Equipment Hire, Sale & Services Terms
This document is part of an agreement governing all hires, sales and services which you our customer may request and which may be provided by Shore Hire Pty Limited ABN 54 129 593 102, Shore Sales Pty Limited ABN 40 144 933 693 or any of their related bodies corporate (we or us). You are bound by these terms because you have signed an agreement including or incorporating them; or because you have requested a sale or hire of Equipment or the provision of Services after being given a copy of these terms; or because you agreed to be bound by these terms when making an Application.We may in our absolute discretion terminate this agreement and/or decline to sell or hire Equipment or provide services to you at any time.
1. What terms mean
Account Facility means any billing arrangement agreed between us and you.
Add-ons means our additional charges for things other than the hire and includes charges for delivery or pick-up, installation, rigging, engineering services, consumables and such other matters as we notify from time to time.
Application means any application for an Account Facility of which these Terms form part.
Authorised Person means such persons as may be authorized by you, or who reasonably appear to us as being so authorized, to accept delivery of services or Equipment.
Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, however arising and whether ascertained or unascertained.
Commencement Date means in respect of a hire the earlier of the date of delivery or the date specified in the relevant Schedule.
Daily Rate means our daily charge for hire of the Equipment as specified in a Schedule or as otherwise agreed with or notified to you by us, or in the absence of specific agreement or notification, the applicable rates generally published or applied by us.
Equipment means the goods sold or hired to you under this document which may include:
(a)shoring, propping, traffic, lasers and pipe test equipment; and (a)other equipment including but not limited to access equipment; earthmoving equipment; cleaning equipment; power equipment; lighting; materials handling equipment; fluid management equipment; safety equipment; site accommodation; tools & similar goods; and any related goods including parts and accessories for the foregoing; and (b)vehicles and their associated parts, accessories and equipment, which may include equipment made available to us from other hire businesses.
Hire Charges means the amount payable to us by you for the use of the Equipment determined in accordance with these Terms.
Hire Period means the period (including any weekends or public holidays) commencing on the Commencement Date and ending on the Off Hire Date.
Intellectual Property Rights means all registered or unregistered intellectual property rights including but not limited to patents, copyright, trademarks or service marks, trade names, brand names, registered designs and commercial names and designations in respect of the Equipment or anything done as part of provision of Services and includes any application or right to apply for any of those rights.
Minimum Hire Period means the minimum period for which Hire Charges must be paid regardless of the actual Hire Period.
Off-Hire Date means the date when:
- the Hire Period has ended and the Equipment has been returned to our branch from which the Equipment was supplied; or
- that branch issues an official off-hire number to you after you correctly confirm that the Equipment is no longer required and is available for collection.
PPS Law means the Personal Property Securities Act 2009 (Cth).
Purchase Price means the amount payable to us by you on the sale of any Equipment.
Schedule means a schedule, quote, invoice, equipment receipt docket (ERD) or other document which we may issue and/or require you to sign to hire or purchase particular Equipment and which includes particulars of the Equipment, the Hire Period, Purchase Price and such other information as we may decide to require.
Services means services provided by us to you including engineering and other Add-ons in relation to the Equipment.
Sundry Charges means the costs of all oil, grease, cartage, cleaning, repainting, repair, replacement in respect or Equipment not returned or damaged in our opinion beyond repair and such other costs as we may incur relating to your use of the Equipment. Where applicable, these charges will be determined in accordance with our schedule of standard sundry charges as varied from time to time.
Weekly Rate means the Daily Rate multiplied by seven.
Also, unless the context otherwise requires:
- (a)each agreement by two or more persons as a party is made jointly by all and severally by each;
- (b)singular includes plural and vice versa;
- (c)references to any legislation include references to amended, replacement or successor legislation or provisions.
- (a)these Terms will be construed in accordance with the laws of the State or Territory in which we have our head office at the date of acceptance of these Terms by you; and
- (b)time is of the essence of all your obligations to us, particularly payment of amounts owing.
you includes where the context permits, your servants, agents, employees, contractors and Authorised Persons.
- 2.2 This clause 2 applies in relation to all Equipment we hire to you
- 2.3 We agree to hire Equipment to you for the Hire Period.
- 2.4 You must complete and sign a Schedule and such other documents as we may require. By taking delivery of Equipment, even if a Schedule is not signed, you agree to these Terms.
- 2.5 Each Schedule is not a separate contract but forms a part of this contract between us and you, together with any facility applications, guarantee or other contractual documents.
- 2.6 We may agree that the Off Hire Date is when the Equipment is off-hired and not at the end of a specified period. Otherwise, we may in our sole discretion, decide whether to accept return of the Equipment before the end of the Hire Period. Such an acceptance does not alter the Hire Period and you will remain liable for all Hire Charges payable to us despite early return of the Equipment.
- 2.7 If we do not have at:
- (a) the Commencement Date; and
- (b) within 20 business days of this agreement, a PPS Law registration ensuring a perfected first priority security interest in the Equipment, the period of hire (including any extension of the Hire Period or the aggregate of consecutive Hire Periods during which you have substantially uninterrupted possession) shall despite anything else in this document or any Schedule be one day shorter than the applicable threshold period for a PPS lease under the PPS Law in respect of the hire.
This clause 3 applies in relation to all sales of Equipment to you.
- 3.1 We may agree to sell Equipment to you from time to time.
- 3.2 Unless otherwise agreed in writing by us, the Purchase Price must be paid before delivery.
- 3.3 The risk in Equipment sold by us passes on delivery to you. If you fail to take possession of the Equipment within 7 days of being notified that the Equipment is ready for delivery:
- (a)The risk in the Equipment passes to you at the end of the 7 day period;
- (b)You must pay for the Equipment in accordance with these Terms; and
- (c)You will indemnify us against all loss and expenses incurred by us, including any additional transport and storage charges, as a result of such failure.
- 3.4 Title to the Equipment sold remains with us until all monies owing in respect of the Equipment, and all other money owing to us on any other account are paid by you. Until such payment is received, you must hold the Equipment as bailee for us. You grant us an irrevocable licence to enter at any time your premises, or any other premises under your control, for the purposes of repossession of our Equipment.
In connection with any hire or separately we may agree to provide our Services to you if requested by you. The Services may be described in a Schedule or separately.
5. What you acknowledge
You acknowledge and agree that:
- you have not relied on any representation from us or anyone on our behalf about the suitability of the Equipment for any purpose or its selection or performance. You must satisfy yourself as to all such matters and any opinion or assistance offered by us or anyone on our behalf is based on limited information and whilst given in good faith, we disclaim all liability in respect of such opinion or assistance;
- you require the Account Facility predominantly for the purposes of carrying on or in connection with the carrying on or establishing of a trade, business or profession;
- you have read and agree to be bound by these Terms;
- if we approve an Account Facility, we may terminate the Account Facility at any time without any prior notice;
- the full amount of all charges payable by you with an Account Facility to us will become due and owing 30 days after the date on which the charges were first invoiced. The Account Facility is not a credit facility.
- 6.1 You agree to pay:
- all amounts due to us in the manner directed by us;
- our charges for Services as quoted by us to you or otherwise agreed by you, or failing that our generally applicable charges for services of that kind.
- interest on all outstanding amounts from the due date for payment calculated daily at a rate which is the higher of 1.5% per month or the cash target rate set from time to time by the Reserve Bank of Australia plus a margin of 5% per annum;
- any costs of repairing or replacing damaged or missing hired Equipment or cleaning it;
- any GST or similar tax imposed on any supply by us to you under this document and any other state or federal taxes, duties or charges imposed in respect of this document including stamp duty unless already clearly included in the agreed charges; and
- all costs (including legal costs calculated on a solicitor and own client basis) incurred by us relating to any default by you.
- 6.2 Hire Charges are calculated by multiplying the number of days or weeks in the Hire Period by the Daily Rate or Weekly Rate (as applicable), whether or not the Equipment is used in that period.
- 6.3 If a Minimum Hire Period applies the minimum Hire Charges payable are those in respect of that period regardless of the Off Hire Date.
- 6.4 We may charge additional hire at the Daily Rate for periods during which the Equipment is being delivered to or collected from you or during which we are unable to deliver or collect the Equipment through no fault of our own or during which the Equipment is unavailable for hire by us due to damage caused by you. The imposition of these charges does not mean that we agree to extend the Hire Period.
- 6.5 Any claims for credit by you must be made within seven (7) days of receiving our invoice.
- 6.6 We reserve the right to revise our prices, schedule of hire rates and related charges without prior notice. We may also revise our hire rates or Service charges and any related charges in circumstances where we incur such charges as a result of non-disclosure by you, unforeseen site problems or incorrect physical dimensions, weights or distances relied on by us.
7. Use of our Equipment
- 7.1 Your obligations You must:
- ensure that you or an Authorised Person is available to accept the Equipment upon delivery;
- ensure the Equipment is used:
- for the purpose for which it was designed by the manufacturer;
- by you or an Authorised Person having the appropriate qualifications, training and licences to operate the Equipment; and
- in accordance with all applicable laws and regulations in a skilful, safe and tradesmanlike manner not extending beyond its capacity (having regard to manufacturers specifications) and not having to endure more than normal wear and tear;
- properly attach any operating or safety signs supplied with the Equipment and ensure that they are visible, legible and drawn to the attention of every person who operates the Equipment before they do so;
- notify us immediately if any Equipment breaks down, malfunctions or is damaged;
- not undertake any repair to the Equipment without the consent of us;
- properly maintain and clean the Equipment during the hire and return the Equipment to us in good clean repair and condition before the end of the Hire Period;
- maintain insurance to cover the full value of the Equipment;
- ensure that a check of all levels, fuelling, greasing, oiling and proper servicing of the Equipment is carried out on a daily basis;
- not transfer, assign, encumber, loan or sell the Equipment and must not (except for the purpose of returning the Equipment) remove the Equipment or allow it to be removed from the site address notified to us for use of the Equipment without the written consent of us;
- not alter, make any additions to or deface or alter any identifying mark, plate or number on or in the Equipment or interfere with the Equipment in any other manner;
- ensure that the Equipment is not stolen;
- accept full responsibility for the safe-keeping of the Equipment; and
- indemnify us for all loss, theft or damage to the Equipment.
- 7.2 Condition of Equipment. You agree that:
- we are entitled to assume that any one appearing to be an Authorised Person is authorised to sign a Schedule and enter into any dealings in respect of this agreement;
- you accept delivery of the Equipment in “as is” condition unless you indicates otherwise at the time of delivery;
- you understand the safe and proper use of the Equipment and have received adequate training in its operation and use;
- we may inspect, repair or remove (in the event of any default by you) the Equipment at any time and access to the Equipment must be granted for that purpose;
- if we are collecting the Equipment at the expiration or earlier determination of the Hire Period, the Equipment must be left in an appropriate, easily identified and accessible area; and
- we will not be deemed to have accepted return of the Equipment in good repair and condition until such time as the Equipment has been fully inspected by us at its depot following its return.
- 7.3 Pick-up and delivery. You agree that:
- it is your responsibility to collect and return the Equipment. We may agree to do so as an Add-On. You must arrange for labour necessary to load and unload the Equipment. If you or your Authorised Persons are not at the delivery site we may elect to unload the Equipment which will be at your risk from the time of delivery.
- we are not a common carrier and do not accept the obligation as such. We may refuse the handling, lifting and or carriage of Equipment for any person in our discretion and without being bound to give reason for such refusal.
8. Protecting us under PPS Law
- 8.1 This clause applies to the extent that our interest in respect of a hire or sale of Equipment provided for in this document is a ‘security interest’ for the purposes of the PPS Law.
- 8.2 We may register any actual impending or likely security interest. You may not make any Claim against us in respect of any registration even if it is determined that we should not have registered a security interest. You must do anything (such as obtaining consents and signing documents) which we require for the purposes of ensuring that our security interest is enforceable, perfected, first in priority and otherwise effective under the PPS Law
- 8.3 Our rights under this document are in addition to and not in substitution for our rights under other law (including the PPS Law) and we may choose whether to exercise rights under this document, and/or under such other law, as we see fit.
- 8.4 To the extent that Chapter 4 of PPS Law applies to any security interest under this document, you agree to waive any period of or right to notice that would otherwise apply under Chapter 4 in your favour in respect of enforcement by us.
- 8.5 In addition to any rights under Chapter 4 in respect of seizure, possession or sale or retention of the Equipment you agree that in addition to those rights, we shall, if there is default by you, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under Chapter 4 but also, as additional and independent rights, under this document and you agree that we may do so in any manner we see fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
- 8.6 You waive your rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law. This waiver also extends to any verification statement in respect of security interests arising or provided for under security documents prior to the date of this document.
- 8.7 We and you agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. You must do everything necessary on your part to ensure that section 275(6)(a) of the PPS Law continues to apply. This sub-clause is made solely for the purpose of allowing to us the benefit of section 275(6)(a) and we shall not be liable to pay damages or any other compensation for breach of this sub-clause.
- 8.8 You must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of us. You must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless we (in our absolute discretion) first consent in writing. If we do consent any such sub-hire must be in writing in a form acceptable to us and must be expressed to be subject to our rights under this document. You may not vary a sub-hire without our prior written consent (which may be withheld in our absolute discretion).
- 8.9 You must ensure that we are provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
- 8.10 You must take all steps including registration under PPS Law as may be required:
- to ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;
- enabling you to gain (subject always to our rights) first priority (or any other priority agreed to by us in writing) for the security interest; and
- enabling us and you to exercise our respective rights in connection with the security interest.
- 8.11 To assure performance of your obligations under this clause 8 , you hereby give us an irrevocable power of attorney to do anything we consider necessary to protect our interest in the Equipment. We may recover from you the cost of doing anything under this clause 8, including registration fees.
- 9.1Release and risk
- You agree that all hired or purchased Equipment and its use shall be at your sole risk and we will not be liable for any Claim you may incur or that may arise from any cause whatever including any fault or other defect in the Equipment.
- You agree that we are not liable for any special, indirect or consequential loss arising in any way in respect of the hired or purchased Equipment or its use, or in respect of the Services and this exclusion of liability applies whether that loss or liability arises at general law or under this document and whether or not including loss or liability arising as a consequence of negligence.
You shall accept full responsibility for, and indemnify us against all Claims in respect of any injury to persons, or damage to property, arising out of the use of the Equipment however arising, whether from your negligence or ours or otherwise and without limiting the foregoing whether or not the Equipment was being operated or transported by a servant of ours or any other person for whose acts we might be or are held to be responsible in connection with the operation of the Equipment.
- 9.3Getting the Equipment back
You must indemnify us for any costs incurred in recovering Equipment whether abandoned, unlawfully detained or otherwise not returned in accordance with this agreement.
10. Your consumer law and other rights
- 10.1 Consumer law
Some legislation in Australia, including the Australian Consumer Law, provides guarantees and rights which cannot be excluded, restricted or modified or which may in certain cases only be modified or restricted to a limited extent. Nothing in this agreement excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified.
- 10.2 We limit our liability
Subject to clause 10.1 and to the full extent permitted by law, our liability in respect of a breach of a guarantee, condition or warranty implied by legislation, including liability for any consequential loss which you or any other entity or person may sustain or incur, will be limited, at our option, to:
- if the breach relates to supply of goods:
- the provision of a refund; or
- replacement of the goods; or
- repair of the goods; or
- the payment to you of the reasonable cost of having the goods repaired or replaced.
- if the breach relates to services:
- the provision of a refund; or
- re-supply of the service; or
- the payment to you of the reasonable cost of having the service re-supplied.
11. Default and Termination
- 11.1 Default
You will be in default of this agreement if:
- you fail to comply with any term of this or any other agreement between us and you;
- you become bankrupt or make any arrangement with creditors for liquidation of debts: or
- are wound up, placed under administration or any administrator, receiver, or receiver and manager is appointed to you.
- 11.2 Remedies upon Default
If you are in default then, without prejudice to any other rights or remedies:
- we may terminate any hire or purchase of Equipment or the provision of Services between us and you and take possession of the Equipment by entering onto any land or premises owned by or under your control upon which the Equipment is situated; and
- you will pay to us all losses, damages, costs and other expenses whatever suffered by us as a result of that default.
- 11.3 Inability to Supply
If we are unable to supply the Equipment to you, we may in our discretion supply alternative suitable equipment to you. If the alternative equipment is not suitable, we will not be liable for any Claims arising out of our inability to supply the Equipment or alternative suitable equipment to you. This is in addition to our rights to decline to hire.
- 11.4 Third party interests
You acknowledge that we may hire or lease our Equipment from a third party and in that event title to the Equipment remains with that third party. You agree, upon reasonable notice, to allow that third party to access the location where the Equipment is located from time to time to inspect the Equipment. You acknowledge and agree that if our agreement with that third party terminates during the term of a hire, unless otherwise agreed by us any hire under this document will automatically terminate and we may immediately recover possession of the Equipment from you. We will not be liable to you in any circumstance for any claim that you may otherwise have in respect of termination.
12. Intellectual Property Rights
- 12.1 No rights in, including any Intellectual Property Rights in the Equipment or any drawings, designs or similar material are transferred to you by reason of you hiring or buying Equipment from us or our providing the Services to You.
- 12.2 You must, if requested, cooperate fully with us in relation to any action that is taken with a view to protecting our Intellectual Property Rights from infringement by a third party. The cost of any action (whether legal or other) taken or defended under this clause 12 will, unless otherwise agreed in writing between the parties, be borne by us.
We have a Privacy Statement which includes information about how we collect, store, use and disclose personal information. The Privacy Statement includes information about credit reporting including the details of the credit reporting bodies to which are likely to disclose an individual’s credit information. A copy of our Privacy Statement is available upon request or by visiting www.shoresales.com.au
This agreement may be changed by us from time to time by us giving notice of the amendment to you. Notice is deemed given (whether or not actually received) when we send notice of the amendment to you at any address (including an email address) supplied by you.