Terms & Conditions
HIRE TERMS
These Hire Terms, together with any Hire Form (defined in clause 1(a), set out the agreement (this Agreement) under the terms of which you or the company which you represent (the Customer, you) will rent the Equipment or Services from The Trustee for GRIGG AND PERRY UNIT TRUST ABN 33 491 994 788 (Southern Tablelands Plant & Equipment Hire, we, us, our).
1. HIRE FORM, THIS AGREEMENT
(a) These Hire Terms will apply to all the Customer’s dealings with Southern Tablelands Plant & Equipment Hire, including being incorporated in all agreements, quotations or orders under which Southern Tablelands Plant & Equipment Hire is to rent equipment and/or provide services to the Customer (each a ‘Hire Form’) together with any additional terms included in such a Hire Form (provided such additional terms are recorded in writing).
(b) The Customer will be taken to have accepted this Agreement if the Customer accepts a Hire Form, or if the Customer orders, accepts or pays for any equipment and/or services provided by Southern Tablelands Plant & Equipment Hire after receiving or becoming aware of this Agreement or these Hire Terms.
(c) In the event of any inconsistency between these Hire Terms and any Hire Form, the clauses of these Hire Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Hire Form) will prevail over these Hire Terms to the extent of any inconsistency.
2. HIRE
Southern Tablelands Plant & Equipment Hire provides to the Customer and the Customer accepts from Southern Tablelands Plant & Equipment Hire the hire of the Equipment and/or Services upon and subject to the provisions of this Agreement.
3. PRE HIRE
The Customer warrants that they:
(a) will send a copy of their valid driver’s licence/s within 24 hours of confirming the booking to Southern Tablelands Plant & Equipment Hire’s contact email address set out in the Hire Form;
(b) have read and understood any instructional materials provided by Southern Tablelands Plant & Equipment Hire;
(c) will obtain up to date information from relevant authorities, (for example, by using the “Dial Before You Dig” service), about any infrastructure networks at the Job Site; and
(d) ensure that any person collecting or taking delivery of the Equipment on behalf of the Customer is authorised by the Customer to do so and the Customer will not allege that any such person is not so authorised.
4. Services - Customer OBLIGATIONS
The following clause apply if Services are included in the Hire Form.
(a) (General) The Customer must provide Southern Tablelands Plant & Equipment Hire with all documentation, information and assistance reasonably required for Southern Tablelands Plant & Equipment Hire to perform the Services.
(b) (Liaison) The Customer agrees to liaise with Southern Tablelands Plant & Equipment Hire as it reasonably requests for the purpose of enabling Southern Tablelands Plant & Equipment Hire to provide the Services.
(c) (Ownership) The Customer warrants that it is the owner of the Job Site or has obtained authority from the owner/s of the Job Site for the Services to be performed on the Job Site.
(d) (Access to Job Site) The Customer agrees to provide Southern Tablelands Plant & Equipment Hire with access to the Job Site and the Customer’s personnel, to the extent reasonably required by Southern Tablelands Plant & Equipment Hire to perform the Services.
(e) (Permits) The Customer warrants that they hold valid licences or are otherwise permitted to allow Services to be performed at the Job Site (Permits). Southern Tablelands Plant & Equipment Hire reserves the right to request proof of such Permits, cancel any Hire Form in the absence of such Permits and charge administration fees if Services are performed at the Job Site where the Customer does not hold such Permits.
(f) (WH&S) The Customer must ensure that the Job Site complies with Work Health and Safety standards and is otherwise in a suitable condition for Southern Tablelands Plant & Equipment Hire personnel to perform the Services.
5. Customer SUPPLIED GOODS AND EXISTING CONSTRUCTION
If in performing the Services, Southern Tablelands Plant & Equipment Hire is required to use any additional materials and/or goods supplied by the Customer:
(a) the Customer accepts the risk of defects or deficiencies in such goods and/or materials;
(b) Southern Tablelands Plant & Equipment Hire will not be required to investigate the suitability, quality or fitness for purpose of existing or proposed materials and/or goods;
(c) the Customer will be required to pay the additional material charge if it requests that Southern Tablelands Plant & Equipment Hire correct any defects or issues with such materials and/or goods.
6. WORK TIMES
(a) (After Hours) If the Customer requires Services to be performed After Hours, the Customer will be required to pay the After Hours Rate specified in the Hire Form.
(b) (Additional Work) If the Customer requires any services additional to those agreed in the Hire Form, that work will be performed at the Additional Work Rate set out in the Hire Form.
7. services
7.1. start dates
Southern Tablelands Plant & Equipment Hire will be entitled to change the Start Date:
(a) by giving the Customer 2 days ‘notice; or
(b) on the date of the Services being performed, if weather conditions, lack of access or other circumstances beyond Southern Tablelands Plant & Equipment Hire’s control do not permit the Services to be carried out.
7.2. Service requirements
On the Start Date, the Customer must:
(a) be present at the Job Site and, if reasonably requested by Southern Tablelands Plant & Equipment Hire, remain there while the Services are being carried out;
(b) provide access to all personnel, equipment and vehicles reasonably required to carry out the Services;
(c) ensure that the Job Site is clean and ready for Southern Tablelands Plant & Equipment Hire to carry out the Services; and
(d) if the Customer is not at the Job Site on the Installation Date and/or the Job Site is not clean and ready, Southern Tablelands Plant & Equipment Hire will be entitled to charge the Customer a Call-Out Fee for each member of Southern Tablelands Plant & Equipment Hire’s personnel who were booked to attend the Job Site.
7.3. DAMAGE
(a) The Customer acknowledges the performance of Services might occasion minor damage to the Job Site. Where such damage occurs, Southern Tablelands Plant & Equipment Hire will use its best endeavours to repair the damage however will not be liable for any minor damage or for damage arising out of any pre-existing conditions of the Job Site.
(b) Where the Customer incurs costs repairing any damage to the Job Site occasioned during the installation, whether by employing third parties to conduct repairs or otherwise, Southern Tablelands Plant & Equipment Hire will not be liable for such costs, unless Southern Tablelands Plant & Equipment Hire agrees to remedy such damage in advance in writing.
8. EQUIPMENT USE
8.1. Use
(a) The Customer must ensure that the Equipment is only used:
(i) on the Job Site;
(ii) for the Purpose;
(iii) in a proper and skilful manner, by Personnel who are appropriately trained, licensed, certified and competent;
(iv) in accordance with the Equipment manufacturer’s requirements, recommendations and instructional materials provided to the Customer; and
(v) in accordance with all Laws, rules and regulations applicable to the Equipment and its use and/or relating to the Job Site.
(b) The Customer must not, and must not allow any Personnel or third party to:
(i) tow trailered Equipment with an unsuitable or unroadworthy vehicle or on unsealed roads;
(ii) tow trailered Equipment, if the driver is not the holder of a valid driver licence;
(iii) use the Equipment for any dangerous or illegal purpose;
(iv) use or allow the Equipment to be used to carry passengers for payment of any kind and/or for racing;
(v) make any alterations to the Equipment, including by unauthorised repair;
(vi) use or allow the Equipment to be used while the operator is under the influence of alcohol or drugs;
(vii) use the Equipment when it is damaged or unsafe;
(viii) affix or install any accessories, equipment or device on or to the Machine (other than the Included Attachments set out in the Hire Form) without Southern Tablelands Plant & Equipment Hire’s prior written consent;
(ix) sub-hire the Equipment; or
(x) use the Equipment for the conveyance or towing of any load.
8.2. Maintenance
(a) The Customer must, when the Equipment is unattended, always keep it locked and keep the keys under their control.
(b) The Customer is responsible for the performance and cost of daily maintenance and care of all Equipment in its possession, including:
(i) daily checking of all fluids (fuel, oil, water, battery levels etc);
(ii) general tightening of any loose nuts, bolts, belts or fittings;
(iii) the lubrication of all grease points every day the Machine has been used;
(iv) if applicable, the adjustment of the tracks tension weekly; and
(v) if, applicable, the lubrication of the slew ring as required by the operations manual.
(c) If the Customer does not comply with clause 8.2(b) above, and Southern Tablelands Plant & Equipment Hire replaces any of the pins, slew rings and/or tracks within a reasonable time following the return of the Machine, the Customer must promptly pay for such replacement, on demand from Southern Tablelands Plant & Equipment Hire.
(d) If instructed by Company, the Customer must cover the Equipment with waterproof material in wet weather conditions.
8.3. Operator
The Customer agrees that they are responsible for the acts and omissions of any other person they allow to use the Equipment.
8.4. Fuel
The Customer must:
(a) ensure that the Machine has a full tank of fuel when it is returned to Southern Tablelands Plant & Equipment Hire, unless specified otherwise in the Hire Form;
(b) only fill the Equipment with fuel of a type that meets the Machine’s specifications; and
(c) promptly pay to Southern Tablelands Plant & Equipment Hire the costs of refuelling the Machine, at the Fuel Rate for each litre of fuel required to refill the Machine’s tank, if the Customer fails to comply with clause 8.4(a) at the Fuel Refill Rate.
8.5. Personal Property
Southern Tablelands Plant & Equipment Hire is not liable to any person for any loss of, or damage to, personal property that is left in the Equipment after its return to Southern Tablelands Plant & Equipment Hire or stolen from the Equipment or otherwise lost during the Hire Term.
8.6. Cleaning
The Customer acknowledges that the Equipment is rented out in a clean condition. The Customer must return the Equipment in the same state of cleanliness (inside and out) it was in on the Start Date (Clean). If the Equipment is not Clean upon return, a cleaning fee covering the total cost to Company to clean the Equipment will apply.
9. RETURN
(a) Unless the Services include return of the Equipment by Southern Tablelands Plant & Equipment Hire and subject to clause 16, the Customer must on the Return Date and within 2 hours of the Return Time specified in the Hire Form, return the Equipment to Southern Tablelands Plant & Equipment Hire at the Return Address in the same condition as it was in on the Start Date.
(b) If the Customer does not comply with clause 9(a), the Customer must pay the Late Charge for every additional 24 hour period after the Return Time on the Return Date for which the Customer retains possession of the Equipment.
(c) If the Customer returns the Equipment before the Return Date, the Customer will be liable for the full Fees as if the Equipment was in its possession from the Start Date until the Return Date, notwithstanding any early return of the Equipment.
10. FAULTY EQUIPMENT
(a) If the Equipment is faulty, breaks down or becomes unsafe to use during the Hire Term (Breakdown), the Customer must immediately:
(i) notify Southern Tablelands Plant & Equipment Hire;
(ii) stop using the Equipment;
(iii) take all steps necessary to prevent injuries from occurring to any person or property as a result of the condition of the Equipment;
(iv) take all steps necessary to prevent the Equipment from sustaining any further damage;
(v) not repair or attempt to repair the Equipment without Southern Tablelands Plant & Equipment Hire’s written consent; and
(vi) comply with Southern Tablelands Plant & Equipment Hire’s directions in relation to the return of the Equipment.
(b) Subject to clause 10(c), if, upon inspection of the Equipment, Southern Tablelands Plant & Equipment Hire determines that a Breakdown was:
(i) caused by a fault in the Equipment (not caused or contributed to by the Customer) (Equipment Fault) then Southern Tablelands Plant & Equipment Hire will provide the Customer with a pro-rata refund of any Fees paid for the period of the Hire Term during which the Breakdown persisted; or
(ii) not caused by an Equipment Fault, then the Customer will still be required to pay Fees in accordance with the Hire Form.
(c) Clause 10(b) does not limit:
(i) any of the Customer’s rights under the Competition and Consumer Act 2010 (Cth); or
(ii) any rights or remedies Southern Tablelands Plant & Equipment Hire may have access to in relation to a Breakdown, under this Agreement or otherwise.
11. REPLACEMENT, LOSS AND DAMAGE
11.1 Loss, damage and personal injury
The Customer will be fully liable to Southern Tablelands Plant & Equipment Hire for:
(a) any loss or damage to the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession, and must give reasonable notice to Southern Tablelands Plant & Equipment Hire in writing of any such loss or damage; and
(b) all damage to the property of any person which is caused or contributed to by the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession.
11.2. Replacement
If Southern Tablelands Plant & Equipment Hire notifies the Customer in writing, the Customer must replace all parts of the Equipment which during the Hire Term have become worn out, lost, stolen, damaged beyond repair or permanently rendered unfit for use (fair wear and tear excepted), provided that the Customer must not make any replacement, alteration or addition of any nature which may lead to a material reduction in the value of the Equipment.
12. INCIDENTS and INSURANCE
12.1. Insurance
(a) The Customer acknowledges that Southern Tablelands Plant & Equipment Hire may, in its discretion, hold insurances in relation to the Equipment but such insurances may not cover the Customer or the Customer’s use of the Equipment and Southern Tablelands Plant & Equipment Hire will have no obligation or requirement to insure the Customer’s use of the Equipment under this Agreement. The Customer is strongly encouraged to take out adequate insurance to cover all potential liabilities that could arise from their use of the Equipment.
(b) If Southern Tablelands Plant & Equipment Hire notifies the Customer that it holds insurance in relation to the Equipment, or if the Customer has paid an Excess Reduction Fee, the Customer must not do or permit anything to be done which may make Southern Tablelands Plant & Equipment Hire’s insurance invalid or able to be cancelled or which may increase Southern Tablelands Plant & Equipment Hire’s insurance premiums.
(c) Southern Tablelands Plant & Equipment Hire reserves the right to apply any insurance policy it does hold in respect of the Equipment during the Hire Term, to damage or loss caused or contributed to by the Customer, however Southern Tablelands Plant & Equipment Hire is under no obligation to. If Southern Tablelands Plant & Equipment Hire chooses to make a claim under an applicable insurance policy in accordance with this clause in respect of any damage or loss during the Hire Term, the Customer will be required to pay any excess payable by Southern Tablelands Plant & Equipment Hire in respect of such a claim.
12.2. Incidents, Loss and Damage
(a) Subject to any Southern Tablelands Plant & Equipment Hire insurance policy that covers the Customer, which Southern Tablelands Plant & Equipment Hire has indicated it will claim against to cover the Customer (either by accepting an Excess Reduction Fee or as otherwise agreed in writing), if the Equipment is lost, damaged, destroyed or stolen during the Hire Term, or otherwise while the Equipment is in the Customer’s possession, the Customer must compensate Southern Tablelands Plant & Equipment Hire for any costs of repair or replacement.
(b) If the Equipment is involved in an accident or claim, damaged, destroyed, stolen or if damage or loss is sustained to the property of any third party in connection with the Equipment during the Hire Term, or otherwise when the Equipment is in the Customer’s possession (Incident), the Customer:
(i) must promptly report the Incident to the local police (if required by Law);
(ii) must report the Incident to Southern Tablelands Plant & Equipment Hire in writing within one Business Day;
(iii) must, if such damage, destruction or theft is covered by and compensated to Southern Tablelands Plant & Equipment Hire under an insurance policy, pay the relevant excess amount to Southern Tablelands Plant & Equipment Hire, as well as any other reasonable costs that Southern Tablelands Plant & Equipment Hire incurs in relation to such damage, destruction or theft;
(iv) must not, without Southern Tablelands Plant & Equipment Hire’s prior written consent, make or give any offer, promise of payment, settlement, waiver, release or admission of liability in relation to the Incident, except as required by Law;
(v) must, if requested, permit Southern Tablelands Plant & Equipment Hire or its insurer bring, defend, enforce or settle any legal proceedings in the Customer’s name in relation to the Incident; and
(vi) must, if requested, provide to Southern Tablelands Plant & Equipment Hire, within a reasonable time, any statement, information or assistance which Southern Tablelands Plant & Equipment Hire or its insurer requests, including by attending a lawyer’s office or a court to give evidence.
13 PAYMENT
13.1 FEES
The Customer must pay the Fees to Southern Tablelands Plant & Equipment Hire in the amounts set out in the Hire Invoice or as otherwise agreed in writing.
13.2 TIME FOR PAYMENT
Unless otherwise agreed in writing or in a Hire Form:
(a) the Customer must pay for all Equipment on or before the Start Date; and
(b) if Southern Tablelands Plant & Equipment Hire issues an invoice to the Customer, payment must be made by the time(s) specified in such invoice.
13.3. PAYMENT METHOD
The Customer must pay Fees using the payment method specified in the Hire Form.
13.4. LATE PAYMENT
If the Customer does not pay Southern Tablelands Plant & Equipment Hire the amounts due and payable under an invoice on or before its due date, without limiting any of Southern Tablelands Plant & Equipment Hire’s other rights under this Agreement, the Customer must pay Southern Tablelands Plant & Equipment Hire interest at the rate of 10% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by Southern Tablelands Plant & Equipment Hire. However, before applying this interest, Southern Tablelands Plant & Equipment Hire will provide the Customer with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Company.
13.5. GST
Unless otherwise indicated, amounts stated in a Hire Form do not include GST. In relation to any GST payable for a taxable supply by Southern Tablelands Plant & Equipment Hire, the Customer must promptly pay the GST subject to Southern Tablelands Plant & Equipment Hire providing a tax invoice.
13.6. CARD SURCHARGES
Southern Tablelands Plant & Equipment Hire reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
13.7. PAYMENTS OTHER THAN FEES
(a) Immediately on request by Southern Tablelands Plant & Equipment Hire, the Customer will pay:
(i) the price of any Equipment which is for whatever reason not returned to Southern Tablelands Plant & Equipment Hire;
(ii) the full cost of repairing any damage to the Equipment caused or contributed to by the Customer;
(iii) all costs incurred by Southern Tablelands Plant & Equipment Hire in delivering and recovering possession of the Equipment; and
(iv) any expenses and legal costs (including commission payable to a commercial agent) incurred by Southern Tablelands Plant & Equipment Hire in enforcing this Agreement due to the Customers default.
(b) Without limiting the ability of Southern Tablelands Plant & Equipment Hire to recover all amounts owing to it, the Customer authorises Southern Tablelands Plant & Equipment Hire to charge any amounts owing by the Customer to any credit card or account which the Customer provides in a Hire Form.
14. OWNERSHIP, POSSESSION AND TITLE
14.1. Ownership
(a) The Equipment is and will at all times remain the property of Southern Tablelands Plant & Equipment Hire, notwithstanding delivery of the Equipment to the Customer or the possession and use of the Equipment by the Customer.
(b) The Customer will not have any right, title or interest in or to the Equipment except as expressly set out in this Agreement.
14.2. Possession
The Customer must not, without Southern Tablelands Plant & Equipment Hire’s prior written consent, part with possession of the Equipment during the Hire Term.
14.3. Encumbrances
The Customer must not allow any security interest, encumbrance, charge or lien of any kind to arise or remain in relation to the Equipment, including a repairer’s lien, except:
(a) if a repairer’s lien arises, the Customer must take all necessary steps to have it removed or satisfied, or, at Southern Tablelands Plant & Equipment Hire’s option, Southern Tablelands Plant & Equipment Hire may remove or satisfy the lien at the Customer’s cost; and
(b) a security interest, lien or charge that arises by Law in respect of unpaid rates, taxes, fees or duties of any kind, in which event the Customer must pay any money due so that the Equipment will be free of the lien or charge.
15. PERSONAL PROPERTY SECURITIES
(a) The Customer acknowledges and agrees that:
(i) Southern Tablelands Plant & Equipment Hire may register any security interest it has in connection with this Agreement (including any security interest over the Equipment arising out of the application of the PPSA to this Agreement) on the PPS Register; and
(ii) if requested by Southern Tablelands Plant & Equipment Hire, the Customer must immediately sign any documents, provide all necessary information and do anything else required by Southern Tablelands Plant & Equipment Hire to ensure that any security interest created is perfected and to enable Southern Tablelands Plant & Equipment Hire to gain first priority for its security interest.
(b) The Customer agrees to contract out of the application of the following provisions of the PPSA, and these provisions will not apply to this Agreement:
(i) Section 115(7);
(ii) Section 117;
(iii) Section 118;
(iv) Section 120;
(v) Section 121(4);
(vi) Section 130;
(vii) Section 135; and
(viii) Section 143.
(c) Notwithstanding any exclusions in clause (b), the Customer acknowledges the application and importance of the following provisions of the PPSA, which shall remain unaffected and continue to apply to this Agreement:
(i) Section 123;
(ii) Sections 125, 126, 128, and 129; and
(iii) Section 142.
(d) In this clause:
(i) “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
(ii) “PPS Register” means the Personal Property Securities Register established under the PPSA; and
(iii) a term used in this clause is taken to have the meaning defined under the PPSA
16. EARLY RETURN
Notwithstanding any other clause in this Agreement, Southern Tablelands Plant & Equipment Hire may demand the early return of the Equipment to the Return Address, or retake possession of the Equipment, if Southern Tablelands Plant & Equipment Hire reasonably suspects that:
(a) damage to the Equipment or injury to any person in connection with the Equipment is reasonably likely; or
(b) the Equipment may be used for an unlawful purpose.
17. THIRD PARTY GOODS AND SERVICES
(a) If Southern Tablelands Plant & Equipment Hire is required to acquire goods or services supplied by a third party, the Customer may be subject to the terms and conditions of that third party (‘Third Party Terms’).
(b) Provided that Southern Tablelands Plant & Equipment Hire has notified the Customer of such Third Party Terms and provided the Customer with a copy of those terms, the Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer or Southern Tablelands Plant & Equipment Hire acquires as part of renting the Equipment and Southern Tablelands Plant & Equipment Hire will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
(c) The Customer has the right to reject any Third Party Terms. If the Customer rejects the Third Party Terms, Southern Tablelands Plant & Equipment Hire cannot provide the Equipment or any services to Southern Tablelands Plant & Equipment Hire and clause 20 will apply.
18. SUBCONTRACTING
Southern Tablelands Plant & Equipment Hire may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.
19. LIABILITY, WARRANTIES AND INDEMNITIES
19.1. LIABILITY
To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Customer to Southern Tablelands Plant & Equipment Hire under the most recent Key Details.
19.2 WARRANTIES
(a) The Customer acknowledges they have relied on their own judgment and expertise in deciding to rent the Equipment and/or acquire the Services for their intended purpose.
(b) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(c) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
19.3. CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Southern Tablelands Plant & Equipment Hire, except:
(a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth);
20. TERMINATION
20.1. TERMINATION FOR BREACH
(a) Either party may terminate this agreement immediately by written notice if there has been a Breach of this agreement.
(b) A “Breach” of this agreement means:
(i) a party (Notifying Party) considers the other party is in breach of this agreement and notifies the other party;
(ii) the other party is given 2 Business Days to rectify the breach; and
(iii) the breach has not been rectified within 2 Business Days or another period agreed between the parties in writing.
20.2. TERMINATION BY THE CUSTOMER
(a) The Customer may terminate this Agreement in whole or in part by written notice to Southern Tablelands Plant & Equipment Hire.
(b) If the notice under clause (a) is:
(i) 48 hours or more prior to the Start Date, Southern Tablelands Plant & Equipment Hire will provide the Customer with a full refund of any Fees paid;
(ii) Less than 48 hours prior to the Start Date, Southern Tablelands Plant & Equipment Hire will provide the Customer with a full refund of the Fees paid, minus a 50% cancellation fee.
(iii) after the Start Date, the Customer will not be entitled to any refund, unless the Equipment is not of an acceptable quality in accordance with Australian Consumer Law.
20.3. EFFECT OF TERMINATION
Upon termination of this agreement, each party must:
(a) return all Equipment, property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement;
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement is terminated; and
(d) the Customer must pay any outstanding Fees for Services already performed up to the date of termination.
21. DISPUTE RESOLUTION
(a) A party claiming that a dispute has arisen under or in connection with this Agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this Agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
22. NOTICES
(a) A notice or other communication to a party under this Agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this Agreement as at the date of this Agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring Business Day in that state; or
(ii) when replied to by the other party,
whichever is earlier.
23. GENERAL
23.1. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in NSW, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of NSW, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
23.2. AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
23.3. WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
23.4. SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
23.5. JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
23.6. ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
23.7. COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.
23.8. COSTS
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
23.9. ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.
23.10. INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this Agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
24. DEFINITIONS
In addition to capitalised terms defined in the Hire Form above, capitalised terms used in this Agreement will have the following meanings:
Term
Meaning
Business Days
means a day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in New South Wales, Australia.
Customer
has the meaning set out in the Hire Form.
Equipment
means the Machine and the Included Attachments included in a Hire Form.
Fees
has the meaning set out in the Hire Form.
Hire Form
has the meaning set out in clause 1(a) of these Hire Terms.
Hire Term
means the period of Equipment Hire, from the Start Date set out in the Hire Form until the Equipment is returned to Company.
Job Site
means the job site specified in the Hire Form.
Late Charge
means the late charge set out in the Hire Form.
Laws
mean any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are provided and includes any industry codes of conduct.
Machine
has the meaning set out in the Hire Form.
Personnel
means, in respect of a party, that party’s officers, employees, contractors (including subcontractors) and agents.
PPSA
means the Personal Property Securities Act 2009 (Cth) and PPS Register means the register established and maintained under that Act.
Return Address
means the return address set out in the Hire Form.
Return Date
has the meaning set out in the Hire Form.
Services
means the Services listed in the Hire Form to be provided to the Customer by Southern Tablelands Plant & Equipment Hire.
Start Date
has the meaning set out in the Hire Form.
Third Party Terms
has the meaning set out in clause 17.