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HEIGHT 4 HIRE PTY LTD - TERMS & CONDITIONS OF HIRE
1. INTRODUCTION
For the purposes of this agreement, “Owner” means Height 4 Hire Pty Ltd ABN 11 142 343 539 and its successors and assigns or any person acting on behalf of and with the authority of the Owner; “Hirer” means the person, firm or corporation hiring the Plant and named on the quote or account provided by the Owner; “Plant” means machinery or equipment and includes all accessories and other attachments, as described on quotes, invoices or any other paperwork provided by the Owner to the Hirer; “Site” means the place where the Owner’s Plant is to be operated; and “Work” means the operating of lifting equipment by the Hirer.
2. CREDIT ACCOUNT FACILITY
A credit facility is available on request. The Owner will require the Hirer to complete a credit application form before a credit account is considered. The granting of the account is subject to payment terms of strictly 30 days from month end.
3. NON-ACCOUNT HIRERS
Where the Hirer does not hold a credit account, payment of the Hire Period must be made in advance and before the Plant is delivered to the Hirer.
4. QUOTES
4.1 The Owner may give the Hirer a quote specifying the Plant required to fulfil the Hirer’s instructions and an estimate of the Owner’s charge for the hire of such Plant.
4.2 Variations Should the Hirer make changes to the original quote this will constitute a variation and the Hirer shall indemnify the Owner from any additional cost incurred
5. DELIVERY
5.1 Freight charges for delivery and collection of Plant, and waiting times and delays caused by the Hirer will be charged to the Hirer.
5.2 The Owner shall use its best endeavours to have the Plant delivered by the agreed time, but the Owner will not be liable to the Hirer for late delivery, non-delivery or any loss or damage occasioned to the Hirer for such late or non-delivery.
6. LOCATION OF OWNERS PLANT
The Hirer shall not in any way part with possession, relocate the Plant nor assign this hire contact, without the prior written consent of the Owner.
7. HIRE PERIODS
7.1 The hire shall commence from the time and date the Plant leaves the premises of the Owner until the Owner is notified by the Hirer that the Plant is available for collection, at which time the Hirer will be given an off hire number as verification that such notification has been received.
7.2 Late Notice In the event of insufficient notice being given (outside normal business hours), then the Hirer shall be responsible for the safe keeping of the Plant until such time as the Owner can arrange transportation within reasonable working hours. 7.3 Hire Rates
7.3.1 The daily rate is based upon the Plant being hired for a maximum hire period of 8 hours. If used in excess of 8 hours per day an additional charge will apply. (example: Sixteen hours equals 2 days, twenty four hours equals 3 days). This shall also apply to weekend hire.
7.3.2 The weekly rate is based on the Plant being hired for a maximum of 5 days or 40 hours unless otherwise specified or at the discretion of the Owner when the operation of the Plant exceeds 8 hours per day.
7.3.3 Work performed on weekends, statutory or gazetted public holidays shall attract an extra charge to allow for overtime costs. Rates are available on application to the Owner’s office during normal business hours.
8. HIRE CHARGES
The Hirer shall pay the Owner on completion of the hire period for: a) the Owner’s current hire price rates;
b) all hiring charges and any other amounts payable in accordance with these conditions of hire within the time specified in the quote or Hire Agreement;
c) travelling time charges from depot to depot, assessed according to time and distance involved. Where applicable freight charges shall also be payable by the Hirer;
d) any loss or damage to the Plant, the whole or part of the cost of replacement or repair of the Plant; and
e) the amount of tolls, levies offences (traffic/parking) or like charges paid or payable by the Owner to any government body in respect of use of the Plant.
9. DRY HIRE
9.1 The Owner must be notified immediately of Plant failure (for any reason whatsoever). The Owner may determine not to charge hire during the time the Plant is down, unless such condition is due to negligence or misuse on the part of or attributed to the Hirer. Such notification does not absolve the Hirer from its obligation to safeguard the Plant.
9.2 The Hirer shall, upon completion of the Hire, return the Plant in equal order (fair wear and tear excepted).
9.3 The Hirer shall at all times exercise due care that the Plant is not driven or operated by any person not duly authorised under all relevant laws, by-laws and regulations to be driving or operating such Plant for the purpose and within the capacity for which it was designed to be used. The Hirer shall take all reasonable precautions to prevent bodily injury or damage to property and to comply with all statutory obligations and by-laws and regulations imposed by any Public Authority for the safety of persons and property as though the Hirer was the Owner.
10. THE HIRER’S RESPONSIBILITIES The Hirer shall:
a) pay all government stamp duty on hiring agreements;
b) pay any applicable government charges and improvisations;
c) be responsible for any loss or damage to the Plant and/or accessories if such loss is caused by the negligence of the Hirer or any persons under his control;
d) not alter, make any additions to, deface or erase any identifying mark, plate or number on or in the Plant or in any other manner interfere with the Plant;
e) be responsible for any loss or damage resulting from lack of lubrication, maintaining correct fluid levels in lead acid batteries or other normal servicing of the Plant; and
f) service, clean and maintain the Plant in good repair and condition, reasonable wear and tear expected. This includes supplying all fuel, oil and greases necessary for the operation, service and maintenance of the Plant. Failure to maintain the Plant during the hire period and/or return it in a clean state will incur additional cost to the Hirer.
11. PAYMENT
11.1 Time for Payment
The Hirer must pay the Owner the total owing within the time specified in the Owner’s quote, Hirer Information/Payment Authorisation Form and/or Credit Application, and in the Owner’s tax invoice.
11.2 Interest The Owner may charge interest at a rate of two percent (2%) above the commercial lending rate of the Westpac Bank calculated on a daily basis on amounts not paid within the Owner’s accepted payment terms.
11.3 The Owner’s Plant The Owner reserves the right to remove its Plant from the Site should the Hirer fail to pay any monies owing to the Owner by due date.
12. TUNNEL INSURANCE
Should Height 4 Hire give permission for the Plant to be used in a tunnel construction site, then the cost of appropriate insurance cover will be the responsibility of the Hirer.
13. DAMAGES
The Hirer must pay to the Owner any costs, expenses or losses incurred by the Owner as a result of the Hirer’s failure to pay to the Owner all sums outstanding as owed by the Hirer to the Owner including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
14. PRIVACY
14.1 The Hirer hereby authorises the Owner to collect, retain, record, use and disclose commercial and/or consumer information about the Hirer, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by the Owner, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
14.2 The Owner may give information about the Hirer to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Hirer’s credit file. This information may be given before, during or after the provision of credit to the Hirer and will be in accordance with the Privacy Act 1988 and subsequent amendments.
15. LIABILITY
15.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Hirer in relation to the provision of Plant and of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
15.2 Disclaimer of Liability
The Owner disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Hirer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Owner for a breach of a Non-Excludable Right is limited, at the Owner’s option to supplying Plant as contracted or refunding the price paid for such Plant.
15.3 Indirect Losses
Notwithstanding any other provision of these terms and conditions, the Owner is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Hirer for:
a) any increased costs or expenses;
b) any loss of profit, revenue, business, contracts or anticipated savings;
c) any loss or expense resulting from a claim by a third party; or
d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the failure of the Owner to supply or delay in supplying the Plant.
15.4 Force Majeure
The Owner will have no liability to the Hirer in relation to any loss, damage or expense caused by the failure of the Owner to supply the Plant as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Owner’s normal suppliers to supply necessary parts or any other matter beyond the Owner’s control.
16. SECURITY AND CHARGE
The Hirer hereby charges all property, both equitable and legal, present or future of the Hirer in respect of any monies that may be owing by the Hirer to the Owner under the terms and conditions or otherwise and hereby authorises the Owner or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Hirer at any time.
17. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
17.1 In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest and Verification Statement.
17.2 The Hirer acknowledges and agrees:
a) that these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Plant (and Proceeds):
(i) previously supplied by the Owner to the Hirer;
(ii) to be supplied in the future by the Owner to the Hirer;
b) that the Security Interest created by these Terms & Conditions is a continuing Security Interest in all Plant (supplied now or in the future by the Owner to the Hirer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Owner has signed a release;
c) to waive its rights in relation to the sections listed in subsection 115(1) of the PPSA (or as otherwise amended),which will not apply (to the extent, if any, mentioned) to the Security Agreement created by these Terms & Conditions.
17.3 The Hirer undertakes to:
a) keep all Plant free of any charge, lien or Security Interest except as created under these Terms & Conditions and not otherwise deal with the Plant in a way that may prejudice any rights of the Owner under these Terms & Conditions or the PPSA;
b) sign any further documents and provide any further information (which must be complete, accurate and up-todate in all respects) that the Owner may require to:
(i) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause
17.3
(b) (i) or 17.3(b) (ii);
c) indemnify, and upon demand reimburse, the Owner for all fees (including actual legal fees on a solicitor/own client basis), costs, disbursements and expenses in:
(i) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) enforcing or attempting to enforce the Security Interest created by these Terms & Conditions.
d) not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Plant or Proceeds in favour of a third party, without the prior written consent of the Owner; and
e) immediately advise the Owner of any material change in its business details (including, but not limited to, it’s trading name, address, facsimile number) or business practices.
18. TERMINATION
18.1 Without prejudice to any other remedies the Owner may have against the Hirer, and notwithstanding the period of hire mentioned, the Owner may terminate this hire contract:
a) upon giving to the Hirer 2 days written notice of termination at any time during the period of hire;
b) without notice if the Hirer shall have a winding up petition presented against it, or be wound-up or go into voluntary liquidation or if a receiver is appointed or if it makes an assignment or compromise for the benefit of its creditors or if its business is placed under official management or if it ceases to carry on business; or
c) without notice if the Hirer shall commit any breach of this hire contract.
18.2 Subject to clause 18.1(a) upon termination the Owner shall be entitled, without notice, to take possession of the Plant, for which purpose the Hirer hereby irrevocably appoints the Owner as its agent for collection and licenses the Owner to enter any land or premises of the Hirer or under its control upon which the Plant is situated at the time of termination.
19. GENERAL MATTERS
19.1 Severability
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
19.2 Governing Law and Jurisdiction
These Terms and Conditions are governed by the laws of the State of Queensland and all disputes arising between the Hirer and the Owner will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.
