1. EQUIPMENT HIRE
1.1 The Owner agrees to provide the Equipment and Operator to the Hirer from time to time during the Agreement Period on the Terms and Conditions set out herein and in the Hire Schedule.
1.2 The Agreement Period will commence on the Agreement Start Date specified in the Hire Schedule.
1.3 The Agreement Period will cease upon termination of this Agreement in accordance with clause 9.
1.4 The Hirer is responsible for payment of all Hire Charges until the end of the Hire Period 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;
1.6 The Owner’s consent under clause 1.5 is subject to the Hirer paying all additional Hire Charges. 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.
2. OPERATOR
2.1 The Owner will provide an Operator to operate the Equipment during the Hire Period.
2.2 The Owner agrees to supply a suitably qualified person (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. DELIVERY OF EQUIPMENT
3.1 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. FEES AND CHARGES
4.1 The fees and charges payable for the Equipment and Operator will be charged in accordance with the rates or fixed price specified in the Hire Schedule. Where the Hire Charges are based on an hourly rate, the Owner will issue an invoice to the Hirer on a periodic basis during the Hire Period and the fees and charges payable will be charged in accordance with the actual hours worked for the relevant period.
4.2 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):
4.2.1 the cost of any consumables, fuel or trade materials relating to the Equipment;
4.2.2 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;
4.2.3 any road toll fees;
4.2.4 the costs of any repairs to the Equipment, including parts and labour, arising from any act, omission or direction of the Hirer;
4.3 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.
4.4 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.
4.5 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.
5. GST
5.1 Words used in this clause that are defined in the GST Law have the meaning given in that legislation.
5.2 Unless otherwise specified, all amounts payable under this Agreement are exclusive of GST and must be calculated without regard to GST.
5.3 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.
5.4 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.
5.5 If there is an adjustment to a taxable supply made under this Agreement then the Supplier must provide an adjustment note to the Recipient.
5.6 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.
6. WARRANTIES
6.1 The Owner warrants that the Equipment is in good working order and condition as at the commencement of the Hire Period.
6.2 The Hirer acknowledges that the Owner owns the Equipment and retains title to the Equipment at all times.
7. OBLIGATIONS OF THE HIRER
7.1 The Hirer shall not direct the Operator to:
7.1.1 operate the Equipment other than safely and for its intended use;
7.1.2 operate the Equipment inconsistently with any manufacturer specifications;
7.1.3 operate the Equipment without suitable clothing and protective Equipment;
7.1.4 operate the Equipment while under the influence of alcohol or drugs or with a blood alcohol or drug content that exceeds the legal limit in the State or Territory in which the Equipment is operated;
7.1.5 operate the Equipment in contravention of any laws, regulations or instructions applicable to the use and operation of the Equipment.
7.2 Site Hazards and Conditions The Hirer must, before the commencement of each Hire Period and during the Hire Period where circumstances change, disclose to the Owner and Operator all hazards, obstructions and site conditions that may affect the safe operation of the Equipment or performance of the work. This includes any hazard or condition that is concealed or not readily apparent, including underground or above-ground services, pipes, irrigation systems, septic systems, drains, cables, wires, posts, stakes, rocks, debris, unstable or unsuitable ground and other obstructions. The Hirer is responsible for any loss, damage, cost or expense incurred by the Owner arising from or in connection with any hazard, obstruction or site condition that was not disclosed to the Owner or Operator before the affected work was performed, or where the full extent, scale or nature of the hazard, obstruction or site condition was not accurately disclosed. This includes any loss of or damage to the Equipment caused by or resulting from that hazard, obstruction or site condition. The Owner or Operator may refuse to commence, or may suspend or cease, any work where a hazard or site condition makes the work unsafe or may reasonably cause damage to the Equipment, property or any person.
8. LIABILITY AND INDEMNITY
8.1 To the extent permitted by law:
8.1.1 all guarantees, terms, conditions, warranties, representations, undertakings, express or implied, statutory or otherwise, relating to this Agreement are excluded;
8.1.2 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.
8.2 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 during the Hire Period, except to the extent that such loss or damage is caused by the negligent act or omission of the Owner.
8.3 The Hirer indemnifies the Owner against any liability or loss arising from, and any costs charges and expenses incurred in connection with:
8.3.1 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
8.3.2 any act or omission of the Hirer during the Hire Period, except to the extent caused by the negligent act or omission of the Owner.
8.4 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 Hire Period.
8.5 Subject to the Hirer’s statutory rights, the Hirer will be responsible for the cost of and will be liable for:
8.5.1 the death or personal injury of any person except to the extent that it is caused by the Owner’s direct negligence;
8.5.2 damage or loss suffered by the Owner as a direct or indirect result of the Hirer 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;
8.6 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 or any other person due to any breach of this Agreement by the Owner and the Hirer releases and indemnifies the Owner (including for legal costs) from any such claim.
9. TERMINATION
9.1 This Agreement may be terminated by either party:
9.1.1 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;
9.1.2 upon giving the other party 24 hours notice of termination at any time during the Agreement Period;
9.1.3 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
9.1.4 immediately if a party commits any material breach of this Agreement.
10. NOTICE
10.1 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.
11. GENERAL
11.1 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.
11.2 Neither party will be responsible for any act or thing due to an event the cause of which is beyond that party’s control.
11.3 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.
11.4 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.
11.5 The terms and conditions listed in this Agreement shall apply equally and fully to any replacement or substituted Equipment supplied during the Hire Period.
11.6 This Agreement may be executed in any number of counterparts, all of which taken together constitute one and the same document.
11.7 The Hirer acknowledges that the Owner may use satellite tracking devices on the Equipment.
11.8 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.
11.9 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.
11.10 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.
12. DEFINITIONS
12.1 In this document, unless the contrary intention appears:
Agreement Period means the period commencing on the Agreement Start Date specified in the Hire Schedule and continuing until this Agreement is terminated in accordance with clause 9;
Agreement means this agreement comprising the Hire Schedule and these Terms and Conditions;
Equipment means the equipment described in the Hire Schedule and provided by the Owner to perform wet hire services under this Agreement, 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 party identified as the Hirer in the Hire Schedule;
Hire Charge means all amounts charged for the provision of the Equipment and Operator under this Agreement, whether calculated by an hourly rate, fixed price or otherwise as agreed between the Owner and Hirer; Hire Period means, in respect of each individual instance of wet hire under this Agreement, the period commencing upon arrival of the Equipment at the Hirer’s nominated site and ending when the Equipment leaves the Hirer’s nominated site;
Hire Schedule means the schedule attached to these Terms and Conditions containing terms of this Agreement;
Operator means the person nominated and authorised by the Owner to operate the Equipment.
Owner means the owner of the Equipment as set out in the Hire Schedule;
Terms and Conditions means these terms and conditions attached to the Hire Schedule.
13. INTERPRETATION
13.1 In this Agreement, unless the context indicates a contrary intention:
13.1.1 words denoting the singular number include the plural and vice versa;
13.1.2 words denoting individuals include corporations and vice versa;
13.1.3 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;
13.1.4 this Agreement will, if the Hirer comprises more than one person, bind such persons jointly and severally;
13.1.5 headings are for convenience only, and do not affect interpretation;
13.1.6 references to clause and sub-clauses are references to clauses and sub-clauses in this Agreement;
13.1.7 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;
13.1.8 the word includes in any form is not a word of limitation;
13.1.9 a reference to this Agreement includes any subsequent variation of this Agreement; and
13.1.10 time is of the essence.