Term and Conditions
1. DEFINITION in these terms and conditions
"Equipment" means items which you purchase or hire from us and which are listed on the front page of the hire agreement and/or delivery docket and/or invoice as well as any tools, accessories, attachments, parts, manuals, instructions, packing and transportation materials left with you, and any substitute and replacement equipment. For the purpose of this agreement the equipment shall be deemed to be owned by us whether owned by us or not.
2. PRICE AND HIRING
(a) Hiring charges and sales prices shall be as specified by us from time to time. We may vary them. Charges shall apply from the time we notify you of them.
(b) You will pay to us the amount of any tax, duty, levy, charge of other expense (excluding income tax, but include but not limited to goods and services tax (GST and stamp duty) levied in respect of any supply by us, together with delivery and collection charges from time to time as well as any expense incurred by us as a result of a breach by you of any or your obligations under this agreement.
(c) Unless otherwise agreed in writing, hire charges will commence from the day of delivery or the day of completion of erection if effected by us until termination of the hire period in accordance with clause 10 or 11.
3. TERMS OF PAYMENT
(a) Unless otherwise agreed in writing by us you will pay the full amount of the purchase of the hiring charges for the estimated period of hire in cash upon delivery or, where we erect the equipment, upon completion of the erection. If the hiring continues beyond the estimated period of hire, you will pay weekly in advance. We may render invoices to you at the commencement or completion of the hire period or periodically throughout the hire period.
(b) The only discount available to you shall be those agreed in writing by us. If you breach any of these conditions then any discount on any unpaid invoices is automatically revoked and the full price is payable for all hire charges from that time onwards.
(c) You shall pay interest at the commonwealth bank overdraft rate plus three (3) percentage points per annum on any money not paid by you on or before the due date.
(a) Unless sold to you. We do not continue to own the equipment and the payment of compensation nor shall any other circumstances or event amount to or result in any transfer of property or other interest in the equipment from us to you.
(b) We may inspect the equipment at any time during the hire period. You shall admit or procure our admission to the premises where the equipment is situated.
5. LOSS OR DAMAGE
(a) If the equipment you hire (the "Hired Equipment") is lost, breaks down or is damaged, you shall immediately notify us of the details. After notification you must continue to safeguard it.
(b) If the hired Equipment breaks down or becomes unsafe, you will immediately stop using it and will take all necessary steps to prevent injuries to any person and all property as a result of the condition of the Hired Equipment. You will not repair or attempt to repair the Hired Equipment without our consent.
(c) We will take all reasonable steps to promptly repair damage or faulty Hired Equipment or substitute or replace it if available but do not have any liability if we do not repair, replace or substitute the Hired Equipment.
(d) If the faulty conditions or loss of the Hired Equipment is caused other than by negligence, or breach of contract, you will pay us for the cost of all repairs and pay all hire charges until the Hired Equipment is repaired or if the damage is irreparable or the hire Equipment is lost, until you pay us the cost of replacement.
(e) If we required by any relevant authority, or requested by you or we decide to salvage the Hired Equipment, then you will pay us all salvage costs.
6. HIRER'S OBLIGATION
(a) Pay us all hire and other charges which you are liable to pay.
(b) At your own expense, clean, fuel, lubricate and provide daily maintenance for the equipment and keep it in good and substantial repair and condition and not damage the paintwork on the equipment. If you do not, you must reimburse us with respect to such items
(c) Be responsible for all flat and/or damaged tyres.
(d) Clean the equipment properly and thoroughly when you finish using it and before its return or by collection by us. If we, in our absolute discretion, determine that you have breached obligation under clause 6, we may, at your expense, clean and or repaint the equipment.
(e) Ensure the operators of the equipment wear appropriate safety clothing and use appropriate safety equipment and follow appropriate safety measures.
(f) Supply to the operators of the equipment all necessary manuals and instructions (both written and oral) necessary for use of the equipment. Manuals and written instructions are available from us.
(g) Where we are to erect the Equipment, before you ask us to start erection you are to ensure the site is cleared and ready for the erection of the equipment and that the foundations upon which we are to erect the equipment are suitable in every way to safely carry the equipment and the load to be put on it without subsidence. You are liable to us for and must indemnify us against any loss, cost or damage which we may suffer or incur due to your failure to comply with this obligation.
(h) Regardless of who is to erect the equipment, be fully responsible for the safekeeping of the equipment and must comply at your own expense with all laws, ordinances and regulations which may affect the equipment whilst it is in your possession or being used by you including, in particular, any occupational health and safe laws.
(i) Where you erect the equipment, erect it in accordance with the requirements of law. While we, by our servants or agents may advise you on our understanding of legal requirements we accept no responsibility to acquaint you with them. We accept no responsibility for advice which may give to you about those requirements including if that advice is negligently given. You are responsible to fully acquaint yourself with those requirements.
(j) Give any local or other authorities and necessary notice of your intention to erect a scaffold or use any part of the Equipments and pay all fees in connection therewith. You shall obtain and keep in force and licenses or permit needed to use the equipment and in particular, but without limiting the generality of the foregoing. If you erect the equipment you must ensure that the erection is effected by a person with the necessary qualifications to do so. .
(k) Use the equipment in a skillful and proper manner and keep it in good and substantial repair and condition, reasonable wear and tear expected. Any Equipment lost or damaged from any cause whatsoever (other than reasonable wear and tear prior to the collection of the equipment by us after the expiration of the hiring will be paid for in accordance with our then current retail prices list for such Equipment. If lost Equipment is subsequently found and returned to us in good order and condition, we will refund any payments made by you under this clause, less hiring charges for that equipment up to the date of its return.
(I) Not allow any plates and marks affixed to the equipment weather in position at the time of commencement of the hiring or subsequently affixed there to by us during the period of hiring to be damaged, obliterated, defaced or covered up.
(m) Not erect any of the equipment or affix it to any land or building in such a manner as to mark it legally a fixture forming part of any freehold.
(n) Not sell, assign, mortgage, pledge, sub-let, part with the possession of all or any part of the equipment or otherwise deal with any of it, or let any other person use, dispose or otherwise deal with any of it in a way which is inconsistent with our rights of ownership and these conditions nor remove the equipment from the site where it is initially erected without our prior consent.
7. RELEASE AND INDEMNITY
(a) Expect and provided in clause 8, you assume all risks of loss, damage or injury to person or property by reason of the condition of the equipment of the use, management, control or operation thereof and you release us from and indemnify us against all claims, loss, damage liability or injury sustained by us or any of our agents or employees whether the claim is made by you, a third party or any of our employees or agents, arising in any way out of this agreement including your use of the equipment whether caused by our negligence of our agents or employees or otherwise.
(b) Where the letter "NR" appear adjacent to goods itemized on the front of the hire agreement and/or delivery docket and/or invoice you acknowledge that we consider that those goods should be used with the equipment; we informed you of this, but you declined to hire them from us. Without limiting the generality of clause 6, 7 (a) and 8 (a), we accept no responsibility if these goods were in fact required by law to be used in the erection of the equipment and you did not use them with the equipment.
(a) Where we are to erect the equipment, subject to clause 6 (g) and 0), we warrant that we will erect it in accordance with the requirements of law.
(b) To the extent which, any law permits, all conditions, terms and warranties which are not expressly contained in this agreement are hereby excluded our liability under any conditions and warranties implied by Ia shall be limited to the cost of or supplying the equipment (and if the equipment is for hire, for the same period as the period of hire described in the agreement) including the cost of any erection provided for in this agreement. You may not make and claim against us for the loss of profit, consequential or indirect damage or loss to any property or injury to any person arising from any breach of any implied conditions and warranties.
9. THEFT AND DAMAGE WAIVER
(a) Notwithstanding any other clause in these conditions, if you take the benefit of the theft and damage waiver option on the front page, of the hire agreement and/or delivery docket we waiver our rights under these conditions to claim from you any money in excess of the specified portion of our current retail price list for the equipment(if not otherwise specified being $100 or 10% whichever is the greater) where our rights arise out of any loss, destruction of or damage to the equipment caused by fire, storm, earthquake, collision, accident, theft or burglary, provided that in case of the theft or burglary you give us satisfactory evidence that you promptly reported the theft to the police. This waiver shall not apply to loss or damage to the equipment in the following circumstances:
(a) Loss or damage resulting from overloading, exceeding rate capacity, misuse, abuse or improper servicing of the equipment.
(b) Loss or damage due to mysterious disappearance of the equipment
(c) Loss or damage caused by misappropriation or wrongful conversion of the equipment BY you.
(d) Loss or damage caused by the use or operation of the equipment in contravention of any of these conditions or in violation of any law, regulation or by-law
(e) Loss of scaffolding or any parts thereof.
(f) Damage to tyres
(g) Glass breakage
(h) Loss or damage occurring whilst equipment is being carried over water
(i) Damage to electrical motors or tools caused by unsuitable leads and/or lead being too long
(j) Damage to equipment during transit where transported outside the metropolitan area
(k) Loss or damage to tools, accessories, grease guns, hoses and similar, electrical cords, welding cables, oxy and acetylene bottles, pneumatic tools, steel, air conditioning, planks floodlights, light globes and other similar accessories
(l) Damage caused by exposure to any corrosive substance, e.g. caustic, cyanide, salt water, acid, etc. or hazardous or toxic materials
(m) Damage to equipment paintwork.
We may immediately terminate this agreement either verbally or in writing if you do not make all payments on the due date; do not fulfill all of your obligations here-under become bankrupt or insolvent or enter into any deed of agreement or composition with your creator; or suffer execution to be used against you, or being a company you go into liquidation. If we do terminate this agreement, you forfeit all money already paid to us, we may repossess the equipment and for that purpose, entre any premises where the equipment may be, and we can recover from you any money you have not paid and any damages we suffer as a result of your breach of these conditions.
11. TERMINATION OF HIRE
(a) we may at any time and in our sole discretion immediately terminate the hire period either verbally or in writing whereupon you shall immediately make the equipment available to us for collection.
(b) You any terminate the hire period by:
I.delivering the equipment during normal working hours to us
II. Notifying us that the equipment is available for collection, provided that you keep the equipment safe and secure until its collection by us. When notifying us that the equipment is ready for collection you must obtain an "off hire" number, failing which you will be taken not to have notified us that the equipment was ready for collection
(c) subject only to clause 5 (e) of these conditions, if at the time of return by you or collection by us the equipment is in an unsatisfactory state in breach or if these conditions, the hire period shall be deemed to continue until the equipment is in a state which is reasonably satisfactory to us. We will at your expense take all reasonable steps to put the equipment into a satisfactory state as soon as practicable after return or collection
(d) upon termination of the hire period we may take possession of the equipment and for this purchase you irrevocably appoint us as you agent and authorize us to enter upon any premises where the equipment is situated or where we have any reason to believe that the equipment may be situated and to disconnect, dismantle and remove the equipment whether or not it is affixed to land or premises, connected to property or equipment not owned by us, in use by you or any other person or containing property not owned by us. If the equipment contains any property not owned by us, we shall store that property for a period of 14 days from the termination of the hire period and may charge you reasonable storage fees. If the property is not collected at the expiry of 14 days after the termination of the hire period, you irrevocably appoint us your agent and authorize us to sell the property if we wish.
You must at your expense maintain all appropriate polices and insurance in respect of the hired equipment including but not limited to insurance
(a) for damage to or arising out of the equipment in/an amount not less than the full new replacement of the equipment except if you have taken the benefit of the theft and damage waiver option pursuant to clause 9 (those polices need not cover the loss of damage specified in clause 9); and
(b) for third party and public liability risks in respect of the hire or use of the equipment by you in an amount not less than $10 million.
13.SALE OF EQUIPMENT
If we sell either second hand or new equipment to you then you acknowledge that:
(a) You bear the risk for loss or damage to the equipment from the time the equipment leaves our premises and you are responsible for all freight and insurance costs. Until we have been paid the purchase price in full without deduction and there is no monies owing by you to us in respect of the supply of the equipment for any other reason whatsoever. Title does not pass to you and you shall hold the equipment as bailer for us and store the equipment separately from your own goods.
(b) The purchase price shall be payable by you to us as if it constituted hire charges in accordance with these conditions.
(c) We may reposes the equipment (and enter any premises where it is located to do so) if you do not pay any money owing to us when due and we may re-sell or hire the equipment which has been repossessed
These conditions shall replace and supersede all other terms and conditions of trading. lf any previously in force between you and us and no variation of these conditions shall bind either party unless confirmed by us in writing.
(a) No waiver by either party of a breach or non-performance by any term, Conditions or obligation under this agreement shall be a waiver of any subsequent breach of or failure to perform the same or any other term, Condition or obligation. Any waiver must be in writing. Where a party consists of more than one person, there liabilities in the liability of their respective legal personnel representatives shall be joint and several
(b) Any officer, employee or agent of your who signs this document or any receipt or other document in connection with the delivery or the erection of the equipment purportedly on your behalf may be taken by us as having the full authority to sign on your behalf and you shall not repudiate such authority with this agreement is signed on behalf of any cooperation or alleged cooperation, the person so signing warrants to us that he has full authority to do so and those persons shall be personally liable under the provisions hereof should you denied you are the hirer of the equipment of if that cooperation shall not in fact exists
(c) If any of these condition or part thereof become void or unenforceable then that part shall be severed from these conditions sop that all parts which are not void or unenforceable shall remain in full force and effect and be unaffected by any severance of other parts.
(d) We may assign or sub contract our rights and obligations under this agreement without notice to you
(e) Any notice or invoice by these conditions to be served may be served by us by leaving it at or posting it to your address as stated herein all last notified in writing to you by us and shall be deemed to have been served at the time of leaving or, if posted, on the business day following the day of postage and any notice may be signed by a manager, direction or solicitor on our behalf.
(f) Termination of the hire period shall not affect these conditions that are expressed or implied to operate or have effect after termination. Termination shall be without prejudice to any right or action already given to you or us in respect of any breach of these conditions by the other party
(g) A statement in writing signed by any director, secretary or credit manager of ours of the amount due or owing by you as at the date mentioned in such statement shall be prima face evidence that such amount is due and owing without it being necessary to produce any books or vouchers to verify the same.
(h) Any credit accommodating granted may be withdrawn at any time for any reason without notice