General Terms and Condition
1.1 “Equipment” means the Equipment detailed in the Hire Schedule and includes tools, accessories and parts supplied by the Owner.
1.2 “Equipment Hire Agreement” means the Agreement formed between the Owner and the Hirer for the hire of the Equipment constituted by the Hire Schedule and these general terms and conditions which may be varied only by written variation signed by both parties.
1.3 “Fair wear and tear” means the gradual and normal reduction in the operational performance of the Equipment arising from normal use but does not include accelerated wear and tear caused or contributed to by the Hirer’s failure to observe any of its obligations contained in this Equipment Hire Agreement and in particular, those contained in clause 7.1.
1.4 “Hire Schedule” means the first sheet of this document containing details of the hiring of the Equipment.
1.5 “Hirer” means the person, firm or corporation named as the Hirer in the Hire Schedule and includes their personal representatives, administrators and permitted assigns. Where not inconsistent with the subject matter includes their licensees, employees, contractors and agents.
1.6 “Hiring Address” means the place at which the Equipment will be used and stored during the Hire Period and includes any other place agreed by the parties in advance of the Equipment being taken or stored there.
1.7 “Hire Basis” means the periodic basis upon which the Equipment is hired, being either daily, weekly, monthly or long term as selected in the Hire Schedule.
1.8 “Hire Charge” means the amount payable by the Hirer for the hire of the Equipment which is determined by multiplying the Hire Rate by the number of days, weeks or months (as applicable) under the Hire Basis in the Hire Period.
1.9 “Hire Period” means the period of Hire beginning on the commencement date and ending on the finish date as specified in the Hire Schedule, or as otherwise determined by the Owner.
1.10 “Hire Rate” means the amount of money payable for each stanza of the selected Hire Basis (as specified in the Hire Schedule or as otherwise notified) by the Hirer to the Owner from time to time in accordance with this Equipment Hire Agreement.
1.11 “Indemnity Subject Matter” means any injury to or death of a person, all claims and demands, any loss or damage, any penalty, expense, costs or loss of whatsoever nature including legal fees and costs on a solicitor and own client basis, arising directly or indirectly from the use of the Equipment by the Hirer, any negligent act or
omission of the Hirer, any breach of this Equipment Hire Agreement by the Hirer and the recovery of the Equipment by the Owner.
1.12 “Owner” means BMS LaserSat Pty Ltd ACN 065 170 372, its assigns and nominees.
1.13 “PPSA” means the Personal Property Securities Act 2009 (Cth).
1.14 “PPSR” means the Personal Property Securities Register facilitated through the Australian Financial Security Authority.
1.15 “Total Price” means the full amount payable by the Hirer for the hire of the Equipment being the total of the Hire Charge and all other amounts payable under this Equipment Hire Agreement whether stated specifically in the Hire Schedule or otherwise.
2.1 The Owner agrees to hire to the Hirer and the Hirer agrees to take on the Hire from the Owner the Equipment for the duration of the Hire Period, in consideration of the payment of the Total Price payable, on these general terms and conditions. 2.2 The Hirer acknowledges that under this type of Equipment Hire Agreement, the Equipment is on
hire for the whole of the time that it is away from the Owner’s business premises and accordingly the Hire Charges are not limited to the time during which the Equipment is actually used by the Hirer. The Hirer agrees that the Hire Period includes the time that it takes for the Equipment to be delivered to the Hiring Address and returned to the Owner’s business premises. This arrangement may be varied at the sole discretion of the Owner.
2.3 The Equipment will at all times remain the property of the Owner, and the Hirer must not sell, transfer, encumber or pledge as security the Equipment, nor attempt to do so.
3. DEPOSIT AND SECURITY
3.1 The Hirer must, when specified by the Owner or at the latest upon delivery of the Equipment, pay the deposit or give the other security required as specified in the Equipment Hire Schedule.
3.2 The Owner will be under no obligation to deliver or release the Equipment into the possession of the Hirer, unless and until the deposit or other security required is given.
4.1 The Hirer must pay the Total Price to the Owner within 30 days of the date of statement for the Hiring issued from the Owner, unless otherwise stated in the Hire Schedule. The Hirer acknowledges that unless separate and specific written credit arrangements are entered into, the Hirer has no right to Hire the Equipment on credit.
4.2 The Hirer acknowledges that the total price if stated in the Hire Schedule can only be in certain instances an estimate of the Total Price payable for the hire of the Equipment. In addition to the Hire Charge, the Hirer must also pay all amounts actually incurred or charged arising out of the use of the Equipment by the Hirer including:
(a) Any amounts payable for freight, fuel any consumables or trade materials;
(b) Any cost for the delivery, collection or installation of the Equipment;
(c) The Owner’s costs to provide operational guidance or training on the use of the Equipment (if the Owner is able to provide these services);
(d) GST on any taxable supply under this Equipment Hire Agreement, all amounts payable under this Equipment Hire Agreement being expressed as GST exclusive amounts;
(e) any fine imposed upon the Owner arising from the Hirer’s use or possession of the Equipment;
(f) all costs incurred by the Owner in the recovery of the Equipment from the Hirer;
(g) all costs incurred by the Owner to repair any damage to the Equipment while on Hire to the Hirer, excluding any costs of repair necessitated by fair wear and tear to the Equipment: the term “repair” will include the cost of replacement of the Equipment if the Owner determines that the Equipment was damaged beyond economic repair;
(h) all legal costs “on a solicitor and own client basis” incurred by the Owner as a result of threatened or actual recovery or enforcement action against the Hirer.
4.3 To the extent that the Hire Schedule constitutes an offer to Hire the Equipment, the Hire Rates and other amounts quoted will, subject to any further or other information required by the Owner, remain open for acceptance by the Hirer for a period of fourteen days from the date that these amounts are quoted (whether in writing or orally).
4.4 The Owner reserves the right to vary the Hire Rate upon giving written notice of the variation to the Hirer. Upon receipt of such notice by the Hirer, the Hirer agrees to pay the Hire Rates and other amounts as varied.
4.5 The Hirer will be liable to pay interest on all amounts unpaid by the due date under this Equipment Hire Agreement, or as invoiced by the Owner, charged at the rate of 15% per annum from the due date to the date of actual payment.
4.6 The Hirer acknowledges and agrees that as there are several provisions within this Equipment Hire Agreement which impose upon the Hirer the obligation to pay other amounts which may not be enumerated in the Hire Schedule, the total amount payable under this Equipment Hire Agreement for the hire of the Equipment will be the amount stated in the Owner’s tax invoice issued to the Hirer, which will be conclusive, save and except for any manifest error on the face of the invoice.
4.7 All payments must be made by cash, bank cheque or electronic funds transfer as directed by the Owner, unless otherwise agreed.
5. HIRE PERIOD
5.1 The Hire Period begins on the Start Date stated in the Hire Schedule upon the earlier of:
(a) the time at which the Equipment is booked out of the Owner’s business premises as stated in the Hire Schedule;
(b) the collection of the Equipment by or on behalf of the Hirer from the Owner’s business premises, or such other address as nominated by the Owner; or
(c) collection of the Equipment by a carrier engaged by either the Hirer or the Owner.
5.2 The Hire Period will end on the Finish Date stated in the Hire Schedule unless another time is specified in the Hire Schedule. Despite the due time and date for termination of the Hire, the Hirer must notify the Owner by telephone that the Equipment is available for collection. The Hire Period will be deemed to continue until that notification is given, or until the Owner collects the Equipment, whichever first occurs. If the Hire Period in that instance continues not beyond 8.00 am the day following the Finish Date, then an additional Hire Charge equivalent to one half day’s hire will be payable by the Hirer. If the Hire Period extends beyond that time, then a further Hire Charge based on the full amount of time that the Equipment is away from the Owner’s Business Premises will be payable by the Hirer.
5.3 If the Hirer reports that the Equipment has broken down or become unserviceable for any reason apart from any act or omission on the part of the Hirer, then the Hire Period will be deemed to have ceased from the time of the breakdown as determined by the Owner, but will resume upon the Equipment again becoming serviceable at the
5.4 If the Equipment becomes inoperative during the Hire Period due to the act or omission of the Hirer or any of its staff, contractors or personnel, the Hire Charge will continue to be charged and payable by the Hirer up to and including the time that the Equipment is repaired and/or replaced and returned to the Owner in proper working order and condition. Notwithstanding this continuing obligation, the Hire Charge will be payable for a maximum period of thirty (30) weeks from the time that the Equipment became inoperative. The hiring will otherwise be deemed to have ceased before the expiration of the thirty (30) weeks, if the Equipment is damaged beyond economic repair and the Owner’s insurer either replaces the Equipment or pays the Owner its full replacement value.
6. WORKING PERIODS
6.1 The Hire Basis will be in either daily, weekly, monthly or long term stanzas as selected in the Hire Schedule.
7.1 Risk in the Equipment passes to the Hirer upon commencement of the Hire Period, and remains with the Hirer until the Equipment is returned to, or collected by the Owner, in compliance with the Hirer’s obligations under this Equipment Hire Agreement.
7.2 Notwithstanding that risk in the Equipment passes to the Hirer as stated herein, the Owner reserves the right to:
(a) return the Equipment to the Owner’s business premises if upon attempted delivery there is no person authorised by the Hirer to take delivery of the Equipment at the Hiring Address and/or sign the Owner’s Consignment Note/Hire Docket; and
(b) enter upon the Hiring Address and remove the Equipment if the Owner suspects that it is being misused or damaged while on hire, in either case without any liability to the Hirer for any loss or damage claimed in respect of the return or removal of the Equipment.
8. HIRER’S OBLIGATIONS
8.1 The Hirer shall:
(a) personally, or through a duly authorised representative, be on hand at the Hiring Address to take delivery of the Equipment and to sign the Owner’s Consignment Note/Hire Docket acknowledging receipt of the Equipment in good order and condition;
(b) keep and maintain the Equipment in good repair and working order throughout the Hire Period;
(c) use the Equipment in a skilful and proper manner and only for the purpose and within the capacity for which it was designed, acknowledging that the Owner can give no warranty as to its capacity;
(d) ensure that the Equipment is operated by a suitably certified, trained or licensed operator (whether supplied by the Hirer at its cost or employed and provided by the Owner) who will work entirely in accordance with the instructions of the Hirer or the Hirer’s authorised (e) ensure that the Equipment remains at all times at the Hiring Address and is kept safe during the Hire Period: where possible the Hirer must store the Equipment in water tight and locked premises while not in use;
(f) not use the Equipment for any purpose or in any manner which would or does result in the Owner’s insurer (if any) refusing to meet any claim by the Owner for any loss or damage caused to or by the Equipment while in the possession of the Hirer;
(g) ensure that the Equipment is operated only in accordance with manufacturer’s specifications and not change or interfere with any factory or Owner’s settings of the Equipment;
(h) ensure that the Equipment is operated only in accordance with applicable Workplace Health and Safety Regulation, and generally in accordance with all statutes, regulations and laws applicable to the use of the Equipment;
(i) notify the Owner immediately of any loss or damage to the Equipment, and not to attempt to or effect any repairs to the Equipment without the consent of the Owner;
(j) allow the Owner or its nominated representative access to the Hiring Address at all times to inspect the state of repair and operation of the Equipment, and if misuse, loss or damage has occurred or is apprehended by the
Owner, to return possession of the Equipment immediately to the Owner or its nominated representative;
(k) contact the Owner by telephone when the Equipment is available to be collected prior to or at the end of the Hire Period (noting the Hirer’s obligation to pay additional charges on late notification per clause 5.2);
(l) return the Equipment at the end of the Hiring Period to the Owner in at least as good a state of repair, condition and cleanliness as at the commencement of the Hire Period, fair wear and tear only excepted.
8.2 Where the Hirer is obliged to notify the Owner of any matter or thing set out in this Equipment Hire Agreement, the Hirer will first attempt telephone contact with the Owner. Notification by any other or slower means will not be acceptable.
9.1 The Hirer acknowledges that if the Owner has insured the Equipment, that insurance is solely for the use and benefit of the Owner.
9.2 If the Equipment is lost or damaged while on Hire to the Hirer and the Owner elects to claim on its insurance policy over the Equipment, then:
(a) the Hirer will provide all necessary information and assistance to the Owner and/or the Owner’s insurer to enable the Owner’s claim to be properly determined;
(b) the Hirer acknowledges that the insurer may sue the Hirer to recover its loss pursuant to its rights of subrogation under the policy of insurance; and
(c) the Owner may recover from the Hirer any costs incurred by the Owner in respect of the claim on its insurance policy, including any policy excess payable. The payment of any excess shall not have the effect of determining or compromising any claim that the insurer may have against the Hirer for the recovery of its loss on any such claim by the Owner.
9.3 The Hirer must take out and maintain for the Hire Period:
(a) public liability insurance for not less than twenty million dollars ($20,000,000.00)
per occurrence; and
(b) a policy of insurance covering the Equipment and all accessories thereto for the full insurable value of the Equipment and accessories against loss or damage resulting from fire and other risks including but not limited to water, storm, flood and rain water damage; and
(c) such other insurances as the Owner determines as are necessary, in respect of any loss or damage caused by, or arising from, or in connection with the Equipment or its use by the Hirer.
9.4 The Hirer must provide the Owner such evidence of insurance as the Owner may request from time
10. EXCLUSION OF CONDITIONS AND WARRANTIES
10.1 Certain conditions and warranties may be implied into this Equipment Hire Agreement by the
Competition and Consumer Act and State legislation and these terms and conditions are to be read subject to that legislation. These terms and conditions are to be read subject only to that legislation and no other conditions shall be imposed or implied into this Equipment Hire Agreement.
11. EXCLUSION OF LIABILITY
11.1 To the extent permitted by law:
(a) the Owner disclaims, and the Hirer releases the Owner from, all claims in respect of the Indemnity Subject Matter; and
(b) the Hirer indemnifies the Owner against all claims in respect of the Indemnity Subject Matter.
11.2 Under no circumstances will the Owner be liable to the Hirer whether in contract, tort, equity, by operation of statute or otherwise, in respect of any economic or consequential loss or damage of any nature whatsoever or any liquidated damages under any contract to which the Hirer is a party.
11.3 If, despite clauses 11.1 and 11.2, the Owner is found to be liable to the Hirer, the Owner’s liability to the Hirer under this Equipment Hire Agreement is limited to, at the option of the Owner:
(a) the hire of the Equipment again; or
(b) the payment of the cost of having the Equipment hired again. For the purposes of this clause 11.3, limitation of the Owner’s liability to the Hirer includes any liability based on the Owner’s advice or recommendation to the Hirer as to the type or capacity of the Equipment hired.
11.4 Regardless of clause 11.3, the Owner will be discharged from all liability for loss or damage unless a claim is commenced within six months of the date that the event, act or omission occurred which gives rise to the claim.
11.5 The operation of this Clause 11 continues after the cessation of this Equipment Hire Agreement.
12.1 In the event that:
(a) the Hirer fails to pay the Total Price under this agreement when due;
(b) the Hirer purports to or does sell, transfer, encumber or pledge as security the Equipment;
(c) the Hirer breaches any of its obligations listed for in clause 8;
(d) the Hirer becomes bankrupt or, if a corporation, becomes externally administered, then an event of default has occurred.
12.2 If an event of default has occurred then the Owner:
(a) shall be entitled to terminate this Equipment Hire Agreement and sue the Hirer for any loss or damage occasioned by reason of the event of default or the termination of this Equipment Hire Agreement;
(b) shall be entitled to enter upon the Hiring Address or any other premises or vehicle under the control or ownership of the Hirer, recover possession of the Equipment and, if necessary, store it in a safe place, all at the cost of the Hirer;
(c) may terminate any other hire agreement between the Owner and the Hirer for other equipment, and recover possession of that equipment as per clause 12.2 (b); and
(d) may recover as a liquidated sum the Total Price or any unpaid part of it and the other amounts payable under this Equipment Hire Agreement.
12.3 The Owner’s rights in consequence of an event of default will be, in addition to, and not in derogation of any other right or remedy which may have accrued to the Owner in respect of this Equipment Hire Agreement, or the hiring of the Equipment.
13. GENERAL PROVISIONS
13.1 The person signing the document for and on behalf of the Hirer hereby covenants with the Owner that he or she has the authority of the Hirer to enter into this Equipment Hire Agreement on the Hirer’s behalf and is empowered by the Hirer to bind the Hirer to this Equipment Hire Agreement and hereby indemnifies the Owner against all losses and costs incurred by the Owner arising out of the person so signing this Equipment Hire Agreement not in fact having such power and/or authority.
13.2 Termination of the hire of the Equipment shall not affect any of the terms and conditions that are expressed or implied to operate or to have effect after termination; and
3.3 Time is to be of the essence of all obligations of the Hirer in these terms and conditions.
13.4 This Equipment Hire Agreement constitutes the entire agreement between the parties and supersedes all prior communications, negotiations, arrangements and agreements, whether oral or written with respect to the subject matter.
13.5 These general terms and conditions are the Owners standard terms of contract, and no crossing out, obliteration or written notation on the text of these terms and conditions will be effective to vary or add to these terms and conditions. The only variations that will be recognised are those which appear in the Hire Schedule and which are agreed to by both parties.
13.6 Any provision of this Equipment Hire Agreement which is illegal, void or unenforceable is ineffective to the extent only of such illegality, voidness or unenforceability without invalidating any of the remaining provisions of this Equipment Hire Agreement.
13.7 The Hirer may not assign or transfer any obligation under this Equipment Hire Agreement without the prior written approval of the Owner. Unless stated in writing to the contrary, no assignment or transfer shall release the Hirer from any obligation under this Equipment Hire Agreement.
13.8 This Equipment Hire Agreement will be formed upon the Hirer accepting the Owner’s offer to hire the Equipment per the particulars contained in the Hire Schedule, whether that acceptance is communicated verbally or by the Hirer signing the acceptance in the Hire Schedule. To avoid doubt this Equipment Hire Agreement does not have to be signed by either party to be valid and binding on the parties.
13.9 Provided that the Hirer has entered into an Equipment Hire Agreement with the Owner containing these general terms and conditions, each subsequent instance where the Hirer takes equipment on hire from the Owner will be subject to these same general terms and conditions. The Hirer’s acknowledgement of receipt or delivery of the equipment hired in each instance shall also constitute an acknowledgement that these general terms and conditions apply to such hiring of the Equipment. To avoid doubt, these general terms and conditions will apply to each instance of equipment hire, regardless of whether they are signed by the parties.
14.1 The Hirer acknowledges that the hire of the Equipment may constitute a PPS Lease within the meaning of the PPSA.
14.2 Where the hire of the Equipment gives rise to a PPS Lease then the Hirer consents to the Owner perfecting its interest in the Equipment by entering a registration on the PPSR at the cost of the Hirer.
14.3 If requested by the Owner, the Hirer will promptly:
(a) provide all necessary information for the Owner to register its interest on the PPSR;
(b) provide access to the Equipment if reasonably required by the Owner for the purpose of perfecting its interest in the Equipment on the PPSR;
(c) grant access to the Owner to any private property upon which the Equipment is stored, if the Owner is required to take control of the Equipment to perfect or enforce its security interest.
14.4 The Hirer must not lease, bail or part with possession, dispose of or otherwise deal with the Equipment nor allow any security interests to be created on the PPSR in respect of the Equipment during the Hire Period.
14.5 If the Hirer fails to comply with Clause 14.4 the Hirer acknowledges and agrees:
(a) The Owner has not authorised the disposal or agreed the dealing extinguishes the Owner’s security interest;
(b) The Owner’s security interest continues in, and remains attached to, the Equipment;
(c) If the Owner loses title to or possession of the Equipment then the Hirer must reimburse the Owner for the cost of Equipment along with any costs incurred by the Owner in attempting to regain possession or control of the Equipment.
14.6 As the Grantor of a security interest under the PPSA, the Hirer waives the following rights:
(a) to receive notice of registration of a verification statement under section 157 of the PPSA upon registration of any security interest,
(b) a notice under section 95 of the PPSA;
(c) a notice under section 123 of the PPSA,
(d) a notice under sections 129 and 130 of the PPSA,
(e) a notice under sections 134 and 135 of the PPSA, and
(f) a statement under section 142 of the PPSA.
14.7 The terms grantor, perfect, security interest and control have the meanings given to them in the PPSA.
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