Terms and Conditions of Hire – Dry Hire (“Hire Terms”)
1. Application of Hire Terms
2. Quotations
2.1 Each quotation that we issue:
- (a) is an estimate only;
- (b) is not an offer or obligation to hire any Equipment to you;
- (c) is exclusive of GST;
- (d) does not include the costs of delivering the Equipment; and
- (e) remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a hire contract is formed,
unless the quotation states otherwise.
2.2 Quotations provided orally are subject to written confirmation.
3. Formation of a hire contract
3.1 If you request to hire Equipment from us (whether or not we have issued you a quotation), we may issue you a Hire Schedule. The Hire Schedule contains details of the hire and may include additional terms and conditions which will supplement these Hire Terms.
3.2 We are not obliged to hire any Equipment to you until after a hire contract is formed.
3.3 A hire contract is formed, and you have accepted these Hire Terms, when:
- (a) you sign the Hire Schedule and return it to us; or alternatively
- (b) direct us to mobilise or otherwise deliver the Equipment.
3.4 If you revoke an Order:
- (a) prior to the formation of a hire contract then:
- (i) we will refund you any deposit you have paid in respect of that Order; and
- (ii) you will not be required to pay any fee for the cancellation of the Order; or alternatively
- (b) after the formation of a hire contract then unless we are in breach of the hire contract:
- (i) you must pay all our reasonable costs associated with fulfilment of your Order; and
- (ii) we may apply any deposit you have paid towards those costs.
4. Hire Period
4.1 The Hire Period will commence:
- (a) (where you collect the Equipment):
- (I) the On-Hire Date; or alternatively
- (II) if the Equipment is collected after the On-Hire Date, when the Equipment leaves the point of hire; or
- (b) (where we deliver the Equipment) the date we or our nominated carrier deliver the Equipment to the Site (or to such other location as agreed in writing).
4.2 On or before the On-Hire Date, we may provide you with an On-Hire Report. The On-Hire Report will include:
- (a) a genuine indication of the state of the Equipment, including major componentry and sub-components;
- (b) the utilisation hours recorded by the Equipment’s SMU (where applicable);
- (c) whether the Equipment is in a clean and serviceable condition;
- (d) any known faults; and
- (e) a list of any attachments or tools (including GETs), accessories, spares, and supporting documentation.
4.3 If a Minimum Hire Period applies, you agree to:
- (a) hire the Equipment for the Minimum Hire Period; and
- (b) pay us the full Hire Rate for the Minimum Hire Period.
4.4 For the removal of doubt, you must pay the full Hire Rate for the Minimum Hire Period, together with all other fees and charges stated in the Hire Schedule (or where no Hire Schedule has been issued, as advised by us), even if you return the Equipment, or arrange for us to collect the Equipment, prior to the expiry of the Minimum Hire Period.
5. Delivery and risk
5.1 You are responsible for:
- (a) arranging the collection or delivery of the Equipment; and
- (b) the costs of collecting or delivering the Equipment,
unless the Hire Schedule states otherwise.
5.2 You acknowledge and agree that:
- (a) time in respect of delivery is not of the essence; and
- (b) any timeframe or date for delivery is an estimate only and is not a contractual commitment,
unless the Hire Schedule states otherwise.
5.3 Risk of loss, damage, or deterioration to the Equipment passes to you, and delivery is deemed to occur, at the time:
- (a) (where you collect the Equipment):
- (i) you or any third party on your behalf collects the Equipment from the point of hire; or
- (ii) your nominated carrier takes possession of the Equipment; or
- (b) (where we deliver the Equipment) we or our nominated carrier delivers the Equipment to the Site (or to such other location as agreed in writing).
5.4 Risk in the Equipment remains with you until such time as:
- (a) you return the Equipment to us or our nominated carrier; or
- (b) we repossess the Equipment,
(Risk Period).
5.5 You must inspect the Equipment on delivery for any damage and you must satisfy yourself that:
- (a) you have received the Equipment in good order and condition and in accordance with the On-Hire Report (where provided);
- (b) you, and any of your Personnel operating the Equipment, understand its safe and proper operation; and
- (c) the Equipment is fit for the purpose for which you require it.
5.6 You must notify us within twenty-four (24) hours if you are not so satisfied. Failing such notification, you will be deemed to have accepted the Equipment in the condition in which it was delivered and as fit for the purpose for which you require it.
6. End of Hire Period
6.1 Unless the Hire Schedule provides we are to collect the Equipment, you must return the Equipment during Business Hours to the point of hire or to such other location advised by us (acting reasonably):
- (a) on the Off-Hire Date (or such other date as agreed between the parties); or otherwise
- (b) as soon as possible if the hire contract is terminated.
6.2 Subject to clauses 4.3 and 4.4, you may terminate a hire contract early by:
- (a) returning the Equipment to us at the point of hire (during Business Hours); or
- (b) notifying us the Equipment is ready for collection (in which case you must obtain from us an ‘Off-Hire Number’, failing which you will not be deemed to have notified us the Equipment is ready for collection).
6.3 You must return the Equipment to us:
- (a) in the same state of cleanliness and in substantially similar condition that the Equipment was in when you took possession of it (Fair Wear and Tear excepted);
- (b) with a full tank of fuel which conforms with the Equipment manufacturer’s specifications; and
- (c) with all oil and lubricant reservoirs full with oil and lubricants which conform with the Equipment manufacturer’s specifications.
6.4 If:
- (a) the hire contract expires or is terminated; and
- (b) you fail to comply with clause 6.1,
then you: - (c) permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to repossess the Equipment; and
- (d) authorise us to disconnect, dismantle, and remove the Equipment (whether or not it is affixed to the Site).
6.5 Where the Equipment is not returned to the original point of hire by the Off-Hire Date, we are entitled to charge you, and you agree to pay to us additional hire charges at our then applicable daily rate for each day until the Equipment is back in our custody and possession.
7. Hire Rate and other charges
7.1 In consideration of us hiring the Equipment to you, you agree to pay us:
- (a) the Hire Rate;
- (b) mobilisation and demobilisation costs (including towing fees for vehicles);
- (c) the replacement costs of any lost or damaged signage at the end of the Hire Period;
- (d) all costs incurred by us recovering and returning hire vehicles to our depot;
- (e) all costs incurred by us bringing hire vehicles to good order where the relevant vehicle is in a state that is beyond reasonable use or fair wear and tear;
- (f) an environmental fee;
- (g) all other amounts, charges, levies, and fees stated in the Hire Schedule;
- (h) cleanings costs (if the Equipment is returned to us in an unclean state);
- (i) top up charges, if the Equipment is returned with oil, lubricant, or fuel not at the same level as the On-Hire Date;
- (j) decontamination costs (if the Equipment is contaminated with any hazardous substance, such as asbestos);
- (k) charges at our then prevailing rates where you require induction or training in relation to the operation of the Equipment; and
- (l) any tolls, levies, fines, or penalties we incur arising out of or in connection with your use or operation of the Equipment,
unless the Hire Schedule states otherwise (or where no Hire Schedule has been issued, unless otherwise agreed).
7.2 Where the Hire Schedule provides for a flat rate (or where no Hire Schedule has been issued, if we have advised you the hire is for a flat rate), the flat rate will be the Hire Rate and will be charged weekly in advance.
7.3 Where the Equipment is hired for a flat rate, we will not be required to adjust the Hire Rate based on the hours recorded by the Equipment’s SMU or the number of days the Equipment is in operation.
7.4 When a management rate and usage rate is charged, the management rate will be charged weekly in advance and the usage rate will be charged weekly in arrears.
7.5 We may charge you reasonable additional charges if you exceed the maximum usage for the Equipment (either in terms of days or operational hours) at any point in time during the Hire Period. For clarity, unless otherwise agreed in writing the maximum usage will be eight (8) hours on any given day or forty (40) hours in any given week.
7.6 Any excess usage of the Equipment will be calculated and charged on a pro-rated basis of the Hire Rate.
7.7 If we incur any cost on your behalf or associated with your failure to perform your obligations under the hire contract such as where:
- (a) you fail to return the Equipment and we collect the Equipment;
- (b) you return the equipment in an unclean state; or
- (c) we incur demurrage costs associated with the delivery or collection of the Equipment,
then you agree to pay us those costs plus an uplift of 10% as a management and administration charge.
8. Payment terms
8.1 Unless you have a Credit Facility with us which is not in default:
- (a) deposits we have requested must be paid before we hire any Equipment to you; and
- (b) you must pay us the Hire Rate, together with any other amounts, fees, and charges, on or before the On-Hire Date.
8.2 Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
8.3 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
8.4 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
8.5 You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.
9. Hirer’s obligations
9.1 You must:
- (a) comply with all laws relating to the transportation, storage, and operation of the Equipment;
- (b) protect the Equipment from loss or damage, and store the Equipment safely and securely;
- (c) observe warranties and guidelines given by the manufacturer of the Equipment;
- (d) keep the Equipment in good working order and condition and provide us with reports on the condition of the Equipment whenever reasonably requested to do so;
- (e) not remove the Equipment from the State in which you took possession of the Equipment;
- (f) service, maintain, and repair the Equipment in accordance with any service, maintenance, or repair items described in the Hire Schedule which are noted to be your responsibility (using only genuine new or reconditioned parts, components, consumables, and other items approved by us or the manufacturer of the Equipment);
- (g) deliver the Equipment to our authorised dealer for the performance of routine servicing;
- (h) ensure that any Personnel operating the Equipment are lawfully authorised to do so and are suitability instructed in the safe and proper operation of the Equipment;
- (i) ensure any Personnel operating the Equipment do so:
- (i) properly and skilfully in accordance with the manufacturer of the Equipment’s manuals and guidelines and our directions;
- (ii) in accordance with any workplace health and safety laws;
- (iii) under competent supervision; and
- (iv) in a manner which will minimise damage to the Equipment;
- (j) ensure any Personnel operating the Equipment are not affected or impaired by alcohol or drugs (prescribed or non-prescribed);
- (k) allow us to affix labels, decals, and/or plates to the Equipment stating that the Equipment is our property (and you must not alter, remove, deface, or cover up such labels, decals, and/or plates);
- (l) use best endeavours to ensure that the Equipment is not contaminated with any hazardous substances;
- (m) ensure that no Personnel carry illegal or dangerous substances in or on the Equipment;
- (n) allow our Personnel to at all reasonable times to enter upon the Site or any other premises you occupy to inspect the Equipment, and otherwise enforce our rights and carry out our obligations under the hire contract;
- (o) immediately give us any notice or order received from any government authority about the operation or condition of the Equipment; and
- (p) within five (5) Business Days from the end of each calendar month, provide to us the actual machine hours reported by the Equipment’s SMU (where equipped),
unless the Hire Schedule states otherwise (or where no Hire Schedule has been issued, unless otherwise agreed).
9.2 You must not, without our prior written and fully informed consent:
- (a) use the Equipment where you reasonably suspect the Equipment is damaged or unsafe;
- (b) remove the Equipment from the Site;
- (c) move the Equipment over any body of water;
- (d) use the Equipment in conjunction with any forestry activity, underground mining or drilling activity, or for any purpose other than what the Equipment is designed or commonly used for;
- (e) use the Equipment in an area where asbestos is present;
- (f) use the Equipment in or around caustic or corrosive substances such as salt water, acid, or fertiliser;
- (g) use the Equipment to carry or transport animals;
- (h) make any replacements, modifications, alterations, additions, or improvements to the Equipment;
- (i) exceed the recommended or legal load and capacity limits of the Equipment;
- (j) place any identifying mark on the Equipment or allow it to become an accession (within the meaning of the PPS Act);
- (k) lease, sublease, licence, or lend the Equipment to any other person (or otherwise deal with the Equipment in a manner inconsistent with our rights and interest in the Equipment); or
- (l) do or allow to be done any act, matter, or thing which may invalidate or prejudice any:
- (i) insurance policy effected and maintained by us or you;
- (ii) defence or prosecution of any Claim; or
- (iii) Claim or right we may have against any person
10. Servicing, maintenance, and repairs
10.1 During the Hire Period we will carry out, at our own expense:
- (a) any repair which is necessary to rectify any damage to, or malfunction of, the Equipment to the extent that such damage or malfunction was caused by any act or omission of ours or that of our Personnel; and
- (b) any service, maintenance, or repair items described in the Hire Schedule which are noted to be our responsibility.
10.2 Where we are responsible for carrying out any repairs to the Equipment:
- (a) we will do so as soon as possible after being notified by you of the damage or malfunction, and if it is necessary for the Equipment to be returned to our premises for repairs, then we will collect the Equipment from you and will re-deliver the repaired Equipment or a suitable replacement as soon as reasonably practicable; and
- (b) you must not carry out any repairs on our behalf without our prior written and fully informed consent. If you carry out repairs without first obtaining our consent, we will not be liable for the cost of those repairs.
10.3 You acknowledge that we may carry out pre-arranged repairs or servicing during Business Hours.
10.4 Notwithstanding clauses 10.2 and 10.3, you are otherwise responsible for maintaining, servicing, and repairing the Equipment at your own expense and must perform such work in accordance with:
- (a) the maintenance schedule provided by us; and
- (b) the servicing and maintenance manuals and/or guidelines provided by the manufacturer of the Equipment; or alternatively
- (c) customer service documentation pre-approved by us.
10.5 To the extent that you are responsible for maintaining and servicing the Equipment, you are also solely responsible for the cost of any replacement parts and consumables that would ordinarily be installed in the Equipment as part of its regular maintenance or servicing.
10.6 You are responsible for supplying at your own expense all fuel, oil, hydraulic fluid, and other consumable items required for the proper operation of the Equipment. If levels are not returned at the same level at the of the Hire Period, additional charges will apply.
10.7 You acknowledge and agree that all replacements, modifications, alterations, additions, and improvements which you make to the Equipment and which cannot be removed from the Equipment without detriment to it will become our property and the title to those things will vest in us on their incorporation.
10.8 In the case of any approved replacements, modifications, alterations, additions, and improvements which you make to the Equipment and which cannot be removed from the Equipment without detriment to it will become our property and the title to those replacements, modifications, alterations, additions, or improvements vest in us on their incorporation.
11. Wear and tear
11.1 We accept liability for the Fair Wear and Tear of major and minor components of the Equipment.
11.2 Physical harm to the Equipment and major components that fail prematurely (i.e. they fail outside of the manufacturer of the Equipment’s expected life cycle) will be considered to be damage caused to the Equipment if we can prove, on the balance of probabilities, that the damage was caused by the wilful neglect, negligence, or the improper operation of the Equipment by you, your Personnel, or any other third party during the Risk Period.
11.3 You are responsible for all wear to tyres, tracks, GETs, trays, and undercarriages (Wear Items).
11.4 Before the Equipment is mobilised, we will measure the amount of wear in respect of each of the Wear Items. When the Equipment is returned to the original point of hire, we will take these measurements again.
11.5 Usage of each of the Wear Items will be measured by comparing the percentage of use at the On-Hire Date with the percentage of use at the end of the Hire Period.
11.6 We will advise you in writing of the amount of wear incurred to the Wear Items during the Hire Period.
11.7 You agree to pay for any wear incurred to the Wear Items, calculated on a pro rata basis as a percentage increase in wear multiplied by the cost of a new Wear Item of the same or substantially similar type and quality.
12. Damage, loss, and theft
12.1 You are strictly liable for any damage, loss, or theft to the Equipment that occurs during the Risk Period.
12.2 If the Equipment breaks down, is damaged, or otherwise becomes inoperable (for whatever reason, including due to it being deemed unsafe to operate), you must promptly:
- (a) notify us by telephone and in writing; and
- (b) take all reasonable steps to secure and safeguard the Equipment from any potential damage or injury to any person or property (including further damage to the Equipment); and
- (c) not attempt to make any repairs to the Equipment.
12.3 Upon receipt of your notice under clause 12.2(a):
- (a) the Hire Rate will be suspended until such time as the Equipment is repaired or we have provided you with a suitable replacement (unless you or your Personnel have caused the damage); and
- (b) we will take all reasonable steps to repair the Equipment or provide you with a suitable replacement as soon as reasonably practicable.
12.4 If the Equipment breaks down, is damaged, needs to be recovered (due to it being bogged or stuck), or otherwise becomes inoperable due to any act or omission of yours, your Personnel, or any third party, you agree to:
- (a) pay us any costs we incur to repair or recover the Equipment (as the case may be); and
- (b) continue to pay us the Hire Rate during the period in which we are recovering or repairing the Equipment or procuring a suitable replacement.
12.5 If the Equipment is unable to be returned to us (for example, if it is lost, stolen, damaged beyond economic repair, or if title to the Equipment is lost) then you must pay us the aggregate of the following:
- (a) all money past due but not yet paid under the hire contract;
- (b) any salvage costs we incur in salvaging the Equipment; and
- (c) the replacement cost of the Equipment (calculated in accordance with then prevailing market value of the Equipment).
12.6 If the Equipment is stolen during the Risk Period, you must promptly (and in any event within forty-eight (48) hours of the date the Equipment was stolen) provide us with a copy of a police report explaining the circumstances of the theft.
13. Stand downs
13.1 Subject to clause 12.3, you acknowledge and agree you are not entitled to any discount or rebate for any period in which the Equipment:
- (a) is not in use by you; or
- (b) is stood down by you.
13.2 We may (but are not obliged to) grant you a discount or rebate in circumstances where you cannot operate the Equipment (for example, due to adverse weather conditions).
14. Insurance
14.1 You must for the duration of the Risk Period effect and maintain, at your own expense:
- (a) a policy of plant insurance and must keep the Equipment insured for no less than the Insured Value (with our interest as owner of the Equipment noted on the policy), against fire, theft, and damage and the other usual risks which a prudent owner or hirer would insure and any other risks specified by us, acting reasonably;
- (b) insurance against all third party risks including for damage or injury of any kind to any property or person; and
- (c) a policy of public liability insurance to cover your liability for loss or damage to property and the death of or injury to any person (other than liability which applicable law requires to be covered under a workers compensation policy) for no less than $20,000,000 in respect of any one occurrence,
unless the Hire Schedule states otherwise (or where no Hire Schedule has been issued, unless otherwise agreed).
14.2 You must ensure that each insurance you are required to effect and maintain under clause 14.1 is:
- (a) effected with an insurer with a financial security rating equal to or better than Standard and Poor’s A minus rating or the equivalent rating with another recognised agency; and
- (b) on terms and conditions usual to that class of insurance.
14.3 You must, in respect of each insurance required by clause 14.1:
- (a) ensure that insurance policies are taken out in your name and in our name;
- (b) when requested by us, promptly satisfy us that each insurance is current by providing us with certificates of currency or such other evidence we may reasonably require;
- (c) pay each insurance premium before the due date and, upon request, produce receipts for the payment;
- (d) bear the cost of any excesses and deductibles;
- (e) not do, omit to do, or permit anything which prejudices the insurances;
- (f) not, without our prior written and fully informed consent:
- (i) insure the Equipment only in your name; or
- (ii) vary, cancel, or allow to lapse any insurance;
- (g) immediately rectify anything which might prejudice the insurances and reinstate any insurance if it lapses;
- (h) notify us immediately when an event occurs which gives rise or might give rise to a Claim under any of the insurances; and
- (i) ensure that each insurance policy contains a clause providing that:
- (i) the relevant insurer will give us prior written notice if an insurance policy is cancelled for any reason; and
- (ii) if an insurance policy is cancelled for any reason, the insurance policy will continue in force for our benefit for at least (30) days after written notice of the cancellation has been given to us.
14.4 Where there is a Casualty Occurrence or a Write-Off, you acknowledge and agree that you must pay the Balance Due.
14.5 We shall determine in such circumstances the Balance Due by reference to the proportion of the value, utility or other relevant measure of the Equipment which has suffered the Casualty Occurrence or Write-off and will inform you in writing of the basis of our calculation.
14.6 Where Equipment is damaged but does not amount to a Write-Off, you must ensure that the Equipment is repaired to an acceptable standard at your expense.
14.7 We shall be entitled to receive all moneys payable to you and/or to us by the relevant insurer or from any party for damages suffered or loss incurred because of the loss of the Equipment. You appoint us as your attorney to recover or reasonably compromise respective claims for loss or damage under any such policy or otherwise and to give effectual releases and receipts for any claim.
14.8 You irrevocably authorise us to appropriate any insurance or other moneys for a Casualty Occurrence or a Write-off toward any moneys then due and owing by you to us.
14.9 If there is no Casualty Occurrence or Write-off, you must reinstate, replace, repair and make good the whole of the Equipment at your own cost. We, after appropriating moneys from the insurer for such damage to the Equipment, shall allocate such moneys to you to the extent it reimburses you for the cost of reinstating, replacing, repairing, and making good the Equipment.
14.10 You must not do anything to the Equipment which may render any insurance policy on the Equipment void or voidable. Where we approve in writing any proposal by you to increase the risk of damage to the Equipment, you must pay any and all additional premiums and any other amounts of whatever nature necessary or desirable to extend the insurance cover on the Equipment.
15. Property and title in the Equipment
15.1 You acknowledge and agree that we are the owner of the Equipment and retain title to the Equipment in all circumstances. Your right under the hire contract to possess the Equipment is as a bailee only.
15.2 For the removal of doubt, neither payment of compensation nor any other event or circumstances will amount to, constitute, or result in any transfer of property or interest in the Equipment from us or any related body corporate of ours.
16. Security interest
16.1 Unless you have obtained our prior written and fully informed consent, you undertake not to:
- (a) register a financing change statement in respect of a security interest in our favour; or
- (b) create, or purport to create, any security interest in the Equipment, nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Equipment in favour of any third party.
16.2 You:
- (a) waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act; and
- (b) agree that, to the extent permitted by the PPS Act:
- (i) sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
- (ii) you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
16.3 We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
16.4 Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.
17. Default
17.1 Clauses 17.2 to 17.4 apply if you fail to pay sums to us when they fall due.
17.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.
17.3 We may suspend or cease the supply of any further Equipment to you.
17.4 We may require pre-payment in full for any Equipment which has not yet been supplied.
18. Indemnity
18.1 If you default in the performance or observance of your obligations under any hire contract of which these Hire Terms form part, then:
- (a) we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
- (b) we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
- (c) if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
18.2 Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
18.3 Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any hire contract of which these Hire Terms form part.
19. Limitation of liability
19.1 No party is liable to the other party for any Consequential Loss, including under clause 18, however caused arising out of or in connection with any hire contract of which these Hire Terms form part.
19.2 While we will take reasonable endeavours to meet any estimated delivery date for Equipment, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
19.3 If the hire contract is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
- (a) (in the case of the hire of Equipment):
- (i) us repairing the Equipment or providing a suitable replacement; or
- (ii) us paying you the cost of having the Equipment repaired or procuring a suitable replacement.
- (b) (in the case of a supply of services):
- (i) us supplying the services again; or
- (ii) us paying you the cost of having equivalent services supplied.
20. Termination
A party may, with immediate effect, terminate any hire contract of which these Hire Terms form part by notice in writing, if the other party:
- (a) commits a material or persistent breach of these Hire Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
- (b) has failed to pay sums due to the party within seven (7) days; or
- (c) has indicated that it is, or may become, insolvent; or
- (d) ceases to carry on business; or
- (e) comprises an entity which is the subject of the appointment of receivers or managers; or
- (f) comprises a natural person who:
- (i) has committed an act of bankruptcy; or
- (ii) has been made bankrupt;
- (g) comprises a corporation which:
- (i) enters into voluntary administration;
- (ii) is subject to a deed of company arrangement; or
- (iii) is subject to the appointment of liquidators or provisional liquidators.
21. Variation
We may amend these Hire Terms in the future by notifying you in writing. The amended Hire Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.
22. Assignment
A party may only assign its rights under the hire contract with the written consent of the other party.
23. Subcontracting
We reserve the right to subcontract any part of our obligations under the hire contract, including, for example, our obligation to repair the Equipment, however, any subcontracting of our obligations will not relieve us of any of our obligations to you under the hire contract.
24. Conflicts and Inconsistencies
If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):
- (a) the Hire Schedule (if any);
- (b) any terms governing your Credit Facility; and
- (c) these Hire Terms.
25. Severance
If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
26. Governing law and jurisdiction
26.1 Our relationship is governed by and must be construed according to the law applying in the State of Queensland.
26.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Queensland with respect to any proceedings that may be brought at any time relating to our relationship.
27. Definitions
In these Hire Terms, unless the context otherwise requires, the following apply.
27.1 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
27.2 Balance Due means all moneys owing by you to us including, but not limited to, all charges, all damages as a result of a Casualty Occurrence or Equipment Write-Off, and all funds due to us pursuant to these Hire Terms;
27.3 Business Hours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Equipment is to be hired.
27.4 Casualty Occurrence means the Equipment is lost, stolen, compulsorily acquired, destroyed, seized, or confiscated.
27.5 Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a hire contract.
27.6 Consequential Loss includes any:
- (a) consequential loss;
- (b) loss of anticipated or actual profits or revenue;
- (c) loss of production or use;
- (d) financial or holding costs;
- (e) loss or failure to realise any anticipated savings;
- (f) loss or denial of business or commercial opportunity;
- (g) loss of or damage to goodwill, business reputation, future reputation, or publicity;
- (h) loss or corruption of data;
- (i) downtime costs or wasted overheads; or
- (j) special, punitive, or exemplary damages.
27.7 Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
27.8 Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for the hire of Equipment and associated charges.
27.9 Equipment means the plant, machinery, vehicles, tools, or equipment described in the Hire Schedule (including, unless otherwise agreed in writing, any replacement parts, components, tools, and other items used to service and maintain the Equipment), including manuals and logbooks, associated or attached tools (including GETs), accessories and parts we have agreed to hire to you in accordance with the hire contract.
27.10 Fair Wear and Tear means wear and tear which would be normal for similar Equipment operated under normal operating conditions (and within its design parameters and recommended procedures), but expressly excludes:
- (a) wear of, or damage to, Wear Items;
- (b) dents or other impact damage;
- (c) damage to glass or instrumentation; and
- (d) panel or structural damage from collision or abuse and damage to the drive system.
27.11 GETs means any wear part or tool of the Equipment that engages the ground or comes into contact with specific material and includes all cutting edges, bucket teeth, hardwire, bucket ends, ripper teeth, blade faces, blade push arms, blade mould boards, and roller feet.
27.12 Hire Period means the period the Equipment is to be hired by you, as stated in the Hire Schedule (or where no Hire Schedule has been issued, the period we have agreed to hire the Equipment to you).
27.13 Hire Rate means the rate payable by you to hire the Equipment, calculated in accordance with rates stated in the Hire Schedule (or where no Hire Schedule has been issued, the rate payable by you to hire the Equipment as advised by us).
27.14 Hire Schedule means the document, if any, provided by us which includes particulars of the Equipment, the Site, the Hire Rate, any other applicable charges, and the Off-Hire Date.
27.15 Hirer, you means the person or other entity hiring Equipment from us.
27.16 Insured Value means the value of the Equipment stated in the Hire Schedule or otherwise advised by us (or where no Hire Schedule has been issued, the value of the Equipment as advised by us).
27.17 Minimum Hire Period means the minimum Hire Period stated in the Hire Schedule (if any) (or where no Hire Schedule has been issued, the minimum Hire Period advised by us).
27.18 Off-Hire Date means the date you expect the Hire Period to end, as stated in the Hire Schedule (or where no Hire Schedule has been issued, the date you expect the Hire Period to end as advised by you).
27.19 On-Hire Date means the date stated in the Hire Schedule as the on-hire date (or where no Hire Schedule has been issued, the on-hire date advised by us).
27.20 Order means a written or oral order from you requesting to hire Equipment from us.
27.21 Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier includes its subcontractors (and any employee of those subcontractors).
27.22 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
27.23 Site means the land (including any structure or other facility on the land) upon, over, below, or through where the Equipment will be used, as stated in the Hire Schedule (or where no Hire Schedule has been issued, the land (including any structure or other facility on the land) upon, over, below, or through where the Equipment will be used advised by you and agreed by us).
27.24 Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
27.25 Supplier, we, us means Trafquip Pty Ltd (ACN 124 765 760).
27.26 Write-off means the Equipment is damaged to an extent which in the relevant insurer's opinion renders repair impractical or uneconomic.
28. Interpretation
In these Hire Terms, unless the context otherwise requires:
28.1 A time is a reference to the time zone of Brisbane, Australia unless otherwise specified.
28.2 $, dollar, or AUD is a reference to the lawful currency of Australia.
28.3 A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
28.4 A right includes a benefit, remedy, authority, discretion, or power.
28.5 The singular includes the plural and vice versa, and a gender includes other genders.
28.6 “In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
28.7 If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
28.8 Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
28.9 A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.
Providing excellent service and reliability in traffic control equipment hire.
CONTACT US
HOURS
7.00 AM - 7.00 PM, Monday - Friday
EMAIL
Enquiries/Sales: dave.wood@trafquip.com
Servicing/Faults: fleet@trafquip.com
Accounts: accounts@trafquip.com
PHONE
1300 TRAFQUIP
LOCATIONS:
Head Office
78 Union St
Yatala QLD 4207
Depot/Mechanic Workshop SA
6 Coglin Road
Elizabeth South SA 5112
Depot/Mechanic Workshop QLD
78 Union St
Yatala QLD 4207
Auto Electrical Yard
78 Union St
Yatala QLD 4207
Postal Address
PO Box 3522,
Loganholme QLD 4129