This Agreement is made on the…………Day of………………………20………….…
Between: J. Buchler & D.Gill – Trading as Mandurah Hire
ABN: 22 353 440670 (“owner”)
1.1. The owner is the proprietor of the plant and equipment (“Plant”) listed in the schedule to this Agreement (“schedule”).
1.2. The owner agrees to hire Plant to the hirer on terms set out in this Agreement.
1.3. The hirer will hire the Plant specified in the schedule from the owner on the terms and conditions set out in this Agreement.
2. The Hire Period
2.1. The hiring of the Plant will commence from the commencement date and time specified in the schedule and continue for the term specified in the schedule.
2.2. Should the Plant be delivered to the Hirer by the owner, then the hire period shall commence from the time the Plant leaves the owner’s premises.
2.3. The hirer is entitled to use the Plant for the hire period and for any agreed extension of the period.
2.4. The hirer agrees to return the Plant to the address of the owner on or before the end of the hire period as outlined in the schedule.
2.5. The owner will not refund any hire charge monies if the hirer elects to return the Plant prior to the end of the hire period, regardless of the reason.
2.6. Notwithstanding any other condition, in the event of any plant not being returned to the owner by the hirer before the expiration of the hire period then the hirer shall be deemed to have rehired the plant for a further period.
2.7. The hire period is completed when the Plant has been returned in the owner’s custody at the owner’s premises.
3. Payment for hire
3.1. The hirer agrees to pay the owner the hire fee specified in the schedule for the Plant for the hire period, which includes any applicable GST.
3.2. The hire fee must be paid to the owner before or on the commencement date of the hire period or as otherwise specifically agreed with the owner.
3.3. The hirer agrees to pay stamp duties, GST, any other taxes or duties, and all tolls, fines, penalties, levies or charges payable in respect of this agreement or arising from the hirer’s use of the plant;
3.4. Without limiting the ability of the owner to recover all amounts owing to it, the hirer authorises the owner to charge any amounts owing by the hirer to any credit card or account details of which are provided to the owner.
3.5. The owner shall be entitled to charge interest on all amounts not paid by the hirer by the due date at the rate specified on the CBA website as the current overdraft rate + 3%, calculated daily.
3.6. The hirer agrees to pay any reasonable expenses and legal costs (including commission payable to a commercial agent) incurred by the owner in enforcing this agreement due to the hirer’s default.
4. Other Hire Conditions
4.1. The owner shall:
4.1.1. Make the plant available to the Hirer at the owner’s premises or if so agreed, deliver the plant to the site nominated by the hirer;
4.1.2. Be responsible for all repairs and replacements required to the plant and which arise from fair wear and tear, provided that these shall be at the expense of the Hirer if caused by negligence or misuse on the part of attributable to the Hirer as determined by the owner.
4.2. The Hirer shall:
4.2.1. Maintain and use the plant in a skilful and workmanlike manner and at his own expense service, clean and generally maintain the plant so that it will remain in good repair and condition (fair wear and tear excepted) and supply all oils, grease and fuels necessary for operation;
4.2.2. Return the plant in a clean condition at the expiration of the hire. Breach of this condition will make the Hirer liable to relative cleaning charges;
4.2.3. Fuel tanks on any equipment shall be full of fuel when the equipment is returned to the owner. If these requirements are not complied with, the hirer shall pay the owner the reasonable costs of compliance with these requirements.
4.2.4. Be responsible for the safekeeping of the plant and tools or accessories supplied therewith and indemnify the owner for any loss suffered in this regard through misuse, theft or otherwise;
4.2.5. Pay the relative hire to the owner at the rates prescribed in the schedule as and when requested by the owner;
4.2.6. Pay on request the relative delivery and collection charges and cleaning charges and sundry charges as determined by the owner;
4.2.7. Keep the owner indemnified against any injury or loss suffered by any person operating the plant because of misuse or otherwise;
4.2.8. Be responsible for and indemnify the owner against all loss of or damage to the plant during the hire howsoever caused (other than directly due to fair wear and tear);
4.2.9. Assume all risks and liabilities for and in respect of the equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the hirer’s possession, use, maintenance, repair or storage of the equipment
4.2.10. Before the use of the plant determine the condition and suitability of the plant hired for the purpose required;
4.2.11. Ensure that all safety information supplied with the plant will be conveyed to any person using the plant;
4.2.12. Attach to the plant and maintain any safety signs supplied with the plant and bring them to the attention of any person using the plant and ensure that they are clearly legible by the operator of the plant;
4.2.13. Ensure that all safety and operating instructions and notices are observed and not defaced or removed from the plant;
4.2.14. Ensure that all operators of the plant wear suitable clothing and any protective equipment required or recommended by the manufacturer’s safety and operating instructions or as recommended by the owner;
4.2.15. Safely secure all items loaded in or on the Equipment or in or on the hirer’s vehicle, and indemnify the owner in respect of any injury and/or damage caused by items falling from the equipment or from any vehicle or trailer operated by or on behalf of the hirer.
4.3. The hirer must not:
4.3.1. Tamper with, damage, repair or attempt to repair the Equipment;
4.3.2. Lose or part with possession of the Equipment;
4.3.3. Rely upon any representation relating to the Equipment or its operation other than those contained in this agreement;
4.3.4. Allow any person to drive a Motor Vehicle if the person:
(a) does not hold a suitable licence to drive that class of Motor Vehicle; or
(b) is affected by drugs and/or alcohol.
4.3.5. Exceed the recommended or legal load and capacity limits of the Equipment;
4.3.6. Use or carry any illegal, prohibited or dangerous substance in or on the Equipment.
4.3.7. Exceed the recommended or legal speed limit for the Equipment.
4.3.8. Perform work with the plant, no cause, permit, allow, or employ any person to perform work with the plant, in an occupation prescribed under the relevant State’s Workplace Health and Safety Act, unless the Hirer or such person is the holder of a current certificate of competency, permit, or authority to operate the plant issued for that occupation under such Act.
5. Title to goods
5.1. The hirer acknowledges that the owner retains title to the equipment and that the hirer has rights to use the equipment as a mere bailee only. The hirer does not have any right to pledge the owner’s credit in connection with the goods and agrees not to do so.
5.2. The hirer agrees not to agree, offer or purport to sell, assign, sub-let, lend, pledge, mortgage let or hire or otherwise part with or attempt to part with personal possession or otherwise not to deal with the plant not to conceal or alter the plant or make any addition or alteration to, or repair of, the plant.
6.1. In the event of the owner allowing credit, the hirer hereby charges, as a separate and additional obligation, with payment of any monies owing under this agreement all he has currently and or in the future in: -
6.2. Land or other property;
6.3. Any/all Trusts of whatsoever nature;
6.4. Any/all Wills, estates of whatsoever nature;
6.5. Any/all Superannuation funds of whatsoever nature;
6.6. Any/all Life and/or Death policies of insurance and/or Life Annuities of whatsoever nature;
6.7. and hereby appoints the owner and or its nominated representative (and/or its duly authorised attorney) to sign all documents (including mortgages/transfers) on its behalf to record that charge over the hirer’s property, and if necessary to sell same to repay the debt owing under this agreement. This charge shall only come into operation if the hirer defaults.
6.8. The owner may register any security interest created in these terms and conditions and may give any notification in connection with a security interest. The hirer must do anything the owner asks and considers necessary for the purposes of ensuring that a security interest created under these terms and conditions is registrable, enforceable, perfected and otherwise effective (such as providing information, obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed). The owner need not give any notice under the Personal Property Securities Act 2009 (“PPSA”) (including a notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
6.9. The owner need not comply with any of the provisions of the PPSA that would otherwise apply to the extent the law permits them to be excluded. The hirer may not exercise rights under section 143 (reinstatement of security interest) of the PPSA to the extent the law permits them to be excluded.
7. Breach of the agreement
7.1. If the hirer breaches any provision of this agreement and does not remedy the breach within a reasonable period of time, or becomes bankrupt, insolvent or ceases business then the owner shall be entitled to:
7.1.1. terminate this agreement; and/or
7.1.2. sue for recovery of all monies owing by the hirer; and/or
7.1.3. repossess the plant (and is authorised to enter any premises where the plant located to do so), and any waiver referred to in this agreement is immediately invalidated.
7.2. The hirer indemnifies the owner in respect of any damages, costs or loss, to the extent caused or contributed to by the hirer resulting from a breach by the hirer of any provision of this agreement.
8.1. The hirer must immediately check all Hire Charges, and any disputes concerning those Hire Charges must be communicated to the owner writing within 21 days of the agreement date. If no communication is received from the hirer within those 21 days, the Hire Charges are deemed to be accepted by the hirer.
8.2. If a dispute arises relating to this agreement, the hiring or the use of the Plant (except in regard to payments due to the owner) the parties agree to negotiate to settle the dispute with the assistance of the Hire and Rental Association of Australia before litigation.
9.1. The covenants, agreements and obligations contained in this agreement will not merge or terminate upon the termination of this agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations, they will remain in force and effect.
10.1. If any provision of this agreement is wholly or partly invalid, unenforceable, illegal, void or voidable, this agreement must be construed as if that provision or part of a provision had been severed from this Agreement and the parties remain bound by all of the provisions and part provisions remaining after severance.
11. Governing law
11.1. This Agreement is governed by the laws of Western Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction there in connection with matters concerning this Agreement.
12.1. Interpretation In this Agreement, unless the context otherwise requires:
12.2. A reference to the singular includes the plural and vice versa;
12.3. A reference to any party to this Agreement includes the party’s executors, administrators, successors or permitted assigns, and where applicable, its servants and agents;
12.4. A reference to an individual shall include corporations and vice versa
12.5. If a word or expression is defined, its other grammatical forms have a corresponding meaning.
12.6. In this Agreement, headings are for convenience only and do not affect interpretation.waiver here.