RESIDENTIAL EQUIPMENT SHORT TERM HIRE AGREEMENT

  SCHEDULE

 

TERMS AND CONDITIONS

This Agreement is entered into between us and you, together the Parties and each a Party.

1.           Acceptance

1.1         You accept this Agreement by the earlier of: 

(a)          signing and returning this Agreement to us (including electronically); and

(b)         accepting this Agreement online or sending an email accepting this Agreement (expressly or impliedly). 

2.           Services

2.1         In consideration of your payment of the Hire Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

2.2         If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.

2.3         All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.

Delivery of the Equipment

2.4         We will use reasonable endeavours to deliver the Equipment by the time agreed between the Parties, and risk in the Equipment will pass to you once we have delivered the Equipment to the agreed delivery location. You will be responsible for the costs of delivery including any Delayed Access Charge if access to the agreed delivery location is impeded for any reason upon arrival (excluding Force Majeure Events) and, as a result, we are unable to offload the Equipment to you at the agreed time. 

2.5         If you are responsible for collecting the Equipment from us, you must collect the Equipment by the time agreed between the Parties, and risk in the Equipment will pass to you once you have collected the Equipment from the agreed collection location. You will be responsible for the costs of collection.

Operating the Equipment

2.6         You will be responsible for the costs of any repairs to the Equipment (including the cost of replacement parts) because of your improper or negligent use of the Equipment, which will be a debt due and immediately payable to us.

2.7         You agree to:

(a)          comply with this Agreement, all applicable Laws, our reasonable requests, and any operating instructions for the Equipment;

(b)         contact us immediately if there is any damage to or defects in the Equipment;

(c)          ensure that any person using the Equipment is properly qualified or trained to safely do so;

(d)         not allow anyone to interfere or otherwise tamper with the Equipment;

(e)          not allow any third party to conduct repairs or maintenance on the Equipment without our prior consent;

(f)          pay us the cost of the Equipment (as a debt due and immediately payable) where their loss, theft, damage or destruction occurs;

(g)          provide us (and our Personnel) with access to your premises (and its facilities) as is reasonably necessary for us to provide the Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;

(h)         protect and maintain the Equipment in the Original Condition; and

(i)           keep the Equipment in your custody and control at all times, and not sublease, rent, sell or otherwise transfer the Equipment to any other person.

Returning the Equipment

2.8         You must return the Equipment to us in the Original Condition at the time agreed between the Parties, or if no time is specified, upon termination or expiry of this Agreement.

2.9         You agree that if you do not return the Equipment to the return location by the agreed time, or have not made the Equipment available for our collection at the agreed time (if we have elected to collect the Equipment, in our sole discretion), then we may charge you the Late Return Charge.

2.10      You agree that the Late Return Charge is a genuine pre-estimate of loss suffered or incurred by us as a result of your delay in returning the Equipment to us.

Title, Risk and Security

2.11      Title in any Equipment leased to you will at all times remain with us.

Exclusion of Hazardous and Toxic Waste

2.12      You agree that you are responsible for ensuring that no hazardous or toxic waste, including the Excluded Materials set out in Attachment B, are placed in the Equipment. You are responsible for informing all persons using the Equipment of this prohibition and are liable for their acts and omissions where we incur any Liability in relation to this clause. 

2.13      You must immediately notify us if any hazardous or toxic waste is inadvertently placed in the Equipment.

2.14      If, at any time during the Term, any suspected hazardous or toxic waste is found in the Equipment and the waste needs to be removed, we may suspend the provision of the Services until: 

(a)          we have removed all hazardous or toxic waste on the condition that we are able to remove such waste; or 

(b)         you have engaged the services of the licensed professional and we are satisfied that the waste is not hazardous or they have removed all hazardous waste from the Equipment. 

2.15      You agree that any costs associated with assessment and, removal and disposal of hazardous waste (including the Excluded Material) will be your responsibility. If we are able to remove the hazardous or toxic waste, we will charge you the Hazardous Material Fee or Tyre Fee (as relevant) and you agree to pay us as a debt immediately due and payable. 

3.           Hire Fees and Payment

3.1         In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms. 

3.2         If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law): 

(a)          after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); 

(b)         charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or

(c)          enter any premises where the Equipment is stored or held, for the purpose of retrieving and taking possession of the Equipment, and you agree to provide any access, items and consents required to enable us to do so. 

3.3         When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4.           Confidential Information

4.1         Subject to clause 4.2, each Party must keep confidential, and not use (except to perform its obligations under this Agreement) or permit any unauthorised use of, information provided by the other Party, including information about this Agreement and our business and operations.

4.2         Clause 4.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that the disclosing Party ensures the adviser complies with the terms of clause 4.1.

4.3         This clause 4 will survive the termination of this Agreement.

5.           Australian Consumer Law

5.1         Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.

5.2         Subject to your Consumer Law Rights, we provide all material, work and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

5.3         This clause 5 will survive the termination or expiry of this Agreement.

6.           Liability

6.1         To the maximum extent permitted by law, you are liable for and you and agree to indemnify us and hold us harmless in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with: 

(a)          any property loss or damage, death or personal injury, arising from or in connection with your improper or negligent use of the Equipment; 

(b)         any loss (including theft) of, or damage to, the Equipment when you are responsible for the risk in the Equipment;

(c)          any failure to return the Equipment in its Original Condition; and

(d)         all Liabilities suffered or incurred by us in repossessing or recovering the Equipment in accordance with this Agreement.

6.2         Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:  

(a)          neither Party will be liable for Consequential Loss; 

(b)         a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and

(c)          (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and

(d)         our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Hire Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates. 

6.3         This clause 6 will survive the termination or expiry of this Agreement.

7.           Term and Termination

7.1         This Agreement will operate for the Term.

7.2         Either Party may terminate this Agreement at any time by giving notice in writing to the other Party within the timeframe set out in the Schedule.

7.3         This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

(a)          the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

(b)         the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

7.4         Upon expiry or termination of this Agreement:

(a)          we will immediately cease providing the Services;

(b)         without limiting and subject to your Consumer Law Rights, any payments made by you to us for Services already performed are not refundable to you;

(c)          you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

(d)         you must return the Equipment to us, or make the Equipment available for our collection (at our sole discretion), and grant us a right of access to your premises where the Equipment is located for this purpose;

(e)          by us pursuant to clause 7.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and

(f)          we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 4. 

7.5         Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.  

7.6         This clause 7 will survive the termination or expiry of this Agreement.

8.           General 

8.1         Amendment: Subject to clause 2.3, this Agreement may only be amended by written instrument executed by the Parties.

8.2         Assignment: Subject to clauses 8.3 and 8.11, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 

8.3         Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

8.4         Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument. 

8.5         Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

(a)          as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and

(b)         uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. 

Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement. 

8.6         Governing Law: This Agreement is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

8.7         Intellectual Property: Nothing in this Agreement constitutes an assignment or transfer of a Party’s intellectual property rights to the other Party.  

8.8         Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

8.9         Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

8.10      Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

8.11      Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

8.12      Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.

9.           Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time. 

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Business Day means a day on which banks are open for general banking business in Brisbane, QLD, excluding Saturdays, Sundays and public holidays.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Hire Fees and any other amounts payable under this Agreement will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 5.1. 

Contamination Fee means the fee set out at Item 3 in Attachment A.

Delayed Access Charge means the fee set out at Item 7 in Attachment A.

Equipment means any equipment that we lease to you as part of the Services.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Hazardous Materials Fee means the fee set out at Item 4 in Attachment A.

Hire Fees means the fees set out in the Schedule, as adjusted in accordance with this Agreement.

Late Return Charge means the fee set out at Item 6 in Attachment A.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Original Condition means the Equipment being clean and free from damage or defect, and in the same condition in which we provided the Equipment to you, subject to fair wear and tear.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Schedule means the schedule to this Agreement.  

Services means the services set out in the Schedule, as adjusted in accordance with this Agreement.

Service charge for delivery and pickup means the fee set out at Item 1 in Attachment A.

Tip Fee means the fee set out at Item 2 in Attachment A.

Tyre Fee means the fee set out at Item 5 in Attachment A.

10.        Interpretation

In this Agreement, unless the context otherwise requires: 

(a)          a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b)         a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c)          a reference to a person includes a natural person, body corporate, partnership, joint venture, association, government or statutory body;

(d)         a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns;

(e)          a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(f)          a reference to time is to local time in Brisbane, QLD; and

(g)          a reference to $ or dollars refers to the currency of Australia from time to time.

 

Attachment A – Hire fees – Schedule of rates

Item	Fees (Inc GST)
Service charge for delivery [and pick-up]	$1.85 Per Km Outside 25km Radius of Paget
Tip fees When weight Exceeds 1 Tonne	$340 Per tonne General Waste $20 Per tonne Clean Concrete no Contaminate $25 Per Tonne Clean Concrete up to 5% Contamination $35 Per Tonne Clean timber 100% Clean
Contamination/ Overload Fee	$100
Hazardous Materials Fee	$500 Per Tonne
Tyres	$15 Per tyre $40 Per car tyre on rim  $60 Per 4WD or truck tyre  $120 Per 4WD or truck tyre on rim
Late Return Charge	$5 per day when the Equipment is returned late unless agreement from both parties to no extra late charge
Delayed Access Charge	$185 per hour that you have not facilitated site access for delivery, after a 15-minute grace period has passed.

 

You agree to pay the amount in the invoice (and any other amount due and payable to us under this Agreement), at the times and using the payment method set out in the invoice.