1. EQUIPMENT HIRE
1.1 The Owner agrees to hire the Equipment to the Hirer for the Hire Period on the Terms and Conditions set out herein and as set out in the Hire Schedule.
1.2 The Hire Period will commence on the date the Hirer takes possession of the Equipment or, if the Hirer requests, the Equipment is delivered by the Owner to the Hirer.
1.3 The Hire Period will cease on the earlier of the following occurring:
1.3.1 at the end of the Hire Period;
1.3.2 termination under clause 15;
1.3.3 when the Equipment is returned to the Owner’s custody, control and possession.
1.4 The Hirer is responsible for payment of all Hire Charges until the end of the Hire Period or until the Equipment is returned to the custody and possession of the Owner or an alternative arrangement is agreed by the Owner.
1.5 The Hirer may with the written consent of the Owner:
1.5.1 extend the Hire Period;
1.5.2 request for additional Hire Days;
1.5.3 request for an Operator to operate the Equipment (if an Operator is not already provided for by the Owner to the Hirer);
1.5.4 request to remove or add a Hirer Authorised Operator.
1.6 The Owner’s consent under clause 1.5 is subject to the Hirer paying all additional Hire Charges. This includes any unexpected or expected delay in the return of the Equipment. The Owner will then advise the Hirer of the applicable Hire Charges that will apply.
1.7 The Hirer agrees that at the commencement of the Hire Period, the Equipment complies with its description, is of merchantable condition, is fit for the Hirer’s purpose and is free from damage.
1.8 The Owner retains full title to the Equipment notwithstanding possession and use of the Equipment by the Hirer.
2. OPERATOR
2.1 If an Operator is provided by the Owner to the Hirer then this clause 2 shall apply.
2.2 The Owner agrees to supply an Operator who is suitably qualified persons (of at least eighteen (18) years of age) authorised to operate the Equipment, to the Hirer.
2.3 The Operator will be under the Hirer’s direction and control during the Hire Period and will comply with the Hirer’s reasonable directions.
2.4 The Owner will not, while the Operator is working under the Hirer’s direction and control seek to direct or supervise any of the work undertaken by the Operator.
2.5 The Owner will not be liable to the Hirer for any act or omissions of the Operator where the Operator is acting under the Hirer’s direction and control during the Hire Period.
2.6 The Hirer will not allow any other person to operate the Equipment without the Owner’s written consent (which consent will not be unreasonably withheld).
2.7 The Hirer acknowledges that the designated Operator may change from time to time based on the Operator availability.
3. HIRER AUTHORISED OPERATOR
3.1 If a Hirer nominates a Hirer Authorised Operator then this clause 3 shall apply.
3.2 The Hirer agrees that the Hirer Authorised Operator(s) is competent and is a suitably qualified person (of at least eighteen (18) years of age) authorised to operate the Equipment.
3.3 The Hirer will not allow any other person to operate the Equipment without the Owner’s written consent (which consent will not be unreasonably withheld).
4. DELIVERY AND REMOVAL OF EQUIPMENT
4.1 Unless otherwise agreed between the Owner and the Hirer, the Hirer will collect the Equipment from the site nominated by the Owner at the commencement of the Hire Period and return the Equipment to the Owner at the end of the Hire Period.
4.2 When transporting the Equipment, the Hirer must:
4.2.1 ensure the Equipment is properly secured to the transporting vehicle and the vehicle is suitable to transport the Equipment;
4.2.2 ensure where applicable that the trailer is properly secured to the tow vehicle and the trailer lights and brakes are functional; and
4.2.3 ensure that the vehicle has sufficient towing or carrying capacity and is capable of safely towing the Equipment.
4.3 If the Hirer requests and the Owner agrees to deliver the Equipment at commencement of the Hire Period to the Hirer’s nominated address, the Hirer must do all that is practicable to facilitate the delivery of the Equipment, including ensuring that the Owner has the requisite access to the Hirer’s delivery address to allow safe and secure delivery of the Equipment to the Hirer. The Hirer must pay to the Owner any fees incidental to the delivery of the Equipment by the Owner to the Hirer as invoiced by the Owner.
4.4 If the Hirer requests and the Owner agrees to remove the Equipment at the end of the Hire Period from the Hirer’s nominated address, the Hirer must do all that is practicable to facilitate the removal of the Equipment, including, ensuring that the Equipment is in an appropriate state and position for removal. The Hirer must pay to the Owner any fees incidental to the removal of the Equipment by the Owner to the Hirer as invoiced by the Owner.
5. BOND
5.1 If a Bond amount is specified in the Schedule then this clause 5 shall apply.
5.2 The Hirer agrees that the Bond is for the due observance and performance by the Hirer under these Terms and Conditions and will be either:
5.2.1 a cash bond paid to the Owner prior to the collection or delivery of the Equipment; or
5.2.2 a pre-authorisation on a valid credit card prior to the collection or delivery of the Equipment.
5.3 If the Bond is given in the form of a credit card pre-authorisation the Bond will not result in a charge to the credit card unless deductions are required under these Terms and Conditions.
5.4 If at any time the Hirer fails to observe and perform any of the Hirer’s obligations under these Terms and Conditions, the Owner may, in its discretion at any time, take all or any part of the Bond as may be necessary, in the absolute opinion of the Owner, to compensate the Owner for any loss or damage suffered or which may be suffered by the Owner by reason of that failure by the Hirer. Any appropriation or calling up by the Owner will not constitute a waiver of that failure and will not prejudice any other right or remedy of the Owner in respect of it.
5.5 If the whole or any part of the Bond is appropriated by the Owner and this Agreement remains on foot, the Hirer will immediately upon demand by the Owner pay to the Owner the amount so appropriated or called up to be held as a cash bond in accordance with this clause.
5.6 Subject to clause 5.4, the Owner will return to the Hirer any Bond held by the Owner within thirty (30) days of the expiry of the Hire Period.
5.7 The Hirer acknowledges that Bond may reduce the available credit limit on their credit card until it is returned in accordance with clause 5.6, subject to the policies of the Hirer’s financial institution.
6. FEES AND CHARGES
6.1 If an Operator is provided by the Owner to the Hirer, the Owner will issue an invoice to the Hirer on a weekly basis during the Hire Period. The fees and charges payable will be charged in accordance with the Operator’s Job card for the relevant period.
6.2 If a Hirer nominates a Hirer Authorised Operator the Owner will issue an invoice to the Hirer at the commencement of the Hire Period for the Hire Charges.
6.3 The Hirer must pay to the Owner the Hire Charges together with all other amounts referred to in this Agreement including (but not limited to):
6.3.1 the cost of any Operator, operational guidance or training on the use of the Equipment;
6.3.2 the cost of any consumables, fuel or trade materials relating to the Equipment;
6.3.3 all government charges and taxes relating to this Agreement or the payments to be made under it, including stamp duty, financial institutions duty and GST;
6.3.4 any road toll fees;
6.3.5 the costs of any repairs to the Equipment, including parts and labour;
6.3.6 the cost of incomplete operator maintenance tasks, including cleaning and refuelling of the Equipment prior to the end of the Hire Period;
6.3.7 the cost of returning the Equipment to the Owner after 5 pm on the end date of the Hire Period and administration fees;
6.3.8 any penalty and traffic infringements caused by the Hirer or the Hirer Authorised Operator; and
6.3.9 excess hourly charges if the Equipment is used by the Hirer for more that eight (8) hours per day.
6.4 If the Hirer nominates a Hirer Authorised Operator, the Owner shall issue an invoice for all additional charges incurred at the end of the Hire Period.
6.5 The Hirer must pay to the Owner all Hire Charges and other amounts stated in an invoice within the time frame stated on the invoice or if no date is specified for any reason, within thirty (30) days from the date of the invoice.
6.6 The Hire Charge will be applied for the whole of the Hire Period (subject to any amendments under clause 1.6).
6.7 The Hirer must not withhold, or make deduction from, any payment under this Agreement due to impaired operation or complete failure of the Equipment except to the extent it is caused by the negligence of the Owner or an alleged set-off or counter claim by the Hirer or any tax or any other reason.
6.8 The Owner is entitled to charge interest on all amounts that may become due by the Hirer to the Owner under this Agreement which are not paid by the due date for payment thereof, and such interest will accrue and be payable at the rate of two (2) per cent per month, calculated on daily balances and compounded monthly until paid.
7. GST
7.1 Words used in this clause that are defined in the GST Law have the meaning given in that legislation.
7.2 Unless otherwise specified, all amounts payable under this Agreement are exclusive of GST and must be calculated without regard to GST.
7.3 If a supply made under this Agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
7.4 The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.
7.5 If there is an adjustment to a taxable supply made under this Agreement then the Supplier must provide an adjustment note to the Recipient.
7.6 The amount of a party’s entitlement under this Agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.
8. PPSA
8.1 Controllers Where a person is a controller in relation to the Equipment, the parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Equipment by that controller.
8.2 PPSA Notices Notices or documents required or permitted to be given to the Owner for the purposes of the PPSA must be given in accordance with the PPSA.
8.3 Registration on PPSR The Hirer consents to the Owner effecting a registration on the PPSR (in any manner the Owner considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement and the Hirer agrees to provide all assistance reasonably required by the Owner to facilitate this.
8.4 Verification Certificate The Hirer waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
8.5 Proceeds and Security Agreement The Hirer acknowledges that if the Owner’s interest under this Agreement is a Security Interest for the purposes of the PPSA:
8.5.1 that Security Interest relates to the Equipment and all proceeds of any kind; and
8.5.2 this Agreement is a security agreement for the purposes of the PPSA.
9. WARRANTIES
9.1 The Owner warrants that the Equipment is in good working order and condition as at the commencement of the Hire Period.
9.2 The Hirer acknowledges that the Owner owns the Equipment and retains title to the Equipment at all times.
9.3 Except as provided in this Agreement, the Hirer is not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of Security Interest over, or otherwise deal with, the Equipment.
10. OBLIGATIONS OF THE HIRER
10.1 The Hirer undertakes that it will:
10.1.1 only use the Equipment in accordance with this Agreement;
10.1.2 operate the Equipment safely and only for its intended use;
10.1.3 operate the Equipment consistent with any manufacturer specifications;
10.1.4 ensure persons operating the Equipment:
(a) are suitably trained on its safe and propose use, qualified to use the Equipment and where necessary hold a current licence to use the Equipment;
(b) wear suitable clothing and protective Equipment when operating the Equipment; and
(c) not be under the influence of alcohol, drugs or have a blood alcohol or drug content that exceeds the legal limit in the State or Territory in which the Equipment is operated.
10.1.5 not deal with the title to the Equipment, on-hire the Equipment, or otherwise deal with the Equipment in a manner inconsistent with the Hirer’s position as bailee of the Equipment, unless the Hirer obtains written consent from the Owner (which consent will not be unreasonably withheld);
10.1.6 not part in any way with possession of the Equipment without the prior written consent of the Owner (which consent will not be unreasonably withheld);
10.1.7 at the direction of the Owner, supply at its own cost anything necessary for the operation, service and maintenance of the Equipment consistent with manufacturer specifications, including oil, grease, parts, and tyres, unless specifically agreed otherwise;
10.1.8 register or licence the Equipment where it is required to do so by law, and then do all that is necessary to maintain the registration or licence;
10.1.9 immediately give notice to the Owner if the Equipment is lost, damaged or destroyed;
10.1.10 store the Equipment safely, securely and protected from theft, seizure, loss or damage;
10.1.11 comply with all the laws, regulations and instructions applicable to the use and operation of the Equipment;
10.1.12 at the end of the Hire Period:
(a) ensure the Equipment is in good working order and repair (fair wear and tear excepted) to the satisfaction of the Owner;
(a) promptly return the Equipment to the Owner, or have it ready for removal by the Owner, with all accompanying materials or documents as required by this Agreement.
10.2 The Hirer acknowledges that they are responsible to ensure that the Hirer Authorised Operator observes the obligations imposed on the Hirer regarding the use of the Equipment under this Agreement.
11. LIABILITY AND INDEMNITY
11.1 To the extent permitted by law:
11.1.1 all guarantees, terms, conditions, warranties, representations, undertakings, express or implied, statutory or otherwise, relating to this Agreement are excluded;
11.1.2 where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to this Agreement, the Owner’s liability is limited (at the Owner’s election) to:
(a) in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
(b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
11.2 The Hirer shall be responsible for any loss, damage, liability or cost caused by or to the Equipment (or third party property) during the Hire Period, or caused by any act or omission of the Hirer and the Hirer Authorised Operator during the Hire Period, except to the extent that such loss or damage is caused by the negligent act or omission of the Owner.
11.3 The Hirer indemnifies the Owner against any liability or loss arising from, and any costs charges and expenses incurred in connection with:
11.3.1 loss of or damage to or by the Equipment (or to third party property) during the Hire Period, including property damage, injury or death caused directly or indirectly by the Equipment; and
11.3.2 any act or omission of the Hirer and the Hirer Authorised Operator during the Hire Period, except to the extent caused by the negligent act or omission of the Owner.
11.4 The Owner will not be liable to the Hirer or for any act or omission of any Operator supplied by the Owner where that Operator is acting under the Hirer’s direction and control during the Hirer Period.
11.5 Subject to the Hirer’s statutory rights, the Hirer will be responsible for the cost of and will be liable for:
11.5.1 the death or personal injury of any person except to the extent that it is caused by the Owner’s direct negligence;
11.5.2 damage or loss suffered by the Owner as a direct or indirect result of the Hirer and the Hirer Authorised Operator providing false information, or engaging in any fraudulent or illegal activity, in respect of the hire of the Equipment or dealings with any law enforcement officer or other authority during the Hire Period or any breach of this Agreement, and the Owner reserves the right to recover an amount from the Hirer in respect of such losses;
11.5.3 any accident, breakdown or any other failure of the Equipment;
11.5.4 any transport and administrative costs incurred in any recovery of the Equipment; and/or
11.5.5 loss of or damage to the Hirer or anyone else's personal property, which includes, without limitation, personal property left in any Equipment.
11.6 Without limiting the foregoing, to the maximum extent permitted by law, the Owner will not be liable for any indirect, special, incidental or consequential damage, or loss of profits or loss of earnings, suffered by the Hirer and the Hirer Authorised Operator or any other person due to any breach of this Agreement by the Owner and the Hirer and the Hirer Authorised Operator releases and indemnifies the Owner (including for legal costs) from any such claim.
12. INSURANCE
12.1 The Hirer is responsible for the Equipment for the Hire Period.
12.2 The Hirer must effect and maintain at all times during the Hire Period such insurances as the Owner reasonably requires.
12.3 Notwithstanding clause 12.2, the Hirer must maintain comprehensive motor vehicle insurance for the towing vehicle, which covers the Owner’s trailer.
12.4 Any insurance must be taken out in the names of the Hirer and note the interest of the Owner for its respective right and interest. The Hirer will provide to the Owner a copy of the insurance policy documents if requested by the Owner.
13. SERVICE AND MAINTENANCE
13.1 The Owner may, at their discretion, cause for the Equipment to undergo periodical servicing and maintenance at any time during the Hire Period.
13.2 The Owner must provide at least seven (7) days’ notice to the Hirer of the scheduled servicing of the Equipment.
13.3 The Hirer must make the Equipment available to the Owner for collection.
13.4 The Owner will take reasonable steps to provide a suitable substitute Equipment to the Hirer during this period if the Equipment service falls on a Hire Day during the Hire Period. The Hire Charge remains payable by the Hirer for the provision of the substitute Equipment.
13.5 The Owner acknowledges and the Hirer accepts that the provision of the substitute Equipment is dependent on the equipment available to the Owner at such time and the Owner does not guarantee that any substitute Equipment may have the same features and capabilities as the original Equipment, for example, a substitute Equipment may not have a crane capability compared to the original Equipment.
13.6 The Owner will return the Equipment to the Hirer once service has been completed and collect the substitute Equipment from the Hirer.
14. EQUIPMENT LOST, STOLEN, DAMAGED
14.1 In the event that the Equipment breaks down, is lost or stolen, damaged in any way or becomes unsafe to use during the Hire Period the Hirer must:
14.1.1 immediately cease using the Equipment;
14.1.2 promptly notify the Owner in writing as to the condition of the Equipment;
14.1.3 take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
14.1.4 take all steps necessary to prevent any further damage to the Equipment; and
14.1.5 not repair or attempt to repair the Equipment without the Owner’s written consent (which consent will not be unreasonably withheld).
14.2 Subject to clause 14.3, upon receiving notice from the Hirer under clause 14.1, the Owner will take all steps necessary to repair the Equipment or provide suitable substitute Equipment as soon as reasonably possible after being notified by the Hirer and not impose a Hire Charge for that portion of the Hire Period for which the Equipment was broken down or unsafe, nor the costs associated with any repair or replacement of the Equipment, unless caused by an act or omission of the Hirer and/or the Hirer Authorised Operator.
14.3 The Owner will return the Equipment to the Hirer once it has been repaired or replaced, and the Hirer will continue to pay the Hire Charge for the remainder of the Hire Period.
15. TERMINATION
15.1 This Agreement may be terminated by either party:
15.1.1 immediately where a party breaches a term of this Agreement and fails to remedy that breach within seven (7) days of notification of breach by the other party;
15.1.2 upon giving the other party 30 days notice of termination at any time during the Hire Period;
15.1.3 immediately if a party engages in conduct which would enable a court to make an order against it for winding-up (if a company) or grant a creditor’s petition (if an individual), or be wound-up, or go into voluntary administration, or if a liquidator or receiver or administrator of its assets or any of them is appointed, or if any court order or process is made against it in relation to any of its assets; or
15.1.4 immediately if a party commits any material breach of this Agreement.
16. NOTICE
16.1 Any notice, demand, termination procedure or other communication relating to this Agreement must be either personally served on a party, left at the party’s current address or sent to a party’s current address by pre-paid ordinary mail, by facsimile to the Party’s current number for service or by email to the Party’s current email address.
17. GENERAL
17.1 The parties will promptly do and perform all further acts and execute and deliver all further documents required by law or reasonably requested by any other party to carry out and effect the intent and purpose of this Agreement.
17.2 Neither party will be responsible for any act or thing due to an event the cause of which is beyond that party’s control.
17.3 Any variation of or to this Agreement will not have any effect whatsoever unless such variation is reduced to writing and signed by the Owner and the Hirer.
17.4 Failure of a party to exercise any or all of its rights or powers under this Agreement at any time and for any period of time shall not constitute a waiver of any of that party’s rights or powers arising pursuant to this Agreement.
17.5 The terms and conditions listed in this Agreement shall apply equally and fully to any replacement or substituted Equipment supplied during the Hire Period.
17.6 This Agreement may be executed in any number of counterparts, all of which taken together constitute one and the same document.
17.7 The Owner accepts that this Agreement can be assigned by the Hirer with written notice to the Owner.
17.8 The Hirer acknowledges that the Owner may use satellite tracking devices on the Equipment.
17.9 If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
17.10 The laws applicable in Queensland govern this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and any courts competent to hear appeals from those courts.
17.11 This Agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A counterpart may be in electronic form including pdf format. If this Contract is signed by any person using an electronic signature then the Party may agree to enter into this Agreement in electronic form and consent to either or both parties signing this Agreement using an electronic signature.
18.1 DEFINITIONS
18.1 In this document, unless the contrary intention appears:
Agreement means this agreement comprising the Hire Schedule and these Terms and Conditions;
Bond means the amount payable by the Hirer to the Owner to secure the hire of the Equipment and any loss or damage to the Equipment pursuant to these Terms and Conditions;
Equipment means the equipment described in the Hire Schedule hired by the Hirer, as well as each or any replacement, altered or substitute part and all appliances, parts, components, instruments, appurtenances, accessories and other equipment which may from time to time be incorporated or installed in or attached to the Equipment and, except where the context otherwise requires, includes any part of such Equipment;
GST means any tax imposed by or through the GST Law on a supply (without regard to any input tax credit) including, where relevant, any related interest, penalties, fines or other charges to the extent they relate to a supply under this Agreement;
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Hirer means the Hirer who hires Equipment pursuant to these Terms and Conditions;
Hire Charge means all amounts charged for hire of the Equipment under this Agreement;
Hire Period means the period of hire of the Equipment as set out in the Hire Schedule and the Agreement and includes the period up until the Equipment is returned to the Owner;
Hire Schedule means the schedule attached to these Terms and Conditions containing terms of this Agreement;
Hirer Authorised Operator means the driver and/or operator nominated by the Hirer in the Hire Schedule.
Operator means the driver and/or operator nominated and authorised by the Owner to drive the Equipment.
Owner means the owner of the Equipment as set out in the Hire Schedule;
PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it;
PPSR means the Personal Property Securities Register established pursuant to the PPSA; Security Interest has the same meaning as in the PPSA;
Terms and Conditions means these terms and conditions attached to the Hire Schedule
19. INTERPRETATION
19.1 In this Agreement, unless the context indicates a contrary intention:
19.1.1 words denoting the singular number include the plural and vice versa;
19.1.2 words denoting individuals include corporations and vice versa;
19.1.3 a reference to any party to this Agreement includes their executors, administrators, successors and permitted assigns including any person taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
19.1.4 this Agreement will, if the Hirer comprises more than one person, bind such persons jointly and severally;
19.1.5 headings are for convenience only, and do not affect interpretation;
19.1.6 references to clause and sub-clauses are references to clauses and sub-clauses in this Agreement;
19.1.7 where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
19.1.8 the word includes in any form is not a word of limitation;
19.1.9 a reference to this Agreement includes any subsequent variation of this Agreement; and
19.1.10 time is of the essence.