Terms & Conditions

1. Definitions

Equipment is the Equipment hired by the Hirer in this agreement, as specified in Quotation or Hire Schedule.

Services is the Services provided by the Contractor in this agreement, as specified in Quotation or Hire Schedule.

Project Site is the place where the Equipment will be used, and Services be rendered by the Contractor, as specified in Quotation or Hire Schedule.

Hire Period is the period during which Equipment and Services will be hired, as specified in Quotation or Hire Schedule.

2. Hire of Equipment and Provision of Services

2.1. The Contractor agrees to provide all Equipment and Services as outlined in Quotation or Hire Schedule

2.2. Equipment and Services will be provided during the Hire Period, and on the Project, Site as outlined in Quotation or Hire Schedule

2.3. The provision of Equipment and Services for any other period, and on any other project sites will not be covered by this agreement.

3. Term

3.1. The Hire Period for the Equipment and Services provided under this agreement is outlined in the Quotation or Hire Schedule.

3.2. This Agreement is subject to a minimum Hire Period of 8 Hours (1 day).

3.3. The Contractor must ensure that the Equipment and Services are available to the Hirer throughout the Hire Period, unless otherwise agreed by the parties.

3.4. The Hirer is entitled to the Equipment and Services for the hire period as outlined in the Quotation or Hire Schedule and for any agreed extension of the period.

3.5. The Hirer must return the Equipment to the Contractor in good order on or before the end of the Hire Period.

3.6. The Contractor is entitled to remove the Equipment from the Project Site and to cease the delivery of services at the end of the Period of Hire unless the Parties agree to extend the Hire Period.

3.7. Extensions to the Hire Period must be in writing and signed by both Parties.

Changes to the Hire Period not in writing and signed by both Parties will be invalid and superseded by the terms of this Agreement and the Quotation or Hire Schedule.

4. Fees

4.1. Equipment Hire, Service Fees, and Payment are outlined in Hire Schedule or Quotation

4.2. The Hirer must pay fees according to the Hire Schedule or Quotation

4.3. Delays in payment are subject to a late fee of 2.00% per month.

4.4. Persistent delays in payment amount to a default under Clause 7 of this agreement.

5. Early Termination of Agreement

5.1. The Hirer may Terminate this Agreement early, by informing the Contractor in writing.

5.2. In the event of early termination by the Hirer, fees payable will be equal to the fees pro-rated for the minimum Hire Period in Clause 3.2 or the number of days worked, whichever is higher.

5.3. The Contractor may Terminate this Agreement early, by informing the Hirer in writing.

5.4. In the event of early termination by the Contractor, he/she will not be entitled to claim fees according to the minimum Hire Period. Fees payable will be equal to the fees prorated for the number of days worked.

6. Ownership of the Equipment

The Equipment always remains the exclusive property of the Contractor. The Hirer is not entitled to offer, sell, assign, sub-let, mortgage, pledge, or create any form of Security Interest. in and to the Equipment.

7. Default

An Event of Default will be deemed to occur if:

(a) the Hirer or any other person or corporation with whom the Hirer is jointly or severally liable fails to pay any money payable which is due and payable whether or not demand for payment is made.

(b) the Hirer permits or causes servicing, maintenance or repairs to be affected to the Equipment while on the Hirer’s.

(c)premises or site and without the prior written consent of the Contractor.

(d) any insurance policy required under this Agreement is not affected or is cancelled, voided or expires without being immediately renewed.

(e) the Hirer defaults in complying with its obligations not to encumber or licence the Equipment.

(f) the Hirer is in breach of any of the Hirer’s covenants under this Agreement for 7 days after notice has been given to the

(g) Hirer.

(h) where the Hirer is a corporation:

(i)an application is made, or a resolution is passed for the Hirer to be wound up unless the winding up is for the purpose of reconstruction or amalgamation.

(ii)a resolution is passed for the Hirer to be placed under official management.

(iii)an insolvency agreement is made between the Hirer and its respective creditors.

(iv)an application is made to a Court for an order summoning a meeting of any class of creditors of the Hirer.

(v)a receiver or an agent in possession for a mortgagee is appointed for any property of the Hirer.

(vi)an administrator is appointed of the Hirer.

(i)a mortgagee takes possession of any property of the Hirer.

(j) the Hirer being a natural person, commits an act of bankruptcy, dies or is incapable of managing their own affairs by

(k)reason of mental illness or other condition.

(l)if the Hirer is a partnership, the partnership is dissolved or any application to a Court for the dissolution of the partnership is made.

(m) the holder of any security given at any time over any

assets of the Hirer becomes entitled to exercise any powers arising on default pursuant to that security or otherwise takes action to enforce such security.

(n) the Contractor becomes entitled to take possession of any other property from the Hirer pursuant to any other agreement; or,

(o) the Equipment is abandoned or relocated without the Contractor’s prior consent.

8. Repudiation

If an Event of Default occurs, the defaulting party will be deemed to have repudiated this Agreement and the non-defaulting party may terminate this Agreement immediately by written notice to the defaulting party or, in the case of the Hirer being the defaulting party, by the Contractor collecting and taking possession of the Equipment.

9. Personal Properties Securities Act

9.1. In this clause 9, the terms ‘Register’, ‘Purchase Money Security Interest’, ‘Proceeds’, ‘Security Agreement’, ‘Security Interest’ and ‘Verification Statement’, will have the meaning given to them in the Personal Property Securities Act 2009 (Cth) (PPSA).

9.2. The Hirer and Contractor acknowledge and agree that:

(a) this agreement (or a transaction in connection with it)constitutes a Security Agreement covering the Equipment supplied or to be supplied to the Hirer under these Terms and Conditions and all Proceeds of any kind for the purposes of the PPSA; and

(b) the rights of Contractor under these Terms and Conditions are in addition to and not a substitution for the Contractor’s rights under other law (including the PPSA)and the Contractor may choose whether to exercise its rights under these Terms and Conditions, or under such other law, as it chooses.

9.3. The Hirer grants a Security Interest to the Contractor for the Equipment supplied or to be supplied to the Hirer under these Terms and Conditions and all Proceeds of any kind for the purposes of the PPSA.

9.4. The Hirer hereby consents to the Contractor effecting a registration on the Register in relation to such Security Interest arising under or in connection with these Terms and Conditions.

9.5. The Hirer agrees to provide all reasonable assistance (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which is reasonably necessary for the purposes of:

(a) ensuring that the Security Interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or

(b) enabling the Contractor, as Secured Party, to apply for any registration, or give any notification, in connection with the Security Interest in the Equipment supplied or to be supplied to the Hirer under these Terms and Conditions on the Register, so that the Security Interest has the priority required by the Contractor; or

(c)enabling the Contractor to exercise rights in connection with the security interest. and to assure the performance of its obligations, the Hirer hereby gives the

Contractor irrevocable power of attorney to do anything the Contractor considers necessary to give effect to the matters set out in this clause.

9.6. The Hirer waives its right to receive any notice under the PPSA (including notice of a Verification Statement) unless the notice is required by the PPSA and cannot be excluded.

9.7. Any money paid by the Hirer shall be applied by the Contractor to any and all monies owing by the Hirer to the Contractor as determined by the Contractor (in its sole discretion).

9.8. Where a person is a controller in relation to the Equipment, the parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Equipment by that controller.

9.9. The Parties agree that to the extent they may be excluded by law:

(a) sections 142 and 143 of the PPSA are excluded; and

(b) The Contractor need not comply with the following provisions of the PPSA: sections 95, 96, 118, 121(4), 125, 130, 132(3)(d) and 132(4) and any other provision of the PPSA notified to the Hirer by The Contractor after the date of this Security Agreement; and

9.10. The Contractor and the Hirer agree not to disclose information of the type referred to in section 275(1) of the PPSA.

10. Maintenance, Operation, and Alteration of Equipment

10.1. The Hirer must not engage, employ or permit any person other than the Contractor to carry out repairs, maintenance, or servicing of any kind to the Equipment at any time.

10.2. The Equipment shall:

(a) only be operated by the Contractor as part of the Services provided under this agreement.

(b) for the avoidance of doubt, the Hirer must not operate the Equipment himself, nor engage, or employ any person other than the Contractor to operate.

(c) only be used for the purpose it was designed, manufactured, and normally used; and,

(d) be used in accordance with the manufacturers’ guidelines and recommendations as amended from time to time.

10.3. The Hirer must not do, or permit any act or thing which does or is likely to risk:

(a) the safety, value, or condition of the Equipment.

(b) the ability of the Contractor to recover the Equipment upon termination of this agreement or any Term of Hire.

10.4. The Hirer is liable for losses and damages which is suffered or incurred by the Contractor resulting from a breach of clauses 10.1-10.3 above.

11. Insurance

The Contractor will maintain current insurance policies in respect of the Equipment and Services to their full insurable value.

12. Liability and Indemnity

12.1. Subject to Clauses 7-10, the Contractor will assume all risks and liabilities for and in respect of the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Hirer’s possession, use, maintenance, repair or storage of the Equipment.

12.2. Subject to Clause 7-10, the Contractor will indemnify and hold harmless the Hirer against all claims, actions,

suits, proceedings, costs, expenses, damages and liabilities, including attorney’s fees and costs, arising out of or related to the Services provided.

13. Hirer’s Obligations

The Hirer undertakes that it will:

(a) comply with all applicable legislative requirements (including, without limitation, in relation to workplace health and safety)

(b) not allow any person or third party, other than the Labour Personnel, to operate the Equipment or relocate the Equipment from the Site and any attempt to operate the Equipment or relocate the Equipment from the Site without the

express written consent of The Contractor shall constitute a material breach of these Terms and Conditions.

(c) accept responsibility for the safe keeping of the Equipment where the Equipment is left at the Site between shifts (including storing the Equipment safely, securely and protected from theft, seizure, Loss or damage);

(d) immediately give notice to The Contractor if the Equipment is seized, lost, stolen, damaged or destroyed.

(e) not make any warranty to a third party about the performance of The Contractor’s obligations under these Terms and Conditions, or make an undertaking to a third party which requires that The Contractor perform its obligations under these Terms and Conditions; and

(f) at the end of the Hire Period, do all that is practicable to facilitate the removal of the Equipment by The Contractor from the Site.

14. Contractor’s Obligations

The Contractor will use its best endeavours to:

(a) ensure that the Equipment is in good working order at the commencement of the Hire Period and is maintained during the Hire Period to a standard of good repair.

and condition (fair wear and tear excepted)

(b) ensure that the Labour Personnel suitably trained, experienced and competent persons in accordance with Occupational Health and Safety legislation, regulations and industry requirements.

(c) ensure that the Equipment is properly used and operated only as it was intended and designed within the constraints and design limitations as per the manufacturer’s stated performance expectations when operated in accordance with the operating instructions issued by the manufacturer.

(d) carry out all maintenance and servicing requirements in accordance with the manufacturer’s specification and supply all consumables, spare parts and components necessary for the continued operation of the Equipment.

15. Dispute Resolution

15.1. The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.

15.2. The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at

the time the matter is referred to ADC (the Guidelines).

15.3. The terms of the Guidelines are hereby deemed incorporated into this agreement.

15.4. This clause shall survive termination of this agreement.

16. Governing Law

This Agreement will be construed in accordance with and governed by the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales there in connection with matters concerning this Agreement.

17. Severance

If any provision of this Agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this Agreement must be construed as if that provision or part of a provision had been severed from this Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.