Hire Agreement Terms and Conditions

1. Definitions & Interpretations In these Terms:

Confidential Information means a party’s information made available to the other party concerning the business, operations, finances, plans of the disclosing party, including customer lists or pricing information, but does not include information which is or becomes public knowledge (other than by reason of breach of this Hire Agreement).

Customer means the person, firm, company or other entity hiring the Equipment from the Owner as identified in the Hire Schedule.

Daily Hire Rate means the daily hire rate for the Equipment payable by the Customer to the Owner for each day (or part thereof) beyond the Scheduled End Date that the Customer is in possession of the Equipment.

Equipment means any equipment, such as a stump grinder, or related accessories, parts or components, supplied by the Owner to the Customer.

Full Replacement Cost means the sum of money to replace the Equipment in the event of damage, loss or theft, as specified in the Hire Schedule.

Hire Agreement includes these Terms and the Hire Schedule.

Hire Fees means the fees payable by the Customer to the Owner for hiring the Equipment, as set out in the Hire Schedule.

Hire Period means the period commencing from when the Customer takes possession of the Equipment until the Equipment is returned to the Owner (inclusive of weekends and public holidays).

Hire Schedule means a document (or email) setting out (without limitation) the details of the Equipment, the Scheduled Start Date, the Scheduled End Date, Hire Fees, and delivery terms.

Owner means Jones, Daniel Timothy Peter (ABN 70 920 715 896) trading as “Stump Grinder Hire Australia” and includes the Owner’s successors and assigns.

PPSA means the Personal Property Securities Act 2009 (Cth).

Scheduled End Date means the scheduled end date on which the Hire Period is to conclude, as set out in the Hire Schedule.

Scheduled Start Date means the scheduled commencement date on which the Hire Period is to commence, as set out in the Hire Schedule.

Special Conditions means any special conditions set out in the Hire Schedule.

Terms means this terms and conditions.

In these Terms, the following rules of interpretation and construction apply:
1. words in the singular include the plural and vice versa. Any gender includes the other genders;
2. if a word or phrase is defined its other grammatical forms have corresponding meanings;
3. “includes” means includes without limitation;
4. no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
5. a reference to:
  1. a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
  2. a person includes the person’s legal personal representatives, successors, assigns, and persons substituted by novation;
  3. any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;
  4. a right includes a benefit, remedy, discretion, or power;
  5. time is local to the time in Melbourne, Victoria, Australia;
  6. ‘$’ or ‘dollars’ is a reference to Australian currency;
  7. this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties;
  8. this document includes all schedules and annexures to it; and
  9. a clause, schedule or annexure is a reference to a clause, schedule, or annexure of this document;
6. the expression at any time includes reference to past, present, and future time and the performance of any action from time to time;
7. an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;
8. an agreement, representation, or warranty on the part of two or more persons is for the benefit of them jointly and severally; and
9. any provision that is expressly identified as a material term shall be construed accordingly, but the fact that a provision is not expressly identified as a material term does not, of itself, mean that the provision is immaterial when having regard to a Party’s rights under this Agreement.

Hire Agreement and Hire Period

A Hire Agreement is formed upon the acceptance by the Customer of a Hire Schedule or upon the Customer taking possession of the Equipment, in which case the Hire Schedule is deemed accepted.

Risk and Title

1. 1. The Customer assumes risk in the Equipment upon taking possession.
  2. The Owner retains title to the Equipment at all times. The Customer must not sell, sub-hire, transfer, encumber or otherwise deal with the Equipment.

Customer Responsibilities

1. 1. The Customer must ensure that the Equipment is suitable for its intended use and purpose.
  2. The Customer must operate the Equipment in accordance with any user manual, manufacturer guideline, safety instructions and all applicable laws, regulations and standards.
  3. The Customer must at all times keep and maintain the Equipment properly, in proper working order and condition and in good and substantial repair.
  4. The Customer must wear appropriate personal protective equipment, such as safety glasses, ear protection, gloves and footwear.
  5. The Customer must not tamper with, modify or repair the Equipment. If the Customer believes that the Equipment requires repair, the Customer is to contact the Owner as soon as reasonably practicable.
  6. The Customer acknowledges that the Equipment can be dangerous if it is not used properly. Use of the Equipment is entirely at the Customer’s own risk.
  7. The Customer must conduct a risk assessment before operating the Equipment and ensure that bystanders and pets are a safe distance from where the Customer is operating the Equipment. It is the Customer’s responsibility to contact Dial Before You Dig Australia.
  8. The Customer must only operate the Equipment on level, stable ground and must not operate the Equipment on any foreign objects such as rocks, metal and pipes.
  9. In the event that the Equipment breaks down, is damaged (whether due to an accident or otherwise), or becomes unsafe to use, the Customer must:
    1. immediately stop using the Equipment and notify the Owner in writing;
    2. take all reasonable steps to prevent injury occurring to persons or property;
    3. take all steps to prevent any further damage to the Equipment;
    4. not repair or attempt to repair the Equipment without the prior written consent of the Owner.
  10. In the event that the Equipment breaks down, is damaged or becomes unsafe to use (through no act or omission by the Customer), the Owner will:
    1. Repair the Equipment or provide a suitable substitute in a prompt and timely manner;
    2. Not impose Hire Fees for that portion of the Hire Period the Equipment could not be used.
  11. The Customer must obtain and maintain any insurances as set out in the Hire Schedule (if any). If the Customer is required to hold insurances, the Customer must provide to the Owner a certificate of currency evidencing their compliance with such insurance requirements within 2 days of a request.
  12. If the Owner is to deliver the Equipment or collect the Equipment, the Customer must grant the Owner full and unimpeded access to the delivery or collection site to allow the Owner to fulfil the delivery or collection of the Equipment.

Fees, Payment, Security Deposit & Default

1. 1. The Hire Fees are payable in full prior to collection or delivery.
  2. Notwithstanding the Hire End Date specified in the Hire Schedule, Hire Fees will continue to accrue until the Equipment has been returned to the possession of the Owner at the Daily Hire Rate.
  3. Payment may be made by cash, electronic funds transfer, credit or debt card. The Customer may be charged a reasonable fee for credit or debit card, which will the Customer will be made aware of at the time of processing payment.
  4. The Owner reserves the right to require the Customer to provide a security deposit. The Owner may apply that security deposit to any amount payable by the Customer to the Owner. Any balance will be refunded promptly once the Equipment is returned in accordance with this Hire Agreement, and all charges are finalised. The Customer must not take any steps to injunct or otherwise restrain the Owner from recovering amounts due or payable from the security deposit.
  5. The Customer authorises the Owner to securely store the Customer’s credit card details and debt that card for all amounts payable under this Hire Agreement, including Hire Fees, late return fees, cleaning fees, damage, loss or replacement costs, and all recovery costs.
  6. The Customer must on demand, reimburse the Owner for all costs, charges, expenses, fees, disbursements (including legal costs on a full indemnity basis) paid or incurred by the Owner of or incidental to:
    1. any breach, default, or repudiation of the Hire Agreement by the Customer; and
    2. the exercise or attempted exercise of any right, power, privilege, authority, or remedy of the Owner under or by virtue of the Hire Agreement, including all amounts incurred in repossession of the Equipment from the Customer under the terms of the Hire Agreement and in enforcing the Hire Agreement generally.
  7. The Customer is liable to the Owner to pay interest on overdue amounts, accruing at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) at the time of default plus 2% on a per annum basis.

Return of Equipment

1. 1. The Customer must return the Equipment to the Owner on the Scheduled End Date at the return address:
    1. in a clean state free of contaminants;
    2. free of any debris or dirt in the Equipment (including in any blades and guards);
    3. in good working order.
  2. Failure by the Customer to comply with clause 6.1 may result in liability, such as for cleaning fees or the cost incurred by the Owner in replacing any Equipment (including any parts, components or ad-ons, such as blades and guards).
  3. Failure to return the Equipment to the Owner will result in Hire Fees continuing to accrue.
  4. Notwithstanding clause 6.3, if the Customer fails to return the Equipment to the Owner 14 days past the Scheduled End Date, the Equipment will be deemed lost and the Customer will be liable to the Owner for the Full Replacement Cost, payable on demand, together with any costs and interest pursuant to clause 5.6 and 5.7.

Cancellation

1. 1. Cancellation within 24 hours of the Scheduled Commencement will incur a fee in the sum equal to one full day hire of the Equipment.
  2. If the Customer fails to take possession of the Equipment on the Scheduled Start Date, the Hire Schedule is deemed to be cancelled, in which case the Customer will be charged a fee in the sum equal to one full day hire of the Equipment.
  3. If the Customer has paid the Hire Fees to collection or delivery but the Hire Schedule is cancelled, or deemed to be cancelled, by the Customer, the Owner shall refund Hire Fees paid less the cancellation fee payable under clause 7.1 or 7.2.
  4. The Customer acknowledges and agrees that the cancellation fee is not a penalty, but a genuine pre-estimate of the loss the Owner may suffer if the Hire Agreement is cancelled.
  5. The Customer acknowledges that they will not receive any refund if the Customer takes possession of the Equipment but changes their mind and wishes to cancel the Hire Agreement or bring it to an end earlier than the Scheduled End Date.

Damage, Loss or Theft

1. 1. The Customer is responsible for, and indemnifies the Owner from, any loss, theft or damage to the Equipment during the Hire Period.
  2. If the Equipment is not returned to the Owner in proper working order and condition and in good and substantial repair, the Customer must pay to the Owner on demand, the Owner’s reasonable costs to bring the Equipment back to such condition.
  3. If the Equipment is damaged beyond repair, the Customer must pay to the Owner on demand, the Full Replacement Cost.
  4. For the avoidance of any doubt, fair wear and tear to the Equipment is accepted.
  5. Notwithstanding the Hire End Date specified in the Hire Schedule, Hire Fees will continue to accrue until the Equipment has been returned to the possession of the Owner.

Indemnity & Liability

1. 1. The Customer is liable for, and indemnifies and holds harmless the Owner (including its representatives, subcontractors and agents) from and against all actions, claims, proceedings or demands (including those brought by third parties) in respect of any injury, loss, or damage (whether director indirect) including in connection with the Customer’s negligence, wilful misconduct, recklessness, or use, transport, handling or possession of the Equipment. The Customer’s liability under this indemnity is reduced to the extent that the Owner’s negligence causes the liability.
  2. If the Customer is deemed to be a ‘consumer’ under the Australian Consumer Law, to the extent permitted by Law, if the Owner fails to comply with a guarantee applying under the Australian Consumer Law, the Owner’s liability is limited, at the discretion of the Owner, to:
    1. in respect of goods, the replacement of the goods, the refund of monies paid by the Customer to the Owner for the goods, the supply of equivalent goods or the payment of the costs of replacing the goods;
    2. in respect of services, the re-supply of the services, the refund of monies paid by the Customer to the Owner for the services, or the cost of the re-supply of the services.
  3. To the fullest extent permitted by law, the Owner is not liable for any indirect, consequential, or incidental damages, including loss of profit or downtime, or third party claims.

Termination

1. 1. The Owner may terminate the Hire Agreement with immediate effect, and repossess the Equipment, if:
    1. Payment of any amount payable by the Customer to the Owner is not made in full and when due.
    2. The Equipment is misused, neglected, or at risk of damage;
    3. The Customer fails to return the Equipment by the Scheduled End Date (unless that date has been extended or otherwise varied by mutual agreement).
    4. The Customer breaches any term of the Hire Agreement.
  2. The Customer grants in favour of the Owner, an irrevocable licence to enter upon its premises, without prior notice, to repossess the Equipment.
  3. The Customer grants the Owner permission to exercise its rights under this clause.
  4. Termination of this Hire Agreement does not affect any right or other remedy which a party has or had before termination.
  5. Clauses 3, 5, 6, 7, 8 9, 11, 12, 13, 14, 15 and this clause 10.5 survive the termination or expiration of this Hire Agreement.

Privacy

1. 1. The Owner may collect personal information of the Customer or their representatives, including name, address, contact details and payment information, for the purposes such as: providing hire services, processing payments, obtaining credit reports and allowing credit agencies to maintain a file, and enforcing this Hire Agreement.
  2. The Customer consents to the Owner using their personal information to fulfil the functions associated with the hire of Equipment, including assessing credit worthiness, detecting and preventing theft or misuse of Equipment, and to communicate with the Customer.
  3. The Owner will take reasonable steps to securely store personal information in accordance with the Privacy Act 1998 (Cth). The Customer may request access to their personal information by contacting the Owner.

Confidentiality

1. Each party will, and will ensure that its representatives will, keep any Confidential Information confidential and will not disclose such Confidential Information without the prior written consent of the other party, subject to clause 12.2.
2. A party may disclose Confidential Information where:
  1. the disclosure is to a third party and necessary in the performance of the Hire Agreement, including enforcement of rights or obligations in connection with this Hire Agreement;
  2. the disclosure is to a party’s representatives, including a professional adviser, insurer, or financier, and provided that such recipients are bound to the same or similar level of confidentiality obligations as under this Hire Agreement.

PPSA

1. 1. Notwithstanding anything to the contrary contained in this Hire Agreement, the PPSA applies.
  2. For the purpose of the PPSA:
    1. terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA; and
    2. this Hire Agreement is a security agreement and the Owner has a purchase money security interest in the Equipment; and
    3. the security interest is a continuing interest irrespective of whether there are monies or obligations owing to the Customer at any time.
  3. Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under the PPSA, such as sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA, except where notice cannot be excluded.
  4. The Parties agree to contract out of and nothing in the provisions in sections 96, 125, 129, 142 and 143 of the PPSA will apply to this Agreement.
  5. To the extent permitted by section 115 of the PPSA, the parties contract out of all of the provisions of chapter 4 of the PPSA.

Customer acting as Trustee

1. 1. If the Customer enters into this Hire Agreement as trustee of a trust, the Customer, and their successors as trustee of the trust will be liable under this Hire Agreement in their own, right and as trustee of the trust.
  2. The Customer warrants that at the date of this Hire Agreement:
    1. all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the Customer as trustee and have not been varied or revoked and the trust is a valid and subsisting trust;
    2. the Customer is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this Agreement on behalf of the trust and that this Agreement is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
    3. no restriction on the Customer’s right of indemnity out of or lien over the trust’s assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.

General

1. This Hire Agreement is governed by the laws of the State of Victoria, Australia, and the parties submit to the jurisdiction of the Courts in that State, sitting in Melbourne.
2. The parties each represent and warrant that they have full power and authority to enter into and perform their obligations under this Hire Agreement.
3. The Owner may assign this Hire Agreement to any third party without the Customer’s consent.
4. Each party must (at its own expense, unless otherwise provided in this Hire Agreement) promptly execute and deliver all such documents, and do such things, as any other party may from time to time reasonably require for the purpose of giving full effect to this provisions of this Hire Agreement.
5. The parties will bear their own costs and expenses in connection with the negotiation, preparation and execution of this Hire Agreement, and any other agreements or documents entered into or signed pursuant to this Hire Agreement, unless otherwise stipulated in this Hire Agreement.
6. Any provision of this Agreement, which is or becomes illegal, void or unenforceable in any jurisdiction is severable, and such provision will be ineffective in that jurisdiction to the extent of the illegality, voidness or unenforceability and will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
7. No failure to exercise or any delay in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
8. To the extent that there is any inconsistency between the Special Conditions and the Hire Agreement, the Special Conditions will prevail but only to the extent of the inconsistency.