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1 Applicationof Terms
1.1 TheseTerms govern our supply of Goods and Services to you, including supplies on acash basis.
1.2 Ifyou wish to negotiate these Terms with us then you should respond to thisdocument, marking up these Terms and drawing those changes to our attention andobtain our agreement in writing.
1.3 Itis not our practice to otherwise review terms and conditions on documents thatyou issue to us.
1.4 Unlesswe otherwise agree in writing, we do not accept, and will not be bound by, anyterms or conditions included in, attached to, or referenced in, any otherdocument you give to us like a purchase order.
2 Quotations
2.1 Eachquotation that we issue:
(a) isan estimate only;
(b) isnot an offer or obligation to supply any Goods or to perform any Services;
(c) isexclusive of GST;
(d) doesnot include the costs of delivering Goods;
(e) remainsvalid for acceptance for a period of fourteen (14) days from the date of quotation, unless withdrawn by us before acontract for supply is formed; and
(f) containsa price on the basis that all Services are performed, and all Goods delivered,during Business Hours,
unless the quotation states otherwise.
2.2 Quotationsprovided orally are subject to written confirmation.
2.3 Aquotation may include additional terms or conditions, which will supplementthese Terms.
3 Formationof contract
3.1 Weare not obliged to supply any Goods or provide Services until after a contractfor supply is formed.
3.2 Acontract for supply is formed, and you have accepted these Terms, when:
(a) youhave placed an Order with us; and
(b) wehave received any deposit we have required from you in respect of the Orderbefore progressing it; and
either we have:
(c) acceptedyour Order in writing; or
(d) suppliedyou with any Goods or performed any Services following receipt of your Order.
3.3 Ifyou revoke an Order:
(a) priorto the formation of a contract for supply then:
(i) wewill refund you any deposit you have paid in respect of that Order; and
(ii) youwill not be required to pay any fee for the cancellation of the Order; oralternatively
(b) afterthe formation of a contract for supply then unless we are in breach of thecontract for supply:
(i) youmust pay all our reasonable costs associated with fulfilment of your Order; and
(ii) wemay apply any deposit you have paid towards those costs.
4 Price
4.1 Theprice payable for the Goods or Services will be:
(a) theprice agreed in writing; or alternatively
(b) theprice by our prevailing price list/rates as when you place your Order.
4.2 Wemay vary our price or rates by notice to you if you request:
(a) theGoods or Services be rendered outside Business Hours;
(b) differentGoods or Services to be supplied to the contract for supply; or
(c) thatwe delay provision of the Goods or Services for sixty (60) days or more.
4.3 Wherewe vary the price or rates payable for the Goods or Services pursuant to clause4.2, we will notify you of the new price/rates. Thereafter you may reject thenew price/rates within seven (7) days and terminate the contract for supplywithout any cost or penalty to you, otherwise you agree that the price/rateswill apply to the contract.
5 Deliveryand risk
5.1 Unlessotherwise agreed in writing, you are liable for all charges associated withdelivery, freight, demurrage, or other reasonable transport costs associatedwith delivery of Goods.
5.2 Wewill use reasonable endeavours to deliver the Goods at the time and placeagreed for delivery. You will make arrangements necessary to take delivery ofthe Goods.
5.3 Youacknowledge and agree that:
(a) unlessthe contract for supply expressly states otherwise, time in respect of deliveryis not of the essence; and
(b) anytimeframe or date for delivery is an estimate only and is not a contractualcommitment.
5.4 Riskof loss, damage, or deterioration to the Goods passes to you, and delivery isdeemed to occur, at the time:
(a) youor any third party on your behalf collect the Goods from us;
(b) weor our nominated carrier deliver the Goods to the delivery location stated inyour Order (or to such other location as agreed in writing); or
(c) yournominated carrier takes possession of the Goods.
5.5 Itis your responsibility to provide suitable, practical, and safe means of accessand egress to the place agreed for delivery. If the site is deemed unsuitableor unsafe (at the delivery driver’s sole discretion), then the delivery drivermay:
(a) refuseto deliver the Goods and return the Goods to the point of despatch (in whichcase an additional delivery fee will apply to any subsequent delivery attempt);or
(b) deliverthe Goods to the location nearest to the agreed place for delivery wheredelivery can be safely effected.
5.6 Youagree to sign our delivery docket or consignment note or that of our nominatedcarrier as confirmation that you have received the Goods, and if appropriate,certify that you have received the Goods in apparent good order and conditionin the quantity or volume you have ordered.
5.7 Ifyou authorise us to deliver the Goods to an unattended location or to leavethem outside the agreed place for delivery, we may deliver the Goods asrequested at your risk.
5.8 Ifdelivery or collection of the Goods is deferred:
(a) atyour request; or
(b) dueto you being unable or unwilling to accept delivery of the Goods (other than asa result of the Goods delivered not being in accordance with the contract forsupply);
in circumstances where:
(c) weare ready to deliver the Goods and a delivery date has not been agreed; or
(d) theGoods are due to be delivered or collected on an agreed delivery date,
then you will pay to us:
(e) reasonabledaily storage charges (which will continue to accrue until such time as theGoods are delivered or collected); and
(f) anycosts associated with us or our nominated carrier attempting to re-deliver theGoods (where we or our nominated carrier has previously attempted to deliverthe Goods).
5.9 Youacknowledge and agree that we may deliver the Goods in one or more lots and mayinvoice you for pro rata progress in respect thereof.
6 Paymentterms
6.1 Unlessyou have a Credit Facility with us which is not in default:
(a) depositswe have requested must be paid before we commence providing Goods and Services;
(b) youmust pay for all Goods before they are despatched (in cash or cleared funds);and
(c) youmust pay for all Services on a progressive hourly basis as performed.
6.2 Paymentmay be made by cash, electronic funds transfer, Visa, or Mastercard creditcards. We reserve the right to change the payment methods that we accept at anytime.
6.3 Wemay charge a payment surcharge for applicable payment transactions equal to ourreasonable cost of acceptance.
6.4 Youagree to pay GST on all taxable supplies upon us issuing you a tax invoicerelating to the taxable supply.
6.5 Youagree to pay sums due to us free of any set off or counterclaim and withoutdeduction or withholding.
7 Claims
7.1 Clauses7.2 to 7.4 only apply if the contract for supply is not a Consumer Contract andnot a Small Business Contract.
7.2 Youmust, within seven (7) days of the date of delivery:
(a) giveus notice in writing, with particulars, of any Claim that the Goods deliveredare not in accordance with the contract for supply (including any Claim forshortfall, incorrect supply, or damage to the Goods); and
(b) atour request, provide us with photographic evidence (to our satisfaction) of anyalleged damage to the Goods.
7.3 Youmust notify us in writing of any Claim for non-delivery within seven (7) daysof the date of the invoice which relates to the Goods the subject of yourClaim.
7.4 Ifyou fail to notify us in accordance with clause 7.2 and 7.3, then, to theextent permitted by law, the Goods are deemed to have been delivered in goodcondition and in accordance with the contract for supply.
8 Returns
8.1 Thisclause 8 does not apply to Goods that are machinery or equipment and you mustrefer to our quotation for details of any repair and/or warranty terms that maybe applicable for such Goods.
8.2 Wewill accept the return of any Goods if:
(a) theGoods supplied do not conform with the contract for supply;
(b) theGoods are defective; or
(c) weare required by law to accept the return of the Goods.
8.3 Atour discretion, we may accept the return of Goods if you change your mind if:
(a) youagree to:
(i) paythe lesser of a handling and administration charge of 20% of the purchase priceof the returned Goods or $200; and
(ii) reimburseus for all costs we incur in connection with the return of those Goods (exceptfor Goods we have incorrectly supplied or we agree are defective);
(b) theGoods are in substantially the same condition to the condition in which theywere delivered; and
(c) theGoods were not specifically produced or procured at your request.
8.4 Youindemnify and release us from any damage that occurs to any Goods in returntransit. You should ensure that any returned Goods are insured against suchdamage.
9 Retentionof title
9.1 Untilsuch time as you have made payment in full (in cash or cleared funds) for anyGoods we have supplied:
(a) titlein the Goods does not pass to you and we retain the legal and equitable titlein the Goods;
(b) youwill hold the Goods as fiduciary and bailee for us and agree to store the Goodsin such a manner as to enable them to be readily identifiable as our property;
(c) youundertake to not mix the Goods with similar goods;
(d) unlessand until we notify you to the contrary, you will be entitled to sell the Goodsin the ordinary course of your business (provided any such sale is at arm’slength and on market terms) and will sell the Goods as our agent and bailee;and
(e) youundertake to hold any proceeds derived from the sale of the Goods on trust forus absolutely.
9.2 Whiletitle in the Goods remains with us, you permit us to enter upon any premisesyou occupy (or any premises any receiver, receiver and manager, administrator,liquidator, or trustee in bankruptcy of yours occupies) as your invitee toinspect the Goods and, when you are in default of payment of any invoice, torepossess any Goods in your possession, custody, or control.
9.3 Wherewe exercise our right of entry pursuant to clause 9.2, you agree that us doingso will not give rise to any Claim for trespass or similar action against us orour officers, employees, and agents.
9.4 Wherewe have retaken Goods into our possession, we have the right to sell or dealwith those Goods, and, if necessary, sell any Goods bearing your name or trademark, and you hereby grant us an irrevocable licence to do all things necessaryto sell those Goods.
9.5 Forthe removal of doubt, our interest under this clause 9 constitutes a purchasemoney security interest for the purposes of the PPS Act.
10 Securityinterest
10.1 Unlessyou have obtained our prior written and fully informed consent, you undertakenot to:
(a) registera financing change statement in respect of a security interest in our favour;or
(b) create,or purport to create, any security interest in the Goods (or any proceedsderived from the sale of such Goods), nor register, nor permit to beregistered, a financing statement or financing change statement in relation tothe Goods in favour of any third party.
10.2 You:
(a) waiveyour right to receive a copy of any verification statement in accordance withsection 157 of the PPS Act; and
(b) agreethat, to the extent permitted by the PPS Act:
(i) sections95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135,142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
(ii) youwaive your right to receive notices under sections 95, 118, 121(4), 127, 130,132(3)(d), and 132(4) of the PPS Act.
10.3 Weneed not disclose information of the kind detailed in section 275(1) of the PPSAct, unless required by law.
10.4 Wherewe have rights in addition to those under Part 4 of the PPS Act, those rightscontinue to apply.
11 ParticularPurpose
If you require any Goods for a particularpurpose, you must advise us of that purpose prior to placing your Order andmust obtain a written assurance from us that the Goods will meet yourrequirements. If you do not advise us of your requirements and we do notexpressly warrant in writing that the Goods will be fit for your particularpurpose, then you agree that you did not rely upon our skill or judgment inrelation to the suitability of the Goods for that purpose.
12 Default
12.1 Clauses12.2 to 12.4 apply if you fail to pay sums to us when they fall due.
12.2 Wemay charge you interest on the outstanding debt (including any judgment debt)at the rate of 10% per annum.
12.3 Wemay suspend or cease the supply of any further Goods or Services to you.
12.4 Wemay require pre-payment in full for any Goods or Services which have not yetbeen supplied.
13 Indemnity
13.1 Ifyou default in the performance or observance of your obligations under anycontract of which these Terms form part, then:
(a) wewill take steps to mitigate our loss and act reasonably in relation to anydefault by you; and
(b) wewill give you notice requesting payment for loss and damage occasioned inrespect of those events and requesting that you remedy any breach within areasonable time; and
(c) ifthat demand is not met then you indemnify us in respect of loss, damage, costs(including collection costs, bank dishonour fees, and legal costs on anindemnity basis) that we have suffered arising therefrom.
13.2 Yourliability to indemnify us will be reduced proportionally to the extent that anyfraud, negligence, or wilful misconduct by us or a breach of our obligationsunder contract has contributed to the Claim, loss, damage, or cost which is thesubject of the indemnity.
13.3 Yourliability to indemnify us is a continuing obligation separate and independentfrom your other obligations and survives the termination or performance of anycontract of which these Terms form part.
14 Limitationof liability
14.1 Noparty is liable to the other party for any Consequential Loss, including underclause 13, however caused arising out of or in connection with any contract forsupply of which these Terms form part.
14.2 Whilewe will take reasonable endeavours to meet any estimated delivery date orestimated time for Goods and Services, you acknowledge and agree that we arenot liable for any delay associated with meeting those estimated timeframes.
14.3 Ifthe contract for supply is not a Consumer Contract or a Small Business Contractthen, to the extent permitted by law, our liability is limited to:
(a) (inthe case of a supply of Goods):
(i) usrepairing or replacing the Goods; or
(ii) uspaying you the cost of having the Goods repaired or replaced.
(b) (inthe case of a supply of Services):
(i) ussupplying the Services again; or
(ii) uspaying you the cost of having equivalent Services supplied.
15 Termination
A party may, with immediate effect,terminate any contract for supply of which these Terms form part by notice inwriting, if the other party:
(a) commitsa material or persistent breach of these Terms and does not remedy that breach(if capable of remedy) within seven (7) days of the receipt of a notice (orsuch longer time as specified in the notice) identifying the breach andrequiring its remedy; or
(b) hasfailed to pay sums due to the party within seven (7) days; or
(c) hasindicated that it is, or may become, insolvent; or
(d) ceasesto carry on business; or
(e) comprisesan entity which is the subject of the appointment of receivers or managers; or
(f) comprisesa natural person who:
(i) hascommitted an act of bankruptcy; or
(ii) hasbeen made bankrupt;
(g) comprisesa corporation which:
(i) entersinto voluntary administration;
(ii) issubject to a deed of company arrangement; or
(iii) issubject to the appointment of liquidators or provisional liquidators.
16 Trustees
16.1 Ifyou are the trustee of a trust (whether disclosed to us or not), you warrant tous that:
(a) youenter into the contract for supply in both your capacity as trustee and in yourpersonal capacity;
(b) youhave the right to be reasonably indemnified out of trust assets;
(c) youhave the power under the trust deed to enter into the contract for supply; and
(d) youwill not retire as trustee of the trust nor appoint any new or additionaltrustee without first notifying us in writing and having the new or additionaltrustee sign an agreement on terms substantially the same as those governingyour Credit Facility (where applicable).
16.2 Youmust give us a true and complete copy of the trust deed upon request.
17 Variation
We may amend these Terms in the future bynotifying you in writing. The amended Terms will thereafter apply to each Orderyou place unless you earlier give us written notice in advance of placing afurther Order.
18 Assignment
A party may only assign its rights underthe contract for supply with the written consent of the other party.
19 Conflictsand Inconsistencies
If there is any conflict or inconsistencybetween any of the documents which together govern the relationship between theparties, it is agreed the order of precedence will be (highest to lowest):
(a) anyadditional terms or conditions contained in our quotation applicable to thesupply of Goods or Services;
(b) anyterms governing your Credit Facility; and
(c) theseTerms.
20 Severance
If any part or term of our agreement withyou (including any Credit Facility) is illegal, invalid, or unenforceable, itwill be read down so far as necessary to give it a valid and enforceableoperation or, if that is not possible, it will be severed from the contract andthe remaining provisions will not be affected, prejudiced, or impaired by suchseverance.
21 Governinglaw and jurisdiction
21.1 Ourrelationship is governed by and must be construed according to the law applyingin the State of Tasmania.
21.2 Theparties irrevocably submit to the non-exclusive jurisdiction of the courts ofthe State of Tasmania with respect to any proceedings that may be brought atany time relating to our relationship.
22 Definitions
In these Terms, unless the contextotherwise requires, the following definitions apply.
22.1 AustralianConsumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth),as amended.
22.2 BusinessHours means between 08:30am to 5:00pm on a day that is not a Saturday, Sunday,or gazetted public holiday in the place where the Goods or Services are, or areto be, supplied.
22.3 Claimincludes a claim, notice, demand, action, proceeding, litigation,investigation, judgment, or award howsoever arising, whether present,unascertained, immediate, future, or contingent, whether based in contract,tort, pursuant to statute or otherwise and whether involving a third party or aparty to a contract for supply.
22.4 ConsequentialLoss includes any:
(a) consequentialloss;
(b) lossof anticipated or actual profits or revenue;
(c) lossof production or use;
(d) financialor holding costs;
(e) lossor failure to realise any anticipated savings;
(f) lossor denial of business or commercial opportunity;
(g) lossof or damage to goodwill, business reputation, future reputation, or publicity;
(h) lossor corruption of data;
(i) downtimecosts or wasted overheads; or
(j) special,punitive, or exemplary damages.
22.5 ConsumerContract has the meaning given to this term in section 23(3) of the AustralianConsumer Law.
22.6 CreditFacility means an account we have opened for you on which we may, from time totime, extend you with additional time to pay for our Goods and Services andassociated charges.
22.7 Customer,you means the person or other entity who has placed an Order with us for thesupply of Goods or Services (or the person on whose behalf an Order is placed).
22.8 Goodsmeans all goods supplied by us, as described on our quotation, invoice, or anyother form issued by us.
22.9 Ordermeans a written or oral order placed by you requesting that we provide Goods orServices.
22.10 PPSAct means the Personal Property Securities Act 2009 (Cth), as amended.
22.11 Servicesmeans all services performed by us, as described on our quotation, invoice, orany other form issued by us.
22.12 SmallBusiness Contract has the meaning given to this term in section 23(4) of theAustralian Consumer Law.
22.13 Supplier,we, us means the following entities (severally, not jointly): Onetrak Pty Ltd(ACN 119 129 761) and Onetrak Rental Pty Ltd (ACN 616 230 463), collectivelythe ‘Onetrak Group’.
23 Interpretation
In these Terms, unless the contextotherwise requires:
23.1 Atime is a reference to the time zone of Hobart, Australia unless otherwisespecified.
23.2 $,dollar, or AUD is a reference to the lawful currency of Australia.
23.3 Aparty includes a reference to that person’s executors, administrators,successors, substitutes (including a person who becomes a party by novation),assigns, and in the case of a trustee, includes any substituted or additionaltrustee.
23.4 Aright includes a benefit, remedy, authority, discretion, or power.
23.5 Thesingular includes the plural and vice versa, and a gender includes othergenders.
23.6 “Inwriting” or “written” means any expression of information in words, numbers, orother symbols, which can be read, reproduced, and later communicated, andincludes electronically transmitted and stored information.
23.7 Ifa word or phrase is given a defined meaning, its other grammatical forms have acorresponding meaning.
23.8 Wordssuch as “includes”, “including”, and “for example” are not words of limitationand are to be construed as though followed by the words “without limitation”.
23.9 Aterm of an agreement in favour of two or more persons is for the benefit ofthem jointly and each of them separately.
1 Application of Hire Terms
1.1 These Hire Terms, together with the Hire Schedule, govern our hire of Equipment to you (on a Dry Hire basis).
1.2 If you wish to negotiate these Hire Terms with us then you should respond to this document, marking up these Hire Terms and drawing those changes to ourattention and obtain our agreement in writing.
1.3 Iti s not our practice to otherwise review terms and conditions on documents thatyou issue to us.
1.4 Unlesswe otherwise agree in writing, we do not accept, and will not be bound by, anyterms or conditions included in, attached to, or referenced in, any otherdocument you give to us like a purchase order.
2 Quotations
2.1 Eachquotation that we issue:
(a) isan estimate only;
(b) includesDamage Waiver particulars and costs;
(c) isnot an offer or obligation to hire any Equipment to you;
(d) isexclusive of GST;
(e) doesnot include the costs of delivering the Equipment; and
(f) remainsvalid for acceptance for a period of thirty (30) days from the date ofquotation, unless withdrawn by us before a hire contract is formed,
unless the quotation states otherwise.
2.2 Quotationsprovided orally are subject to written confirmation.
2.3 Aquotation may include additional terms or conditions, which will supplementthese Terms.
3 Formationof a hire contract
3.1 Ifyou request to hire Equipment from us on a Dry Hire basis (whether or not wehave issued you a quotation), we will issue you a Hire Schedule. The HireSchedule which contains details of the hire and may include additional termsand conditions which will supplement these Hire Terms.
3.2 Weare not obliged to hire any Equipment to you until after a hire contract isformed.
3.3 Ahire contract is formed, and you have accepted these Hire Terms, when:
(a) yousign the Hire Schedule and return it to us; or alternatively
(b) directus to mobilise the Equipment following your receipt of the Hire Schedule.
3.4 Ifyou revoke an Order:
(a) priorto the formation of a hire contract then:
(i) wewill refund you any deposit you have paid in respect of that Order; and
(ii) youwill not be required to pay any fee for the cancellation of the Order; oralternatively
(b) afterthe formation of a hire contract then unless we are in breach of the hirecontract:
(i) youmust pay all our reasonable costs associated with fulfilment of your Order; and
(ii) wemay apply any deposit you have paid towards those costs.
4 HirePeriod
4.1 TheHire Period will commence:
(a) (whereyou collect the Equipment):
(I) onthe On-Hire Date; or alternatively
(II) ifthe Equipment is collected after the On-Hire Date, when the Equipment leavesthe point of hire; or
(b) (wherewe deliver the Equipment) the date we or our nominated carrier delivers theEquipment to the Site (or to such other location as agreed in writing).
4.2 Whereyou hire the Equipment on a Dry Hire basis, we may, on or before the On-HireDate, provide you with a Pre-Hire Inspection Report. The Pre-Hire InspectionReport will include:
(a) agenuine indication of the state of the Equipment, including major componentryand sub-components;
(b) theutilisation hours recorded by the Equipment’s SMU (where applicable);
(c) whetherthe Equipment is in a clean and serviceable condition;
(d) anyknown faults; and
(e) alist of any attachments or tools (including GETs), accessories, spares, andsupporting documentation.
4.3 Ifa Minimum Hire Period applies, you agree to:
(a) hirethe Equipment for the Minimum Hire Period; and
(b) payus the full Hire Rate for the Minimum Hire Period.
4.4 Forthe removal of doubt, you must pay the full Hire Rate for the Minimum HirePeriod, together with all other fees and charges stated in the Hire Schedule,even if you return the Equipment, or arrange for us to collect the Equipment,prior to the expiry of the Minimum Hire Period.
5 Deliveryand risk
5.1 Unlessotherwise agreed in writing, you acknowledge and agree that you are responsiblefor all delivery, freight, demurrage, and other reasonable transport costs forthe Equipment.
5.2 Youare responsible for:
(a) arrangingthe collection or delivery of the Equipment;
(b) loadingand unloading the Equipment; and
(c) thecosts of collecting or delivering the Equipment,
unless the Hire Schedule states otherwise.
5.3 Youacknowledge and agree that:
(a) timein respect of delivery is not of the essence; and
(b) anytimeframe or date for delivery is an estimate only and is not a contractualcommitment,
unless the Hire Schedule states otherwise.
5.4 Riskof loss, damage, or deterioration to the Equipment passes to you, and deliveryis deemed to occur, at the time:
(a) (whereyou collect the Equipment):
(i) youor any third party on your behalf collects the Equipment from the point ofhire; or
(ii) yournominated carrier takes possession of the Equipment; or
(c) (wherewe deliver the Equipment) we or our nominated carrier delivers the Equipment tothe Site (or to such other location as agreed in writing).
5.5 Riskin the Equipment remains with you until such time as:
(a) youreturn the Equipment to us or our nominated carrier; or
(b) werepossess the Equipment,
(Risk Period).
5.6 Youmust inspect the Equipment within twenty-four (24) hours of delivery for anydamage and you must satisfy yourself that:
(a) youhave received the Equipment in good order and condition and in accordance withthe Pre-Hire Inspection Report (where provided);
(b) you,and any of your Personnel operating the Equipment, understand its safe andproper operation; and
(c) theEquipment is fit for the purpose for which you require it.
5.7 Youmust notify us within twenty-four (24) hours if you are not so satisfied.Failing such notification, you will be deemed to have accepted the Equipment inthe condition in which it was delivered and as fit for the purpose for whichyou require it.
6 Endof Hire Period
6.1 Unlessthe Hire Schedule provides we are to collect the Equipment, you must return theEquipment during Business Hours to the point of hire or to such other locationadvised by us (acting reasonably):
(a) onthe Off-Hire Date (or such other date as agreed between the parties); orotherwise
(b) assoon as possible if the hire contract is terminated.
6.2 Subjectto clauses 6.3 and 6.4, you may terminate a hire contract early by:
(a) returningthe Equipment to us at the point of hire (during Business Hours); or
(b) notifyingus in writing that the Equipment is ready for collection;
6.3 Whereyou notify us the Equipment is ready for collection pursuant to clause 6.2(b),you must do so prior to 10.00am on the day the Equipment is to be off-hired,failing which we may charge you the applicable Hire Rate for that day.
6.4 Whereyou hire the Equipment on a Dry Hire basis, you must return the Equipment tous:
(a) inthe same state of cleanliness and in substantially similar condition that theEquipment was in when you took possession of it (Fair Wear and Tear excepted);
(b) witha full tank of fuel which conforms with the Equipment manufacturer’sspecifications;
(c) withall oil and lubricant reservoirs full with oil and lubricants which conformwith the Equipment manufacturer’s specifications; and
6.5 If:
(a) thehire contract expires or is terminated; and
(b) youfail to comply with clause 6.1,
then you:
(c) permitus to enter upon the Site and any premises you occupy (or any premises anyreceiver, receiver and manager, administrator, liquidator, or trustee inbankruptcy of yours, occupies) as your invitee to repossess the Equipment; and
(d) authoriseus to disconnect, dismantle, and remove the Equipment (whether or not it isaffixed to the Site).
7 HireRate and other charges
7.1 Inconsideration of us hiring the Equipment to you, you agree to pay us:
(a) theHire Rate;
(b) mobilisationand demobilisation costs;
(c) theDamage Waiver (subject to clause 14.2);
(d) cleaningscosts (if the Equipment is returned to us in an unclean state);
(e) decontaminationcosts (if the Equipment is contaminated with any hazardous substance, such asasbestos);
(f) chargesat our then prevailing rates where you require induction or training inrelation to the operation of the Equipment;
(g) anytolls, levies, fines, or penalties we incur arising out of or in connectionwith your use or operation of the Equipment; and
(h) allother amounts, charges, levies, and fees stated in the Hire Schedule.
7.2 Wherethe Hire Schedule provides for a flat rate, the flat rate will be the Hire Rateand will be charged weekly in advance.
7.3 Wherethe Equipment is hired for a flat rate, we will not be required to adjust theHire Rate based on the hours recorded by the Equipment’s SMU or the number ofdays the Equipment is in operation.
7.4 Whena management rate and usage rate is charged, the management rate will becharged weekly in advance and the usage rate will be charged weekly in arrears.
7.5 Wherethe Hire Schedule contemplates a maximum usage for the Equipment (either interms of days or operational hours), we may charge you reasonable additionalcharges if you exceed that maximum at any point in time during the Hire Period.
7.6 Unlessthe Hire Schedule states otherwise, any excess usage of the Equipment will becalculated and charged on a pro rata basis of the Hire Rate.
7.7 Ifwe incur any cost on your behalf or associated with your failure to performyour obligations under the hire contract such as where:
(a) youfail to return the Equipment and we collect the Equipment;
(b) youreturn the Equipment in an unclean state; or
(c) weincur costs associated with the delivery or collection of the Equipment,
then you agree to pay us those costs plusan uplift of 10% as a management and administration charge.
8 Paymentterms
8.1 Unlessyou have a Credit Facility with us which is not in default:
(a) depositswe have requested must be paid before we hire any Equipment to you; and
(b) youmust pay us the Hire Rate in accordance with the payment terms stated in theHire Schedule.
8.2 Paymentmay be made by cash, electronic funds transfer, Visa, or Mastercard creditcards. We reserve the right to change the payment methods that we accept at anytime.
8.3 Wemay charge a payment surcharge for applicable payment transactions equal to ourreasonable cost of acceptance.
8.4 Youagree to pay GST on all taxable supplies upon us issuing you a tax invoicerelating to the taxable supply.
8.5 Youagree to pay sums due to us free of any set off or counterclaim and withoutdeduction or withholding.
8.6 Paymentsunder these Hire Terms will continue to apply notwithstanding any defect orbreakdown of the Equipment.
9 Hirer’sobligations
9.1 Youmust:
(a) complywith all laws relating to the transportation, storage, and operation of theEquipment;
(b) protectthe Equipment from loss or damage, and store the Equipment safely and securely;
(c) observewarranties and guidelines given by the manufacturer of the Equipment;
(d) keepthe Equipment in good working order and condition and provide us with reportson the condition of the Equipment whenever reasonably requested to do so;
(e) eachday:
(i) completethe pre-start safety checklist and logbook provided with the Equipment; and
(ii) checkthe Equipment for oil, lubricants, coolant, battery levels, any sign oflooseness or wear, and anything else required by the pre-start safety checklistor logbook;
(f) service,maintain, and repair the Equipment in accordance with any service, maintenance,or repair items described in the Hire Schedule which are noted to be yourresponsibility (using only genuine new or reconditioned parts, components,consumables, and other items approved by us or the manufacturer of theEquipment);
(g) ensurethat any Personnel operating the Equipment are lawfully authorised to do so andare suitability instructed in the safe and proper operation of the Equipment;
(h) ensureany Personnel operating the Equipment do so:
(i) properlyand skilfully in accordance with the manufacturer of the Equipment’s manualsand guidelines and our directions;
(ii) inaccordance with any workplace health and safety laws;
(iii) undercompetent supervision; and
(iv) ina manner which will minimise damage to the Equipment;
(i) ensureany Personnel operating the Equipment are not affected or impaired by alcoholor drugs (prescribed or non-prescribed);
(j) allowus to affix labels, decals, and/or plates to the Equipment stating that theEquipment is our property (and you must not alter, remove, deface, or cover upsuch labels, decals, and/or plates);
(k) usebest endeavours to ensure that the Equipment is not contaminated with anyhazardous substances;
(l) ensurethat no Personnel carry illegal or dangerous substances in or on the Equipment;
(m) allowour Personnel to at all reasonable times to enter upon the Site or any otherpremises you occupy to inspect the Equipment, and otherwise enforce our rightsand carry out our obligations under the hire contract;
(n) immediatelygive us any notice or order received from any government authority about theoperation or condition of the Equipment; and
(o) withinfive (5) Business Days from the end of each calendar month, provide to us theactual machine hours reported by the Equipment’s SMU (where equipped),
unless the Hire Schedule states otherwise.
9.2 Youmust not, without our prior written and fully informed consent:
(a) removethe Equipment from the Site;
(b) movethe Equipment over any body of water;
(c) usethe Equipment in conjunction with any forestry activity, underground mining ordrilling activity, or for any purpose other than what the Equipment is designedor commonly used for;
(d) usethe Equipment in an area where asbestos is present;
(e) usethe Equipment in or around caustic or corrosive substances such as salt water,acid, or fertiliser;
(f) usethe Equipment to carry or transport animals;
(g) makeany replacements, modifications, alterations, additions, or improvements to theEquipment;
(h) exceedthe recommended or legal load and capacity limits of the Equipment;
(i) placeany identifying mark on the Equipment or allow it to become an accession(within the meaning of the PPS Act);
(j) lease,sublease, licence, or lend the Equipment to any other person (or otherwise dealwith the Equipment in a manner inconsistent with our rights and interest in theEquipment); or
(k) door allow to be done any act, matter, or thing which may invalidate or prejudiceany:
(i) insurancepolicy effected and maintained by us or you;
(ii) defenceor prosecution of any Claim; or
(iii) Claimor right we may have against any person.
10 Servicing,maintenance, and repairs
10.1 Forthe purposes of this clause 10 and the Hire Schedule:
(a) MinorRepair means a repair to the Equipment of the kind described in the HireSchedule as a minor repair; and
(b) MajorRepair means a repair to the Equipment of the kind described in the HireSchedule as a major repair.
10.2 Duringthe Hire Period we will carry out, at our own expense:
(a) anyrepair which is necessary to rectify any damage to, or malfunction of, theEquipment to the extent that such damage or malfunction was caused by any actor omission of ours or that of our Personnel;
(b) anyMajor Repair which is necessary to rectify any damage to, or malfunction of,the Equipment caused by Fair Wear and Tear where the damage or malfunctionrenders the Equipment unsafe or unsuitable for normal use or operation; and
(c) anyservice, maintenance, or repair items described in the Hire Schedule which arenoted to be our responsibility.
10.3 Wherewe are responsible for carrying out any repairs to the Equipment:
(a) wewill do so as soon as possible after being notified by you of the defect ormalfunction, and if it is necessary for the Equipment to be returned to ourpremises for repairs, then we will collect the Equipment from you and willre-deliver the repaired Equipment or a suitable replacement as soon asreasonably practicable; and
(b) youmust not carry out any repairs on our behalf without our prior written andfully informed consent. If you carry out repairs without first obtaining ourconsent, we will not be liable for the cost of those repairs.
10.4 Notwithstandingclauses 10.2 and 10.3, you are otherwise responsible for maintaining,servicing, and repairing the Equipment at your own expense and must performsuch work in accordance with:
(a) themaintenance schedule provided by us; and
(b) theservicing and maintenance manuals and/or guidelines provided by themanufacturer of the Equipment; or alternatively
(c) customerservice documentation pre-approved by us.
10.5 Tothe extent that you are responsible for maintaining and servicing theEquipment, you are also solely responsible for the cost of any replacementparts and consumables that would ordinarily be installed in the Equipment aspart of its regular maintenance or servicing.
10.6 Youare responsible for supplying at your own expense all fuel, oil, hydraulicfluid, and other consumable items required for the proper operation of theEquipment, unless the Hire Schedule states otherwise.
10.7 Youacknowledge and agree that all replacements, modifications, alterations,additions, and improvements which you make to the Equipment and which cannot beremoved from the Equipment without detriment to it will become our property andthe title to those things will vest in us on their incorporation.
11 Wearand tear
11.1 Weaccept liability for the Fair Wear and Tear of major and minor components ofthe Equipment.
11.2 Physicalharm to the Equipment and major components that fail prematurely (i.e. theyfail outside of the manufacturer of the Equipment’s expected life cycle) willbe considered to be damage caused to the Equipment if we can prove, on thebalance of probabilities, that the damage was caused by the wilful neglect,negligence, or the improper operation of the Equipment by you, your Personnel,or any other third party during the Risk Period.
11.3 Youare responsible for all wear to tyres, tracks, GETs, trays, and undercarriages(Wear Items).
11.4 Beforethe Equipment is mobilised, we will measure the amount of wear in respect ofeach of the Wear Items. When the Equipment is returned to the original point ofhire, we will take these measurements again.
11.5 Usageof each of the Wear Items will be measured by comparing the percentage of useat the On-Hire Date with the percentage of use at the end of the Hire Period.
11.6 Wewill advise you in writing of the amount of wear incurred to the Wear Itemsduring the Hire Period.
11.7 Youagree to pay for any wear incurred to the Wear Items, calculated on a pro ratabasis as a percentage increase in wear multiplied by the cost of a new WearItem of the same or substantially similar type and quality.
12 Damage,loss, and theft
12.1 Youare strictly liable for any damage, loss, or theft to the Equipment that occursduring the Risk Period.
12.2 Ifthe Equipment breaks down, is damaged, or otherwise becomes inoperable (forwhatever reason, including due to it being deemed unsafe to operate), you mustpromptly:
(a) notifyus by telephone and in writing; and
(b) takeall reasonable steps to secure and safeguard the Equipment from any potentialdamage or injury to any person or property (including further damage to theEquipment).
12.3 Uponreceipt of your notice under clause 12.2(a):
(a) theHire Rate will be suspended until such time as the Equipment is repaired or wehave provided you with a suitable replacement (unless you or your Personnelhave caused the damage); and
(b) wewill take all reasonable steps to repair the Equipment or provide you with asuitable replacement as soon as reasonably practicable.
12.4 Ifthe Equipment breaks down, is damaged, needs to be recovered (due to it beingbogged or stuck), or otherwise becomes inoperable due to any act or omission ofyours, your Personnel, or any third party, you agree to:
(a) payus any costs we incur to repair or recover the Equipment (as the case may be);and
(b) continueto pay us the Hire Rate during the period in which we are recovering orrepairing the Equipment or procuring a suitable replacement.
12.5 Ifthe Equipment is unable to be returned to us (for example, if it is lost,stolen, damaged beyond economic repair, or if title to the Equipment is lost)then you must pay us the aggregate of the following:
(a) allmoney past due but not yet paid under the hire contract;
(b) anysalvage costs we incur in salvaging the Equipment; and
(c) thereplacement cost of the Equipment (calculated in accordance with thenprevailing market value of the Equipment).
12.6 Ifthe Equipment is stolen during the Risk Period, you must promptly (and in anyevent within forty-eight (48) hours of the date the Equipment was stolen)provide us with a copy of a police report explaining the circumstances of thetheft.
13 Standdowns
13.1 Subjectto clause 12.3, you acknowledge and agree you are not entitled to any discountor rebate for any period in which the Equipment:
(a) isnot in use by you; or
(b) isstood down by you.
13.2 Wemay (but are not obliged to) grant you a discount or rebate if the Equipmentcannot be operated (for example, due to adverse weather conditions) providedthat:
(a) younotify us before 8:00am on the day that occurs; and
(b) wenotify you in writing that we have agreed (in our discretion) to provide youwith a discount or rebate.
14 DamageWaiver
14.1 Subjectto clause 14.2, as a condition of hire, you must pay us the Damage Waiver. TheDamage Waiver:
(a) isnot insurance and is not a substitute for insurance;
(b) willautomatically be charged to you (in addition to the Hire Rate); and
(c) mustbe paid to us on or before the On-Hire Date.
14.2 Youdo not have to pay us the Damage Waiver if you:
(a) insurethe Equipment on or before the On-Hire Date for an amount not less than theInsured Value in accordance with clause 15.1(a); and
(b) provideus with a certificate of currency or such other evidence we may reasonablyrequire evidencing the insurance contemplated by clause 15.1(a).
14.3 Uponpayment of the Damage Waiver, we will be responsible for the cost of anydamage, loss, of theft to the Equipment during the Hire Period, except for:
(a) anyexcess payable by us to our insurer; and
(b) anyshortfall between the sum insured and the cost of replacing the Equipment(calculated in accordance with then prevailing market value of the Equipment),
which you will be liable and will berequired to pay us within seven (7) days of our written demand.
14.4 Wewill not waive our rights to Claim against you for any damage, loss, of theftof the Equipment and the Damage Waiver will not apply to damage, loss, or theftto the Equipment arising out of or in connection with:
(a) yournegligence;
(b) yourunlawful use of the Equipment;
(c) yourbreach of a clause of these Terms;
(d) your(or your Personnel’s) misappropriation or wrongful conversion of the Equipment;
(e) theEquipment being in possession of any other person than you or your authorisedPersonnel;
(f) theEquipment being located, used, loaded, unloaded, transported on, over oradjoining water, wharves, bridges or vessels of any kind;
(g) overloadingEquipment or any components of the Equipment;
(h) exposingthe Equipment to any corrosive or caustic substance (for example, cyanide, saltwater, acid);
(i) burglary,theft, or vandalism of the Equipment (where you have failed to properly securethe Equipment);
(j) theftof any components, replacement parts, tools, or accessories supplied with theEquipment;
(k) useof the Equipment in any forestry activity, underground mining or drillingactivity, or for any purpose other than what the Equipment is designed orcommonly used for (unless pre-approved by us);
(l) causticor corrosive substances such as salt water, acid, or fertiliser;
(m) anymisuse, abuse, wilful or malicious acts or omissions, or reckless use(including exceeding the legal load and capacity limits of the Equipment);
(n) lackof lubrication or improper lubrication or your failure to otherwise adhere toyour repair and maintenance responsibilities;
(o) anyunexplained disappearance of the Equipment;
(p) anylifting of the Equipment;
(q) damagecaused by an overhead collision due to insufficient clearance;
(r) damageto tyres (including punctures, cuts, and abrasions) and other Wear Items,glass, or instrumentation;
(s) useof the Equipment in or over water (including damage caused by partial or totalsubmersion); or
(t) damageto the interior of the Equipment.
14.5 TheDamage Waiver will not continue to operate after the Hire Period expires unlessotherwise agreed in writing.
14.6 Thisclause 14 in no way entitles you to, nor implies the availability of,compensation from us for any liability incurred by you in relation to your useor operation of the Equipment.
15 Insurance
15.1 Youmust for the duration of the Risk Period effect and maintain, at your ownexpense:
(a) apolicy of plant insurance and must keep the Equipment insured for no less thanthe Insured Value (with our interest as owner of the Equipment noted on thepolicy), against fire, theft, and damage and the other usual risks which aprudent owner or hirer would insure and any other risks specified by us, actingreasonably; and
(b) apolicy of public liability insurance to cover your liability for loss or damageto property and the death of or injury to any person (other than liabilitywhich applicable law requires to be covered under a workers compensationpolicy) for no less than $20,000,000 in respect of any one occurrence,
unless the Hire Schedule states otherwise.
15.2 Youmust ensure that each insurance you are required to effect and maintain underclause 15.1 is:
(a) effectedwith an insurer with a financial security rating equal to or better thanStandard and Poor’s A minus rating or the equivalent rating with anotherrecognised agency; and
(b) onterms and conditions usual to that class of insurance.
15.3 Youmust, in respect of each insurance required by clause 15.1:
(a) whenrequested by us, promptly satisfy us that each insurance is current byproviding us with certificates of currency or such other evidence we mayreasonably require;
(b) payeach insurance premium before the due date and, upon request, produce receiptsfor the payment;
(c) bearthe cost of any excesses and deductibles;
(d) notdo, omit to do, or permit anything which prejudices the insurances;
(e) not,without our prior written and fully informed consent:
(i) insurethe Equipment only in your name; or
(ii) vary,cancel, or allow to lapse any insurance;
(f) immediatelyrectify anything which might prejudice the insurances and reinstate anyinsurance if it lapses; and
(g) notifyus immediately when an event occurs which gives rise or might give rise to aClaim under any of the insurances.
16 Propertyand title in the Equipment
16.1 Youacknowledge and agree that we are the owner of the Equipment and retain titleto the Equipment in all circumstances. Where you hire the Equipment on a DryHire basis, your right under the hire contract to possess the Equipment is as abailee only.
16.2 Forthe removal of doubt, neither payment of compensation nor any other event orcircumstances will amount to, constitute, or result in any transfer of propertyor interest in the Equipment from us.
17 Securityinterest
17.1 Unlessyou have obtained our prior written and fully informed consent, you undertakenot to:
(a) registera financing change statement in respect of a security interest in our favour;or
(b) create,or purport to create, any security interest in the Equipment, nor register, norpermit to be registered, a financing statement or financing change statement inrelation to the Equipment in favour of any third party.
17.2 You:
(a) waiveyour right to receive a copy of any verification statement in accordance withsection 157 of the PPS Act; and
(b) agreethat, to the extent permitted by the PPS Act:
(i) sections95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135,142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
(ii) youwaive your right to receive notices under sections 95, 118, 121(4), 127, 130,132(3)(d), and 132(4) of the PPS Act.
17.3 Weneed not disclose information of the kind detailed in section 275(1) of the PPSAct, unless required by law.
17.4 Wherewe have rights in addition to those under Part 4 of the PPS Act, those rightscontinue to apply.
18 Measurementsof Hours
18.1 TheEquipment’s hour meter (and other SMUs) will be the basis for calculating therent payable where the amount payable depends on (or is calculated on)Equipment hours.
18.2 Youare responsible for taking hour meter readings at the intervals as requested byus and for forwarding the readings to us. If the readings are not received onthe due date, invoices us will be based on an assumed usage.
18.3 Youmust immediately notify us of any fault in the machine hour meter and maintaina manual log of the machine hours until such time as the service meter isoperating properly again.
19 Default
19.1 Clauses19.2 to 19.4 apply if you fail to pay sums to us when they fall due.
19.2 Wemay charge you interest on the outstanding debt (including any judgment debt)at the rate of 10% per annum.
19.3 Wemay suspend or cease the supply of any further Equipment to you.
19.4 Wemay require pre-payment in full for any Equipment which has not yet beensupplied.
20 Indemnity
20.1 Ifyou default in the performance or observance of your obligations under any hirecontract of which these Hire Terms form part, then:
(a) wewill take steps to mitigate our loss and act reasonably in relation to anydefault by you; and
(b) wewill give you notice requesting payment for loss and damage occasioned inrespect of those events and requesting that you remedy any breach within areasonable time; and
(c) ifthat demand is not met then you indemnify us in respect of loss, damage, costs(including collection costs, bank dishonour fees, and legal costs on anindemnity basis) that we have suffered arising therefrom.
20.2 Yourliability to indemnify us will be reduced proportionally to the extent that anyfraud, negligence, or wilful misconduct by us or a breach of our obligationsunder contract has contributed to the Claim, loss, damage, or cost which is thesubject of the indemnity.
20.3 Yourliability to indemnify us is a continuing obligation separate and independentfrom your other obligations and survives the termination or performance of anyhire contract of which these Hire Terms form part.
21 Limitationof liability
21.1 Noparty is liable to the other party for any Consequential Loss, including underclause 20, however caused arising out of or in connection with any hirecontract of which these Hire Terms form part.
21.2 Whilewe will take reasonable endeavours to meet any estimated delivery date forEquipment or estimated time for services, you acknowledge and agree that we arenot liable for any delay associated with meeting those estimated timeframes.
21.3 Ifthe hire contract is not a Consumer Contract or a Small Business Contract then,to the extent permitted by law, our liability is limited to:
(a) (inthe case of the hire of Equipment):
(i) usrepairing the Equipment or providing a suitable replacement; or
(ii) uspaying you the cost of having the Equipment repaired or procuring a suitablereplacement.
(b) (inthe case of a supply of services):
(i) ussupplying the services again; or
(ii) uspaying you the cost of having equivalent services supplied.
22 Termination
A party may, with immediate effect,terminate any hire contract of which these Hire Terms form part by notice inwriting, if the other party:
(a) commitsa material or persistent breach of these Hire Terms and does not remedy thatbreach (if capable of remedy) within seven (7) days of the receipt of a notice(or such longer time as specified in the notice) identifying the breach andrequiring its remedy; or
(b) hasfailed to pay sums due to the party within seven (7) days; or
(c) hasindicated that it is, or will likely become, insolvent; or
(d) ceasesto carry on business; or
(e) comprisesan entity which is the subject of the appointment of receivers or managers; or
(f) comprisesa natural person who:
(i) hascommitted an act of bankruptcy; or
(ii) hasbeen made bankrupt;
(g) comprisesa corporation which:
(i) entersinto voluntary administration;
(ii) issubject to a deed of company arrangement; or
(iii) issubject to the appointment of liquidators or provisional liquidators.
23 Privacy
23.1 Youmust comply with all Privacy Laws, and any reasonable direction of ours, inhandling any Personal Information disclosed to or accessed by you in connectionwith any Contract of which these Hire Terms form part, whether or not you arean organisation bound by the Privacy Laws.
23.2 Withoutlimiting your obligations under clause 23.1, you must:
(a) notuse or disclose Personal Information other than for the purpose of performingyour obligations under any contract of which these Hire Terms form part, unlessrequired or authorised by law;
(b) uponrequest, promptly return any Personal Information to us upon termination orperformance of any contract of which these Hire Terms form part; and
(c) immediatelynotify us:
(i) uponbecoming aware of any breach of clauses 23.1 or 23.2; and
(ii) ofany data breach affecting, or unauthorised access to or loss of, PersonalInformation held by you or your personnel.
23.3 Clauses23.1 and 23.2 survive the termination or performance of a contract of whichthese Hire Terms form part.
24 Variation
We may amend these Hire Terms in the futureby notifying you in writing. The amended Hire Terms will thereafter apply toeach Order you place unless you earlier give us written notice in advance ofplacing a further Order.
25 Assignment
A party may only assign its rights underthe hire contract with the written consent of the other party.
26 Subcontracting
You acknowledge and agree that, given thenature of our business, we may be reasonably required to subcontract any partof our obligations under the hire contract, including, for example, ourobligation to repair the Equipment, however, any subcontracting of ourobligations will not relieve us of any of our obligations to you under the hirecontract.
27 Conflictsand Inconsistencies
If there is any conflict or inconsistencybetween any of the documents which together govern the relationship between theparties, it is agreed the order of precedence will be (highest to lowest):
(a) theHire Schedule;
(b) anyterms governing your Credit Facility; and
(c) theseHire Terms.
28 Severance
If any part or term of our agreement withyou (including any Credit Facility) is illegal, invalid, or unenforceable, itwill be read down so far as necessary to give it a valid and enforceableoperation or, if that is not possible, it will be severed from the contract andthe remaining provisions will not be affected, prejudiced, or impaired by suchseverance.
29 Governinglaw and jurisdiction
29.1 Ourrelationship is governed by and must be construed according to the law applyingin the State of Tasmania.
29.2 Theparties irrevocably submit to the non-exclusive jurisdiction of the courts ofthe State of Tasmania with respect to any proceedings that may be brought atany time relating to our relationship.
30 Definitions
In these Hire Terms, unless the contextotherwise requires, the following apply.
30.1 AustralianConsumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth),as amended.
30.2 BusinessHours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday,or gazetted public holiday in the place where the Equipment is to be hired.
30.3 Claimincludes a claim, notice, demand, action, proceeding, litigation,investigation, judgment, or award howsoever arising, whether present,unascertained, immediate, future, or contingent, whether based in contract,tort, pursuant to statute or otherwise and whether involving a third party or aparty to a hire contract.
30.4 ConsequentialLoss includes any:
(a) consequentialloss;
(b) lossof anticipated or actual profits or revenue;
(c) lossof production or use;
(d) financialor holding costs;
(e) lossor failure to realise any anticipated savings;
(f) lossor denial of business or commercial opportunity;
(g) lossof or damage to goodwill, business reputation, future reputation, or publicity;
(h) lossor corruption of data;
(i) downtimecosts or wasted overheads; or
(j) special,punitive, or exemplary damages.
30.5 ConsumerContract has the meaning given to this term in section 23(3) of the AustralianConsumer Law.
30.6 CreditFacility means an account we have opened for you on which we may, from time totime, extend you with additional time to pay for the hire of Equipment andassociated charges.
30.7 DamageWaiver means the amount stated in the Hire Schedule you are required to pay toreduce your financial liability in the event of damage, loss, or theft to theEquipment (or, where no amount is stated, the Damage Waiver will be an amountequal to 12.5% of the Hire Rate).
30.8 DryHire means the hire of Equipment under the exclusive direction and control ofthe Hirer.
30.9 Equipmentmeans the plant, machinery, vehicles, or equipment described in the HireSchedule (including, unless otherwise agreed in writing, any replacement parts,components, tools, and other items used to service and maintain the Equipment),including manuals and logbooks, associated or attached tools (including GETs),accessories and parts we have agreed to hire to you in accordance with the hirecontract.
30.10 FairWear and Tear means wear and tear which would be normal for similar Equipmentoperated under normal operating conditions (and within its design parametersand recommended procedures), but expressly excludes:
(a) wearof, or damage to, Wear Items;
(b) dentsor other impact damage;
(c) damageto glass or instrumentation; and
(d) panelor structural damage from collision or abuse and damage to the drive system.
30.11 GETsmeans any wear part or tool of the Equipment that engages the ground or comesinto contact with specific material and includes all cutting edges, bucketteeth, hardwire, bucket ends, ripper teeth, blade faces, blade push arms, blademould boards, and roller feet.
30.12 HirePeriod means the period the Equipment is to be hired by you, as stated in theHire Schedule.
30.13 HireRate means the rate payable by you to hire the Equipment, calculated inaccordance with rates stated in the Hire Schedule.
30.14 HireSchedule means a document (including but not limited to emails, and attachmentsto such emails) that we provide to you which includes particulars of theEquipment, the Site, the Hire Rate, any other applicable charges, and theOff-Hire Date.
30.15 Hirer,you means the person or other entity hiring Equipment from us.
30.16 InsuredValue means the value of the Equipment stated in the Hire Schedule or otherwiseadvised by us.
30.17 MinimumHire Period means the minimum Hire Period stated in the Hire Schedule (if any).
30.18 OnetrakRental, we, us means Onetrak Rental Pty Ltd (ACN 616 230 463).
30.19 Off-HireDate means the date you expect the Hire Period to end, as stated in the HireSchedule.
30.20 On-HireDate means the date stated in the Hire Schedule as the on-hire date.
30.21 Ordermeans a written or oral order from you requesting to hire Equipment from us.
30.22 PersonalInformation has the meaning given to that term in the Privacy Act 1988 (Cth).
30.23 Personnelmeans officers, employees, and agents engaged by each party (but does notinclude the other party) and, in the case of Onetrak Rental includes itssubcontractors (and any employee of those subcontractors).
30.24 PPSAct means the Personal Property Securities Act 2009 (Cth), as amended.
30.25 Pre-HireInspection Report means a pre-hire inspection report prepared by us.
30.26 PrivacyLaws means:
(a) thePrivacy Act 1988 (Cth);
(b) anylegislation (to the extent that such legislation applies to the parties or anyother recipient of Personal Information) from time to time in force in any:
(i) Australianjurisdiction (which includes the Commonwealth of Australia and any state orterritory of Australia); or
(ii) non–Australianjurisdiction (to the extent that you, Onetrak Rental, or any PersonalInformation is subject to the Laws of that jurisdiction),
affecting privacy, Personal Information orthe collection, handling, storage, processing, use or disclosure of data(including Personal Information); and
(c) anyancillary rules, guidelines, orders, directions, directives, codes of conduct,or other instruments having the force of law, made or issued thereunder, asamended from time to time.
30.27 RiskPeriod has the meaning given to it in clause 5.5 of these Hire Terms.
30.28 Sitemeans the land (including any structure or other facility on the land) upon,over, below, or through where the Equipment will be used, as stated in the HireSchedule.
30.29 SmallBusiness Contract has the meaning given to this term in section 23(4) of theAustralian Consumer Law.
30.30 SMUmeans a service meter unit, Global Positioning System (GPS), style meters, orsimilar device fitted to the Equipment designed to record the utilisation hoursof the Equipment.
30.31 Wearitems has the meaning given to it in clause 11.3 of these Hire Terms.
31 Interpretation
In these Hire Terms, unless the contextotherwise requires:
31.1 Atime is a reference to the time zone of Hobart, Australia unless otherwisespecified.
31.2 $,dollar, or AUD is a reference to the lawful currency of Australia;
31.3 Aparty includes a reference to that person’s executors, administrators,successors, substitutes (including a person who becomes a party by novation),assigns, and in the case of a trustee, includes any substituted or additionaltrustee.
31.4 Aright includes a benefit, remedy, authority, discretion, or power.
31.5 Thesingular includes the plural and vice versa, and a gender includes othergenders.
31.6 “Inwriting” or “written” means any expression of information in words, numbers, orother symbols, which can be read, reproduced, and later communicated, andincludes electronically transmitted and stored information.
31.7 Ifa word or phrase is given a defined meaning, its other grammatical forms have acorresponding meaning.
31.8 Wordssuch as “includes”, “including”, and “for example” are not words of limitationand are to be construed as though followed by the words “without limitation”.
31.9 Aterm of an agreement in favour of two or more persons is for the benefit ofthem jointly and each of them separately.