BNS Equipment Hire & Haulage agrees to hire the Equipment requested by the Hirer on the terms and conditions set out below. Words in ITALICS are defined at clause 24.1 below.
Contract Formation
1.1 The Hirer shall be deemed to have accepted these terms and conditions and
any Quotation and entered into an agreement with BNS Equipment Hire &
Haulage if the Hirer:
(a) gives or continues to give instructions to BNS Equipment Hire & Haulage
for the hire of the Equipment and or Labour Personnel, or
(b) verbally accepts the Quotation.
1.2 Notwithstanding Clause 1.1, BNS Equipment Hire & Haulage may insist on the
Hirer accepting the Quotation and these terms and conditions in writing by
signing the Quotation or another form of written acceptance.
Hire of Equipment and Labour
2.1 BNS Equipment Hire & Haulage agrees to hire the Equipment and the Labour
Personnel to the Hirer for the Hire Period on the terms of this Agreement.
2.2 BNS Equipment Hire & Haulage may in its sole discretion, decide whether to
accept the return of the Equipment before the Hire End Date. Such an
acceptance does not alter the Hire Fee. The Hirer will remain liable for the Hire
Fee despite early return of the Equipment.
2.3 The Hirer is further liable for the Hire Fee regardless of the Equipment and/or
the Labour Personnel being cancelled or stood down due to inclement weather,
operational constraints or an industrial dispute involving the Hirer or the Site or
any other delay on the part of the Hirer.
2.4 The Hirer warrants that it:
(a) has not relied on any representation by BNS Equipment Hire & Haulage
in relation to the suitability of the Equipment for any purpose,
(b) has satisfied itself as to the suitability, condition and fitness of the
Equipment,
(c) will only use the Equipment in accordance with the recognised methods
and use for equipment of the type, and
(d) will keep the Equipment clean and in good working order and repair.
2.5 The Hirer agrees to use, operate and possess the Equipment at the Hirer’s risk.
2.6 Title to the Equipment shall at all times vest in BNS Equipment Hire & Haulage.
2.7 BNS Equipment Hire & Haulage shall be entitled to inspect the Equipment at
any time on reasonable notice.
2.8 A minimum of one (1) calendar day hire for Equipment and a minimum of four
(4) hours in a single day calendar for each Labour Personnel assigned to the
Hirer will apply.
2.9 BNS Equipment Hire & Haulage may replace a Labour Personnel at any time
during the Hire Period with another equally qualified Labour Personnel at BNS
Equipment Hire & Haulage’s sole discretion.
Hire Fee & Other Charges
3.1 The Hirer shall pay to BNS Equipment Hire & Haulage the Hire Fee and other
money that becomes payable under the Agreement (without any set off) in the
manner and at the times stated in the Agreement, including:
(a) BNS Equipment Hire & Haulage’s costs of delivering and/or collecting the
Equipment to or from the Site, or another location requested by the Hirer,
(b) BNS Equipment Hire & Haulage’s costs of repairing any damage to the
Equipment for which the Hirer is responsible,
(c) Late Hire Fee, if applicable,
(d) all charges incurred by BNS Equipment Hire & Haulage for any
infringement or fines during the Hire Period, if the infringements or fines
were caused or contributed to by the Hirer’s actions or omissions,
(e) a $150 cleaning fee if the Equipment has not been thoroughly cleaned,
with all rocks and dirt removed, by the Hirer at the end of the Hire Period,
(f) $4.50 per litre if the Hirer has failed to refuel the Equipment at the end of
the Hire Period,
(g) the costs and expenses incurred by BNS Equipment Hire & Haulage in
repossessing the Equipment, if the Hirer fails to return the Equipment in
accordance with this Agreement, and
(h) the full replacement cost of the Equipment where the Hirer fails or refuses
to return the Equipment or make the Equipment available for collection.
3.2 The Hirer acknowledges that the Hire Fee has been agreed on the basis of a
daily rate of a 12 hour period in a calendar day for dry hire (hire of Equipment
only), and an hourly rate for wet hire (hire of Equipment and Labour Personnel).
Where the Equipment is:
(a) returned to BNS Equipment Hire & Haulage after, or
(b) not available for free and unimpeded access for collection by BNS
Equipment Hire & Haulage on,
the Hire End Date the Hirer will be liable for the Late Hire Fee until a Hire Return
Docket is provided, unless otherwise agreed in writing by BNS Equipment Hire
& Haulage.
3.3 The Hirer agrees, accepts and authorises all costs and charges incurred in
relation to this Agreement to be charged to the credit card, details of which has
been supplied for this purpose (“Credit Card”).
3.4 The Hirer authorises BNS Equipment Hire & Haulage to reserve credit or
obtain authorisation on the Credit Card for the amount and the expected
cost of the Hire Fee plus a security bond recorded on the Order Hire Form
(“Security Bond”).
3.5 The Hirer authorises BNS Equipment Hire & Haulage to charge the Credit
Card to pay the Hire Fee and/or for the Security Bond, together with any
amount that the Hirer owes BNS Equipment Hire & Haulage under this
Agreement up to 60 days after the Equipment has been returned.
Delivery of Equipment
4.1 Delivery of the Equipment is taken to occur when:
(a) BNS Equipment Hire & Haulage or BNS Equipment Hire & Haulage’s
nominated carrier delivers the Equipment to the Site or address or third
party nominated by the Hirer, even if the Hirer is not present at the
address, or
(b) if the Hirer has chosen to pick-up the Equipment from BNS Equipment Hire
& Haulage, the time of pick-up.
4.2 Unless otherwise specified in the Quotation, the cost of delivery is payable by
the Hirer in addition to the Hire Fee.
4.3 BNS Equipment Hire & Haulage shall make reasonable efforts to deliver the
Equipment to the Hirer or its designated agent in accordance with any
agreement between the parties, or in the absence of any specific agreement,
within a reasonable time, but shall not be liable for:
(a) any failure to deliver or delay in delivering the Equipment for any reason,
or
(b) any damage to property caused upon entering premises to deliver the
Equipment, unless caused by BNS Equipment Hire & Haulage’s negligent
act or omission.
4.4 The Hirer shall accept delivery of the Equipment even if late. In the event that
the Hirer fails to accept delivery of the Equipment at the time of delivery, the
Hirer shall still be liable to pay the Hire Fee.
4.5 The Hirer shall be responsible for receiving and unloading the Equipment upon
delivery, unless otherwise agreed in writing by BNS Equipment Hire & Haulage.
Return of Equipment
5.1 Unless the Quotation specifies the Hirer is to return the Equipment to BNS
Equipment Hire & Haulage:
(a) the Hirer must provide BNS Equipment Hire & Haulage with at least 24
hours’ notice in writing of the time on which the Hirer requires BNS
Equipment Hire & Haulage to collect the Equipment,
(b) upon collection of the Equipment, BNS Equipment Hire & Haulage will
inspect the condition and quantity of the Equipment at the Site prior to its
removal, and
(c) issue the Hirer with a Hire Return Docket.
5.2 Where the Quotation specifies that the Hirer is to return the Equipment to BNS
Equipment Hire & Haulage:
(a) the Hirer must provide BNS Equipment Hire & Haulage with at least 24
hours’ notice in writing of the time on which the Hirer will be returning the
Equipment,
(b) upon delivery of the Equipment to the address nominated by BNS
Equipment Hire & Haulage, BNS Equipment Hire & Haulage will inspect
the Equipment, and
(c) issue the Hirer with a Hire Return Docket.
5.3 Unless the Hirer disputes any matter on the Return Docket within two (2)
business days of receiving the Return Docket, the Return Docket shall be
deemed to include an accurate description of the Equipment in the condition
that it was returned or collected.
5.4 The Hirer irrevocably authorises and licenses BNS Equipment Hire & Haulage
and its servants and agents to enter any premises where BNS Equipment Hire
& Haulage believes the Equipment may be stored and to take possession of
the Equipment for the purposes of recovering possession of the Equipment.
5.5 The Equipment must be collected or returned in the same condition and good
working order it was in when the Hirer received it, ordinary fair wear and tear
excluded.
Hirer Responsibilities
6.1 The Hirer must:
(a) if they choose to pick up and drop off the Equipment from BNS Equipment
Hire & Haulage, ensure their vehicle and/or trailer has the legal capacity
and capability to stow and/or tow the Equipment,
(b) ensure persons operating the Equipment:
(i) are suitably trained on its safe and proper use, qualified to use the
Equipment and where necessary, hold a current license to perform
high risk work, and
(ii) wear suitable clothing and protective equipment when operating the
Equipment as required or recommended by BNS Equipment Hire &
Haulage or the manufacturer,
(c) ensure that no persons operating the Equipment are under the influence
of drugs or alcohol,
(d) conduct a job safety analysis prior to using the Equipment,
(e) ensure that no persons carry illegal, prohibited or dangerous substances
in or on the Equipment,
(f) display all safety signs and instructions (as required by law) and ensure
that all instructions and signs are observed by operators of the Equipment,
(g) clean, fuel and lubricate and keep the Equipment in good condition and in
accordance with the instructions of BNS Equipment Hire & Haulage and/or
the manufacturer at the Hirer’s cost,
(h) return the Equipment to BNS Equipment Hire & Haulage cleaned, fueled
and lubricated,
(i) not in any way alter, modify, tamper with, damage or repair the Equipment
without first obtaining the prior written consent of BNS Equipment Hire &
Haulage,
(j) not deface, remove, vary or erase any identifying marks, plate number,
notices or safety information, on the Equipment,
(k) not allow or authorise any other person or entity to use, re-hire or have
possession of the Equipment at any time, unless expressly agreed by BNS
Equipment Hire & Haulage in writing,
(l) whenever moving the Equipment, ensure the safe loading, securing and
transporting of the Equipment in accordance with the laws and
manufacturers guidelines,
(m) observe any safety directions advised by BNS Equipment Hire & Haulage
and/or the manufacturer of the Equipment to ensure a safe loading and
handling,
(n) at all times during the Hire Period, store the Equipment safely and securely
and protected from theft, seizure, loss or damage,
(o) not remove the Equipment from the state or territory in which the Hirer
hired it,
(p) not use the Equipment over water, in an underground mine or
underground application or for works on overhead structures, without BNS
Equipment Hire & Haulage prior written consent,
(q) comply with all laws from time to time and immediately rectify any breach
of any law caused by the use of the Equipment,
(r) use best endeavours to ensure that the Equipment is not contaminated
with hazardous substances, and if the Equipment may have been subject
to contamination, effectively decontaminate the Equipment as well as
provide to BNS Equipment Hire & Haulage written details of the
decontamination process applied,
(s) keep Equipment at the location at which it was delivered or at which its
intended use was disclosed to BNS Equipment Hire & Haulage prior to
collection and not remove the Equipment from that location, and
(t) keep the Equipment in the Hirer’s sole possession and control.
6.2 Where the hire under this Agreement includes the hire of Labour Personnel,
the Hirer must:
(a) provide a structured site and job safety induction for the Labour Personnel,
(b) treat all Labour Personnel fairly,
(c) not do anything that would cause BNS Equipment Hire & Haulage to be in
breach of work health and safety or employment laws,
(d) comply with all workplace health and safety laws and all other legal
requirements relating to the work environment,
(e) have adequate insurance to cover death or personal injury caused or
contributed by any Labour Personnel of not less than $20 million,
(f) provide a safe and healthy workplace and safe system of work for all
Labour Personnel,
(g) assist resolve any industrial dispute involving any Labour Personnel, and
(h) adequately supervise all Labour Personnel at all reasonable times.
6.3 If any issue arises concerning the performance of any Labour Personnel or any
potential or alleged misconduct of any Labour Personnel, the Hirer must:
(a) immediately advise BNS Equipment Hire & Haulage,
(b) co-operate with BNS Equipment Hire & Haulage to deal with the matter as
considers appropriate, and
(c) provide BNS Equipment Hire & Haulage with reasonable access to the
Labour Personnel in question.
6.4 BNS Equipment Hire & Haulage may from time to time attend the Hirer’s work
site for the purpose of carrying out occupational health and safety inspections
with its Labour Personnel on site and the investigation of incidents and injuries.
Progress Claims
7.1 BNS Equipment Hire & Haulage may issue a Progress Claim under this
Agreement on or after:
(a) the acceptance of the Quotation,
(b) every seven (7) days,
(c) on the Hire Start Date, and
(d) at the end of the Hire Period.
7.2 BNS Equipment Hire & Haulage may serve a Progress Claim on the Hirer by
any method that it is entitled to give notice under the Agreement.
7.3 The Hirer shall pay all fees and charges payable under this Agreement within
28 days of receiving a Progress Claim from BNS Equipment Hire & Haulage.
Variations
8.1 A Variation occurs if the Hirer and BNS Equipment Hire & Haulage agree in
writing to a Variation.
8.2 The price of a Variation is payable progressively.
8.3 If the price of a Variation is not particularised to the Hirer at the time of the
agreement, the price of the Variation will be the daily rate, or hourly rate, as
applicable to the Equipment as particularised in the Quotation, or if no amount
is specified, as advertised on BNS Equipment Hire & Haulage’s website at the
relevant time.
8.4 Notwithstanding any other clause herein, BNS Equipment Hire & Haulage is
under no obligation to accept a Variation requested by the Hirer, including a
request to return the Equipment early, or reduce the hours of the Labour
Personnel.
Equipment Break Down
9.1 In the event the Equipment breaks down or becomes unsafe to use during the
Hire Period, the Hirer must:
(a) immediately stop using the Equipment and notify BNS Equipment Hire &
Haulage,
(b) take all steps necessary to prevent injury occurring to persons or property
as a result of the condition of the Equipment,
(c) take all steps necessary to prevent any further damage to the Equipment
itself, and
(d) not repair or attempt to repair the Equipment without BNS Equipment Hire
& Haulage’s written consent.
9.2 Except if clause 10.1 applies, upon receiving notice from the Hirer under clause
9.1(a), BNS Equipment Hire & Haulage will:
(a) take all reasonable steps to repair the Equipment or provide suitable
substitute Equipment as soon as reasonably possible after being notified
by the Hirer, and
(b) not impose a Hire Fee for that portion of the Hire Period for which the
Equipment was broken down or unsafe, nor the costs associated with any
repair or replacement of the Equipment.
Lost, Stolen or Damaged Equipment
10.1 If the Equipment has broken down or becomes unsafe to use as a result of the
Hirer’s actions or omissions (or the acts or omissions of the Hirer’s employees
or contractors) or if the Equipment is lost, stolen or damaged beyond fair wear
and tear during the Hire Period, the Hirer will be liable for:
(a) any costs incurred by BNS Equipment Hire & Haulage to recover and
repair or replace the Equipment, including any insurance excess, and
(b) the Hire Fee for that portion of the Hire Period during which the Equipment
is being recovered and repaired or replaced.
10.2 Provided the Hirer pays the costs and charges described in clause 10.1, BNS
Equipment Hire & Haulage will return or replace the Equipment, and the Hirer
must continue to pay the Hire Fee for the remainder of the Hire Period.
10.3 The Hirer shall notify BNS Equipment Hire & Haulage in writing as soon as
practicable upon it becoming aware of any loss or damage to the Equipment in
excess of fair wear and tear.
Dispute Resolution
11.1 If a dispute arises either party may give written notice of the dispute to the other
party adequately identifying and providing details of the dispute and the
matters, things or steps that the party considers are required to resolve the
dispute (“the Dispute Notice”).
11.2 The parties must meet at least once within five (5) Business Days of either
party serving a Dispute Notice to attempt to resolve the dispute.
11.3 At every meeting of the parties under this clause:
(a) the parties must be represented by a person having authority to agree to
a resolution, and
(b) anything done or said shall be privileged and kept confidential.
11.4 If the dispute is resolved the parties must write down the resolution and sign it.
11.5 If the dispute is not resolved within 10 Business Days of the date on which a
party gave the Dispute Notice, the parties must endeavour to resolve the
dispute by mediation and the following clauses shall apply:
(a) the mediation will be held within 25 Business Days of the date on which a
party gave the Dispute Notice,
(b) the mediator will be appointed jointly by the parties, or in the absence of
such joint appointment, appointed by the President of the Law Society of
the State or Territory which the Agreement is governed by at the request
of either party,
(c) the mediation shall be conducted in accordance with the procedures
determined by the mediator, and
(d) the parties shall share equally the costs of the mediation.
11.6 The time periods stipulated in this clause shall apply unless a longer time is
agreed between the parties in writing in relation to any such stipulation.
11.7 Nothing in this clause affects the rights of the parties pursuant to the Security
of Payment Law or prevents either party from commencing urgent injunctive or
interlocutory proceedings in a competent Court.
11.8 This clause shall survive the termination of this Agreement.
Default & Termination of Contract
12.1 Without limiting clause 12.2, BNS Equipment Hire & Haulage may terminate
the Agreement if:
(a) the Hirer is in default of the Agreement,
(b) BNS Equipment Hire & Haulage has served notice in writing on the Hirer
setting out details of the default and stating that BNS Equipment Hire &
Haulage will be entitled to terminate the Agreement unless the default is
remedied within a specified time of not less than two (2) days,
(c) the Hirer fails to remedy the default within two (2) days of receiving a notice
under clause 12.1(b), or such longer period as may be specified in the
notice, and
(d) the BNS Equipment Hire & Haulage serves written notice of termination
whilst the default remains unsatisfied.
12.2 If the Hirer fails to pay any money under the Agreement within seven (7) days
of the due date for payment:
(a) BNS Equipment Hire & Haulage may terminate the Agreement by notice
in writing to the Hirer,
(b) BNS Equipment Hire & Haulage shall be entitled to interest on the
outstanding amount at the rate of 1.5% per calendar month calculated
daily from the due date for payment and compounding monthly on the first
day of each month until payment is received,
(c) the Hirer shall indemnify BNS Equipment Hire & Haulage from and against
all costs and disbursements incurred or payable by BNS Equipment Hire
& Haulage in connection with the recovery of monies owing by the Hirer to
BNS Equipment Hire & Haulage (including, without limitation, legal fees
on an indemnity basis, collection agency costs and bank dishonour fees),
and
(d) BNS Equipment Hire & Haulage may cancel all other agreement for the
hire of Equipment in connection with any other contract or contracts made
with the Hirer to which these terms and conditions apply whereafter all
amounts payable by the Hirer to BNS Equipment Hire & Haulage shall
become payable immediately.
12.3 The Hirer agrees to pay to BNS Equipment Hire & Haulage, as genuine preestimate of BNS Equipment Hire & Haulage’s costs:
(a) a processing and handling fee of $20.00 in respect of each payment made
under the Agreement that is not in satisfaction, or in satisfaction of the
balance, of a Progress Claim, and
(b) a default fee of $50.00 in respect of any failure by the Hirer to pay a
Progress Claim by the due date for payment or by the corresponding day
of each subsequent calendar month until the Progress Claim is paid in full.
12.4 In the event of any default or termination of the Agreement the Hirer shall return
the Equipment to BNS Equipment Hire & Haulage on demand.
12.5 The Hirer irrevocably appoints BNS Equipment Hire & Haulage as its agent
and authorises and licenses BNS Equipment Hire & Haulage to enter the Site,
or other property where the Equipment is located, and repossess the
Equipment upon termination of this Agreement.
Limitation & Exclusion of Liability
13.1 Subject to clause 13.3, and except as expressly provided to the contrary in this
Agreement, all guarantees, terms, conditions, warranties, undertakings,
inducements or representations whether express or implied, statutory or
otherwise, relating to terms or their subject matter are excluded to the
maximum extent permitted by law.
13.2 Nothing in this 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.
13.3 Where any legislation implies or imposes a guarantee, term, condition,
warranty, undertaking, inducement or representation in relation to this
Agreement and BNS Equipment Hire & Haulage is not able to exclude that
guarantee, term, condition, warranty, undertaking, inducement or
representation BNS Equipment Hire & Haulage’s liability to the Hirer (and any
party claiming through the Hirer against BNS Equipment Hire & Haulage) for
any claim for loss or damage (including legal expenses), whether arising in
contract, tort or otherwise, in connection with the Agreement shall be limited to
the lesser of the costs of: (i) hiring the Equipment and the Labour Personnel (if
applicable) again, or (ii) payment of the costs of having the Equipment and the
Labour Personnel (if applicable) hired again.
13.4 To the maximum extent permitted by law, BNS Equipment Hire & Haulage’s
maximum aggregated liability for claims under or relating to this Agreement or
its subject matter, whether in contract, tort, equity, under statute, under an
indemnity, based on fundamental breach or breach of a fundamental term or
any other basis, is limited to an amount equal to the Hire Fee paid by the Hirer
under this Agreement.
13.5 BNS Equipment Hire & Haulage will not be liable to the Hirer for any acts or
omissions of any Labour Personnel supplied to the Hirer where that Labour
Personnel is acting under the direction and control of the Hirer during the Hire
Period.
13.6 BNS Equipment Hire & Haulage shall not be liable for any indirect, special or
consequential loss or damage of any nature whatsoever, including in
connection with any negligent act or omission on the part of BNS Equipment
Hire & Haulage or any employee or contractor engaged by BNS Equipment
Hire & Haulage, or any errors, mistakes or inaccuracies in information for which
BNS Equipment Hire & Haulage may be responsible.
13.7 For the purposes of this clause, ‘consequential loss’ includes, but is not limited
to:
(a) loss or damage not arising naturally, or according to the usual course of
things, from the relevant event giving rise to that loss or damage, whether
or not that loss may reasonably have been or supposed to have been in
the contemplation of the parties as at the date of this Agreement, as a
probable result of the relevant event,
(b) indirect, economic, special or consequential loss,
(c) loss in the nature of loss of profits, revenue, staff, data, production,
opportunity, use or damage to reputation even if the relevant loss may
reasonably have been or was supposed to have been in the contemplation
of the parties as at the date of the Agreement, as a probable result of the
relevant event, and
(d) personal injury or property damage.
Indemnity
14.1 The Hirer is liable for and agrees to indemnify BNS Equipment Hire & Haulage
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 BNS Equipment Hire & Haulage and any
environmental loss, cost, damage or expense) in respect of:
(a) damage to property,
(b) personal injury, or
(c) a claim by a third party,
in respect of the Hirer’s hire or use (or the Hirer’s employees or contractors
use) of the Equipment or the Hirer’s breach of these terms and conditions.
14.2 The Hirer further indemnifies BNS Equipment Hire & Haulage 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 BNS Equipment Hire & Haulage and any
environmental loss, cost, damage or expense) arising from or incurred in
connection with any acts or omissions of any Labour Personnel supplied to the
Hirer where that Labour Personnel is acting under the direction and control of
the Hirer during the Hire Period.
14.3 The Hirer’s liability under these indemnities is diminished to the extent that BNS
Equipment Hire & Haulage’s negligence caused the liability, claims, damage,
loss, costs or expenses.
14.4 Each indemnity in these terms and conditions is a continuing obligation,
separate and independent from the other obligations of the parties and survives
termination, completion and expiration of these terms and conditions. It is not
necessary for a party to incur expense or make any payment before enforcing
any right of indemnity granted by these terms and conditions.
Restrictions on Contracting with Labour Personnel
The Hirer agrees that it will not during the period of twelve (12) months after
the expiration or earlier termination of this Agreement solicit, interfere with,
engage, employ or endeavor to entice away from BNS Equipment Hire &
Haulage any Labour Personnel.
Force Majeure
16.1 Neither party will be responsible for any delays in delivery or collection of
Equipment where the cause was due to an act of God, war, terrorism, civil
commotion, embargo, orders or regulations of governments of any relevant
jurisdictions, fires, floods, strikes, lockouts or pandemics.
16.2 Nothing in this clause will limit or exclude the Hirer’s responsibility and liability
under this Agreement for Equipment that is lost, stolen or damaged beyond fair
wear and tear during the Hire Period, or has broken down or become unsafe
to use as a result of the Hirer’s conduct, omission or negligence.
Personal Property Security
17.1 In this clause ‘amendment demand’, ‘attaches’, ‘financing statement’, ‘financing
change statement’, ‘purchase money security interest’, ‘security agreement’,
‘security interest’ and ‘verification statement’ have the meanings given to them
by the PPSA.
17.2 The Hirer hereby:
(a) charges all of their respective personal property as security for the
performance by the Hirer of the Hirer’s obligations under the Agreement,
and
(b) acknowledges and consents to BNS Equipment Hire & Haulage
registering any actual or impending purchase money security interest
under the PPSA in respect of all Equipment and will do all things
reasonably necessary to assist BNS Equipment Hire & Haulage register
said interest.
17.3 The Hirer shall:
(a) promptly sign all documents and provide any further information that BNS
Equipment Hire & Haulage may reasonably require to register a financing
statement or financing change statement in relation to a security interest
granted to BNS Equipment Hire & Haulage under the Agreement or any
other document required to be registered under the PPSA,
(b) notify BNS Equipment Hire & Haulage in writing of any intention to change
the Hirer’s business practices including the sale or leasing of goods of like
kind to the Equipment (or any part thereof) in the ordinary course of the
Hirer’s business, and
(c) on demand reimburse BNS Equipment Hire & Haulage for all costs and
expenses incurred in registering a financing statement or financing change
statement.
17.4 The Hirer must give BNS Equipment Hire & Haulage notice if another party with
a security interest in the Equipment seizes or otherwise deals with the
Equipment.
17.5 If the Hirer grants any security interest in the Equipment to another party, that
other party must acknowledge the priority of BNS Equipment Hire & Haulage’s
purchase money security interest.
17.6 Any requirement under the PPSA on the part of BNS Equipment Hire &
Haulage to give a notice to the Hirer shall not, to the extent that the requirement
may be contracted out of (including, without limitation, under Section 115(1) of
the PPSA), apply to the Agreement. Further, to the extent that that the Hirer
may waive the right to receive a notice under the PPSA (including, without
limitation, notice in relation to a verification statement under Section 157(1) of
the PPSA), the Hirer waives that right.
17.7 The Hirer irrevocably authorises and licenses BNS Equipment Hire & Haulage
to enter upon the Hirer’s property or premises, without notice, and without being
in any way liable to the Hirer, if BNS Equipment Hire & Haulage has cause to
exercise any of BNS Equipment Hire & Haulage’s rights under Section 123 of
the PPSA, and the Hirer shall indemnify BNS Equipment Hire & Haulage from
any claims made by any third party as a result of such exercise.
17.8 BNS Equipment Hire & Haulage and the Hirer agree to treat information of the
kind referred to in Section 275(1) of the PPSA as confidential. Neither BNS
Equipment Hire & Haulage or the Hirer will disclose, send or make available
any of the information referred to in Section 275(1) of the PPSA to any person
except as required by law or the Agreement.
17.9 BNS Equipment Hire & Haulage and the Hirer acknowledge and agree that clause 17.8 constitutes a confidentiality agreement pursuant to Section 275(6)
of the PPSA.
Real Property Security
18.1 The Hirer hereby charges all their right, title and interest in any real property
capable of being charged that they, own or hereafter own either solely or jointly,
in favour of BNS Equipment Hire & Haulage as security for the performance of
the Hirer’s obligations pursuant to the Agreement and authorises BNS
Equipment Hire & Haulage to register a Caveat over the title of any such
property in the event of a default by the Hirer under the Agreement.
18.2 The Hirer shall indemnify BNS Equipment Hire & Haulage from and against all
costs and disbursements incurred or payable by BNS Equipment Hire &
Haulage in connection with exercise of BNS Equipment Hire & Haulage’s rights
under clause 18.1 (including, without limitation, legal fees on a solicitor-client
basis, stamp duty and registration fees).
Cancellation
19.1 Notwithstanding any other clause herein BNS Equipment Hire & Haulage may
cancel any agreement to which these terms and conditions apply at any time
before the Hire Start Date by giving written notice to the Hirer whereafter any
amount paid by the Hirer under the Agreement shall become immediately
repayable to the Hirer. BNS Equipment Hire & Haulage shall not be liable for
any consequential loss or damage in relation to any such cancellation.
19.2 If the Hirer purports to cancel the Agreement, without limiting any other right
available to BNS Equipment Hire & Haulage, the Hirer shall be liable to BNS
Equipment Hire & Haulage for any and all loss or damage suffered by BNS
Equipment Hire & Haulage in connection with the cancellation including,
without limitation, loss of profit in respect of the hire and/or loss of profits in
respect of orders and opportunities foregone as a result of the scheduling of
the hire of the Equipment.
Privacy Act 1988 (Cth)
20.1 The Hirer consents to BNS Equipment Hire & Haulage using any personal
information collected by BNS Equipment Hire & Haulage for the following
purposes or as required by law:
(a) the performance of the Agreement,
(b) the analysing, verifying and checking of the Hirer’s credit and/or payment
status,
(c) the processing of any payment instructions, direct debit facilities and/or
credit facilities requested by the Hirer,
(d) preventing theft of the Equipment,
(e) to market to the Hirer and maintain a client relationship with the Hirer, and
(f) enabling the daily operation of the Hirer’s account and/or the collection of
amounts outstanding in the Hirer’s account.
20.2 BNS Equipment Hire & Haulage may give information about the Hirer to a credit
reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Hirer, or
(b) allow the credit reporting agency to create or maintain a credit information
file containing information about the Hirer.
GST
21.1 The Hire Fee and all other monies payable by the Hirer pursuant to the
Agreement are exclusive of GST.
21.2 If BNS Equipment Hire & Haulage incurs a liability to pay GST in connection
with a supply to the Hirer pursuant to the Agreement, the consideration that the
Hirer must pay to BNS Equipment Hire & Haulage for the supply is increased
by an amount equal to the GST liability that BNS Equipment Hire & Haulage
incurs in making the supply and the amount of the GST liability is payable at
the same time and in the same manner as the consideration in respect of the
supply is payable.
21.3 BNS Equipment Hire & Haulage shall provide the Hirer with a tax invoice for
any GST included in any payment made pursuant to the Agreement.
Notices
22.1 The parties agree that email shall be the primary method of contact and
communication in relation to any matters arising under the Agreement.
22.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party,
(b) posted by ordinary prepaid mail to the other party’s address (including a
Post Office Box) stated in the Quotation on the second Business Day
following the date of posting, or
(c) sent by email to the parties’ email address stated in the Quotation upon
receiving confirmation of delivery of the email without error.
General
23.1 The Hirer may not; (a) set off against or deduct from any monies payable under
the Agreement any sums owed or claimed to be owed by BNS Equipment Hire
& Haulage to the Hirer, or (b) withhold payment of any Progress Claim because
the Progress Claim or part of it is in dispute.
23.2 The Agreement embodies the whole agreement between the parties relating to
the subject matter of the Agreement and supersedes any and all oral and
written negotiations and communications by or on behalf of any of the parties.
23.3 Despite the Hirer at any time providing, referring to, submitting or otherwise
using or purporting to use any standard form terms and conditions other than
these terms and conditions, such terms and conditions will not form part of, or
be incorporated into, the Agreement.
23.4 The terms in the Agreement may not be varied, waived, discharged or
released, except with the prior written consent of BNS Equipment Hire &
Haulage.
23.5 No right under the Agreement is waived or deemed to have been waived in
relation to any particular instance unless in writing and signed by the party
waiving the right. A party does not waive its right under the Agreement by
granting an extension of time or any other forbearance to another party.
23.6 The Agreement shall be governed by and constructed pursuant to the laws of
New South Wales. The parties irrevocably submit to the jurisdiction of the
Courts of New South Wales in connection with any dispute relating to the
Agreement. The parties further agree that the Court of competent jurisdiction
located closest to BNS Equipment Hire & Haulage’s principal place of business
shall be the appropriate Court for the hearing of any claims in connection with
this Agreement.
23.7 The parties agree that a construction of the Agreement that results in all
provisions being enforceable is to be preferred to a construction that does not
so result.
23.8 If, despite the application of clause 23.7, a provision of the Agreement is illegal
or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words
were omitted, that word or those words are severed; and
(b) in any other case, the whole provision is severed,
and the remainder of the Agreement continues in force.
Definitions & Interpretation
24.1 In these terms and conditions:
(a) “Agreement” means the agreement between the Hirer and BNS
Equipment Hire & Haulage arising from the Hirers’ acceptance of the
Quotation;
(b) “BNS Equipment Hire & Haulage” means BNS Equipment Hire & Haulage
Pty Limited ABN 83 625 103 479, it’s successors and assigns;
(c) “Business Day” means any day other than Saturdays, Sundays or public
holidays in New South Wales;
(d) “Credit Card” has the meaning given to it in clause 3.3;
(e) “Dispute Notice” has the meaning attributed to it in clause 11.1;
(f) “Equipment” means the plant/equipment specified in the Quotation to be
hired by the Hirer;
(g) “GST” has the same meaning as given to it in the A New Tax System
(Goods and Services Tax) Act 1999;
(h) “Hirer” means the party named as the Hirer or customer in the Quotation;
(i) “Hire Fee” means the fee specified in the Quotation for the hire of the
Equipment and Labour Personnel, as varied in accordance with the terms
of this Agreement;
(j) “Hire Start Date” means the earlier of the date the Equipment is delivered
in accordance with clause 4.1 and the date specified in the Quotation;
(k) “Hire End Date” means the date specified in the Quotation, as varied in
accordance with the terms of this Agreement;
(l) “Hire Period” means the period commencing on the Hire Start Date and
ending on the later of the Hire End Date and the date of the Hire Return
Docket;
(m) “Hire Return Docket” means a form approved from time to time by BNS
Equipment Hire & Haulage which acknowledges the return of the
Equipment to BNS Equipment Hire & Haulage;
(n) “Labour Personnel” means any operator of the Equipment or other
personnel supplied by BNS Equipment Hire & Haulage to the Hirer as
particularised in the Quotation, or otherwise under this Agreement;
(o) “Late Hire Fee” means the daily dry hire (hire of Equipment only) rate, or
hourly wet hire (hire of Equipment and Labour Personnel) rate, as
applicable, as particulaised in the Quotation, or if no amount specified, as
advertised on BNS Equipment Hire & Haulage’s website at the relevant
time;
(p) “Quotation” means the Order Hire Form provided by BNS Equipment Hire
& Haulage to the Hirer in respect of the hire of the Equipment and Labour
Personnel, if any;
(q) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(r) “Progress Claim” means both a tax invoice as defined in the A New Tax
System (Goods and Services Tax) Act 1999 and a Payment Claim as
defined by the relevant Security of Payment Law;
(s) “Security Bond” has the meaning given to it in clause 3.4;
(t) “Security of Payment Law” means the laws in the State or Territory
applying to the Agreement governing the rights of parties in the building
and construction industry to obtain security for payment and, in New South
Wales being the Building and Construction Industry Security of Payment
Act 1999;
(u) “Site” means the address nominated by the Hirer in the Quotation as the
location for the delivery and collection of the Equipment; and
(v) “Variation” means to vary the hire arrangement by; hiring further
Equipment, with or without Labour Personnel, or extending the Hire End
Date.
24.2 In the Agreement, unless otherwise indicated by the context:
(a) the singular includes the plural and vice versa;
(b) a reference to one gender includes a reference to all other genders;
(c) headings to clauses are included for the sake of convenience only and will
not affect the interpretation of the clauses to which they relate;
(d) references to any statute or statutory provision include that statute or
statutory provision as amended, extended, consolidated or replaced by
subsequent legislation and any Orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
(e) the word person means and includes a natural person, a company, a firm
or any other legal entity whether acting as a trustee or not;
(f) the Agreement will bind each party’s legal personal representatives,
successors and assigns; and
(g) where a party comprises two (2) or more persons the rights and obligations
of such persons pursuant to the Agreement will ensue for the benefit of
and bind each of them jointly and severally.
