Formation of contract
Unless otherwise agreed by the Company in writing, the Terms apply exclusively to every agreement between the parties. The Company may vary or amend these Terms at any time, however varied and/or amended Terms will apply only to the hire of Equipment transactions between the Company and the Hirer that are entered into after such variation or amendment becomes effective.
Any quotation, price schedule or price lists provided by the Company to the Hirer is only valid for the period indicated by the Company and constitutes an invitation to treat only.
An order is accepted by the Company when the Company accepts, in writing, an offer from the Hirer or provides the Hirer with the Equipment.
The Company may in its absolute discretion refuse to accept any offer.
Equipment Hire process
The Hirer must provide the Company with any information necessarily required by the Company to process the Hirer’s order, including but not limited to the quantity and type of Equipment required and the Hire Period and the premises on which the Equipment will be located or installed.
The Hirer shall pay to the Company, the Hire Charges for the Hire Period in accordance with the Company’s invoice. Upon the expiration or termination of the Hire Period and/or these Terms, or at the Company’s request, the Hirer must return the Equipment to the Company in good repair, condition and working order, ordinary wear and tear excepted.
Payments and Default
All Hire Charges and other charges payable to the Company are strictly net and are payable on the due date for payment as specified in the Company’s invoice, namely:
(i) for a Hirer which holds an account with the Company, within thirty (30) days from the end of the month in which the Company issues its invoice to such Hirer;
(ii) for a Hirer which does not hold an account with the Company, no later than the date on which such Hirer collects the Equipment from the Company but in any case prior to such Hirer collecting the Equipment from the Company; and
(iii) for a Pay On Return Hirer upon return to the Company of the Equipment hired to the Pay On Return Hirer.
If not paid within the period specified, the Company may in its discretion, charge interest thereon at the rate of ten per centum per annum computed from the date upon which the sum became due until payment of same, such interest being agreed liquidated damages by way of compensation for delay in payment and not by way of penalty.
The Hirer is liable for all stamp duties, GST, any other taxes or liabilities or charges due to any statutory body or authority incidental to the Equipment hire.
The Hirer is also liable to pay upon request by the Company:
(i) the new list price of any Equipment damaged beyond repair that was caused or contributed to by the Hirer or was for whatever reason not returned to the Company;
(ii) the full cost of repairing any damage to the Equipment caused or contributed to by the Hirer;
(iii) all costs incurred in cleaning the Equipment if not returned in clean condition;
(iv) all costs incurred by the Company in delivering and recovering possession of the Equipment, including any costs caused by delays from the Hirer;
(v) the cost of fuel and consumables supplied by the Company and not returned by the Hirer; and
(vi) excess usage charges if the extent of usage in respect of particular items of the Equipment is specified by the Company.
The Company may require a specified amount of money to be paid by the Hirer as a security deposit prior to and as a condition of hire of the Equipment and the Company shall be permitted to deduct from such security deposit any Hire Charges or other money due but unpaid by the Hirer.
If the Hirer defaults in its payment or if any order is made for the sequestration of the Hirer’s estate or if the Hirer shall enter into any composition or arrangement with the Hirer’s creditors, or being a company enter into liquidation or be in breach of any of the Terms, the Company may terminate these Terms at its option and re-take possession of all Equipment and the Hirer authorises the Company by its servants, agents and employees to do all things and commit all acts which may be required for that purpose and that the Company may not be responsible for all or any claims, demands and causes of action of whatsoever kind or nature which may arise out of or as a result thereof. Any termination of these Terms shall be without prejudice to the rights of the Company accrued prior to such termination.
If the Hirer does not pay any Hire Charges or other charges on the due date or if the Hirer does not return the Equipment to the Company at the end of the Hire Period, the Company (which includes its employees or agents) is irrevocably authorised by the Hirer to enter the Hirer’s premises (or any premises under the control of the Hirer or as agent of the Hirer if the Equipment is stored at other premises) without notice or any legal process and use reasonable force to take possession of the Equipment without liability for the tort of trespass, negligence or payment of any compensation to the Hirer or anyone claiming through the Hirer whatsoever.
The Company may also charge the Hirer for and the Hirer must indemnify the Company for all expenses and costs (including legal costs and expenses) incurred by the Company, resulting from the default and in taking action to enforce its rights.
Unless the Hirer collects the Equipment from the Company’s premises, the Company may arrange for the delivery of the Equipment to the address specified by the Hirer at the Hirer’s cost.
The Company will use its reasonable endeavours to meet any estimated dates for delivery of the Equipment but will not be liable for any loss or damage suffered by the Hirer for failure to meet any estimated date.
The Company’s hire schedule shall be prima facie evidence of the contents stated in it and the Hirer may not lodge a claim with the Company for non-delivery or that the Equipment were not clean, in good condition or proper working order unless the Hirer provides written notice of the discrepancy or defect to the Company within seven days of delivery or expected delivery.
The removal or repositioning of the Equipment to another location may be performed by the Company at the Hirer’s costs unless the Equipment was delivered incorrectly.
Use of Equipment and acknowledgements
The Hirer acknowledges that it has satisfied itself as to the suitability, condition and fitness for purpose of the Equipment and that the Company has made no representations and given no guarantee or warranty that the Equipment is suitable for the Hirer’s intended purpose.
All samples, drawings, descriptive matter and specifications related to the Equipment issued by the Company are issued or published for illustration only and do not form part of the quotation by the Company unless specifically referred to therein.
The Company will not be liable for any losses or damage, either directly or indirectly incurred by the use of or in reliance upon the information provided in samples, drawings, descriptive matter and specifications related to the Equipment issued by the Company or for any errors, omissions or inaccuracies in the information provided therein.
The Hirer must at all times keep and maintain the Equipment in proper working order and condition, and in good and substantial repair, fair wear and tear excluded.
The Hirer must operate and maintain the Equipment in accordance with applicable laws and recognised methods and standards for Equipment including compliance with any manufacturer’s operating manual.
The Hirer must not sell, offer for sale, assign, mortgage, pledge under let, lend, permit any lien to exist ever, encumber, create a charge or security interest or dispose of the Equipment or the Hirer’s interest under these Terms in any way.
The Hirer must not remove or re-locate the Equipment from the approved site (if the Company specifies that the Equipment may only be used by the Hirer at the approved site) or re-hire out the Equipment to a third party without the written consent of the Company.
The Hirer grants the Company (including its agents and employees) the right, and will use best endeavours to ensure that others grant the Company the right, at all reasonable times upon the Company giving the Hirer reasonable notice to enter upon the premises where the Equipment may be located from time to time in order to inspect the state of repair of the Equipment and to observe the use or operation of the Equipment, to inspect any maintenance records in respect of the Equipment and to do any act, matter or thing which may be required to be done to give proper effect to the Terms of or to protect the Company’s rights in the Equipment.
During the Hire Period, the Hirer will be liable for any damage to or loss of the Equipment from any cause whatsoever including theft, storm, tempest, fire, act of God or other natural catastrophe but excepting fair wear and tear.
The Hirer acknowledges that it:
(i) does not have rights, title or interest in the Equipment except for those rights granted by the Company under these Terms;
(ii) may not claim any lien or interest in the Equipment to secure any liquidated or un-liquidated debt or obligation that the Company may owe to the Hirer;
(iii) must not remove, deface or obliterate any identifying plate, mark or number or any of the Equipment; and
(iv) must store the Equipment separately and securely and in such manner as to indicate that they remain the personal property of the Company.
If required to do so by the Company, the Hirer must insure the Equipment and keep it insured in the names of both the Company and the Hirer for their full insurable value against such risks as the Company may nominate or, in the absence of such nomination, against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Hirer and such policy must stipulate that any successful insurance claims are to be paid by the insurer directly to the Company.
Subject to clause (a), if the Equipment is lost, stolen, destroyed or damaged to an extent which in the opinion of the insurer with whom the Equipment is insured renders repair impractical or uneconomic, and the Company and the Hirer fail to agree on a replacement for the Equipment, the Terms shall be deemed terminated and the Hirer, in addition to any other obligation under these Terms, must pay to the Company within 7 days an amount equal to the Hire Charges payable up to the end of the Hire Period.
If required to do so by the Company, the Hirer must maintain public risk and product defect liability insurance in relation to the Equipment in the joint names of the Company and the Hirer for any single event for an amount of $20 million or such other amount specified by the Company from time to time.
The Hirer must produce a certificate of currency of the insurance required to be taken out by the Hirer under the Terms upon demand by the Company.
Personal Property Securities Act
For the purpose of section 20(2)(b) of the PPSA, the parties acknowledges that the collateral is Equipment, particularly described in the Company’s hire schedule or invoice to the Hirer from time to time.
The Hirer consents to the Company registering its security interest on the Personal Property Securities Register under this clause in the collateral and in all present and after acquired personal property of the Hirer to secure payment of the amount the Hirer owes to the Company from time to time and the Hirer must do all things (including signing any document) and provide all information necessary to enable the Company to perfect and maintain the perfection of any and each security interest granted to the Company by the Hirer.
If the Hirer re-sells or deals with the Equipment, the Hirer assigns absolutely and unconditionally in favour of the Company, the Hirer’s entitlement to all the proceeds of the re-sale or dealing and will hold such part of the proceeds of the re-sale or dealing on trust for and as the fiduciary agent of the Company immediately when they are received or receivable.
The Hirer waive its rights to receive notices of:
(i) the removal of an accession under section 95 of the PPSA;
(ii) a proposal to dispose of collateral under section 130 of the PPSA;
(iii) a statement of account under sections 132(3)(d) and 132(4) of the PPSA;
(iv) any other occurrence in respect of which the parties agree to waive notice under the PPSA at any time.
The Hirer also waive its right:
(i) to redeem collateral under section 142 of the PPSA; and
(ii) to reinstate this agreement under section 143 of the PPSA.
The rights and powers conferred on the Company by this document or the law are in addition to any rights and powers conferred by the PPSA.
For the avoidance of doubt, in addition to the powers under section 125 of the PPSA, the Company may take any action after default authorised by this document or the law, including delaying any disposal, leasing or action to retain any collateral.
The Hirer waives its rights to receive notice from the Company of a registration event under section 157(1) of the PPSA.
Limitation of liability and Indemnities
The Hirer agrees to use, operate and possess the Equipment at the Hirer’s risk and the Company has no responsibility or liability for any loss or damage to any property of the Hirer by reason of the use or possession of the Equipment by the Hirer.
To the full extent permitted by law, the Hirer agrees and discharges the Company (including its directors, shareholders, officers, agents and employees) from:
(i) all claims and demands; and
(ii) any loss or damage whatsoever and whenever caused to the Hirer or its 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 loss or otherwise, arising directly or indirectly from or incidental to:
(A) a breakdown of, or defect in, the Equipment or any accident to or involving the Equipment;
(B) the use, operation, repair, maintenance or storage (whether occasioned by the negligence of the Company or otherwise) of the Equipment;
(C) any other occurrence which may otherwise be suffered or sustained in, upon or near the Equipment; and/or
(D) the Company enforcing any of its rights under these Terms.
The indemnities and assumptions of liability contained in this clause will continue in full force and effect, notwithstanding the termination of these Terms.
Nothing in these Terms excludes, restricts or modifies any right or remedy or any guarantee, term, condition, warranty, undertaking, implied or imposed by any law which cannot be lawfully excluded or limited.
Where any law imposes a guarantee, term, condition, warranty, undertaking in relation to these Terms on the Company that is non-excludable, the Company’s liability will be limited to:
(i) the repair or replacement of the Equipment;
(ii) the supply of equivalent goods; or
(iii) the costs of repairing or replacing the Equipment.
A party (Initiating Party) claiming that a Dispute has arisen must give the other party (Recipient Party) a notice setting out brief details of the Dispute (Dispute Notice). Within 5 Business Days of service of a Dispute Notice, the Recipient Party must give the Initiating Party a notice setting out brief details of the Recipient Party’s position on the Dispute (Reply Notice).
If Dispute and Reply Notices are given, the parties will enter into good faith discussions with the objective of settling the Dispute. At least one meeting of the authorised representatives must take place within 10 Business Days of service of a Reply Notice.
If the Dispute continues to be unresolved, the parties must submit the Dispute to mediation in accordance with the Australian Commercial Disputes Centre (ACDC) Guidelines for Commercial Agreements.
The parties will agree on the appointment of mediator. If the Parties do not agree on the mediator to be appointed within 10 business days of either Party referring the Dispute to mediation, then the mediator is to be appointed by the ACDC.
The costs and expenses of the mediator will be shared by the parties equally.
This dispute resolution clause will not be a bar to the commencement of legal proceedings or taking of immediate action where the Company consider in its sole discretion that it is necessary to do so.
The laws of Victoria govern these Terms. The parties agree to the non-exclusive jurisdiction of the courts and tribunals of Victoria.
The Company’s failure to enforce any of these Terms shall not be construed as a waiver of its rights.
If any Term is unenforceable it must be read down to be enforceable, or if it can not be read down, the term may be severed from these Terms without affecting the enforceability of the remaining Terms.
The Hirer may not, without the consent of the Company, raise a set off or counterclaim available to it against the Company in reduction of its liability under the Terms.
A waiver by the Company of a default by the Hirer under the Term will not constitute a waiver of another or continued default of the same nature or any other provision of the Terms.
A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
No rule of construction applies to the disadvantage of the Company because it was responsible for the preparation of the Terms or any other agreements between the parties.
In these Terms:
collateral has the meaning under the PPSA;
Company means Vermont Hire Pty Ltd (ACN 004 962 743);
Hirer means the person, jointly and severally if there is more than one, obtaining the Equipment from the Company;
Hire Charges means any fees payable by the Hirer to the Company for the hire of Equipment;
Hire Period means the start and end date for the Equipment hire;
Equipment means the equipment leased from the Company to the Hirer including but not limited to the following kinds of goods or goods suitable for the following kinds of uses: access equipment, air compressors and tools, bricks, tiles and paving, car repair, compaction, concrete and masonry, earth moving, electric tools, entertaining, flooring and cleaning, generators, heating and cooling, high pressure cleaners, jackhammers and breakers, ladders, scaffold and trestles, landscaping and garden care, laser levels, lifting and shifting, nail and staple guns, painting and decorating, plastering, plumbing, pumps, safety, trailers, welding and any and all tools, parts and accessories for same;
Terms means the Company’s Standard Conditions of Hire, as amended from time to time;
security interest has the meaning under the PPSA;
Pay On Return Hirer means a Hirer designated so by the Company in the Company’s absolute discretion with special privileges relating to the payment of the Hire Charges; and
PPSA means Personal Property Securities Act 2009 (Cth).