1. THE AGREEMENT
- These Terms, together with:
- any Credit Agreement; and
- each Quote provided to You by Us, whether signed or not,
comprise and contain the terms and conditions of the agreement (Agreement) between You and Us.
- In the case of any inconsistency between the documents comprising the Agreement, the following order of precedence shall apply, with the first listed document having the highest precedence:
- Credit Agreement, if any;
- each Quote; and
- these Terms.
- An Agreement will be formed when you accept a Quote in writing or by conduct. Supply of a Purchase Order will constitute written acceptance of a Quote or other written offer by Us to You, save that any terms and conditions set out in any Purchase Order provided by You will not be terms and conditions of the Agreement. By submitting a Purchase Order, you expressly acknowledge and agree that the terms and conditions of the Agreement are solely contained within the documents referred to in clauses 1 and 1.2 above. Your terms and conditions, howsoever provided, do not form part of these Terms.
- These Terms supersede and override any earlier set of terms and conditions issued by Us.
- Any variation or changes to these Terms or the Agreement may only be made if it:
- is in writing;
- is signed by both parties; and
- expressly states that it is a variation to these terms and conditions.
- We reserve the right to accept or decline, in whole or in part, any Purchase Order placed by You.
2. DEFINITIONS & INTERPRETATION
- Unless the context otherwise requires, the following terms shall have the meanings respectively ascribed to them.
- “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended from time to time.
- “Agreement” has the meaning given to it in clause 1 above.
- “Chain of Responsibility” means the road transport laws contained in the Road Traffic (Administration) Act 2008 (WA) and the Road Traffic (Vehicles) Act 2012 (WA) and associated regulations.
- “Collection Ex-Works” means the supply of the Goods or the Hired Equipment by Us under these Terms for collection by You at Our site.
“Consequential Loss” means loss beyond the normal measure of direct damages and includes without limitation and whether or not such loss would be within the normal measure
of direct damages, indirect loss, loss of profit, loss of revenue, loss of business, loss or actual or anticipated savings, loss of bargain, loss of business reputation, loss of use, cost of capital or borrowings or costs of substitute goods, facilities or services and loss of opportunity (including opportunities to enter into arrangements with third parties).
- “Contaminated” means having a substance present (including asbestos) in or on the Hired Equipment above background concentrations that present, or has the potential to present, a risk of harm to human health, animal health or the environment.
- “Credit Agreement” means an agreement with Us for the provision of credit to You for the cost of the supply of Hired Equipment or Goods.
- “Damage Waiver Excess” means the greater of the following:
- the actual recovery and repair cost of the Hired Equipment; or
- an amount equivalent to 30% of the current replacement cost of the Hire Equipment as reasonably determined by Us using suppliers list prices.
- “Damage Waiver Fee” means an amount equivalent to 14% of the total Hire Rates for the Hired Equipment.
- “Dangerous Goods” means substances or goods that present an immediate hazard to people, property or the environment.
- “Dangerous Goods Container” means a container used for the storage of Dangerous Goods.
- “Delivered” means the supply of the Hired Equipment at a suitable premises or facility at the Site Address, as set out in the Quote or any relevant Order.
- “Deposit” means the amount specified in the Quote.
- “Goods” means any of Our equipment, goods, or items, including but not limited to, portable buildings, hoists and any associated or attached tools, accessories and parts sold by Us to You, as specified in the Quote.
- “Hired Equipment” means any of Our equipment, including but not limited to, portable buildings, hoists and any associated or attached tools, accessories and parts made available for hire to You, as specified in the Quote.
- “Hire Rates” means the hire rates, fees or charges specified in the Quote.
- “Hire Period” means the period described in clause 2(a).
- “Insolvency Event” means the following circumstances:
- where the Defaulting Party enters into a compromise or arrangement (or announces one) under section 411 of the Corporations Act 2001 (Cth);
- where a managing controller is appointed over the whole (or substantially the whole) of Defaulting Party’s property; or
- where Defaulting Party enters into voluntary administration.
- “Quote” means a quote (or similar document) provided by Us to the You, which outlines the terms on which Goods are being sold or hired to You, including but not limited to, the Goods being supplied or the Hired Equipment, the Site Address, the Purchase Price for the Goods or Hire Rates which apply to the Hired Equipment, any other applicable charges (e.g. delivery fees), and the Hire Period.
- “Long Distance Location” means a location in excess of 50kms from Our premises.
- “Purchase Order” means a written order submitted by You to Us for the supply of Goods or the hire of the Hired Equipment.
- “Purchase Price” means the purchase price for the Goods, as specified in the Quote.
- “Site Address” means the location where the Goods or Hired Equipment will be delivered and will remain during the Hire Period as specified in any Quote or Order.
- “Terms” means these terms and conditions of hire, including any Quote.
- “We/Us/Our” means in respect of Goods or the Hired Equipment:
- supplied within Western Australia, Complete Hire & Sales Pty Ltd (ACN 090 519 823); or
- supplied within New South Wales, Complete Portables (NSW) Pty Ltd (ACN 613 173 318),
and includes, a related body corporate (as defined in section 50 of the Corporations Act 2001 (Cth)), and shall unless the context otherwise requires, include its employees, agents, independent contractors and sub- contractors.
- “You/Your” refers to the person, firm, organisation, partnership, corporation, or other entity purchasing the Goods or hiring the Hired Equipment from Us, as specified in the Quote or Credit Agreement, whether in their own capacity or as trustee of a trust. The reference to “You” includes any of Your employees, agents and contractors.
- In these Terms, unless the context otherwise requires:
- a reference to:
- persons include companies, associations, firms, authorities and bodies corporate;
- gender includes all other genders;
- a party, where the party is more than one person, means all of them together and each of them separately; and
- a statute, regulation, code or standard includes a reference to it as amended from time to time;
- the singular includes the plural and the other way around;
- unless otherwise stated, prices are in Australian currency and payment will be made in Australian currency;
- if anything to be done under these Terms falls on a day which is not a working day, then it must be done on the next working day; and
- where examples of a general term are given (whether or not using words such as ‘includes’ or ‘including’), the use of the examples is without limitation to the general term; and
- the clause headings in these Terms are for convenience only and will not be used to interpret these Terms.
- No provision of these Terms shall be construed adversely to a party solely on the ground that the party was responsible for the preparation of these Terms or the provision.
- Unless otherwise stated within a Quote, any Quote issued by Us will remain valid for 30 days from the date stated on the Quote or, if undated, the date on which We issue the Quote. Any extension of this period is at Our discretion.
- The Quote sets out the Goods being supplied or the Hired Equipment being hired to You. You acknowledge that any change to any detail of Your Purchaser Order may result in a price change.
4. DEPOSIT & CREDIT CARD AUTHORISATION
- Unless we have entered into a Credit Agreement with You, upon entering into any Agreement with Us, You:
- agree to provide Us with Your credit card details by completing a credit card authority in the form specified by Us, and pay us any Deposit upon placing a Purchase Order or accepting a Quote;
- warrant and represent to Us that You are authorised to use the credit card to meet the entirety of Your obligations under the Agreement, whether present or contingent, and foreseeable or unforeseeable;
- in relation to the hire of Hired Equipment ,must ensure that the credit card remains valid until one month after the later of expiration of the Hire Period and return of the Hire Equipment. You must immediately provide Us with details for an alternative credit card which can be used to meet Your obligations under this Agreement, and an authority for Us to debit this alternative card if, during the Hire Period:
- the existing credit card is cancelled, suspended or is otherwise not useable; or
- You cancel Your authorisation to Us to use the existing credit card; and
- authorise Us to charge to Your credit card any amounts You are or become liable to pay (but have not paid) under these Terms after receiving a notice from Us requiring payment of the same. For the avoidance of doubt, this may include any additional charges incurred for retaining Hired Equipment beyond the Hire Period, Hired Equipment returned with damage, or Hired Equipment not returned with a full tank of fuel.
5. DELIVERY OR COLLECTION
It is Your responsibility to check any Inspection Release Certificate or similar document prepared and issued by Us (Certificate) and confirm that it is in accordance with Your requirements before any Goods or Hired Equipment are delivered or released for Collection Ex-Works. If delivery of Goods or Hired Equipment is made in accordance with the description on the face of the Certificate is accepted, You shall be liable to pay for them and shall have no claim against Us for the Goods or Hired Equipment not being as ordered.
5.2 For Delivery
(a) If the Goods or Hire Equipment are being Delivered, You acknowledge and agree that:
(i) the Goods or Hired Equipment will be delivered to the Site Address during normal working hours;
(ii) all times quoted for delivery are estimates only, and We will not be liable for any failure to deliver or for delay in delivery of cement occasioned by inclement weather, road closures, traffic conditions, pandemic, epidemic, strike, lockout or other industrial dispute, Government restrictions (including COVID restrictions), shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility, civil commotion or any other cause beyond Our control; and
(iii) You shall not be relieved of any obligation to accept or pay for the Goods or Hired Equipment by reason of:
(A) any delay in delivery; or
(B) any Goods or Hired Equipment suffering minor cosmetic damage during transport, which does not affect Your ability to use the Goods or Hired Equipment.
(iv) The parties agree to act reasonably and negotiate in good faith in reaching a resolution on any aforementioned damage.
(b) You shall:
(i) ensure that the delivery vehicle has a safe, suitable and unrestricted access to the Site Address and the discharge or unloading location; and
(ii) release and indemnify Us against any loss, damage, cost (including recharges) or liability arising from events occurring while:
(A) You or Your employees, contractors or agents are unloading the Goods or Hired Equipment; or
(B) gaining or caused by accessing the Site Address in accordance with clause 5.2(b)(i),
unless solely caused by Our negligent act or omission.
5.3 For Collection Ex Works
(a) You must ensure that Your motor vehicle used to collect the Goods or Hired Equipment is maintained in a mechanically sound condition that is fit for the purpose of collecting and transporting the Goods or Hired Equipment.
(b) We may refuse to release the Goods or Hired Equipment to You where We have reasonable grounds to believe that Your motor vehicle is not fit for the purposes of collecting and transporting the Goods or Hired Equipment.
(c) It is Your responsibility to check any docket provided to You by Us and confirm that it is in accordance with Your requirements before any Goods or Hired Equipment are loaded into Your motor vehicle. If You accept the Goods or Hired Equipment in accordance with the description on the face of the Certificate, You shall be liable to pay for it and shall have no claim against Us for the Goods or Hired Equipment not being as ordered.
(d) You must comply will all relevant laws and regulations, including without limitation, all safety laws applicable to the supply of the Goods or Hired Equipment and Chain of Responsibility obligations with respect to the collection of the Goods or Hired Equipment.
6. TITLE & RISK
- You acknowledge and agree that:
- in relation to the purchase of Goods, We remain the owner of the Goods until You have paid for the Goods in full, and You grant to us a retention of title security in the Goods until such time as you have paid for the Goods in full; and
- in relation to the hire of Hired Equipment, without limiting clauses 5(o) to 9.5(q) below, We retain title in and ownership of the Hired Equipment and any associated spare parts or accessories at all times, and unless expressly provided for in a Quote, nothing in the Agreement constitutes a sale of the Goods to You or a transfer of title in and ownership of Hired Equipment to You. Your rights to use the Hired Equipment are as a bailee only.
- The Goods or Hired Equipment are at Your risk from the time they are Delivered to the Site Address. However, if the Goods or Hired Equipment are collected from Us (or delivery is made by Your carrier) they will be at Your risk immediately upon collection from Us by You or Your carrier.
- Where We are required to install the Goods or Hired Equipment on-site, We will do so in:
(a) accordance with industry standards; and
(b) a proper and workman-like manner.
- You agree to do the following (at Your cost) prior to the installation date unless otherwise agreed with Us in writing:
(a) comply with Our reasonable directions in relation to the installation;
(b) ensure that the Site Address is safe and complies with any express requirements or conditions of Our Quote and the Occupational Safety and Health Act 1984 (WA) and Occupational Safety and Health Regulations 1996 (WA), including any other relevant safety legislation, regulations, rules or by-laws;
(c) prior to the commencement of the installation, ensure all site preparation work (if any) is completed in accordance with all relevant legislation and Our directions;
(d) provide adequate and safe vehicular access to the Site Address; and
(e) if required, provide a source of power, and hoists and cranes and such other equipment as is reasonably required by Us in order to install the Hired Equipment as specified in Quote. You shall ensure that all such equipment is in good working order and condition and complies with all legislation applicable to such equipment.
- We may and are entitled to subcontract Our obligation to install at Our absolute discretion. We will be responsible for Our obligations under these Terms notwithstanding that subcontracting.
8. PAYMENTS OF AMOUNTS OWING
- Unless we have entered into a Credit Agreement with You, You agree to pay the amount(s) specified in any Quote forming part of any Agreement at the times specified therein or, if no time for payment is specified:
- in relation to the purchase of Goods, on the earlier of the date specified in any tax invoice issued to you under the Agreement and the date of delivery or collection of Goods purchased pursuant to the Agreement; or
- in relation to the hire of Hired Equipment, at the times specified by Us in writing, including in any tax invoice issued to You.
- You acknowledge and agree that:
- all payments due and owing and amounts payable under an Agreement must be made without set-off, counterclaim or deduction;
- credit card payments may attract a surcharge equivalent to Our merchant or bank fees at Our sole discretion; and
- if an amount is payable by You to Us for any reason whatsoever, including but not limited to under and in connection with the Agreement, We are entitled to set off that amount against any amount payable by Us to You under the Agreement.
- We reserve the right to change Our price list at any time upon notice to You. The price displayed at the time You place a Purchase Order will continue for the Hire Period even if the price changes before Your Purchase Order is accepted by Us.
- If You do not pay any amounts owing under the Agreement by the payment due date, We reserve the right to charge, in addition to any Purchase Price or Hire Rates recoverable under the Agreement:
- interest, calculated monthly, on the total outstanding balance. The interest rate used to calculate the interest payable for the month is 1.5% per month; and
- any reasonable costs and expenses (including all debt collection fees, cartage, commissions and legal costs on a full indemnity basis) incurred by Us in recovering any Hired Equipment or unpaid amounts under the Agreement.
9. EQUIPMENT HIRE
- Hire of Equipment
- During the Hire Period, We agree to hire You the Hired Equipment on these Terms, and We will:
- provide the Hired Equipment to You in good working order; and
- subject to clauses 5(a) and 9.5(g), allow You to exclusively use the Hired Equipment during the Hire Period.
- In consideration of Us performing Our obligations under these Terms, You shall pay the Hire Rates and any other fees and charges specified in the Quote and these Terms.
- Hire Period
- The Hire Period is for the term specified in any Quote or Purchase Order or, if no term is specified, a periodic term for each calendar week during which You remain in possession of the Hired Equipment and ceasing within 7 days of either party giving notice of termination of the Hire Period, and includes weekends and public holidays.
- The Hire Period commences on the earlier of the following:
- You take possession of the Hired Equipment;
- if You request delivery of the Hired Equipment, the time We deliver the Hired Equipment to the Site Address; or
- if You request collection of the Hired Equipment, the time You collect the Hired Equipment from Us.
- You acknowledge and agree that:
- if You return the Hired Equipment before the expiry of the Hire Period, You remain liable to pay Us all Hire Rates (including any other charges) that would have been payable had you remained in possession of the Hired Equipment for the balance of the Hire Period;
- without prejudice to Our rights to retake possession of the Hired Equipment, You will continue to incur Hire Charges and other charges if You have not returned the Hired Equipment to Us at the end of the Hire Period in breach of this Agreement; and
- a Hire Period can only be changed by a variation to an Agreement in accordance with clause 5 above.
- Hire Rates
- You will pay Us the Hire Rates in accordance with these Terms.
- The Quote may specify the type of rate which will apply to You and the method of calculation, including but not limited to:
- Our current rates of pay and conditions of employment;
- prevailing prices of raw materials and sub-contracted parts and services;
- suppliers’ prevailing prices for parts not manufactured by Us; and
- the present ruling rates of overseas exchange, current freight and insurance charges and the present methods of the Customs Department in calculating and ascertaining the rate of duty and primage or any other government tax on imported goods.
- Additional rental charges as set out in the Quote will apply in those circumstances set out in the Quote.
- If the Hired Equipment is mechanical equipment (e.g. a generator), You acknowledge that the Quote was prepared on the basis that the Hired Equipment will be used by You on a single shift allowance of 55 hours per week (unless otherwise specified in the quote), and that uninhibited access will be provided to the Site Address. If Your use of the Hired Equipment is greater than this (or access to the Site Address is inhibited), You:
- agree to pay the increased Hire Rates (including any additional service charges) notified by Us to You in writing; and
- consent to Us deducting the increased Hire Rates from Your credit card in accordance with clause 4.
- The service intervals for the Hired Equipment must be no greater than 500 hours (unless otherwise specified in the Quote). It is Your responsibility to advise Us in a timely manner if this interval period is likely to be exceeded.
- You will be responsible for undertaking (at Your cost) all pre-starts, daily checks including but not limited to recording of hours, fuel, oil and water.
- Other Charges
In addition to Hire Rates, You agree to pay for the following in accordance with any invoice issued to You by Us:
- any consumables, fuel or trade materials We supply to You;
- if You require Us to deliver, collect or install the Hired Equipment, the cost of delivery, collection or installation as detailed in the Quote;
- cleaning fees which will be charged upon return for all Hired Equipment at the following minimum rates:
- a building (6m x3m in size) – a fee of $190;
- a building (12m x 3m in size) – a fee of $290;
- an ablutions building – a fee of $290, which does not include the removal and disposal of any waste which is dealt with in clause 4(h) below);
- any stamp duty or GST arising from or connected with the Agreement;
- any other applicable levies, fines, penalties and any other government charges arising out of Your use of the Hired Equipment;
- charges for payment made by credit card, as detailed in the Quote;
- the fuel levy specified in any Quote or Purchase order. If the price of fuel for any item of Hired Equipment increases by more than 5% after the date of the Quote or Purchase Order, You agree to pay an additional fuel levy equivalent to 12% of Our total transport costs;
- Our costs arising for emptying toilets or ablution buildings, including service pumping, transport and disposal costs (as specified in any Quote or Purchase Order, and failing which, our reasonable costs) if You agreed to attend to this, but failed to do so before returning the toilets or ablution buildings to Us. You acknowledge and agree that in respect of a:
- 2000L size tank, Our charge will be calculated on the basis that the volume of waste removed is no less than 1,500L; and
- 4500L size tank, Our charge will be calculated on the basis that the volume of waste removed is no less than 2,500L,
unless otherwise specified in a Quote or Purchase Order;
- a charge for disposing of any substances (e.g. such as oil) used in, or is a by-product of, the Hired Equipment in accordance with any environmental laws and regulations, as detailed in the Quote. For the avoidance of doubt, Contaminated Hire Equipment will be dealt with in accordance with clause 5(j) below;
- if You request operational guidance or training on the use of the Hired Equipment and Our staff are available to provide this, the cost for the provision of these services will be at rates agreed between the parties;
- if You request Us to provide repair or maintenance services for the Hired Equipment at a Long Distance Location, a per kilometre charge both to and from the Long Distance Location. There will be no charge for the first 50kms either way. For the avoidance of doubt, nothing in this 4(k) affects Your responsibility to comply with the obligations under clause 9.5(e)(i);
- reasonable charges in connection with the administration of Your account with Us, as detailed in the Quote, which may include printing and postage costs; and
- Electrical testing and certification upon returns for all Hired Equipment at the following minimum rates: $175 per floor for the Metro area, $175 per floor for the Southwest area and $225 per floor for the Northwest area (unless otherwise specified in a Quote or Purchase Order).
- Your Obligations to Us
- If, at Your request, We supply an operator to operate the Hired Equipment (Operator):
- the Operator will be under Your direction and control during the Hire Period and will comply with Your reasonable and lawful directions;
- We will not, while the Operator is working under Your direction and control in accordance with clause 5(a)(i), seek to direct or supervise any of the work undertaken by Operator;
- We will not be liable to You for any acts or omissions of the Operator where they are acting under Your direction and control during the Hire Period; and
- You will not allow any other person to operate the Hired Equipment without Our prior written consent.
- The Agreement is personal to You and so You must not allow nor authorise any other person or entity other than:
- in the case of wet hire, Our Operator; and
- in any other case a competent and, where appropriate, properly qualified, trained and licensed personnel,
to use, re-hire or have possession of the Hired Equipment at any time, unless expressly agreed in writing by Us.
- You agree that before accepting the Hired Equipment, You have satisfied Yourself as to the suitability, condition and fitness for purpose of the Hired Equipment for the job You intend to use it for. Subject to clause 3, We make no representations and give no guarantee or warranty that the Hired Equipment is suitable for Your intended purpose.
- To help You stay safe during the Hire Period, You and Your employees, agents and contractors must:
- operate the Hired Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s or Our instructions and recommendations;
- ensure persons operating or erecting the Hired Equipment are suitably trained on its safe and proper use, qualified to use the Hired Equipment and where necessary, hold a current Licence to Perform High Risk Work or an equivalent licence;
- wear suitable clothing and protective equipment when operating the Hired Equipment as required or recommended by Us or the manufacturer;
- ensure that no persons operating the Hired Equipment are under the influence of drugs or alcohol;
- conduct a job safety analysis prior to using the Hired Equipment;
- ensure that no persons carry illegal, prohibited or dangerous substances in or on the Hired Equipment other than substances required to operate the Hired Equipment (e.g. fuel); and
- display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Hired Equipment.
- You acknowledge and agree that it is important to take care of the Hired Equipment during the Hire Period. You must:
- keep and maintain the Hired Equipment properly serviced and in good working order, condition and repair (which includes cleaning, re-fuelling, and lubricating the Hired Equipment) in accordance with the manufacturer’s and Our instructions at Your own cost, unless any damage to the Hired Equipment is caused by Us or Our Operator;
- not in any way alter, modify, tamper with, damage or repair the Hired Equipment without Our prior written consent; and
- not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information on the Hired Equipment.
- At all times during the Hire Period, You must store the Hired Equipment safely and securely and protect from theft, seizure, loss or damage.
- You will allow Us to enter the Site Address, Your premises or any site owned, possessed or controlled by You at a reasonable time and upon reasonable notice to:
- inspect the Hired Equipment from time to time during the Hire Period. You can also request to conduct a joint inspection of the Hired Equipment with Us at the end of the Hire Period; and
- enable Us to comply with Our obligations under these Terms.
- Whenever You are moving the Hired Equipment, You must ensure the safe loading, securing and transporting of all Hired Equipment in accordance with all laws and manufacturer’s guidelines. You (or any employee or contractor You engage) must observe any safety directions advised by Us and/or the manufacturer of the Hired Equipment to ensure its safe loading and handling.
- You must not:
- remove the Hired Equipment from the Site Address; and
- use the Hired Equipment off-shore, in a mine, in an area where friable asbestos is present, or move the Hired Equipment over water,
without Our prior written consent, which may, in Our absolute discretion, be granted, refused or granted subject to reasonable conditions.
- You must ensure that the Hired Equipment is not Contaminated. You must advise Us of any risks of Contamination to the Hired Equipment as soon as possible. Where Hired Equipment may have been subjected to Contamination, you must:
- effectively decontaminate the Hired Equipment in accordance with all applicable laws so it no longer presents a risk of harm to human health, animal health or the environment; and
- provide Us with written details of decontamination processes applied.
- If, in Our opinion acting reasonably, the Hired Equipment has not been properly decontaminated or is not capable of being decontaminated, You will be charged for the new replacement cost of the Hired Equipment and You agree to pay this additional cost upon demand.
- If You collect or receive the Hired Equipment (whichever is applicable) and find that it is broken, damaged and/or defective, You must notify Us within 24 hours after You collect or receive the Hired Equipment. If You do not notify Us within this time period You will:
- be deemed to have accepted the Hired Equipment You collected or received was in good order and condition;
- remain liable to pay for all Hire Fees and costs under these Terms and Conditions; and
- have no claim against Us in respect of the damage or defect.
- You agree to maintain the Hired Equipment in such a manner as to show clearly that the Hired Equipment is the property of Us.
- You are not entitled to sub-let, licence, charge, mortgage, pledge or grant any form of security interest over, or otherwise deal with the Hired Equipment in any way without Our prior written consent.
- In no circumstances will the Hired Equipment be deemed to be a fixture.
- Subject to clause 5(q), You are responsible for the Hired Equipment, and assume all risk in respect of its use and operation, during the Hire Period.
- At all times the Hired Equipment is in the possession or control of Us (or Our employees, agents or contractors), the Hired Equipment will be at Our risk. We shall not be responsible for any loss or damage to the Hired Equipment after delivery/collection save and except loss or damage caused by Our negligent act or default. We shall invoice You for items lost or damaged at the full purchase price and You agree to pay the invoice amount within the period specified in the invoice.
(a) You warrant that:
(i) You will use the Hired Equipment safely and in accordance with all legislative, manufacturer and Our requirements;
(ii) if You are not the owner of the Site Address, You have the approval and consent of the owner of the Site Address as its agent to authorise the delivery (and if required, the installation) of the Goods or Hired Equipment and compliance with these Terms, and You agree to accept liability for the Goods or Hired Equipment supplied hereunder;
(iii) the persons You use to operate the Hired Equipment are properly trained, qualified, licensed and certified to use or operate the Hired Equipment in a safe and competent manner and without adversely affecting the operation or state of repair of the Hired Equipment; and
(iv) You are able to carry out Your obligations under the Agreement for the Purchase Price or Hire Rates (as the case may be), including in respect of those provisions requiring You to replace or repair or service the Hired Equipment or engage in additional work.
(b) If the Hired Goods comprise a Dangerous Goods Container:
- You warrant that a competent person will:
- determine the suitability of the Dangerous Goods Container for the storage of the particular a safety data sheet for users of any Dangerous Goods stored in the Dangerous Goods Container;
- provide a safety data sheet to users of any Dangerous Goods stored in the Dangerous Goods Container;
- determine whether, and applying as necessary, any required regulatory markings, labels or signage or other documentation to the Dangerous Goods Container and or perimeter fencing of the Site Address in accordance with all relevant legislation; and
- review the location of the Dangerous Goods Container, having regard to site risks including but not limited to ignition sources, traffic, proximity to sensitive assets, security and neighbouring land use; and
- You must return the Dangerous Goods Container to Us with all Dangerous Goods removed and in a clean and decontaminated condition. We may refuse to collect or accept the Dangerous Goods Container if this has not been done, and You will be liable to pay Us all costs of emptying, cleaning, decontaminating and storing Dangerous Goods from the Dangerous Goods Container.
(c) You warrant that the person signing any document which forms part of the Agreement for and on Your behalf has Your authority to enter into the Agreement on Your behalf and grant the security interests in connection with it and is empowered to bind You to the Agreement and each security interest granted in connection with it.
(d) You indemnify Us against all losses, costs and claims incurred by Us arising out of or connected with a breach of any warranty in this clause 9.6.
- Return of Equipment
(a) If You wish to return the Hired Equipment to Us, you must:
(i) give Us at least 7 days prior notice; and
(ii) pay all Hire Rates and other charges payable under these Terms until the expiry of the Hire Period.
(b) You must return the Hired Equipment to Us in the same clean condition and good working order it was in when You received it, fair wear and tear excluded.
(c) Except in the circumstances set out in clause 9.7(d) below, it is Your responsibility to return the Hired Equipment to Us in accordance with this clause 9.7 during normal business hours.
(d) If You have requested, and We have agreed, to collect the Hired Equipment from You, You must ensure it is kept safe and secure until the We collect it.
(e) You acknowledge and agree that You are fully liable for all costs arising from:
- damage to any power leads and connectors for the Hired Equipment;
- loss or damage to any keys for the Hired Equipment;
- damage to any Hired Equipment where oil or other levels have not been checked, repaired or maintained by You in accordance with these Terms; and
- re-fuelling any Hired Equipment returned to Us at a rate specified in Our Quote, or failing this, at a rate of $3.50 per litre.
(a) In the event that the Hired Equipment breaks down or becomes unsafe to use during the Hire Period You must:
- immediately stop using the Hired Equipment and notify Us;
- take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Hired Equipment;
- take all steps necessary to prevent any further damage to the Hired Equipment itself; and
- not repair or attempt to repair the Hired Equipment without Our prior written consent.
(b) Except if clause 9.9(b) applies, upon receiving notice from You under clause 9.8(a)(i), We will take all steps reasonably necessary to repair the Hired Equipment or provide suitable substitute equipment as soon as reasonably possible after being notified by You.
- Damage or Loss to Hired Equipment
(a) If, during the Hire Period, the Hired Equipment is damaged, lost or stolen (other than as a result of Your negligence or that of Your employees, contractors, agents or invitees) so that You are unable to use the Hired Equipment, You will not be required to pay the Hire Rates from the date you notify us of the damage or loss, until such time as the Hired Equipment is repaired or replaced. However, You will be liable to, and agree to pay Us all costs incurred by Us to recover and repair or replace any part of the Hired Equipment (including Our travel costs arising from travel to any Long Distance Location) upon demand.
(b) If, during the Hire Period, the Hired Equipment is:
(i) Damaged (whether due to Your negligence or otherwise) and You are able to continue using it; or
(ii) lost or stolen as a result of Your negligence (or that of Your employees, contractors, agents or invitees),
You will be liable for, and agree to:
- pay all costs incurred by Us to recover and repair or replace any part of the Hired Equipment (including Our travel costs arising from travel to any Long Distance Location) upon demand; and
- continue paying the Hire Rates and other charges under these Terms for the remainder of the Hire Period.
(c) You consent to Us entering the Site Address to take possession of the Hired Equipment for the purpose of repairing and/or replacing it. Subject to clause 9.9(b), provided You pay the costs and charges described in clause 9.9(a), We will return the Hired Equipment to You once it has been repaired or replaced.
- Damage Waiver
- A Damage Waiver Fee will apply to all Hired Equipment unless, prior to the commencement of the Hire Period, You provide Us with a certificate of currency:
- specifying the Hired Equipment;
- noting Us as the owner of the Hired Equipment unless We agree otherwise; and
- for an appropriate policy of insurance that covers loss, damage, vandalism (excluding graffiti) and theft to the Hired Equipment during the Hire Period for an amount not less than the full new replacement value of the Hired Equipment.
- If the Hired Equipment is lost, damaged, stolen or vandalised, You must promptly provide Us with notice of the same (Notice), which also confirms whether You will:
- pay Us the full cost of repairing or replacing the lost or damaged Hired Equipment (Costs); or
- make a claim on Your insurance policy.
You must either pay Us the Costs or make a claim on Your insurance policy within 14 days of issuing Us with a Notice. If You elect to claim on Your insurance policy, You must use Your best endeavours to progress Your claim in a timely manner, and pay Us the insurance proceeds within 5 business days of receipt of the same.
- If Your policy of insurance under clause 10(a)(iii) lapses or is cancelled for any reason during the Hire Period, you must immediately notify Us and pay Us the Damage Waiver Fee.
- If You pay Us the Damage Waiver Fee in full, Your liability for loss or damage to the Hired Equipment will be limited to an amount equivalent to the Damage Waiver Excess if:
- You promptly report any loss, damage, theft or vandalism to Us and provide Us with details of the same, including any written or photographic evidence We require;
- in the case of theft and/or vandalism, You have promptly reported the incident to the police and provided Us with a copy of the written police report;
- the loss or damage does not fall into one or more of the circumstances set out in clause 10(e) below; and
- You have paid Us the Damage Waiver Excess in full.
- Even if you have paid the Damage Waiver Fee:
- We will not waive Our rights to claim against You for loss or damage to the Hired Equipment; and
- Your liability will not be limited to the Damage Waiver,
if the loss or damage:
- has arisen as a result of Your breach of a clause of the Agreement;
- has been caused by Your negligent act or omission or that of Your employees, contractors, agents or invitees;
- has arisen as a result of Your use of the Hired Equipment in breach of any laws;
- has been caused by Your failure to use the Hired Equipment for its intended purpose or in accordance with Our instructions or the Manufacturer’s instructions;
- occurs to the Hired Equipment whilst it is located, used, loaded, unloaded, transported on or over water, wharves, bridges or vessels of any kind;
- has been caused by a lack of lubrication of, or a failure to properly service, repair or maintain the Hired Equipment;
- has been caused by collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object due to insufficient clearance;
- has been caused by the overloading of or artificial electrical current (including use of under-rated or excessive length of extension leads on) the Hired Equipment or any electrical powered tools, machines or components thereof;
- is to motors or other electrical equipment or components within the Hired Equipment caused by electrical overload, a surge in electrical current or the use of under-rated or excessive lengths of extension leads with the electrical equipment;
- is to hot water service units included with the hire of portable showers;
- is to hoses, electric cods, valves, water connecting fittings and other similar accessories;
- is due to the operator being affected by illicit drugs or alcohol;
- is caused by exposure to any corrosive or caustic substance, such as cyanide, salt water, acid etc; or
- is to tyres, tubes or
10. INDEMNITIES AND EXCLUSION OF LIABILITIES
- Subject to clause 3 and 11, and except as expressly provided to the contrary in the Agreement to the full extent permitted by law:
- all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to the Agreement or its subject matter are excluded; and
- You release and discharge Us from:
- all claims and demands on Us; and
- any loss or damage whatsoever and whensoever caused to You or Your agents or employees whether by way of death of, or injury to, any person of any nature or kind, accident or damage to property, delay, financial or economic loss, or otherwise,
arising directly or indirectly from:
- a breakdown or failure of the Goods or Hired Equipment (provided such breakdown or failure is not caused by the negligent act or omission of Us or Our employees, agents or contractors);
- a breach by You of any term of the Agreement; and
- a negligent act or omission by You or Your agents, employees or contractors in the use, operation, maintenance or storage of the Goods or Hired Equipment.
- We will not be liable to You for any acts or omissions of any person supplied by Us where that person is acting under Your direction and control during the Hire Period and You indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees on a full indemnity basis and any environmental loss, cost, damage or expense) arising from or incurred in connection with such acts or omissions, save and except any loss, cost, damage or expense caused by a negligent act or omission on Our part.
- Nothing in the Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the ACL, which contains guarantees that protect the purchasers of goods and services in certain circumstances. Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, inducement or representation in relation to the Agreement and We are not able to exclude that guarantee, term, condition, warranty, undertaking, inducement or representation (Non-Excludable Provision), and We are able to limit Your remedy for a breach of the Non-Excludable Provision, then Our liability for breach of the Non-Excludable Provision is limited to (at Our election):
- in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
- in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
- Subject to Our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, Our maximum aggregate liability for all claims under or relating to the Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the total value of the Goods or services supplied, or in the case of Hired Equipment, the total Hire Rates paid by You under the Agreement. In calculating Our aggregate liability under this clause, the parties must include any amounts paid or the value of any Goods, Hired Equipment or services replaced, repaired or supplied by Us for a breach of any Non-Excludable Provisions.
- Subject to clauses 3 and 11, We will not be liable to You for any Consequential Loss You have incurred, amounts that You are liable to Your customers for or any loss suffered by third parties under or relating to the Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
- You are liable for and indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Us and any environmental loss, cost, damage or expense) in respect of:
- personal injury or death;
- damage to tangible property; or
- a claim by a third party,
in respect of Your use of the Goods, the hire or use of the Hired Equipment or Your breach of the Agreement save and except any loss, cost, damage or expense caused by a negligent act or omission on Our part.
- Each indemnity in the Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this the Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by the Agreement.
- The above indemnities are not restricted, limited or waived by:
- any provision of the Agreement which provides for insurance; or
- the existence of insurance.
11. WARRANTY AGAINST DEFECTS
- This clause 11 only applies if:
- You are procuring Goods or hiring the Hired Equipment wholly or predominantly for personal, domestic or household use or consumption; or
- the Purchase Price for the Goods or total charges for hiring the Hired Equipment are $100,000 or less (or such other amount as is prescribed under the ACL).
- To the extent that the Non-Excludable Provision contained in clause 3 applies, the warranty is given by Us. For Hired Equipment, the Non-Excludable Provision warranty applies to any defect that appears within the Hire Period. For Goods supplied, the Non-Excludable Provision warranty applies for 3 months from the date on which you take possession of the Goods. If such a defect appears within either of the aforementioned periods, You must notify Us in writing at the below address within 1 week after the defect was reasonably apparent (or if the defect was reasonably apparent prior to installation, the claim must be made prior to installation) and provide Us with an opportunity to investigate and approve the claim. The benefits given by this warranty are in addition to any other rights and remedies You may have under a law in relation to the Goods or Hired Equipment.
- Our contact details are as follows:
Address: 82 Power Avenue, Wattleup WA 6166
Telephone: (+61 8) 9410 7100
Fax: (+61 8) 9410 0069
- You acknowledge and agree that the Non-Excludable Provision does not cover:
- the use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by Us;
- use of the Goods or Hired Equipment other than in accordance with any laws or manufacturer/Our requirements;
- inadequate or incorrect site preparation;
- any contamination or leakages caused or induced by You or your employees, contractors, agents or invitees;
- any modifications to the Goods or Hired Equipment which were not approved in writing by Us;
- any damage to, or misuse of, the Goods or Hired Equipment by You or Your employees, contractors, agents or invitees;
- inadequate or improper repair, maintenance, calibration or adjustment of the Goods or Hired Equipment by You or your employees, contractors, agents or invitees;
- incorrect storage of the Goods or Hired Equipment by You or Your employees, contractors, agents or invitees; or
- workmanship adversely affected by any factors beyond Our reasonable control, including an Event as defined in clause 13
- Where We are supplying goods only the ACL requires Us to give You the following notice about those guarantees:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
- Where We are supplying both goods and services (such as installation) the ACL requires Us to give You the following notice about those guarantees:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- To cancel your service contract with us; and
- To a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
- Without limiting any express rights granted to Us under this clause 12, a party (Non-defaulting Party) may terminate the Agreement (including any Hire Period) immediately by giving written notice to the other party (Defaulting Party), if:
- that Defaulting Party breaches any term of the Hire Agreement and fails to remedy the breach within 14 days of written notification of the breach;
- a judgment, order or encumbrance is enforced, or becomes enforceable upon any of the Defaulting Party’s property;
- an order for payment is made or judgment for an amount exceeding $10,000 is entered or signed against the Defaulting Party which is not satisfied within 7 days;
- the Defaulting Party suspends or delays payment of its debts;
- the Defaulting Party is unable to pay its debts as and when they fall due or goes into bankruptcy;
- the Defaulting Party (being a corporation) has a liquidator appointed to it, or has a mortgagee of the corporation assume control of, or a receiver appointed to any of the assets or undertakings of the Defaulting Party (not being an Insolvency Event);
- the Defaulting Party (being a corporation) is deregistered;
- the Defaulting Party breaches a Credit Agreement; or
- to the extent permitted by law, the Defaulting Party is subject to an Insolvency Event.
- The Agreement may be terminated by Us at any time effective immediately upon the giving of notice if a change occurs in Your circumstances which, in Our reasonable opinion, may have a material adverse effect on Your ability to comply with Your obligations under these Terms. Examples include (but are not limited to):
- a change in Your financial position up and until an Insolvency Event occurring;
- You factoring its debts; or
- You becoming party to litigation, arbitration or any other administrative proceeding.
- If You are the Defaulting Party under these Terms (or where any of the events in clause 2 occurs):
- We may, at Our option, exercise any or all of the following rights in addition to any other rights it may have under these Terms or at law:
- suspend deliveries of further Goods or Hired Equipment to You whether under these Terms or otherwise;
- suspend performance of any required installation whether under these Terms or otherwise; or
- withdraw any credit facilities which may have been extended to You and require immediate payment of all moneys owed to Us by You; and
- You expressly undertake not to seek or claim, and waive any entitlement to, any amount for loss, damage or Consequential Loss arising out of, or in any way connected with, the termination of the Agreement under clauses 1 or 12.2.
- In relation to the hire of Hired Equipment, from the effective date of the termination of the Agreement You must immediately demobilise and return the Hired Equipment at Your own cost.
- Subject to clause 5 above, the Defaulting Party (or in the case of an event under clause 12.2, You) will be responsible for, and will indemnify the Non-Defaulting Party (or Us, as applicable) against, any damages, costs (including, without limitation, legal fees on a solicitor-client basis), losses and expenses, incurred by the Non-Defaulting Party (or Us, as applicable) as a result of the breach or event.
- If You are in breach of the Agreement or if the Agreement or a Hire Period has been terminated under clause 12, We may take all steps necessary (including legal action) to recover the Hired Equipment, and You expressly consent to Us entering the Site Address, Your premises or any site owned, possessed or controlled by You for the purposes of recovering Our Hired Equipment.
- These rights of termination are in addition to any other rights either party has under the Agreement and does not exclude any right or remedy under law or equity.
13. FORCE MAJEURE
- A party (Affected Party) is not liable for any delay or failure to perform an obligation (other than to pay money) under the Contract caused by an act of God, fire, war, insurrection or other armed conflict, riot, vandalism or sabotage, strike, lockout, ban, transport or port accident or congestion, border closures, pandemic, epidemic, quarantine of persons or goods, limitation of work or other industrial disturbance or any law, rule, regulation, order, requirement or restraint imposed by any government or governmental agency whether local, state, national or international (other than an order, requirement or restraint resulting from the Affected Party’s breach of any law, permit or authorisation).
- The Affected Party must notify each other party as soon as practical of any anticipated delay or failure caused by an event specified in clause 1 (Event).
- The performance of the Affected Party’s obligation is suspended for the period of delay caused by the Event to the extent performance is prevented by the Event from the date notice is given under clause 2 and any such non-performance or delay in performance of the Agreement will not be a breach of the Agreement.
- Any party may terminate the Agreement at the expiration of not less than 14 days’ notice to the other party if prevention of performance of a material obligation by an Event, or a delay caused by the Event, exceeds 60 days.
- If a party terminates the Contract under clause 4, all money previously paid under the Contract for which no goods, services or other consideration has been provided must be refunded.
If any part of the Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of another parts.
15. GOVERNING LAW
The Agreement is governed by the laws of the State or Western Australia and each party submits to the non-exclusive jurisdiction of the courts of Western Australia.
16. ENTIRE AGREEMENT
The Agreement as defined in clause 1.1(b), comprises the entire agreement between the parties. No additional terms and conditions (including any terms contained in any purchase order) apply to the hire of the Hired Equipment unless agreed in writing by the parties.
17. NO RELIANCE
Subject to clauses 10.3 and 11, You acknowledge that neither We nor any person acting on Our behalf have made any representation or other inducement to You to enter into the Agreement and You have not entered into the Agreement in reliance on any representations or inducements (including in relation to the use of the Hired Equipment) except for those representations contained in the Agreement.
18. Civil Liability Act
Part 1F of the Civil Liability Act 2002 (WA) (CLA) does not apply to the Agreement. The parties’ rights, obligations and liabilities will be those which would exist if Part 1F of the CLA had not been enacted.
19. NO WAIVER OF RIGHTS
No delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under the Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or make a claim in respect of a continuing breach or default.
20. PROVISIONS OF THIS AGREEMENT EXCLUDED FROM CONSUMER CONTRACTS
- Where You are acquiring goods or services wholly or predominantly for personal, domestic or household use or consumption, clause 6(c) and 9.6(d) (Warranties) will not apply for the purposes of Your Agreement.
- Any expression used in this clause 21 and which is defined in the GST Act has the same meaning in this clause 21.
- Unless otherwise expressly stated, all amounts stated to be payable by You under these Terms are exclusive of GST. If GST is imposed on any supply made under or in accordance with these Terms, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this document, subject to the provision of a tax invoice by the supplier to the recipient.