TERMS & CONDITION OF HIRE
1.1.1 Goods means welding products and associated components hired on a rental arrangement by the Hirer from the Owner for a fee pursuant to the Hire Agreement.
1.1.2 Hire Agreement means the agreement formed between the Owner and Hirer for the Hire of Goods, commencing on acceptance of an order in accordance with clause 2.1.1, and constituted by the accepted order and these terms and conditions.
1.1.3 Hire Period means the time the Hirer wishes to hire the Goods for as specified in an order accepted by the Owner, commencing and finishing in accordance with clause 2.2.2.
1.1.4 Hirer means the applicant named on the account with the Owner or where no account exists then on the Hire Agreement provided by the Owner to the Hirer.
1.1.5 Owner means Allmach Pneumatic and Fluid Systems Pty Ltd A.C.N. 154 915 787.
1.2 Application of these Terms and Conditions
The Hirer agrees that prior to placing an order with the Owner, the Hirer has read and agreed to the terms and conditions as set out hereunder.
2. HIRE AGREEMENT AND CHARGES
2.1 Hire Agreement
2.1.1 An order submitted or placed by a Hirer shall not be binding on the Owner unless and until the Owner has given written confirmation of its acceptance. If Goods are hired without the Owner’s confirmation of an order acceptance, the Owner’s handing over of the hired Goods to the Hirer as at the time and date determined in accordance with clause 2.2.2, is deemed to constitute the order acceptance. Upon the Owner’s acceptance, the Hire Agreement is formed.
2.1.2 These terms and conditions shall apply to the Hire Agreement for the hire of Goods by the Owner to the Hirer to the exclusion of all other terms and conditions including any terms or conditions which the Hirer may (subsequently or otherwise) purport to apply under any confirmation of order or under any documents or correspondence.
2.1.3 Any addition, alteration, substitution or variation to the Hire Agreement (including any special terms and conditions agreed between the parties) shall only apply if expressly agreed to in writing by the Owner.
2.1.4 In the event of any inconsistency between any accepted order and these terms and conditions (together constituting the Hire Agreement), these terms and conditions prevail.
2.1.5 To the extent that a variation to this Hire Agreement is not detrimental to the Hirer, from time to time, the Owner may vary this Hire Agreement. If the Owner intends to do so, the Owner will give the Hirer 28 days’ written notice of the varied terms. If the Hirer has reasonable grounds to believe the change will be detrimental to the Hirer’s rights, the Hirer may terminate this Hire Agreement without penalty within 28 days of receiving the Owner’s written notice. Any other variation or amendment of the Hire Agreement must be in accordance with clause 14.3.
2.2 Hire Periods
2.2.1 The hire charges are based upon the Goods being hired for the minimum period as specified in the Hire Agreement.
2.2.2 The Hire Period commences from the time and date the Goods leave the Owner’s premises, and finish when the goods arrive at the Owner’s premises.
2.2.3 The Hire Period shall refer to the time the Goods are out of the possession of the Owner at the Hirer’s request (including Public Holidays, Weekends and rostered days off) not only the time in which the Goods are being used.
2.3 Hire Charges
2.3.1 The Hirer shall pay the Owner on a monthly basis for the full Hire Period and within the time for payment as specified in the Hire Agreement. Should the Goods be hired for an indefinite period and the Hirer advises (in writing) the Owner that they no longer require the Goods, the Owner shall issue an off-hire number to the Hirer as acknowledgement that the Goods can then be returned (freight at the Hirer’s expense).
2.3.2 The risk in the Goods shall pass to the Hirer from the time and date the Goods leave the Owner’s premises. The Hirer is responsible for any loss or damage to the Goods. The whole or part of the cost of replacement or repair of the Goods will be added to the invoice total for that month.
2.3.3 The Owner may charge interest at 10 per centum per annum (10% per year) calculated on a daily basis on amounts not paid within the time specified in clause 2.3.1 until the date payment is received in cleared funds by the Owner.
2.3.4 The Owner will advise the Hirer at the time of hiring if a minimum hire period applies. If the Hirer returns the Goods to the Owner before the expiration of the minimum hire period, the Hirer must pay all hire charges in respect of the minimum hire period.
2.4 Other charges
2.5 In addition to the hire charges, the Hirer agrees to pay:
2.5.1 for any consumables, fuel, or trade materials the Owner supplies to the Hirer;
2.5.2 the cost of any delivery, collection, or installation the Hirer requires the Owner to do;
2.5.3 if the Hirer does not return the Goods in clean and good working condition, charges for the cleaning and repair of the Goods;
2.5.4 a charge for pumping out waste tanks or refilling water or fuel tanks;
2.5.5 any stamp duty or GST arising out of the Hire Agreement;
2.5.6 any other applicable levies, fines, penalties and any other government charges arising out of the Hirer’s use of the Goods;
2.5.7 charges for payment made by credit card;
2.5.8 if the Hirer requests operational guidance or training on the use of the Goods and the Owner’s staff are available to provide this, the cost for the provision of these services at rates agreed with the Owner; and
2.5.9 any reasonable charges incurred by the Owner if the Owner (if it so wishes but without any obligation to do so) is unable to inspect or carry out maintenance on the Goods during normal working hours.
2.6 Damaged Goods on delivery
2.6.1 If the Hirer collects or receives any Goods and finds that it is broken, damaged, or defective, the Hirer must notify the Owner within 24 hours after the Hirer collects or receives the Goods. If the Hirer does not notify the Owner within that time period, the Owner is entitled to assume (and it will be deemed to be so) that the Goods collected or received were in good order and condition.
3.1 Recoverable Costs
The Hirer must pay to the Owner any costs, expenses or losses incurred by the Owner as a result of the Hirer’s failure to pay to the Owner all sums outstanding as owed by the Hirer to the Owner including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
4. THE HIRER’S RESPONSIBILITIES
4.1 During the Hire Period the Hirer must:
(a) conduct a thorough hazard and risk assessment before using the Goods and comply with all work health and safety laws relating to the Goods and their operation;
(b) not alter, make any additions to, deface or erase any identifying mark, plate or number on or in the Goods or in any other manner interfere with the Goods;
(c) not repair or attempt to repair or cause any repair to be made to the Goods without the prior consent of the Owner;
(d) be responsible for maintaining current ‘Electrical Tagging’ to the Goods at all times in compliance with applicable legislation;
(e) keep acquainted with the state of the Goods and ensure the Goods remain safe, serviceable and clean;
(f) keep the Goods secure and maintain appropriate policies of insurance over the Goods;
(g) not sell, assign, give, lend, pledge, sell, mortgage, lease or in any way part with possession of the Goods, or agree or attempt to do so;
(h) not remove or permit the removal of the Goods from the Hirer’s premises without the prior written consent of the Owner;
(i) not permit any person other than the Hirer’s employees or authorised agents to use or operate the Goods;
(j) (where the Goods require calibration) not use any particular Good unless that Good’s calibration period is current;
(k) operate the Goods safely, strictly in accordance with all laws, only for their intended use, and in accordance with the manufacturer’s instructions;
(l) ensure persons operating or erecting the Goods are suitably trained on its safe and proper use, qualified to use the Goods and where necessary, hold a current applicable licence;
(m) wear suitable clothing and protective equipment when operating the Goods as required by relevant safety standards or the manufacturer;
(n) ensure that no persons operating the Goods are under the influence of drugs or alcohol;
(o) conduct a job safety analysis prior to using the Goods;
(p) ensure that no persons carry illegal, prohibited, or dangerous substances in or on the Goods; and
(q) display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Goods;
(r) clean, fuel, lubricate, recharge the battery, and keep the Goods in good condition and in accordance with the manufacturer’s and the Owner’s instructions at the Hirer’s cost.
4.2 Use of Goods
4.2.1 The Hirer agrees to use the Goods only in accordance with the terms of the Hire Agreement and for the purpose notified by the Owner, and the Hirer shall use the Goods by competent and properly qualified, trained and (where applicable) licensed persons. The Hirer shall do so in accordance with the Owner’s specifications and instructions, and the requirements (if any) of any insurer of the Goods.
4.3.1 The Hirer must use best endeavours to ensure that the Goods are not contaminated with any hazardous substances (including asbestos). The Hirer must advise the Owner of any risks of hazardous substance contamination to the Goods as soon as they become apparent. Where Goods may have been subjected to contamination, the Hirer must effectively decontaminate the Goods at its cost, as well as provide the Owner with written details of decontamination processes applied. If, in the Owner’s sole opinion, the Goods are not capable of being decontaminated, the Hirer will be charged for the replacement cost of the Goods.
4.4 Electrical testing, and calibration
4.4.1 During the Hire Period, the Hirer is responsible for arranging the re-testing and re-tagging of any electrical Goods in accordance with the manufacturer’s instructions and the applicable Australian Standard(s) and Regulatory Authority requirements at the Hirer’s cost. We are able to arrange for such re-testing and re-tagging of the electrical Goods at the Hirer’s cost. Except where the Owner arranges for re-testing and re-tagging of the electrical Goods, the Hirer will be liable for any damage caused resulting from incorrect testing.
4.4.2 During the Hire Period, ensure that each Good is properly calibrated as at the time the Hirer uses the Good. The Hirer is liable for any loss or damage resulted from, or connected to, the Hirer using a Good outside of its calibration period.
5. RETENTION OF TITLE
The Goods shall remain the property of the Owner at all times. The Hirer is not entitled to sell, transfer, mortgage, charge or encumber in any way the Goods nor, without the Owner’s prior written permission, part with possession of the Goods nor assign the benefit of the Hire Agreement. The Hirer’s rights to use the Goods are as a bailee only.
5.2.1 If the Hirer breaches any obligation under the Hire Agreement or any other event occurs which is likely to adversely affect the Hirer’s ability to pay for the Goods (including but not limited to the appointment of a receiver, administrator, liquidator or similar person (each an Insolvency Representative) to the Hirer’s undertaking), then the Owner may, without prejudice to any other remedies it may have, repossess any Goods and commence proceedings to recover the balance of any monies owing to the Owner by the Hirer.
5.2.2 The Hirer irrevocably authorises the Owner to enter any premises where the Owner believes the Goods are kept and recover possession of the Goods. The Hirer acknowledges that the Owner is not liable for any damage or injury caused to any of its premises (whether by the Owner or its officers or agents) in repossessing the Goods.
5.2.3 In any of the circumstances referred to in clause 5.2.1:
(a) neither the Hirer nor the Insolvency Representative is entitled to sell, charge, remove, dispose of, use or otherwise deal with the Goods in any way inconsistent with the Owner’s ownership of the Goods, without the Owner’s prior written consent;
(b) the Hirer and the Insolvency Representative are obliged to re-deliver the Goods to the Owner immediately (or immediately on their appointment in the case of the Insolvency Representative) at their expense; and
(c) the Insolvency Representative will become personally liable to the Owner on a full indemnity basis in respect of any dealings with or use of the Goods by the Hirer or the Insolvency Representative occurring after the date of appointment of the Insolvency Representative and must account to the Owner or reimburse the Owner for all monies received as a result of such dealings or use of the Goods.
6. TERMINATION BY THE OWNER
6.1 The Owner may notwithstanding the specified Period of Hire or any waiver of some previous default by the Hirer terminate this agreement and repossess the Goods if:
(a) the Hirer fails to pay any hiring charges by the due date;
(b) the Hirer does or permits any act or thing to be done to the Goods by way of which the Owner’s right in the Goods may be prejudiced;
(c) the Hirer should become or is made insolvent or bankrupt or makes any arrangement or composition with its creditors which in the Owner’s reasonable opinion makes it unlikely the Hirer will be able to perform its obligations under the Hire Agreement; or
(d) the Hirer commits any breach of the Hire Agreement.
6.2 The Owner may terminate this agreement for any other reason on 1 days’ notice.
6.3 For the purposes of repossessing the Goods the Owner may enter into or upon any premises where the Goods may be to recover the Goods from the Hirer, without prejudice to the rights of the Owner and recover from the Hirer in respect of any claims, damages or expense arising out of any action taken under this clause.
6.4 On the Owner repossessing the Goods the determination of the Period of Hire shall be without prejudice to any claim or demand the Owner may have against the Hirer in respect of any matter or thing arising out of the hire of the Goods AND the Hirer shall pay to the Owner hiring charges at the rate appearing on the Hire Agreement.
6.5 These rights of termination are in addition to any other rights the Owner has under the Hire Agreement and does not exclude any right or remedy under law or equity.
7.1 The Hirer hereby authorises the Owner to collect, retain, record, use and disclose commercial and/or consumer information about the Hirer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a Solicitor or any other professional consultant engaged by the Owner, a Debt Collector, Credit Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
7.2 The Hirer also authorises the Owner to make enquiries with respect to the Hirer’s commercial and/or consumer credit worthiness; to exchange information with other Credit Providers in respect to previous commercial and/or consumer defaults of the Hirer and to notify other Credit Providers of a commercial and/or consumer default by the Hirer.
8.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in the Hire Agreement and there are rights and remedies conferred on the Hirer in relation to the provision of the Goods which cannot be excluded, restricted or modified by the agreement (“Non-excludable Rights”).
8.2 Disclaimer of Liability
8.2.1 The Owner disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Hirer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Owner for a breach of a Non-excludable Right is limited, at the Owner’s option, to the supplying of the Goods again or payment of the cost of having the Goods supplied again.
8.2.2 The Hirer expressly acknowledges and agrees that it has not relied on, and the Owner is not liable for, any advice given by the Owner, its servants, agents, representatives, or employees in relation to the suitability of the Goods for any purpose.
8.3 Indirect Losses
To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded, and the
Owner is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Hirer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Owner’s failure to complete or delay in delivering the Goods.
8.4 Liability limitation
8.4.1 In addition to clauses 8.2 and 8.3, and subject to any Non-excludable Rights, to the maximum extent permitted by law the Owner’s liability for direct loss or damage is:
(a) capped in the aggregate at the amount of insurance payout the Owner may receive in respect of the loss or damage, less any excess or deductible; or
(b) where no applicable insurance policy was taken out for any reason (whether in breach of any obligation to or not) in respect of the loss or damage, capped in the aggregate at the amount equal to the amounts paid by the Hirer under the Hire Agreement.
8.5 Force Majeure
The Owner will have no liability to the Hirer in relation to any loss, damage or expense caused by the Owner’s failure to deliver the Goods or comply with its obligations under the Hire Agreement as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, pandemic, the inability of the Owner’s normal suppliers to supply necessary material or any other matter beyond the Owner’s control.
9. SECURITY AND CHARGE
The Hirer hereby charges all property, both equitable and legal, present or future of the Hirer in respect of any monies that may be owing by the Hirer to the Owner under the Hire Agreement or otherwise and hereby authorises the Owner or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Hirer at any time or to register this charge over assets of the Hirer with the Australian Securities and Investments Commission.
10.1.1 To the full extent permitted by law, the Hirer will indemnify the Owner and keep the Owner indemnified from and against any liability and any loss or damage the Owner may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of the Hire Agreement terms and conditions by the Hirer or its representatives.
10.1.2 Each indemnity in favour of the Owner is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by the Hire Agreement.
11. RETURN OF GOODS
11.1 At the end of the rental period or termination of the Hire Agreement the Hirer must immediately return to the Owner the Goods properly packaged in good and substantial order, repair and condition in accordance with the Hire Agreement.
11.2 The Hirer will pay for the costs to transport the Goods from its premises to the location specified by the Owner to which the Goods are to be returned.
11.3 In the event of the Goods not being returned to the Owner or returned damaged beyond the possibility of repair, the Owner reserves the right to claim compensation from the Hirer for the replacement value of the Goods. In cases of minor damages within the possibility of repair, the Owner reserves the right to claim either the amount equal to any repair costs or an amount equal to the reduction in the value of the Goods at the Owner’s sole discretion.
12. HOLDING OVER
12.1 If the Hirer holds over with the Owner’s consent after expiry of the rental period, the Hirer will be on a day to day lease and shall pay the hire charges as invoiced by the Owner.
The Hirer must not sub-lease or otherwise give possession, access to, or use of, the Goods or any part of the Goods to a third party without the prior written consent of the Owner.
14. GENERAL MATTERS
Any provision in the Hire Agreement which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of the Hire Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
14.2 Governing Law and Jurisdiction
The Hire Agreement is governed by the laws of the State of New South Wales and all disputes arising between the Owner and the Hirer submit to the non-exclusive jurisdiction of the Courts of New South Wales and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.
This Hire Agreement contains all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
The Hirer is not permitted to assign its rights and obligations under this hire agreement.
14.5 No waiver
The failure or delay by the Owner to enforce any provision of the Hire Agreement must not be treated as a waiver of that provision, nor does it affect the Owner’s right to subsequently enforce that provision.