or right or remedy available, under the Health and Safety at Work Act 2015, including under section 28 of that Act;
(b) liability for death or personal injury caused by negligence;
(c) liability for fraud or wilful misconduct; or
(d) any other liability that cannot lawfully be excluded or limited.
7.4 Any claim against Fern Group must be notified to Fern Group in writing within 12 months of the Services giving rise to the claim, after which the claim is barred.
8. INDEMNITY
8.1 The Client indemnifies Fern Group against all claims, losses, and costs arising from:
(a) the Client’s failure to act on a defect or “fail” result identified in an inspection report;
(b) misuse of Equipment, or continued use of Equipment tagged as failed or removed from service;
(c) inaccurate or incomplete information provided by the Client; or
(d) unsafe site conditions outside Fern Group’s control.
9. INSURANCE
9.1 Fern Group holds Public Liability insurance of $2,000,000, Statutory Liability insurance of $1,000,000, and Employers Liability insurance of $1,000,000, and will provide evidence of cover on the Client’s reasonable request.
10. INTELLECTUAL PROPERTY
10.1 Fern Group retains all intellectual property rights in its inspection methodologies, checklists, report formats, and tag designs.
11. CONFIDENTIALITY
11.1 Each party will keep the other’s confidential information confidential and use it only for the purposes of this Agreement, except where disclosure is required by law or to that party’s professional advisers.
12. TERM AND TERMINATION
12.1 This Agreement commences on the date it is signed (or the date Services first commence, if earlier) and continues for the initial term stated above, renewing automatically on the same terms unless either party gives at least 30 day’s written notice before the renewal date.
12.2 Either party may terminate this Agreement immediately by written notice if the other party commits a material breach that is not remedied within 10 business days of being asked to do so, or becomes insolvent.
12.3 Termination does not affect fees owing for Services already performed, or any right or liability that accrued before termination.
13. FORCE MAJEURE
13.1 Neither party is liable for any failure or delay in performing its obligations (other than an obligation to pay money) caused by circumstances beyond its reasonable control.
14. ASSIGNMENT
14.1 Fern Group may assign or subcontract its rights and obligations under this Agreement. The Client may not assign this Agreement without Fern Group’s prior written consent.
15. DISPUTE RESOLUTION
15.1 The parties will first attempt to resolve any dispute in good faith through senior representatives. If unresolved within 20 business days, either party may refer the dispute to mediation before commencing court proceedings.
16. GENERAL
16.1 This Agreement (the Proposal together with these Terms and Conditions) is the entire agreement between the parties and replaces all prior discussions or understandings.
16.2 If any provision of this Agreement is found unenforceable, the remainder continues in effect.
16.3 A failure by either party to enforce any provision is not a waiver of it.
16.4 This Agreement is governed by the laws of New Zealand, and the parties submit to the exclusive jurisdiction of the New Zealand courts.
16.5 Any notice must be in writing and delivered by email or post to the address set out in the Proposal, or as otherwise notified in writing.