TERMS & CONDITIONS OF HIRE

1. Definitions

1. ”Agreement Schedule” means the schedule attached to the front of this Hire Agreement

2. ”Damage” means any loss or damage to the Equipment including its parts, components and accessories, that is not fair wear and tear.  .

3. ”Equipment” shall mean the equipment set out in the Agreement Schedule and includes  all attachments, accessories, tools, supporting documentation and trailers.

4. ”Commencement Date” means the time and date set out in the Agreement Schedule.

5. ”Expiry Date” means the time and date set out in the Agreement Schedule.

6. ”GST” means the goods and services tax under the A New Tax System (Goods and Services Tax) Act.

7. “Hire Charges” means the charges set out in the Agreement Schedule.

8. ”Hire Period” means the period of hire from the Commencement Date which continues until the later of the events in clause 2.1;

9. “Hirer” shall mean the Hirer as set out in Agreement Schedule, its successors and permitted assigns;

10. ”Insolvency Event” means being in liquidation or provisional liquidation or under administration, having a controller  (as defined in the Corporations Act 2001) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event.

11. ”Owner” shall mean Aaron James Treloar (ABN 91 423 167 324) and/or the owner of the equipment, its successors and permitted assigns.

12. “Point of Hire” means the point of hire set out in the Agreement Schedule.

13. ”Site” shall mean the Site as set out in Agreement Schedule .

1. Hire charges and hire period

1. The Hire Period commences on the Commencement Date, or upon the Hirer taking possession of the Equipment, and continues until the later of:

   1. the Expiry Date;

   2. the Equipment is returned to the Owner at the Point of Hire (or as otherwise agreed by the Owner); or

   3. any Damage caused to the Equipment (other than Damage caused or contributed to by the acts or omissions of the Owner) has been rectified, fair wear and tear excluded.

2. Taking delivery of the Equipment and the continuation of the hire shall be regarded as constituting the Hirer’s acceptance of these conditions and the condition of the Equipment.

3. The Hire Charges for the Equipment are those stated in Agreement Schedule. All hire charges exclude GST, any other applicable fees, and duties as required by statutory authorities, and the Hire Charges are payable by the Hirer to the Owner upon receipt of an invoice (or as otherwise advised by the Owner).

4. The Hirer must return the Equipment by the Expiry Date. If the Hirer fails to return the Equipment by the Expiry Date then, the Owner may recover the Equipment by lawful means or if the location of the Equipment is unknown then, report the Equipment as stolen.

5. If the Hirer returns the Equipment earlier than the Expiry Date there is no entitlement to a refund or reduction in the Hire Charges.

6. At the end of the Hire Period, the Hirer must:

   1. return the Equipment in the same condition it was in at the start of the Hire Period, fair wear and tear excepted; and

   2. pay:

      1. the balance of the Hire Charges (if any);

      2. for all Damage caused to the Equipment pursuant to clause 5;

      3. any fuel costs pursuant to clause 3.5.1;

      4. any cleaning or washing costs incurred by the Owner pursuant to clause 3.6.2; and

      5. any costs to replace or repair any additional equipment, attachments, accessories or the like, to the same condition it was provided to the Hirer in, fair wear and tear excluded. 

7. Interest will be charged on amounts owing under clause 2.6.2 until the date payment is received at the rate of 11% per annum calculated on a daily basis. The Hirer is responsible, in the event any monies are outstanding after demand has been made, to pay the Owner’s costs of recovery and, where a solicitor is engaged, on a full indemnity basis

1. Hirer’s obligations

1. Operation and Supervision of the Equipment

   1. The Hirer will, under all conditions, properly and carefully protect, keep, set, place, protect from freezing, use, operate, load and unload the Equipment under competent supervision and shall be responsible for any and all loss or damage to the Equipment, fair wear and tear excluded.

   2. The Equipment is supplied by the Owner on the understanding that it is used, and its use is supervised, by properly trained and competent personnel in compliance with the manufacturer’s requirements, procedures and ratings and for the express purpose for which it is hired.

   3. If at any time the Hirer finds the Equipment is not in a safe operating condition the Hirer shall not use or permit it to be used, but shall immediately notify the Owner.

   4. If during the Hire Period, the Hirer becomes aware of any incident involving the Equipment which has or may result in damage to any property or person, the Hirer must notify the Owner within 12 hours of the incident occurring, and must thereafter provide to the Owner a copy of all incident reports and related documentation prepared.

2. Suitability

It is the express responsibility of the Hirer to determine that the Equipment offered is adequate for the purpose intended. All Equipment is available for inspection prior to the hire and no claims will be considered or refunds provided for failure of the Equipment to perform as a result of the failure of the Hirer to inspect.

1. Access

Upon notification to the Hirer, and subject to any statutory rules and regulations, the Hirer grants to the Owner and to any nominee of the Owner, an absolute right of access to its premises wheresoever the Equipment is situated for the purpose of inspecting, maintaining, repairing or reclaiming the Owner’s Equipment, or any item of it, or as otherwise directed by the Owner in furtherance of this Hire Agreement.Where Equipment is on third party premises, the Hirer will use its best endeavours to procure the consent of the third party for this purpose.If required by the Owner, the Equipment will be brought to another location, or otherwise made available to the Owner or to any nominee of the Owner, as directed.

1. Transport and Delivery

All Equipment will be provided on a trailer and available for collection by the Hirer on the Commencement Date at the Point of Hire. It is the responsibility of the Hirer to collect, transport and return the Equipment in accordance with this Agreement.

1. Fuel

The Equipment fuel tank will be supplied full at the Commencement Date and must be returned full at the Expiry Date; otherwise the Hirer will be invoiced for the difference.

1. Return of Equipment

   1. The Hirer must return all Equipment to the Point of Hire (or as otherwise directed by the Owner) by the Expiry Date and in the same condition as the Equipment was at the Commencement Date, fair wear and tear accepted.

   2. The Hirer must return the Equipment in a clean and serviceable condition. Any costs for cleaning or washing of the Equipment required to be carried out will be charged to the Hirer’s account.

2. Control

   1. The Hirer shall not move the Equipment to another job or Site, nor part with possession or control of the Equipment and the Hirer takes the Equipment as bailee only.

   2. If the Hirer moves the Equipment to another job or Site, the Hirer must notify the Owner immediately of any change in location.

3. Modification

   1. The Hirer shall not make any modification to the Equipment without the prior written consent of the Owner.

1. Condition of Equipment

1. At the Commencement Date, it is the Hirer’s responsibility to inspect the Equipment and to satisfy itself that the Equipment is clean, serviceable and is satisfactory and capable for the Hirer’s intended use. The Owner makes no warranty or expresses no opinion as to the capability or usability of the Equipment for the Hirer’s purposes.  

2. The Hirer must ensure that it inspects the Equipment at the Commencement Date and that any pre-existing damage is noted in the Hire Agreement. Taking delivery of the Equipment shall be regarded as constituting the acceptance that the Equipment is in a clean and serviceable condition.

1. Damage

1. The Hirer must immediately notify the Owner of any Damage to the Equipment.  The Owner will direct the Hirer to either:

   1. repair the Equipment itself (if the Owner is of the opinion the Hirer can undertake the necessary repairs in the Owner’s absolute discretion); or

   2. take the Equipment to a specified repairer, the account and costs of which are to the Hirer and payable by the Hirer (except where the damage was caused or contributed to by the acts or omissions of the Owner); or

   3. return the Equipment to the Owner for repair by the Owner or someone engaged by the Owner, the account and costs of which are to the Hirer and payable by the Hirer (except where the damage was caused or contributed to by the acts or omissions of the Owner).

2. Where damaged Equipment (other than that caused or contributed to by the acts or omissions of the Owner) requires rectification work that will necessitate an outage time (i.e. where normal hire is precluded as a result of damage) and workshop repairs to remedy the damage are required, then the Equipment will be deemed to remain on hire, at the Hirer’s expense, at the then existing daily pro-rata Hire Charge rate until repairs are completed to the reasonable satisfaction of the Owner.

3. Tyres

The repair or replacement costs of tyres will be to the Hirer’s account if abnormal tyre is the result of:

1. The Hirer operating the equipment in conditions which the Owner considers adverse or abnormal; or

2. The Hirer operating the equipment with incorrect tyre pressures; or

3. Damage occurs through ‘staking’, impacts, ruptures or cuts.

4. Insurance Excess

The Owner will maintain insurance for the Equipment for the duration of the Hire Period. If as a result of Damage caused to the Equipment by the Hirer the Owner makes an insurance claim under its insurance policy, to the extent that the Hirer’s act or omission contributed to the claim, the Hirer agrees to indemnify the Owner against any insurance policy claim excess and to pay all costs associated with such insurance policy claim excess.

1. Attachments

The costs associated with Damage caused to attachments, accessories or the like, which occurred in conditions that the Owner considers to be abnormal or adverse will be to the Hirer’s account.

1. Fair Wear and Tear

2. ​

1. Limitation, Indemnity and Liabilities

1. The Hirer takes and uses the Equipment at its own risk and indemnifies the Owner against any and all liability, claims, costs, expenses and obligations of whatsoever nature or kind which may be made against the Owner or the Owner’s assets to the full extent that such expense, loss or liability arises out of or in connection with any negligent act or omission of the Hirer and its employees, independent contractors, agents, invitees, suppliers, labourers or other representatives.

1. Termination of Hire

1. The Owner shall have the right to terminate the Hire Agreement and to require the Hirer at its cost to deliver the Equipment to the Owner at the Point of Hire or as otherwise directed by the Owner, or to remove the Equipment immediately, should the Hirer fail, or refuse, to comply with any provision, term or condition of the Hire Agreement, or if the Hirer suffers an Insolvency Event.

1. Title and PPSA

1. The Hirer acknowledges that the Owner retains full title to the Equipment notwithstanding that the Equipment may be in the possession of or use by the Hirer.

2. This clause applies to the extent that the Personal Property Securities Act 2009 (Cth) (“PPSA”) operates in relation to any “security interest” (as defined in PPS Law) under this Hire Agreement.  This document constitutes a security agreement in writing covering the Equipment for the purposes of PPSA.

3. The Equipment referred to in this Hire Agreement, is a security interest and a “purchase money security interest” (“PMSI”) to the extent that it can be under section 14 of the PPS Law.

4. The Hirer agrees, in addition, to the extent possible under the PPSA, that all Equipment which is at any time subject to the Owner’s security interest, secures as a PMSI the interest of the Owner as Lessor of all Equipment supplied to the Hirer.  This does not limit what other amounts are secured under this Hire Agreement.

5. The Hirer agrees to do anything (such as obtaining consents and signing documents) which the Owner requires for the purposes of:

   1. ensuring that the Owner’s security interest is enforceable, perfected and otherwise effective under the PPS Law;

   2. enabling the Owner to gain first priority (or any other priority agreed to by the Owner in writing) for our security interest; and

   3. enabling the Owner to exercise rights in connection with the security interest.

6. The Owner’s rights under this document are in addition to and not in substitution for the Owner’s rights under other law (including PPSA) and the Owner may choose whether to exercise rights under this Hire Agreement, or under such other law, as it chooses.

7. The following provisions of the PPSA do not apply and, for the purposes of section 115 are “contracted out” of this document in respect of equipment that are not used predominately for personal, domestic or household purposes:

   1. sections 95 (notice of removal of accession to the extent it requires the Owner to give a notice to the Hirer), 96 (retention of accession), 125 (Obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires the Owner to give a notice to the Hirer); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security of security agreement); and

   2. in relation to section 128 (secured party may dispose of collateral), section 129 (disposal by purchase) and 134(1) (retention of collateral) the Hirer agrees that in addition to the Hirer’s rights under PPSA the Owner shall have the power to retain, deal with or dispose of any equipment in the manner specified in those sections but also under this Hire Agreement in any other manner it deems fit.

8. The Hirer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA.

9. Solely for the purpose of allowing to the Owner the benefit of section 275(6) of the PPSA, the Owner and the Hirer agree that neither party must disclose information of the kind that can be requested under section 275(1) of the PPSA. 

1. General

   1. This Agreement constitutes the entire agreement of the parties about the hire and any and all previous agreements, understandings and negotiations on the hire cease to have effect.

   2. This Agreement shall be governed by and interpreted in accordance with the State laws of Queensland.

   3. Time shall be of the essence of this Agreement.

   4. Every term of this Agreement is independent of the others. Any term which is prohibited or unenforceable in any jurisdiction is to the extent of the prohibition or unenforceability considered removed without invalidating the remaining terms.

   5. The failure or omission of a party at any time to:

      1. Enforce or require the strict observance of or compliance with any provision of this Agreement; or

      2. Exercise any election or discretion under this Agreement,

shall not operate as a waiver of them or of the rights of a party, whether express or implied, arising under this Agreement.

1. The Hirer shall not transfer or assign this Hire Agreement without prior written authorisation from the Owner. Waiver may only be in writing signed by the waiving party.

2. The Hirer shall observe and comply with all relevant statutes and regulations relating to the use of the Equipment whilst on Site.