THIS AGREEMENT is made effective on the date last executed and signed.

PARTIES:

HEAVYTEC PTY LIMITED ACN: 162 130 092 a company duly incorporated in the State of NSW and having its registered address at Kelly Partners Level 1 15-17 Church Street Maitland 2320. (the “Owner”)

And

THE RENTER

BACKGROUND:

1. The Owner and the Renter have agreed to enter into this agreement on the terms and conditions set out in this agreement.

2. The Owner agrees to rent the Equipment to the Renter for the Rental Period and the Renter agrees to take the Equipment on hire for that period and to pay the rental charge set out in the Price List for the Equipment for that Rental Period, together with any applicable GST, as set out in schedule 1, on the terms and conditions set out in this agreement.

OPERATIVE PART

1. Definitions and Interpretation
   1. Definitions

In this Agreement, unless the context indicates otherwise, the following words have the following meanings:

ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth). 

Agreement means this Agreement including any schedules or annexures and as varied from time to time.

Consequential Loss means, in relation to a breach of this Agreement, any indirect loss (including, without limitation, loss of Equipment, loss of profit and loss of revenue) resulting from the breach.

Consumer Guarantees means the guarantees relating to the supply of goods and services contained in the ACL.

Equipment means the Equipment as set out in Schedule 1 and any other equipment provided by the Owner to the Renter under the Hire Agreement, including any associated or attached tools, accessories, and where applicable, includes the GPS system installed and parts available for hire.

Expected Off Hire Date means the date that the Renter expects the Hire Period to end. This date is as advised to the Owner and the estimated date as set out in the Price List.  

Financial Year means each period of 12 months commencing 1 July and ending on 30 June.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hire Charge or Hire Charges means the rates and charges payable by the Renter for the hire of the Equipment as advised by the Owner to the Renter from time to time. 

Owner means Heavytec Pty Limited ACN: 162 130 092 and its substitutes, successors, permitted assigns and Related Entities or Related Body Corporates.

PPSA means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it, and the following words in clause 10 have the respective meanings given to them in the PPS Act: financing change statement, financing statement, purchase money security interest (or “PMSI”), register, registration and security interest.

Price List means the Owner’s published price list which is current at the date this agreement is signed by the Owner.

Related Entity has the meaning as that term is defined in section 9 of the Corporations Act 2001 (Cth).

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth).

Rental Period means period as agreed in writing between the parties or the date on which the Equipment is redelivered by the Renter or by anyone else to the Owner or, if the Equipment is stolen or damaged beyond repair, the date on which the insurance company confirms that it will accept that the Equipment has been stolen or is damaged beyond repair.

Renter means the entity or individual entering into this Agreement to hire the Equipment from the Owner.  

1. Interpretation

In this Agreement unless the context otherwise requires:

1. words importing any gender include every gender;
2. words importing the singular number include the plural number and vice versa;
3. words importing persons include firms, companies and corporations and vice versa;
4. references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
5. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
6. any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
7. the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
8. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
9. the word “including” (and related forms including “includes”) means “including without limitation”.

2. Hire Period
   1. The Hire Period commences on the earlier of the following:
      1. when the Renter takes possession of the Equipment; or
      2. if the Renter requests delivery and collection of the Equipment, the time the Owner delivers the Equipment to the address notified.
   2. The Hire Period is for the period as agreed in writing between the parties and ends when the Equipment is back in the Owner’s control or possession.
   3. The Hire Period includes weekends and public holidays.
3. Rental of Equipment
   1. The Owner agrees to rent the Equipment to the Renter for the Rental Period and the Renter agrees to take the Equipment on hire for that period and to pay the rental charge set out in the Price List for the Equipment for that Rental Period, together with any applicable GST, as set out in schedule 1, on the terms and conditions set out in this agreement. 
   2. The Renter is entitled to use the Equipment for the Rental Period and for any agreed extension of the Rental Period as agreed between the parties and in writing. 
   3. The Renter agrees to return the Equipment to the Owner’s address as advised to the Renter, at the end of the Rental Period.
   4. All extensions or terminations of a rental agreement with a term exceeding 12 months must be provided in writing by either party with at least 30 days’ notice, unless otherwise agreed in writing by Heavytec.
   5. Where the Company agrees to collect the Equipment from the Hirer with agreements less than 12 months, 14 day’s notice must be given unless otherwise agreed in writing by Heavytec.
4. Payment for Rental
   1. The Renter agrees to pay to the Owner the amount of the Hire Charge, transport fees, any damages and consumables set out in the Price List for the Equipment for the Rental Period, together with any applicable GST, as set out in schedule 1 of this agreement.
   2. The Renter authorises the Owner to complete any documents necessary or desirable to enable the Renter to make any payments or charges through any credit card system.
   3. The Renter will be charged for the hire of Equipment for the full Hire Period. For the avoidance of doubt, the Renter must continue to pay the Hire Charges and other charges after the Expected Off Hire Date if the Renter has not returned the Equipment to the Owner by the Expected Off Hire Date. This obligation survives termination of the Hire Agreement.
   4. Hire Charges will commence from the commencement of the Hire Period and continue until the date the Renter notifies the Owner that the Equipment will be available for collection or the Equipment is returned in accordance with clause 3. 
   5. Either on or before the delivery of the machine each renter must have a credit card provided or up front holding (Bond) payment of minimum 2 months rent to cover any fees incurred as per laid out in the pricing schedule. 
5. Renter’s Obligations
   1. This Hire Agreement is personal to the Renter and the Renter must not allow nor authorise any other person or entity to use, re-hire or have possession of the Equipment at any time, unless expressly agreed by the Owner in writing.
   2. The Renter agrees that before taking delivery of the Equipment, the Renter has satisfied itself as to the suitability and condition of the Equipment and the Renter will ensure that the Equipment is used only for the purpose for which it was designed by the manufacturer. Subject to clauses 7.2 and 7.3, the Owner makes no representations and gives no guarantee or warranty that the Equipment is suitable for the Renters intended purpose.
   3. The Renter must:

1. operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s instructions;
2. ensure persons operating or erecting the Equipment are suitably trained on its safe and proper use, qualified to use the Equipment and where necessary, hold a current licence to perform high risk work;
3. ensure persons operating Equipment with a GPS System installed, does so in accordance with its safe and proper use.
4. wear suitable clothing and protective equipment when operating the Equipment as required or recommended by the Owner or the manufacturer;
5. ensure that no persons operating the Equipment are under the influence of drugs or alcohol;
6. conduct a job safety analysis prior to using the Equipment;
7. ensure that no persons carry illegal, prohibited or dangerous substances in or on the Equipment; and
8. display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Equipment.
9. The Renter must:
   1. clean, fuel, lubricate and keep the Equipment in good condition and in accordance with the manufacturer’s and the Owner’s instructions at the Renter’s own cost;
   2. not in any way alter, modify, tamper with, damage or repair the Equipment without the Owner’s prior written consent;
   3. not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment;
   4. not remove fuel or oil tank caps, bund plugs or seals from the Equipment and ensure that they are in place when the Renter returns the Equipment; and
   5. arrange for the emptying of any waste tanks and water carts; and 
   6. At all times during the Hire Period, the Renter must store the Equipment safely and securely not exposed to environmental impacts.
   7. Advise Hevytec of machine hours as per specified service intervals. If this is not done renter may be liable for damages due to lack of maintenance. 
   8. Renter has a duty of care to ensure the machine has no fault lights, has engine oil, water and correct fluid levels as per rental maintenance pre start checklist. . 
   9. (Battery specific) Renter has a duty of care to ensure the machine has the correct battery fluid levels and maintain charge as per rental maintenance pre start checklist.  

5. The Renter will allow the Owner to enter the Renter’s premises and inspect and maintain the Equipment from time to time during the Hire Period during normal working hours. If the Owner cannot inspect or maintain the Equipment during normal working hours, then additional charges may apply. The Renter can also request to conduct a joint inspection of the Equipment with the Owner at the during or end of the Hire Period.
6. Whenever the Renter is moving the Equipment, they must advise Heavytec, the Renter must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturer’s guidelines. The Renter (or any contractor the Renter engages) must observe any safety directions advised by the Owner and/or the manufacturer of the Equipment to ensure its safe loading and handling.
7. The Renter must not remove the Equipment from the State or Territory in which the Renter hired it without the Owner’s written consent. 
8. The Renter must use best endeavours to ensure that the Equipment is not contaminated with any hazardous substances (including asbestos). The Renter must advise the Owner of any risks of hazardous substance contamination to the Equipment as soon as they become apparent. Where Equipment may have been subjected to contamination, the Renter must effectively decontaminate the Equipment, as well as provide the Owner with written details of decontamination processes applied.  If, in the Owner’s opinion acting reasonably, the Equipment is not capable of being decontaminated, the Renter will be charged for the replacement cost of the Equipment.
9. Any electrical Equipment provided by the Owner will be tested and tagged before it is hired to the Renter, but during the Hire Period, the Renter is responsible for arranging the re-testing and re-tagging of any electrical Equipment in accordance with the manufacturer’s instructions and the applicable Australian Standard(s) and Regulatory Authority requirements at the Renter’s cost. The Owner is able to arrange for such re-testing and re-tagging of the electrical Equipment at the Renter’s cost. Except where the Owner arranges for re-testing and re-tagging of the electrical Equipment, the Renter will be liable for any damage caused to the Equipment resulting from incorrect testing.
10. The Renter warrants that:
    1. the particulars are correct in every respect and are not misleading in anyway including, without limitation, by omission.
    2. the Renter holds a current driver’s licence valid for the type of Equipment hired.
    3. in selecting the Equipment the Renter has not relied on the Owner’s skill and judgment or on any representations made by or on behalf of the Owner and agrees that the Equipment comply with their description, are in merchantable condition and are fit for the Renter’s purpose.

6. Repossession and Ownership
   1. The Owner may retake possession of the Equipment if the Renter breaches any provision of this agreement.
   2. The Renter acknowledges that the Owner owns the Equipment and in all circumstances retains title to the Equipment. The Renter’s rights to use the Equipment are as a bailee only.
   3. The Renter is not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Equipment in any way. 
   4. In no circumstances will the Equipment be deemed to be a fixture. 
   5. The Renter does not have any right to pledge the Owner’s credit in connection with the Equipment and agrees not to do so. The Renter also agrees not to agree, attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage let on hire or otherwise part with or attempt to part with the personal possession session of or otherwise deal with the Equipment and not to conceal or alter the Equipment or make any addition or alteration to, or repair of, the Equipment.
7. Indemnities and Exclusion of liability
   1. Subject to clause 7.3, and except as expressly provided to the contrary in this Hire Agreement, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to this Hire Agreement or its subject matter are excluded to the maximum extent permitted by law. 
   2. Nothing in this Hire Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Consumer Guarantees.
   3. Where the Owner is not able to exclude a guarantee, term, condition, warranty, undertaking, inducement or representation imposed by legislation in relation to this Hire Agreement,(‘Non-Excludable Provision’), and the Owner is able to limit the Renter’s remedy for a breach of the Non-Excludable Provision, then the Owner’s liability for breach of the Non-Excludable Provision is limited to (at the Owner’s election):
      1. in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
      2. in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
   4. Subject to the Owner’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, the Owner’s maximum aggregate liability for all claims under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the fees paid by the Renter under this Hire Agreement. In calculating the Owner’s aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by the Owner for a breach of any Non-Excludable Provisions.
   5. Subject to clauses 7.3 and 7.4, the Owner will not be liable to the Renter for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs the Renter has incurred, amounts that the Renter is liable to their customers for or any loss suffered by third parties under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage. 
   6. The Renter is liable for and indemnifies the Owner 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 Owner and any environmental loss, cost, damage or expense) in respect of:
      1. personal injury;
      2. damage to property; or
      3. a claim by a third party,

in respect of the Renter’s hire or use of the Equipment or the Renter’s breach of the Hire Agreement. The Renter’s liability under this indemnity is diminished to the extent that the Owner’s breach of the Hire Agreement or the Owner’s negligence causes the liability, claims, damage, loss, costs or expenses.

7. Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Agreement.
8. The Owner will not be liable to the Renter for any acts or omissions of any person supplied by the Owner where that person is acting under the Renter’s direction and control during the Hire Period and the Renter indemnifies the Owner 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 Owner and any environmental loss, cost, damage or expense) arising from or incurred in connection with such acts or omissions.

8. GST 
   1. Terms used in this clause 8 have the same meaning as those terms in A New Tax System (Goods and Services Tax) Act 1999 (Cth). 
   2. If the supply of Equipment under this Agreement is subject to GST, the Renter must pay the Owner the price plus an amount equal to the GST payable on the supply (if the price is expressly stated as being plus GST).  
   3. The Renter must pay the additional amount payable under clause 8.2 on the same date as the price is payable provided that no payment is required under this clause or clause 8.2 until the Owner has issued the Renter with a tax invoice in respect of the relevant supply.   
   4. The Owner must issue a tax invoice in the format required by the law to the Renter for the supply. The tax invoice must set out the amount of the GST payable by the Renter.  
   5. The Owner warrants that it is registered with an Australian Business Number and for GST purposes at each time a taxable supply is made. 
9. Insurance
   1. Extent of insurance

The Renter must effect and maintain at all times during the Hire Period and any extension of the Hire Period:

1. general insurance: insurance of the Equipment for their full insurable value against damage or destruction caused by accident, any insurable risk commonly insured against in regard to equipment of a similar nature to the Equipment and such other insurable risks as the Owner may reasonably stipulate.
2. indemnified risks: insurance with respect to the Renter’s liability to the Owner pursuant to the indemnity provisions in clause 7;
3. third party risks: insurance against all third party risks including liability for damage or injury of any kind to any property or person and also against other risks to the full extent required by law by a policy inuring for the benefit of the Owner and the Renter;
4. public risk: public risk insurance relating to the Equipment for an indemnity (including damage to property of any person) of not less than $20 million or such other amount as the Owner may from time to time reasonably stipulate for any one accident (to the extent that such insurance is not covered in any insurance effected by the Renter under clause 9.1(a), clause 9.1(b) or clause 9.1(c)).

2. Conditions of insurance:
   1. The insurances required by clause 9.1 must be taken out in the names of the Owner and the Renter for their respective rights and interests. The Renter must be shown as the named insured and the Owner as the joint named insured. Each policy must expressly provide that all of its provisions, except the limits of liability, operate in the same manner as if they were a separate policy covering each insured.
   2. The Renter must not, without the prior written consent of the Owner, permit any reduction in limits or coverage in any insurance policy affecting or relating to the Equipment or this Agreement.
3. Recovery of insurance moneys:
   1. While any moneys remain owing to the Owner under this Agreement, the Owner will be entitled to receive all moneys payable to the Renter or to the Owner and the Renter by the insurer under any relevant insurance policy or by any other person in respect of damage to, or loss of, the Equipment. The Renter appoints the Owner and each and every duly authorised officer of the Owner the Renter’s attorney to recover or reasonably compromise in the Renter’s and the Owner’s respective names any claim for loss or damage under any such policy or otherwise and to give effectual releases and receipts for any claim.
4. Protection of insurance:
   1. The Renter must not at any time do or suffer anything to be done to the Equipment or use, modify or otherwise affect the Equipment by which the insurance on the Equipment against damage from any insurable risk may be rendered void or voidable. In any case where the Owner approves in writing of any proposal of the Renter to increase the risk of damage to the Equipment, the Renter must pay any and all additional premiums and any other amounts of whatever nature necessary or desirable to extend the insurance cover on the Equipment required on account of the additional risk. 
5. PPSA
   1. The Renter:
      1. acknowledges that the Owner may register any actual or impending PMSI under the PPSA in respect of all Equipment; and 
      2. consent to the Owner registering the PMSI under the PPSA and will do all things reasonably necessary to assist the Owner to register the security interest.
   2. The Owner is responsible for:
      1. the preparation and registration of the financing statement or financing change statement; and 
      2. payment of any fees associated with the registration, 

and the Renter waives the right to receive from the Owner verification of the registration pursuant to section 157(3)(b) of the PPSA.

3. If the Renter sub-hires the Equipment to an agent, contractor subcontractor or any third party (“Sub-hire”) and the Sub-hire is a security interest under the PPSA, The Renter agrees that the Renter will protect the Owner’s interests in the Equipment by:
   1. registering a security interest itself; or
   2. assigning, by this clause, to the Owner all rights as bailor, to enforce against an agent, contractor or subcontractor. 
4. The Renter has an obligation to give the Owner notice if another party with a security interest in the Equipment seizes or otherwise deals with the Owner’s PMSI in the Equipment.
5. If the Renter grants any security interest in the Equipment to another party, that other party must acknowledge the priority of the Owner’s PMSI.  
6. The parties agree that neither party is required to give notice to the other under the PPSA unless the obligation to give the notice cannot be excluded.  

11. No waiver
    1. Time is of the essence of this agreement, except that no delay by the Owner in exercising any right or power will operate as a waiver of that right or power. Nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
12. Governing law
    1. This agreement will be governed by the law of New South Wales.
13. General
    1. Amendment:

This Agreement may only be amended or supplemented in writing, signed by the parties.

2. Relationship between the parties:

The relationship between the parties is one of independent contractors. Nothing in this Agreement is to be construed as constituting the parties as partners, or as creating the relationship of employer and employee between the parties and any employee of one party and the other party. Neither party has the authority to act for or to create or assume any responsibility for or obligation on behalf of the other party.

3. Entire Agreement:

This Agreement is the entire Agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in this Agreement. All representations, communications and prior Agreements in relation to the subject matter are merged in and superseded by this Agreement.

4. Severability:

Any provision in this Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

5. Counterparts:

This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. 

6. Disputes:

If a dispute arises out of or in relation to this Agreement, the parties agree to meet to resolve the dispute by negotiation in the first instance.  If the dispute is not resolved within 30 days of the date that one party is notified of the dispute by the other party then the parties agree to refer the dispute to an independent expert to determine.  The parties agree that any determination made by an independent expert is final and binding on all parties and there will be no right to appeal the decision of the independent expert. This clause survives the expiry or termination of this Agreement, any and all fees will be at the renters cost if found to be in the wrong across any and all litigation proceedings. 

7. Give effect:

The parties will do all things reasonably necessary to give effect to the terms and intent of this Agreement.

8. Survival of terms:

Any term of this Agreement that is expressed, or meant, to survive the expiry or termination of this Agreement, shall so survive the expiry or termination of this Agreement. 

Terms and Conditions for Heavytec Pty Limited

Trading as Central Lift Trucks

1. Definitions and interpretation

1. Definitions
2. In this Agreement:

Agreement means the terms and conditions contained in this document.

Australian Consumer Law has the meaning given to it in the Competition and Consumer Act 2010 (Cth).

Confidential Information means all know-how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form. This includes inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, biological materials, devices, models, business plans, policies and any other materials or information which the party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of that party or its Related Bodies Corporate or its or their employees or officers. Confidential Information of a party does not include information which:

1. is now in the public domain, or enters the public domain after the commencement date, through no fault of the other party;
2. can be shown by contemporaneous records of the other party to have been known to the other party at the time it is received pursuant to this Agreement;
3. is provided to the other party by a third party after the commencement date, lawfully and without violating any restriction on its disclosure; or
4. can be shown by contemporaneous records of the other party to have been independently developed by the other party without reference to the Confidential Information.

Commencement Date means the date on which the Customer signs this Agreement. 

Customer means the party to whom equipment is provided to by the Supplier, being the party to the Hire Agreement. 

Delivery means delivery of the Equipment to the Customer at the address as agreed between the parties. 

Equipment means the equipment to be hired by the Customer as outlined in Schedule 1 of the Hire Agreement. 

Fees means the fees payable for the hire of the Equipment and as agreed between the parties in accordance with the Hire Agreement. 

Force Majeure Event means any event outside the reasonable control of the parties including acts of God, war, riots, strikes, lock outs, trade disputes, fires, break downs, mechanical failures, interruptions of transport, Government action, lockdown, Pandemic or any other cause whatsoever, whether or not of a like nature to those specified above.

Heavytec Pty Limited means both the Supplier and also our entity Central Lift Trucks ABN 86 162 130 092 and are interchangeable with “us” “we” “our”.

Hire Agreement means the agreement entered into between the parties for the hire of the Equipment. 

GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Invoice means the written invoice issued by Central Lift Trucks to the Customer upon acceptance of a quote for the Hire of the Equipment.

Payment means the fees to be paid to Heavytec Pty Limited by the Customer in accordance with the Hire Agreement, as set out in Schedule 1 of the same.

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

Site means the location where the Supplier provides the Equipment to the Customer, as nominated by the Supplier, or as agreed between the parties.

Supplier means Central Lift Trucks. 

Term means the term of this Agreement as set out in clause 2.2 and 2.3.

Website means the Central Lift Trucks Website https://www.centrallifttrucks.com.au/.

2. Interpretation
3. In this Agreement:

1. any reference to a party includes its successors and permitted assigns;
2. headings are for convenience only and have no legal effect;
3. the singular includes the plural and vice versa;
4. “including” and similar words do not imply any limitation;
5. a reference to $ is to the Australian currency;
6. a reference to legislation or a legislative provision includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them; and
7. if the performance of an obligation under this Agreement falls due on a weekend or public holiday day it must be performed on the next business day.

2. Agreement
   1. By entering into this Agreement with the Supplier, the Customer confirms they accept these Terms and Conditions and agree to comply with them. 
   2. The Supplier agrees to provide the Equipment to the Customer as agreed by the Supplier and the Customer in accordance with and subject to this Agreement.
   3. The Customer is to do all things reasonably necessary as requested by the Supplier, to enable the Supplier to provide the Equipment.
   4. The Customer appoints the Supplier to provide the Equipment in accordance with these terms and conditions.
   5. This Agreement will start on the Commencement Date and will continue until terminated in accordance with its terms.
3. Payment 
   1. The Customer agree to pay the Fee as specified in the Hire Agreement and agreed to between Customer and the Supplier for the term of the Hire Agreement. All Fees are payable in advance. 
   2. Supplier will charge the card on file at the start of the month as per the agreement. If COD and no credit card they will be invoiced at the start of the month and payment required within 7 days unless stated otherwise in the credit account application. The Customer acknowledges that the Fees are based on current prices of labour and spare parts. 

The Supplier may at any time by seven (7) days’ notice in writing to the Customer increases the Fees to take account of increases in the price of labour and spare parts. The customer shall increase the increased hire Fees from the date specified in such notice. 

3. The Supplier must provide to the Customer receipts and such other supporting documentation if the Customer reasonably requests in respect of all expenses claimed. 
4. If the Customer fails to pay each Invoice by the seven (7) days set out in clause 3.3, they will be in breach of this Agreement. 

4. Delivery 
   1. The Supplier will provide details of Delivery times prior to the Delivery. These times are indicative only and may be subject to change. The Supplier will not be liable for late Delivery under circumstances which are outside the Supplier’s control. 
   2. The Rental Fee does not include any Delivery fees. 
   3. Any amount quoted to the Customer relates to the hire of the Equipment for the Term stipulated. 
   4. If the parties agree that the Equipment is to be collected from or returned to the Supplier’s address, the Customer must ensure the Equipment are collected as agreed between the parties in writing prior to the collection and returned agreed between the parties in writing prior to the return. The Customer must advise the Supplier in advance what time they will be attending so the Supplier can meet them on site.
   5. The Equipment must be returned or available for collection by the Supplier at the end of the Term. If the Equipment is not returned or cannot be collected on the date being the end of the Term, an additional fee of 50% of the daily rate will be charged to the Customer for every day that the Equipment remains unavailable for collection. 
   6. If the Supplier is not able to retake possession of the Equipment within fourteen (14) days of the end of the Term, the Customer shall immediately upon demand by the Supplier pay to the Supplier the current market value of the Equipment. The current market value is to be determined by a valuer nominated by the Supplier. 
   7. Standard Delivery hours and pick up hours are between 7am and 5pm. Any required delivery or pickup outside of these standard hours will incur an additional surcharge.
   8. Public holiday surcharges for Delivery and pick up on public holidays will be charged by the Supplier.
   9. Delivery and pickup will be made to street level, ground floor and level floors only. If Delivery is higher than ground level and includes stairs or hard access levels the Supplier must be notified before Fee is paid as extra surcharges apply. If no notice is provided the Supplier can charge the Customer the additional fees incurred by them.
   10. Any changes to requests for the Equipment being hired must be made with at least thirty days (30) days written notice to the Supplier and the Supplier will use their best endeavours to provide the requested Equipment, subject to availability. 
5. Equipment Conditions
   1. All Equipment must be cleaned by the Customer prior to pick up by the Supplier. The Supplier will not accept returned Equipment that is dirty or has not been cleaned by the Customer. If this occurs the Customer will be liable for the additional cost of cleaning the Equipment and the Supplier will provide an invoice to the Customer for this amount. 
   2. The Customer must maintain the Equipment in the same state of repair as at the Delivery date, except to the extent of fair wear and tear. 
   3. The Customer must charge and top up with distilled water all batteries being part of the Equipment and keep a daily log thereof. 
   4. The Customer must use in connection with the Equipment only the best procurable fuels and lubricants of a type in accordance with instructions from the Supplier.
   5. The Customer must maintain a logbook recording the days and hours during which the equipment was used and must make such logbook available for inspection by the Supplier and its request. 
   6. The Customer acknowledges that the Supplier is authorized to enter upon any premises on which the Equipment is located for the purposes inspecting and testing the Equipment. The Supplier will provide the Customer with at least 24 hours’ notice prior to entering the premises and will only do so during the ordinary working hours. 
   7. All Equipment will be delivered to and collected from the same address that the Delivery occurred, subject to clause 4.4. The Customer is not permitted to remove or transport any of the Equipment to any other location which is not the Delivery or location provided by the Customer prior to the Commencement Date unless prior written consent is provided by the Supplier, such consent is at the sole discretion of the Supplier
6. Damage to Equipment
   1. The Customer is not permitted to alter, change or manipulate the Equipment in any way which may cause damage whether superficial or not.
   2. Once the Equipment has been Delivered the Customer will be responsible for the Equipment and is liable for any damage, loss or destruction to any Equipment caused by the Customer any associated person or any persons with the Customer (unless caused by the negligence of the Supplier, its employees or agents).
   3. The Customer must report to the Supplier any damage to the Equipment of the type referred to in clause 6.2 immediately upon becoming aware of the damage.
   4. The Customer must pay to the Supplier the cost of repairing and making good any damage of the type referred to in clause 6.2 including the cost of labour and materials and replacement of Equipment and must if required by the Supplier itself repair and make good any such damage.

5. The Customer must pay to the Supplier the amount of any revenue which the Supplier calculates to have been lost by reason of any damage of the type referred to in clause 6.2 or the repairing and making good of any such damage. Any damages as per fixed pricing gets charged to card during inspections, any major damages will be invoiced

7. Default and termination  
   1. Either party may terminate this Agreement immediately by giving written notice to the other party if at any time:
      1. the other party commits a breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, fails to remedy the breach within twenty-one (21) days of receiving written notice to do so; or
      2. the other party becomes insolvent, enters into liquidation or receivership, becomes subject to any form of external administration, makes a composition or arrangement with its creditors generally, or takes advantage of any statute for the relief of insolvent debtors.
   2. Upon termination or expiry of this agreement for any reason:
      1. the Customer must immediately pay to the Supplier any outstanding moneys for the work completed up to and including the day on which the agreement terminates. 
   3. If the Customer terminates this Agreement before the expiry date of the Hire Agreement, the Supplier is entitled to charge seventy-five percent of the Fees payable under the remaining term. 
   4. If the Customer:
      1. is in default of a payment obligation two or more consecutive times;
      2. becomes unable to pay its debts as and when they fall due; or

then the Supplier may, without prejudice to any other rights or remedies available to it under this Agreement or otherwise, by notice in writing to the Customer: 

3. suspend the Agreement and require the return of the Equipment; 
4. claim immediate payment of all moneys due under the Term by the Customer in respect of the hire of the Equipment, which will then be immediately due and payable; 
5. continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
6. In the event that the Customer commits an event of default as specified in this clause 3, all moneys owing to the Supplier become immediately due and payable together with all interest, debt collection costs, legal costs and expenses associated with the exercise or enforcement of the debt on an indemnity basis.

8. Confidential Information
   1. Each party may use and disclose the Confidential Information of the other party to the extent necessary for the performance of this Agreement.
   2. Each party may disclose Confidential Information of the other party if legally compelled to do so by a judicial or administrative body. However, it must take all reasonably available legal measures to avoid such disclosure and notifies the other party as soon as practicable after such disclosure is ordered so that the other party may seek an appropriate protective order or other remedy. 
9. Warranties, Indemnification and limitation of liability
   1. The Supplier warrants that they will supply the Equipment to the Customer, for the Term in accordance with clause 2.
   2. Unless expressly provided, this clause or any other written document of the Supplier, the Supplier gives no warranties and makes no representations regarding the Equipment.
   3. The Supplier will not be liable to the Customer for any indirect or consequential damages, loss of profit, loss of bargain or liability to any third party whatsoever.
   4. The Supplier’s liability to the Customer is limited to the Fee for the Equipment.
   5. The person/s placing making an enquiry on behalf of the Customer warrants that they have authority to bind the Customer to the terms and conditions of this Agreement which comes into force once signed.
   6. The Client warrants that in hiring the Equipment from the Supplier:
      1. satisfied itself as to the description of the Equipment and its fitness for the purpose of the Customer; 
      2. not relied on any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or services provided or given by the Supplier or anyone on the Supplier’s behalf in respect of the Equipment, other than those expressly contained in this Agreement, the quotation or any other document that the Supplier has provided to the Customer;
      3. in the case of a natural person, never been bankrupt; and
      4. in the case of a company, never been under external administration or subject to the appointment of an external receiver or controller or entered into a Deed of Company Arrangement and that it is solvent and able to pay its debts as and when they fall due.
   7. The Customer shall at its own expense carry adequate public liability insurance in the amount of $20million, in respect of Equipment and its possession, use and operation and against bodily injury, death and property damage and will furnish to the Supplier certificates of such insurance providing for at least ten (10) days prior to notice of cancellation. All such insurance shall be with loss payable to Supplier (with its interest noted on the policy) and shall be with a company acceptable to Supplier.
   8. Force majeure
      1. The Supplier will not be liable for the consequences of any failure or delay in performing any of its obligations under this Agreement to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event.

2. If a Force Majeure Event arises, the Supplier will notify the Customer in writing of the Force Majeure Event and the likely impact it will have on the Equipment’s use under this Agreement.  If the Force Majeure Event affects the capacity of the Supplier to provide the Equipment under this Agreement in a timely manner, the Supplier may by notice to the Customer terminate this Agreement without any liability whatsoever on its part arising from that termination.
3. If the Agreement is terminated in accordance with clause 5.3(b) any Fees due and payable by the Customer to the Supplier are to be paid in accordance with this Agreement. 

10. Website and Email  
    1. This publication and the material on the Supplier’s Website, including but not limited to, all content, articles, text, graphics, images and publications (Material) is offered for general information only. Material is not offered as and does not constitute specific advice or opinion and should not be taken as such. The Customer’s access to and reliance on the Supplier’s Website is subject to the terms of the Supplier’s Disclaimer, Supplier’s Terms of Use, Privacy Policy and any other notices, terms and conditions or other statements contained on the Supplier’s website.
    2. Site Access
       1. Except as permitted under the Copyright Act 1968 (Cth), the Customer is not permitted to copy, reproduce, republish, distribute or display any of the information on the Supplier’s Website without their prior written permission.
    3. Hyperlinks
       1. The Website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and the Supplier’s takes no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on the Supplier’s Website to another website does not imply the Supplier’s endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
       2. Linking the Supplier’s Website is not permitted. the Supplier reserves the right to serve the Customer with notice if they become aware of such linking.
    4. Intellectual Property Rights
       1. The copyright to all content on the Website including applets, graphics, images, layouts and text belongs to the Supplier.
       2. All trade marks, brands and logos generally identified either with the symbols TM or ® which are used on the Website are either owned by the Supplier. the Customer’s access to the Website does not license them to use those marks in any commercial way without the Supplier’s prior written permission.
       3. Any comment, feedback, idea or suggestion which the Customer provides to the Supplier through the Website becomes the Supplier’s property. If in future the Supplier uses the Customer’s comment in promoting the Website or in any other way, the Supplier will not be liable for any similarities which may appear from such use. Furthermore, the Customer agrees that the Supplier is entitled to use the Customer’s comments for any commercial or non-commercial purpose without compensation to the Customer or to any other person who has transmitted the Customer comments.
       4. If you provide us with Comments, you acknowledge that you are responsible for the content of such material including its legality, originality and copyright.  
11. General
    1. Entire agreements

This Agreement contains the entire agreement between the parties as to its subject matter and may only be amended in writing signed by all parties.

2. Notices

Notices must be given to the parties’ addresses as otherwise notified by the parties in writing and must be delivered in person or sent by email or prepaid post (airmail if international). Notices will be deemed to have been received:

1. if delivered in person — on the date of delivery; or
2. if delivered by email – at the time the email is delivered; or
3. if sent by prepaid post — three business days after posting (seven business days if sent to or from a place outside of Australia).
4. No assignment

A party must not assign any of its rights or obligations under this agreement without the other party’s prior written consent.

4. No waiver

No delay or indulgence by a party in enforcing this agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach.

5. No disadvantage to party preparing section

No part of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.

6. No relationship

Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture, employment, principal and agent or trustee and beneficiary.

7. Parties must do all things and sign all documents

A party, at the request of another party, must do all things and sign all documents necessary to give effect to this Agreement.

8. Severability

If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.

9. Jurisdiction

This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that state.

10. Authority of parties

Each signatory to this agreement warrants that the signatory has authority to bind the party that the signatory is stated to represent.