Hire Terms
1. Definitions and Interpretations
a) In these Hire Terms:
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth). Terms defined by the Australian Consumer Law when used in these Hire Terms have the meaning given to them by the Australian Consumer Law.
“Company“ includes any one of the following entities: CT & B Badenoch trading as Baden Plant Hire (BN 18383026), Baden Plant Hire Pty Ltd (ACN 162 670 653), or Baden Civil Contracting Pty Ltd (ACN 126 619 118)and any of their successors and assigns.
“Fair or Reasonable” means “fair or reasonable” for the purposes of section 2 (1) of the Australian Consumer Law”.
"GST" means “GST” within the meaning of the GST Act.
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (as amended) and the following expressions bear the same meaning as in the GST Act: "tax invoice", "taxable supply" and "value".
“Hirer” includes the Hirer and its successors and assigns and any person named in a Hire Schedule.
“Hire Charges” means the hire charges and the fees set out in the Hire Schedule and in the Hire Terms.
“Hire Agreement” means the Hire Agreement for the hire of Plant and Equipment made between the Company and the Hirer and includes these Hire Terms, and/or any Hire Schedule or such other agreement that is made between the parties from time to time relating to the hire of the Company’s Plant and Equipment.
“Hire Period” means the term specified in the Hire Schedule or such other term as the parties may agree from time to time.
“Hire Schedule” means and includes any schedule, invoice, plant docket, declaration or similar document that contains details, among other things of the date, hire period and hours hired of the Plant and Equipment hired by the Hirer from the Company.
“Hire Terms” means these Hire Terms including the Hire Schedule.
“Hire Period” means the period specified in the Hire Schedule.
“Hire Schedule” includes any schedule, invoice, delivery docket, declaration or similar document that the Hirer is required to sign at the time any of the Company’s Plant and Equipment is hired that particularizes the Plant and Equipment taken for hire, the applicable charges, the hire commencement and termination dates and such other information that the Company may require relating to the hire.
“Plant and Equipment” means any of the plant and equipment and goods (including any associated or attached tools, accessories and parts) that are owned by the Company that are hired/supplied to Hirers under these Hire Terms.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any other legislation and regulation in respect of it and any terms defined by the PPSA when used in these Hire terms have the meaning given to them by the PPSA.
Site” means the land or premises located at the address on which Plant and Equipment is to be installed or located as requested by the Hirer and/or noted in the Hire Schedule signed by the Hirer when hiring the Plant and Equipment.
b) These Hire Terms apply to:
(i) The establishment, operation and use of an account by the Hirer with the Company;
(ii) All transactions effected by the Hirer with the Company for the supply/hire of Plant and Equipment on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of Plant and Equipment; and
iii) The exclusion of all others terms and conditions including any terms of hire of the Hirer.
c) These Hire Terms shall apply as if incorporated into each order/hire placed by the Hirer with the Company.
d) These Hire Terms are to be read with any Hirer’s Declaration and Agreement and/or Hire Schedule signed by the Hirer at the time of hiring Plant and Equipment from the Company. These documents will form part of and apply as if incorporated into the Hire Terms.
e) These Hire Terms may be varied only with the written agreement of the Company.
2. Hire Arrangements
a) The Plant and Equipment is hired for the Hire Period and for the Hire Charges/Fees as specified in the Schedule or as may be agreed upon between the parties from time to time and will continue for the Hire Period specified in the Hire Schedule and any extensions of that period and will end when the Plant and Equipment is back in the possession of the Company or until the Company decides to terminate the hire arrangements.
b) The Hire Charges/Fees specified in the Hire Schedule (including but not limited to the cost of labour, materials and fuel charges) may in the Company’s discretion be varied on the giving of 7 days’ notice in writing to the Hirer.
c) Unless otherwise stated in the Hire Schedule, invoices for payment shall be submitted to the Hirer for payment following delivery of the Plant and Equipment and payment of the invoice shall be made by the Hirer 30 days from the end of the month in which the invoice is rendered.
d) If the Hirer fails to pay the Hire Charges/Fees agreed upon by the agreed due date for payment, then by notice to the Hirer the Company may declare any amounts actually or contingently owing by the Hirer to the Company to be immediately due and payable.
e) If after 14 days from the date of the giving of a notice under clause 2d) hereof the Hirer has not paid the Hire Charges/Fees and/or other sums payable under these Hire Terms, the Company may, in its discretion, require the Hirer to pay by way of liquidated damages for breach of contract, a default charge in relation to the unpaid amount calculated by applying an interest rate of 2% per month on the unpaid amount on a daily basis from the date the unpaid amount became due until the date that it is paid in full.
f) The Plant and Equipment shall be operated and controlled at the direction of the Hirer and the Company shall not be responsible for any failure by the Hirer, or any of its servants and agents to properly operate and control the Plant and Equipment.
e) The Hirer shall be responsible to locate, expose and advise operators of the Plant and Equipment of the location of any underground services on the Site prior to the commencement of any works.
3. Exclusions of Warranties and Limitations of Liability
a) Subject to Clause 3(b) and except as expressly provided in these Hire Terms, all warranties, guarantees, terms, conditions, undertakings, representations or inducements whether express or implied, statutory or otherwise relating to these Hire Terms or its subject matter are excluded to the maximum extent permitted by law;
b) Nothing in these Hire Terms excludes, restricts or modifies any right or remedy, warranty, guarantee, term, condition, undertaking, representation or inducement implied by or imposed by any legislation which cannot be excluded or limited including any rights pursuant to the Australian Consumer Law.
c) Where any legislation implies or imposes a guarantee, term, condition, warranty, undertaking, representation or inducement in relation to these Hire Terms is not able to exclude it but is able to limit the remedy to the Hirer, then the liability of the Company for breach thereof is limited (as selected by the Company) to the following:
In the case of goods i) the replacement of the goods or the supply of equivalent goods;
ii) the repair of the goods;
iii) the payment of the cost of replacing the goods or of acquiring goods equivalent to the goods; or
iv) the payment of the cost of having the goods repaired, except where it is not Fair and Reasonable to limit liability in this way.
In the case of services
i) the supply of the services again: or
ii) the payment of the cost of having the services supplied again.
d) The Company:
i) excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of goods and services and for all claims under or relating to the Plant and Equipment whether caused by any act of negligence or breach of contract or otherwise by any of the Company’s employees, servants and agents to any property including (without limitation) to any underground pipes, cables or associated works of any Public Authority or any person, company or organization whatsoever and for any indirect damages or losses, or for any special, punitive or exemplary damages;
· ii) limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of goods and services or relating to the hire of the Plant and Equipment to the price payable by the Hirer for the hire of the Plant and Equipment; and
iii) excludes any liability for or in connection a claim that the Plant and Equipment that are supplied by the Company under these Hire Terms are not fit for a particular purpose, except where the Company has a liability as contemplated by paragraph (b) or (c)
e) The Hirer is liable for and shall indemnify the Company 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 the Company and any environmental loss, cost, damage or expense) in respect of:
i) Personal injury;
ii) Damages to intangible property; or
iii) A claim by a third party in respect of the Hirer’s hire or use of the Plant and Equipment. The Hirer’s liability under this indemnity is diminished to the extent that the Company’s breach of the Hire Terms (if any) or negligence causes the liability, claims, damage, loss, costs or expenses.
f) The indemnity set out in paragraph e) above is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the term of hire of the Plant and Equipment. It is not necessary for a party to incur an expense or make any payment before enforcing a right of indemnity conferred under these Hire Terms.
g) The Company will not be liable to the Hirer for any acts or omissions of any person supplied by the Company where that person is acting under the Hirer’s direction or control during the hire period relating to the Plant and Equipment and the services provided under these Hire Terms and the Hirer shall indemnify the Company against all liability, claims, damages, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis) arising from or incurred in connection with such acts or omissions.
h) The Hirer acknowledges that they are not relying upon any representations made by or on behalf of the Company in respect of the Plant and Equipment or its performance.
· 4. Retention of Title Arrangements
a) Property in and title to Plant and Equipment remains with the Company in all circumstances (even if the Hirer goes into liquidation or becomes bankrupt during the hire period).
b) The Hirer’s right to use the Plant and Equipment are as a bailee only.
c) The Hirer is not entitled to offer, sell, assign, sub-hire, charge, mortgage, pledge or create any form of security interest over or otherwise deal in any way with or part with possession of any of the Plant and Equipment and may only sub-hire the Plant and Equipment in accordance with the arrangements set out in clause 18 of these Hire Terms.
d) Unless otherwise agreed by the Company, the Hirer must identify and store the Plant and Equipment in a manner that clearly shows that they are the property of the Company other than with the written consent of the Company.
e) If the Company consents in writing to a sub-hire of the Plant and Equipment then:
(i) any sub-hire must be in writing in a form acceptable to the Company and must be expressed subject to the rights of the Company under these Hire Terms:
(ii) the Hirer must not vary the terms of the sub-hire without the prior written consent of the Company (in its absolute discretion);
(iii) the Hirer must ensure that the Company is provided at all times with up to date information about the sub-hire including the identity of the sub-hirer, the terms and state of the account and payment under the sub-hire and the location and condition of the Plant and Equipment;
(iv) the Hirer must take all steps (including registration pursuant to the PPSA) as may be required to:
(aa) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPSA;
(bb) enable the Hirer to gain (subject always to the right of the Company) first priority (or the priority agreed to by the Company in writing) for the security interest; and
(cc) enable the Company and the Hirer to exercise their respective rights in connection with the security interest; and
(v) all costs incurred by the Company pursuant to this sub-clause shall be borne by the Hirer including all costs or registration fees pursuant to the PPSA.
5. Plant and Equipment supplied are not to become fixtures
· a) The Hirer acknowledges and agrees that it is the intention of the parties that:
· i) Where the Plant and Equipment are or might be characterized as fixtures to land; or
ii) Where the Plant and Equipment rest by their own weight on the land then the following provisions apply.
· b) The Plant and Equipment shall be taken to be personal property of the Company and not fixtures despite having been connected to an electricity point, gas supply outlet, plumbing connection or another appliance or otherwise affixed to land.
· c) In the event of a default by the Hirer under these Hire Terms, that in addition to any other enforcement provisions set out in these Hire Terms, if the Plant and Equipment can be removed without causing significant damage to the premises on which they are located, the Hirer consents to the Company and any authorized contractor acting on behalf of the Company, entering upon the premises of the Hirer or any premises where they are located or have been installed for the purposes of disconnecting them from an electricity point, plant or generator, gas supply outlet, plumbing connection or another appliance (as the case may be) and removing and retrieving them.
· d) In the event of the Company exercising its rights under sub paragraph c), the Hirer:
i) must not make any claim against the Company; and
ii) must indemnify the Company against any claim by any third party (including without limitation the owner of the relevant property) in contract, tort (including negligence) or otherwise arising from or in connection with the exercise of those rights including without limitation for the cost of making good the premises arising from or connected with the removal of the Plant and Equipment or for any loss or damage (whether direct or indirect) suffered by the Hirer or any third party
6. Personal Property Securities Act arrangements
a) Acknowledgement of security agreement and security interest
· The Hirer acknowledges and agrees that:
i) These Hire Terms and/or any Hire Schedule signed by the Hirer) are a security agreement for the purposes of the PPSA;
ii) The Company has a security interest in the Plant and Equipment and in any present or after acquired property that represents “Proceeds”, “Accessions”, Processed” or “Comingled” goods (all as defined in the PPSA) that are in any way connected to or related to the Plant and Equipment; and
iii) The security interest secures all amounts owing by the Hirer to the Company in connection with the hire of the Plant and Equipment and all obligations arising under these Hire Terms.
b) Acknowledgment of arrangements for financing statements
The Hirer acknowledges and agrees as follows:
i) Financing statements and financing change statements The Company may at any time register a financing statement (or, if relevant, a financing change statement) on the PPS Register in relation to its security interest in the Plant and Equipment that may be supplied under these Hire Terms and any Hire Schedule that may include terms that:
· Describe the Company as the “secured party” and the Hirer as the “grantor”;
· Describe the Plant and Equipment supplied by the Company to the Hirer from time to time pursuant to these Hire Terms and any Hire Schedule as collateral in the class of “other goods” or in such other class as the Company may reasonably determine is applicable,
· Specifies that the security interest that the Company holds in the collateral is a PMSI in accordance with item 7 of the table in section 153(1) of the PPSA to the extent that it secures payment of the amounts owing in connection with that collateral; and
· Specifies that the security interest affects “proceeds” and, in particular, all present and after acquired property that represents proceeds of all Plant and Equipment may be supplied under these Hire Terms and any Hire Schedule.
ii) Period of registration The Company may register a financing statement or financing change statement on the PPSA Register for any period that the Company determines (in its discretion).
iii) Payment of fees and costs Upon request made by the Company, the Hirer must pay to the Company all fees, charges and expenses that the Company may reasonably incur in:
· Preparing, lodging or registering any financing statement or financing change statement in relation to any security interest that is granted to the Company under these Hire Terms;
· Maintaining any such registration; or
· Enforcing any security interest granted to the Company under these Hire Terms.
· These fees, charges and expenses may be incurred by or with an agent that acts on behalf of the Company.
iv) When registration to be effected The Company may register its security interest on the Register at any time so long as the Company believes on reasonable grounds that it will become a secured party in relation to the Plant and Equipment including, without limitation, when the Hirer signs a Hire Agreement, a Hirer’s Declaration and Agreement that forms part of a credit application and/or a Hire Schedule or otherwise adopts or accepts the Hire Terms in a manner proposed by the Company.
v) Attachment A security interest in the Plant and Equipment will attach to the Plant and Equipment at the time that the Hirer obtains possession of the Plant and Equipment and not at any later time.
vi) Do all things necessary The Hirer must do anything reasonably required by the Company to enable the Company to register the security interest as a PMSI and to maintain that registration.
c) Confidential Information
i) The Company and the Hirer agree that neither party will disclose to an interested person or to any other person, any information of the kind described in section 275 (1) of the PPSA except that the Company may disclose that information to an interested person where section 275(7) of the PPSA applies.
ii) The Hirer agrees that it will not authorize the disclosure of any information of the kind described in section 275 (1) of the PPSA.
d) Rights of recovery
If the Hirer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply Plant and Equipment, the Hirer agrees that the Company shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitation) the rights contained in section 123 of the PPSA to seize the Goods by any method permitted by law.
For these purposes, and without limiting any other rights of the Company under the PPSA as a secured party, the Hirer further agrees:
i) Upon demand made by the Company, to immediately deliver up to the Company the Plant and Equipment;
ii) To irrevocably authorise the Company to enter any premises occupied by the Hirer in order to search for, retrieve and remove the Plant and Equipment to which the Company has title and which are the subject of a security interest as provided for by these Hire Terms;
iii) To do all things necessary to immediately facilitate the Company’s access to the Hirer’s premises and to assist the Company to locate and identify the Plant and Equipment;
iv) To authorize the Company to resell or re-hire the Plant and Equipment seized and apply the proceeds of sale or re-hire in payment of any monies that the Hirer owes it;
v) In the event of any inconsistency with the provisions contained in section 123 of the PPSA and the provisions contained in this paragraph (d), the provisions of this paragraph (d) shall prevail.
7. Enforcement Expenses
If after the giving of 14 days written notice specifying the default the Hirer fails to pay the HIre Charges/Fees and/or any other amounts that are payable under these Hire Terms when due, then in addition to the sums payable by the Hirer under clause 2 hereof, the Hirer must pay to the Company upon demand any costs incurred in connection with enforcement of any of the Company’s rights in connection with the supply, hire or repossession of the Plant and Equipment including without limitation:
a) any legal costs (on a solicitor and own client basis) incurred by the Company;
b) any mercantile agents fees incurred by the Company in recovering or attempting to recover any amount payable by the Hirer under these Hire Terms;
c) any removal costs, freight costs, storage costs, electricity and telephone charges and
d) any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made or which should have been made by the Hirer.
8. Use of Plant and Equipment
(a) The Hirer acknowledges that the use of the Plant and Equipment carries with it dangers and risks of injury and the Hirer agrees to accept all dangers and risks.
(b) The Hirer agrees that the Plant and Equipment shall only be used in accordance with the provisions contained in these Hire Terms and in accordance with Company’s instructions and any procedures recommended by the Company from time to time.
(c) The Hirer will ensure that all persons operating or erecting the Plant and Equipment are:
· instructed in its safe and proper use,
· have sufficient knowledge of and understand all operation and safety instructions in relation to the Plant and Equipment and
· where required, hold valid proof of training or are fully qualified and licenced to use it.
(d) The Hirer must ensure that the Plant and Equipment is used strictly in accordance with Company’s instructions and any procedures recommended by the Company from time to time.
(e) The Hirer agrees that the Plant and Equipment will only be used for its intended purpose and in accordance with all laws and regulations and any manufacturer’s instructions and recommendations whether supplied by the Company or posted on the Plant and Equipment in regard to its operation, maintenance and storage.
(f) The Hirer must ensure that the Plant and Equipment is used at all times strictly in accordance with:
i) all applicable occupational health and safety laws, and
ii) any relevant industry usage, custom and standards for goods similar to the Plant and Equipment.
(g) The Hirer must at all times keep the Plant and Equipment in good condition and must not, without Company’s prior written consent, alter or make additions to the Plant and Equipment, or deface, remove or conceal any Company logo, identifying mark or number, or indication of the Company’s ownership of the Plant and Equipment.
(h) The Hirer must at all times ensure that the Plant and Equipment is used in a safe manner, and must not deliberately damage, abuse or mistreat it or allow it to be deliberately damaged, abused, or mistreated.
(i) The Hirer and its employees must not use the Plant and Equipment whilst intoxicated or under the influence of any banned substances or under medication that may in any way affect the Hirer’s or its employee’s capacity to operate the Plant and Equipment, accessories or consumables used in relation thereto.
(j) If any damage, loss, theft or destruction of the Plant and Equipment occurs, whether the Hirer was responsible or not, the Hirer must immediately notify the Company and provide full details of the damage, loss theft or destruction.
9. Movement of the Plant and Equipment
The Hirer may not move or alter the position of the Plant and Equipment on the Site without the consent in writing of the Company. The Hirer indemnifies Company against all claims for any loss or damage, howsoever arising, as a result of any movement of, or alteration to the Plant and Equipment without the Company’s consent.
10. Location and Use of the Plant and Equipment
(a) The Hirer must expressly inform the Company of the location of the Plant and Equipment when completing the Hire Schedule at the time of hiring the Plant and Equipment and at all times during the Hire Period.
(b) The Hirer must not without the written consent of the Company:
i) part with possession of the Plant and Equipment;
ii) allow any other person to use the Plant and Equipment; or
iii) permit the removal of the Plant and Equipment from the Site without the prior written consent of the Company.
(c) The Hirer must store the Plant and Equipment in a safe place on the site, and do all other things necessary to ensure its continued safety and preservation.
11. Missing and Damaged Plant and Equipment
(a) In the event that Plant and Equipment is stolen, goes missing or is damaged (except for fair wear and tear) during the Hire Period the Hirer the Hirer must immediately give notice of such event to the Company. The Company will as soon as practical after receiving such notice, make arrangements for the replacement or repairs of that Plant and Equipment.
(b) The Hirer must forthwith notify the Company if the Plant and Equipment breaks down or fails during the Hire Period and the Company will undertake repairs to the Plant and Equipment in situ. On no account shall the Hirer repair or attempt to repair the Plant and Equipment without the prior written consent of the Company.
(c) The Hirer shall be responsible for any loss and damage to the Plant and Equipment for any reason whatsoever except loss or damage which is caused by reasonable wear and tear. It is agreed that upon completion of the Hire Period, the whole or any part of the cost or replacement or repair of the Plant and equipment may at the Company’s discretion be charged to the Hirer
12. Hirer’s Obligations
The Hirer will:
(a) Take all reasonable steps to ensure that the Plant and Equipment is used in accordance with the terms and conditions contained in these Hire Terms and any special conditions that may be contained in the Hire Schedule.
(b) Without limitation to the provisions contained in clause 12 (a) hereof, where the Plant and Equipment is hired on a “dry hire” arrangement (ie. where the operator is supplied by the Hirer) the Hirer shall ensure that the Plant and Equipment is used:
i) in a skilful manner
ii) in a manner not in breach of any occupational health and safety legislation, other government or local government requirements and in particular the Hirer shall ensure that:
- the Plant and Equipment is used only by suitably trained, qualified and licensed persons and
- all safety and operational information supplied with the Plant and Equipment is conveyed to any person using it.
iii) Whilst the Plant and Equipment is not in use to:
- safely and legally park the Plant and Equipment
- secure all lockable areas of the Site and
- remove all keys and securely store them remote from the Plant and equipment.
(c) Pay to the Company all Hire Charges/Fees and other costs as stipulated in accordance with the Hire Terms and punctually on the due dates required for payment specified in the Hire Terms and the Company’s invoices.
(d) Take all reasonable steps necessary to ensure the safe-keeping of the Plant and Equipment, and undertake such measures as reasonably necessary to prevent the loss, theft of or damage to the Plant and Equipment however caused including without limiting the generality of the foregoing to prevent the loss, theft or damage attributable to any negligence, failure or omission of the Hirer.
(e) Accept full responsibility for and indemnify the Company against all claims in respect of any injury to persons, or loss or damage to property, arising out of the possession or use of the Plant and Equipment during the Hire Period however arising, whether from the negligence of the Hirer or the Company or other party. Without limiting the generality of the foregoing the indemnity shall apply whether or not the Plant and Equipment was being operated by an employee, servant or agent of the Hirer or any person for whose acts the Company might be or is held to be responsible in connection with the use of the Plant and Equipment.
(f) Accept full responsibility for and indemnify the Company in respect of any breach of any environmental laws (whether Federal, State or local) caused by use of the Plant and Equipment and shall further indemnify the Company against any costs, fines or penalties that may be imposed with respect to such breaches.
(g) At the expiration of the Hire Period (or such further period as the Company may agree) take all reasonable steps to ensure that the Plant and Equipment is returned/collected by the Company in the same condition as it was delivered in.
(h) Permit or procure permission for representatives of the Company to enter the Site or any other premises where the Plant and Equipment is located to inspect the Plant and Equipment from time to time.
13. Insolvency Events
If the Hirer:
a) becomes insolvent or bankrupt;
b) is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is appointed with respect to the Hirer or any of the Hirer’s 's assets;
c) makes an arrangement or composition with the creditors of the Hirer or attempts to make such an arrangement or composition;
d) is unable to pay their debts as they fall due;
e) fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) for payment of a debt;
f) ceases business; or
g) has execution levied against any of their assets
(each of which is an “Insolvency Event”)
then any monies actually or contingently owing to the Company at that time under any contract formed on these Hire Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).
14. Force Majeure
a) The Company may suspend any or all of its obligations to the Hirer that are affected by any act of God, fire, flood, storm, earthquake, strike, lockout, trade dispute, breakdown, theft, crime, delays in shipping, or the inability of the Company to procure necessary materials or articles preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a Force Majeure Event) and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.
b) When a Force Majeure Event ceases to affect the performance of any of the Company's obligations, the Company must lift any suspension of those obligations that it makes under paragraph a).
15. GST
a) Unless otherwise stated in these Hire Terms, all amounts payable by one party to another party are exclusive of GST.
b) If GST is imposed or payable on any supply made by a party under these Hire Terms, the recipient of the supply must pay the supplier, in addition to the GST exclusive consideration for that supply, an additional amount equal to the GST exclusive consideration multiplied by the prevailing GST rate. The additional amount is payable at the same time and in the same manner as the consideration for the supply.
c) A party's obligation to make payment under clause 15(b) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
16. Termination of Hire
a) The Company may terminate the Hire Agreement upon notice to the Hirer, if the Hirer:
i) Breaches any of these Hire Terms and/or, any of the terms and conditions contained in the Hire Schedule and/or if the Hire Charges/Fees or the additional charges are not met by the due date specified in the Hire Schedule and the invoices provided by the Company to the Hirer from time to time; or
ii) Is subject to an Insolvency Event;
b) Upon termination of the Hire Agreement, all amounts actually or contingently owed by the Hirer under the Hire Agreement and under the Hire Terms are immediately due and payable and the Company shall be entitled to immediately take possession of the Plant and Equipment without further notice. For these purposes, the Hirer irrevocably authorises Company or its representatives to enter onto the Site (or such other premises where the Plant and Equipment is located) and agrees to indemnify Company in respect of any claims, damages and expenses associated with its recovery.
c) In addition to the rights set out in clause 16 (b) hereof, upon termination of the Hire Agreement, the Company may sue for recovery of any damages or charges or loss suffered by the Company and/or may cancel any insurances effective in respect of the Plant and Equipment hired.
17. Changes to Hire Terms
(a) The Company may amend the Hire Terms at any time by publishing the amendments on its website or by otherwise notifying the Hirer.
(b) The amended Hire Terms will apply to any hire of the Plant and Equipment from the time the amendments are notified to the Hirer as aforesaid. Any such amendment will not affect the validity or enforceability of any agreement that has been made between Company and the Hirer in any way.
(c) Any other variation to the Hire Terms (except as set out in clause 17(a) and 17(b)) must be agreed in writing by the Company by its authorised representative and the Hirer.
18. Security interests and sub-hire
a) The Hirer must not create, purport to create or permit to be created any Security Interest in the Plant and Equipment other than with the express written consent of the Company.
b) The Hirer must not lease, hire, bail or give possession (sub-hire) of the Plant and Equipment to anyone else unless the Company (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to the Company and must be expressed to be subject to the rights of the Company under these Hire terms.
c) The Hirer may not vary a sub-hire without the prior written consent of the Company (in its absolute discretion).
d) The Hirer must ensure that the Company is provided at all times with up-to date information about the sub-hire including the identity of the sub-hirer, the terms and state of accounts and payment under the sub-hire and the location and condition of the Plant and Equipment.
e) The Hirer must take all steps including registration under the PPSA as may be required to:
i) Ensure that any Security Interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPSA;
ii) Enabling the Hirer to gain (subject always to the rights of the Company) first priority (or any other priority agreed to by the Company in writing) for the Security Interest and
iii) Enabling the Company and the Hirer to exercise their respective rights in connection with the Security Interest.
f) The Company may recover from the Hirer the cost of doing anything under this clause, including registration fees.
19. Signatory’s Warranties
Any person signing any document on behalf of Hirer in respect of the hire of the Plant and Equipment warrants that they:
(a) Have the Hirer’s authority to contract with the Company on the Hirer’s behalf; and
(b) Have been authorised by the Hirer to bind the Hirer to hire the Plant and Equipment on the terms set out in the Hire Agreement and the Hire Terms,
and agree to indemnify the Company against all losses, costs and claims incurred by Company if this is not the case.
20. Certificate
A certificate of the Hirer’s liability under the Hire Agreement (including under these Hire Terms and/or any Hire Schedule), signed by an officer of the Company, is prima facie evidence of the Hirer’s liability to the Company as at the date of the certificate.
21. Time
Time is of the essence for payment of any monies owed by the Hirer to the Company pursuant to the provisions specified in the Hire Agreement (including these Hire Terms and/or any Hire Schedule)..
22. Jurisdiction
Unless otherwise stated the Hire Agreement, these Hire Terms and/or the Hire Schedule are governed by the laws of the State of Queensland and the parties submit to the non-exclusive jurisdiction of the Court of that State or Territory in relation to any dispute or claim arising under or in connection with the supply/hire of the Plant and Equipment thereunder.
23. Non Merger
The covenants, agreements and obligations contained in the Hire Agreement, the Hire Terms and the Hire Schedule will not merge or terminate upon its termination and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.
24. Severance
If any provisions of the Hire Agreement, the Hire Terms and/or the Hire Schedule are wholly or partly invalid, unenforceable, illegal, void or voidable, they must be construed as if that provision or part of a provision had been severed from the Hire Agreement, the Hire Terms and the Hire Schedule and the parties remain bound by all of the provisions or part provisions remaining after severance.
25. Waiver
The non exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
26. Notices
a) PPSA Notices The Hirer agrees that the Company does not need to give the Hirer any notice under the PPSA (including without limitation a notice of a verification statement received from the Registrar) unless the notice is required by the PPSA and that requirement cannot be excluded.
b) Where default
In the event that the Company is entitled to terminate the Hire Agreement for any reason whatsoever, the Hirer agrees that the Company is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Plant and Equipment.
c) Change of Details
In the event that there is a change in any of the Hirer’s details and contact numbers or addresses set out in the Credit Application form completed by the Hirer, or in the Hire Schedule, the Hirers agrees to notify the Company in writing within 5 days of such change, failing which the Company may in its discretion terminate the Hire Agreement pursuant to the provisions contained in clause 16 hereof.
d) Service of notices
i) Any notice required by or contemplated by these Hire Terms must be in writing in the English language.
ii) Any notice by one party to the other shall be sufficiently served if served:
· personally;
· by facsimile transmission to the number specified in the application made to the Company by the Hirer to establish the arrangements under these Hire Terms or as otherwise notified to the other party, with a transmission confirmation receipt marked "OK";
· by e-mail to the address specified in the application made to the Company by the Hirer to establish the arrangements under these Hire Terms or as otherwise notified to the other party, if the e-mail is acknowledged by the recipient; or
· by pre-paid post to the party to be served at the registered office of the party or to the address specified in the application made to the Company by the Hirer to establish the arrangements under these Hire Terms or as otherwise notified to the other party, (in which case it is taken to be received 3 days after the date of posting).