Terms & Conditions
Contents
1. Definitions & Interpretations.
2. Job.
3. Commencement.
4. Hire Price.
5. Variations and Additional Costs.
6. Cancellation Fee.
7. Payment.
8. Delivery.
9. Operation, use & maintenance.
10. Installation.
11. Title.
12. Licence.
13. Interest.
14. Not to assign.
15. Force Majeure.
16. Conclusion of Hire.
17. Tampering.
18. Loss or Damage.
19. No deductions from payments
20. Indemnities.
21. Insurance.
22. Information.
23. Costs.
24. To comply with law.
25. Repudiation or cancellation of Agreement.
26. Hirer’s Acknowledgements.
27. Legal Warranties and Limitations.
28. Statewide’s Right to Act.
29. Statewide may exercise rights.
30. Termination.
31. Statewide’s right to use money owed to the Hirer.
32. Severability and Application of the Act.
33. Variation.
34. Business Day.
35. Applicable Law.
36. Notices.
1. Definitions & Interpretations.
1.1 The following definitions apply to this Agreement:
a. “Accommodation” means a room in a hotel, motel or apartment with no less than a 3 star AAA Tourism rating.
b. “Agreement” or “Deed” means the Hire Agreement, the General Conditions, the Special Conditions and the Schedule;
c. “Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
d. “Commencement Date” means the date set out in clause 3;
e. “Daytime Hours” means the period between 8am to 6pm each day.
f. “Deposit” means 50% of the Quote unless otherwise specified in the Schedule;
g. “Delivery” means delivery of the Equipment to the Site;
h. “Delivery Date” means the date specified in item 3 of the Schedule;
i. “Disassembly” has the meaning given in clause 12.1;
j. “Equipment” means the all stock, materials, paraphernalia and goods specified in item 6 of the Schedule, including those goods contemplated in clause 7.3;
k. “Hire Price” means the hire price set out in clause 4;
l. “Installation” has the meaning given in clause 8.1;
m. “Invoice” has the meaning given in clause 4.3;
n. “Job” means the work required to be completed by Statewide as described in item 1 of the Schedule; (o) “Quote” means the amount specified in item 4 of the Schedule;
o. “Preparation of Equipment” means the physical preparation of equipment in the yard for the Job;
p. “Services” means the supply of labour set out in item 7 of the Schedule for the Job;
q. “Site” means the location specified in item 2 of the Schedule;
r. “Special Conditions” mean the special condition contained in the Schedule to this agreement. (s)
s. “Statewide” means Statewide Corporation Pty Ltd ACN 090 707 627;
Interpretation
a. Reference to:
I. one gender includes the others;
II. the singular includes the plural and the plural includes the singular;
III. a person includes a body corporate and includes a person (in this extended sense) in the capacity of a trustee; and
IV. a party includes the party’s executors, administrators, successors and permitted assigns;
b. “Including” and similar expressions are not words of limitation.
c. “Corporation” has the same meaning as in the Corporations Act 2001.
d. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
e. Headings and any table of contents or index are for convenience only and do not form part of this Deed or affect its interpretation.
f. If a party consists of more than 1 person, this Deed binds each of them separately and any 2 or more of them jointly.
g. The General Conditions apply to the extent they are not inconsistent with the Schedule to the Hire Agreement or the Special Conditions.
2. Job
2.1 The Hirer agrees to hire, and Statewide agrees to supply, the Equipment and Services identified in the Schedule to complete the Job for the Hire Price.
3. Commencement
3.1 The commencement date shall be effective from the date on which Statewide makes delivery of the Equipment 6.2. (“Commencement Date”).
3.2 It is a condition precedent to this Agreement that Statewide 6.3. conducts an inspection of the Site and is satisfied:
a) of the suitability of the Site for the Job; and that there are no environmental or other factors which
b) may impact upon the completion of the Job; or
c) that any factors which impact upon (a) and (b) can adequately be remedied at a cost to be included in the Hire Price pursuant to clause 4.4.
3.3 Unless Statewide gives notice to the Hirer to the contrary, the condition precedent in clause 3.2 will be deemed to be satisfied on the Commencement Date.
4. Hire Price
4.1 The Hire Price is
a) The Quote; plus
b) Any variation or increase in cost in excess of the Quote pursuant to this clause or clause 5.
4.2 The Hirer acknowledges that the Quote and Hire Price includes, but is not limited to, the cost of hire of equipment, services and delivery and this may be itemised or specified as a lump sum.
4.3 Statewide must provide the Hirer with an invoice indicating the total amount of all work done and services rendered (including any variations or increased costs incurred and not accounted for in the Quote) within seven (7) business days of the Completion of Job (“the Invoice”).
5. Variations and Additional Costs
5.1 The Hirer acknowledges that the Quote is subject to variation and may increase for any reason including, but not limited to, increased labour costs, material costs, delivery costs, accommodation costs or any other costs contemplated by the Job and incurred by Statewide 9. pursuant to this Agreement.
5.2 The Hirer may vary the description of the Job or service required to be rendered by Statewide as contained in the Schedule provided that:
a) The Hirer provides Statewide with details of the variation in writing;
b) The Hirer obtains the consent of Statewide for such variation; and
c) The Hirer indemnifies Statewide for the cost of such variation, which Statewide may request payment of immediately, or include in the Invoice.
5.3 If the Hirer fails to comply with clause 5.2(a) Statewide may cease performing its obligations under the Agreement until such time as the Hirer complies with clause 5.2(a).
5.4 The Hirer acknowledges that the Hire Price is subject to an inspection of the Site by Statewide, and such inspection may not have been completed at the time the Schedule was prepared.
5.5 If Statewide provides Services outside of Daytime Hours in order to complete the Job (“Overtime”), the Hirer agrees to pay Statewide:
a) the cost of any lighting and equipment utilised by Statewide during Overtime; and
b) the difference between Statewide’s cost of Services at day rates and the cost of Services at night rates plus 15%.
5.6 The Hirer agrees to pay for Accommodation for Statewide and their employees which may, from time to time, be required:
a) at the Hirer’s request; or
b) in order to complete the Job.
5.7 For the avoidance of doubt, the Hirer is liable to pay any and all costs, including any costs in excess of the Quote, incurred by Statewide to complete the Job and Statewide is not obliged to absorb any costs incurred in excess of the Quote.
6. Cancellation Fee
6.1 If for any reason not attributable to Statewide, the Hirer purports to terminate the Hire Agreement:
a) at any time after the confirmation of the job and prior to the commencement of preparation of equipment, then the Hirer forfeits 50% of the Hire price to Statewide;
b) at any time after the preparation of equipment for the job has begun, then the hirer forfeits 60% of the Hire Price to Statewide;
c) at any time after the delivery of equipment to the Job site, then the hirer forfeits 100% of the Hire price to Statewide.
6.2 The benefit of this clause is in addition to any rights available to Statewide at law or under this Agreement.
6.3 For the avoidance of doubt, nothing in this clause or Agreement limits, restricts or prejudices the rights of Statewide to any other claim(s) for damages, compensation or otherwise against the Hirer.
7. Payment
7.1 The Hirer shall pay Statewide:
a) the Deposit within seven (7) days from the date of the Hire Agreement; and
b) the Hire Price, less the Deposit, within fourteen (14) days of receiving an Invoice from Statewide.
7.2 The Hirer shall make all payments due to Statewide at Statewide’s Office.
7.3 Statewide may request full payment of the Quote on or before Delivery.
7.4 A payment by the Hirer under this Agreement will only be taken to have been made when it is received in accordance with this clause and any cheque must be cleared before it will be taken to be received.
7.5 Time is of the essence for payment under this clause.
8. Delivery
8.1 Statewide will deliver the Equipment to the Job Site on the Delivery Date as specified in item 3 of the Schedule (“Delivery”).
8.2 The Hirer shall take delivery of the Equipment at the Job Site on the Delivery Date.
8.3 The Hirer may inspect all Equipment upon Delivery to ensure that it is in a clean condition and good working order.
8.4 The Hirer shall be responsible for the cost of delivery of the Equipment to the Hirer’s site.
8.5 The cost of delivery is included in the Quote.
9. Operation, use & maintenance
9.1 During the Rental Period Statewide shall ensure that all operators of the Equipment shall be fully qualified and possess all appropriate industry and statutory clearances and qualifications.
9.2 The Equipment shall be supplied as described in item 6 of the Schedule and shall be used for the purpose for which it was designed in accordance with item 1 of the Schedule.
9.3 The Hirer agrees with Statewide that any accessories, parts, tyres, replacements and tools or other goods which now or hereafter are supplied with or are attached to the Equipment shall be or become a part thereof.
9.4 The Hirer shall maintain the Equipment in good order and repair and properly operated, serviced and housed, and maintain them in first class order and condition, consistent with a heavy duty industrial service life.
9.5 The Hirer shall not alter or make any addition to the Equipment without Statewide’s consent in writing and shall not alter any identifying number, sign or make thereon of whatever nature or tamper with any excess usage meter.
9.6 The Hirer shall keep the Equipment under its personal control and shall not attempt to purport to sell, dispose of or encumber the same or any interest therein.
10. Installation
10.1 Unless specified otherwise in item 8 of the Schedule, the Hirer agrees to provide unloading and lifting equipment at the Site at Delivery (Installation).
10.2 Statewide will not be held responsible for any damages and/or loss of services as a result of interference to surrounding buildings, access roads, event sites, and under or over ground pipes or conduit that may be affected during, and as a result of, the Job.
10.3 The Hirer must provide at the request of Statewide a site plan of all amenities available to Statewide’s staff.
10.4 The Hirer must ensure that a representative or agent with authority to make decisions about the Job is available and present during Delivery, Installation, and Disassembly.
11. Title
11.1 Statewide grants the Hirer a licence to the Equipment only on the Terms contained herein.
11.2 For the avoidance of doubt, this Agreement does not give the Hirer exclusive possession of the Equipment.
12. Licence
12.1 The Hirer grants Statewide a licence to enter the Site at any time while the Equipment is on Site.
13. Interest
13.1 In the event that any rental payment is not paid on the due date the Hirer agrees to pay interest on the sum outstanding at the rate of 24% per annum. Each 14 day period from the date due any interest not paid, shall become part of the outstanding monies due and shall also bear interest.
14. Not to assign
Hirer must not assign or purport to assign any of their rights or obligations contained in this Agreement
15. Force Majeure
15.1 Statewide will not be liable for a breach of this Agreement, or failure to comply with an obligation under this Agreement, due to any matter, thing or event beyond the control of Statewide including, but not limited to, transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, wars, riots, intervention of a government authority, explosion or accident.
16. Conclusion of Hire
16.1 Statewide shall disassemble, load and remove the Equipment from the Site at the conclusion of the Job (Disassembly).
16.2 Unless specified otherwise in item 8 of the Schedule, the Hirer agrees to provide loading and lifting equipment at the Site at Disassembly.
16.3 At the time of Disassembly, Statewide must be satisfied that the Equipment is in substantially the same condition as when the Equipment was delivered, fair wear and tear consistent with a heavy duty industrial service life excepted.
16.4 Until the Equipment is returned to Statewide’s Premises, rental will continue to be paid by the Hirer equal to the rental portion (as apposed to labour and delivery portions) of the Quote calculated and accrued daily as a debt owed to Statewide.
16.5 The Hirer shall be responsible for damage to or loss of the Equipment during the Job in any circumstances whatsoever, save for fair wear and tear.
16.6 The Hirer shall indemnify and save and keep harmless Statewide against any and all damage to or loss of the Equipment arising as a result of the Hirer’s negligence or misconduct.
17. Tampering
17.1 The Hirer must not remove the Equipment from the Site without Statewide’s prior written consent.
17.2 The Hirer must not move, remove, alter, replace or affect the position of any of the Equipment without the consent of the Hirer.
17.3 If the Hirer fails to comply with this clause, Statewide will not be liable for any damage or loss which may occur as a result of the failure of the Equipment.
18. Loss or Damage
18.1 The Hirer must notify Statewide immediately if any of the Equipment is damaged to such an extent that the Hirer or the insurer decides that repair is impractical or uneconomic.
18.2 The Hirer must pay Statewide within seven business days (7) after the event in clause 15.1 happens:
a) the balance of the Hire Price due and not paid; less
b) any money Statewide has received from the insurer or any other person because an event described in clause 15.1 happened.
18.3 This Agreement terminates in relation to the affected Equipment when the Hirer pays Statewide the amount due under clause 18.2.
18.5 If Statewide receives money from an insurer or any other person because of an event described in clause 15.1 after the Hirer has paid Statewide the amount due under clause 18.2, Statewide will refund to the Hirer, up to the amount the Hirer paid Statewide, the amount Statewide receives less all money then payable by the Hirer to Statewide.
18.6 If any of the Equipment is damaged but not to the extent that clause 15.1 applies, the Hirer must immediately advise Statewide and the Hirer must restore them to the condition they were in before they were damaged. If Statewide receives money from an insurer or any other person because of the damage Statewide will pay the Hirer that money, up to the amount required to restore the Equipment, less all money then payable by the Hirer to Statewide.
19. No deductions from payments
The Hirer must not withhold any payment under this Agreement, or make any deduction from it, for any reason including because:
19.1 the Equipment is damaged, does not operate, is unfit for a particular use or is not in the Hirer’s possession;
19.2 the Hirer’s use of the Equipment is restricted because of a lawful prohibition.
20. Indemnities
20.1 The Hirer indemnifies Statewide against any liability or loss arising from, and any costs, charges and expenses incurred in connection with:
a) Statewide doing anything the Hirer should have done under this Agreement;
b) the Hirer not doing what the Hirer should have done under this Agreement;
c) Statewide having to seize or store the Equipment; and
d) the Hirer relying on information the Hirer gave Statewide;
20.2 Each indemnity is a continuing obligation, separate and independent from the Hirer’s other obligations (including the Hirer’s obligations under clause 18). It continues after this Agreement ends or is terminated. It is not necessary for Statewide to incur expense or make a payment before Statewide enforces a right of indemnity.
21. Insurance
21.1 The Hirer must insure at all times against:
a) loss or damage to the Equipment caused by fire, theft or accident, up to an amount approved by Statewide;
b) public liability for bodily injury or death or damage to property or the environment arising in connection with the use of the Equipment up to an amount approved by Statewide; and
c) any other liability Statewide reasonably requires the Hirer to insure against.
21.2 The Insurance policies must:
a) be in a form and substance and with an insurer reasonably satisfactory to Statewide; and
b) note Statewide’s interest as owner of the Equipment.
21.3 The Hirer must not:
a) do anything, or fail to do anything, which would allow an insurer to refuse or reduce a claim;
b) vary the insurance policies without Statewide’s consent; and
c) enforce, conduct, settle or compromise any claim without Statewide’s consent.
21.4 The Hirer must advise Statewide immediately of any event which might lead to a claim under the insurance policies and give us any information Statewide asks for about the event.
21.5 Statewide may enforce, conduct, settle or compromise any claim under the insurance policies on the Hirer’s behalf.
21.6 Statewide is entitled to receive all amounts which are payable to the Hirer under the insurance policies. If the Hirer receives those amounts the Hirer holds them in trust for Statewide.
21.7 The Hirer must produce evidence of the insurance policies and payment of premiums whenever Statewide asks for them.
22. Information
The Hirer must give Statewide any information Statewide asks for about the Equipment or insurances relating to them.
23. Costs
Anything which the Hirer must do under this Agreement must be done at the Hirer’s cost.
24. To comply with law
The Hirer, to the extent that the Hirer is liable, must comply with all laws which apply to the use of the Equipment.
25. Repudiation or cancellation of Agreement
25.1 The fundamental provisions of this Agreement are that the Hirer must:
a) pay all money due on time and as required by this Agreement;
b) to comply clause 18;
c) not permit or cause a Receiver, Manager, Liquidator, Provisional Liquidator, Trustee or Administrator to be appointed of the Hirer’s assets or income or any part thereof.
25.2 The Hirer will repudiate this Agreement and Statewide may terminate it by notice to the Hirer if:
a) the Hirer does not, within fourteen (14) days of receipt from Statewide of a notice specifying the default, comply with the fundamental provisions of this Agreement;
b) the Hirer’s conduct indicates that the Hirer no longer intends to be bound by this Agreement.
25.3 If Statewide gives the Hirer a notice of termination:
a) this Agreement will immediately terminate;
b) Statewide may repossess the Equipment.
c) unless the Hirer reinstates this Agreement, the Hirer must pay Statewide the Deposit due under this Agreement, and if they have already done so, such Deposit shall be forfeited to Statewide.
d) if the Equipment is repossessed by Statewide, the Hirer must give Statewide any certificates of registration relating to them and, if Statewide asks for it, a signed transfer of those certificates in favour of Statewide or a person Statewide nominates.
26. Hirer’s Acknowledgements
The Hirer acknowledges that:
26.1 the Hirer alone is responsible for examining the Equipment before accepting them and for satisfying itself about them including:
a) their compliance with their description;
b) their condition, suitability and fitness for the Hirer’s purposes; and
c) the validity of any manufacturer’s, dealer’s or supplier’s warranties or guarantees, and entitlements to patents;
26.2 the Hirer did not rely on Statewide’s skill or judgment in deciding that the Equipment is fit for the Hirer’s purposes.
27. Legal Warranties and Limitations
The Hirer acknowledges that to the full extent permitted by law:
27.1 all express and implied terms, conditions and warranties other than those set out in this Agreement are excluded; and
27.2 Statewide is not liable for any breach by the Hirer of any law or the conditions of licence for the Equipment or registration of the Equipment.
28. Statewide’s Right to Act
Statewide may do anything which is reasonably necessary to protect Statewide’s rights in the Equipment or under this Agreement.
29. Statewide may exercise rights
29.1 Statewide may exercise a right, remedy or power in any way that is reasonable including entering into any premises where the Equipment is stored for the purpose of repossession.
29.2 If Statewide does not exercise a right, remedy or power at any time, this does not mean Statewide cannot exercise it later.
29.3 Statewide’s rights, remedies and powers under this Agreement are in addition to any other rights, remedies and powers provided by law independently of it.
30. Termination
Termination of this Agreement for any reason does not affect any rights the Hirer has or Statewide had before that termination or any rights under clauses 15 or 22.
31. Statewide’s right to use money owed to the Hirer
The Hirer authorises Statewide to apply any money Statewide owes the Hirer to satisfy amounts the Hirer owes Statewide under this Agreement.
32. Severability and Application of the Act
Any clause of this Agreement which is void or unenforceable shall be taken to have been severed from this Agreement without affecting the validity and enforceability of the remainder of the Agreement.
33. Variation
Otherwise than provided by this Agreement, a term of this Agreement, or a right created under it, may not be waived or varied except in writing signed by the party or parties to be bound.
34. Business Day
If a date for payment under this Agreement is not a Business Day, the money must be paid on the preceding Business Day. APPLICABLE LAW
This Agreement is governed by the laws of Western Australia. The Hirer and Statewide submit to the non-exclusive jurisdiction of the Courts of Western Australia and Courts of Appeal for them.
35. Applicable Law
35.1 This Agreement is governed by the laws of Western Australia.
35.2 The Hirer and Statewide submit to the non-exclusive jurisdiction of the Courts of Western Australia and the Courts of Appeal for them.
36. Notices
36.1 A notice or other communication to be given or made under these Conditions shall be in writing and may be served personally, by facsimile or prepaid post and may be signed by the party giving it or that party’s representative and unless otherwise provided in these Conditions is deemed to have been duly given or made if served on the party concerned.
36.2 If served personally by delivering the notice to the party personally.
36.3 If by facsimile upon receipt of the end of an aural tone or visually displayed code on the completion of transmission of the facsimile to such number as the parties may advise of their number for receipt of facsimiles from time to time.
36.4 If by post by delivering it or posting it to him or her at his or her address specified in the agreement or other address for service from time to time notified in writing by him or her or his or her representative to the other party or his or her representative. Such notice or other communication shall be deemed to have been served at the expiration of 48 hours from the time of posting.