Terms & Conditions
1. It is hearby agreed:
- The owner has acquired or will acquire the equipment at the request of the renter for the sole purpose of this agreement.
- The renter has no right, property or interest in the equipment other than as a bailee.
- The renter shall take delivery of the equipment on behalf of the owner and shall at all times keep the equipment at the site address described in the schedule.
- The owner may sell or assign either absolutely or by way of security its rights under this agreement and to the equipment. The renter is responsible for any loss or damage to the equipment (fair wear and tear excepted).
- The provision contained in Clause 2(a) (Punctual Payment of Rent), Clause 3(i)(Possession of Equipment), 3(a) (Maintenance and Repair of Equipment) and Clause 5 are essential terms of this agreement and the breach, non-observance or non-performance by the renter of any one or more of those terms shall be deemed to be a breach of this agreement and thereby, the repudiation of this agreement by the renter.
2. The renter agrees to pay to the owner:
- The total rent described on the schedule by paying the Rental Payments promptly on the dates and at the place set out in the schedule. The renter agrees that it may not withhold any payments, or any part of any payment due under the agreement, or make a deduction from any such payment, for any reason.
- Interest at the rate set out in the schedule on any Rental payments which are not paid on the due date and on any other monies hereunder which remain unpaid for seven (7) days after the owner’s demand.
- Any expenses the owner may incur in or arising out of making good any failure by the renter to comply with any obligation hereunder or retaking or attempting to retake possession of or storing of equipment.
- The cost of replacing the equipment if lost or damaged beyond repair, and or repairing any damage caused by impact, by accidental, deliberate or negligent misuse or abuse, by failure to comply with Clause 3(f) hereof, or by any cause other than fair wear and tear.
- The excess use charge set out in the schedule in each month when the renter uses the equipment in excess of the number of hours set out in the schedule. It is agreed that if the hour meter is inoperative at any time the equipment shall be deemed to have been operated since the previous meter reading by the owner’s representative at a daily rate selected by the owner based on previous experience under this agreement.
- Any stamp duty or other duty, fees and imposts payable to any Government or semi-government body in respect of or arising out of this agreement or the equipment.
3. The Renter agrees:
- Keep the equipment in good order, condition and repair (fair wear and tear excepted)
- Inspect the equipment and to comply with the daily or other regular checks specified in the manufacturer’s operator manual supplied with the equipment.
- Arrange regular servicing of the equipment by the owner in accordance with the operator’s manual.
- Ensure that the equipment is operated only by qualified, trained and licensed personnel and is not subjected to misuse or abuse.
- Make the equipment available during normal business hours or as otherwise contracted between the parties for repairs or for servicing at (or not later than 50 hours after) the proper hour meter readings
- Ensure that only parts approved by the owner are used in the equipment
- Notify the owner immediately of any loss or damage to or malfunctioning of the equipment; promptly arrange repairs by the owner, and if the condition of the equipment renders it liable to be unsafe or is seen that it may cause further deterioration refrain from using the equipment until it is repaired.
- Comply with all relevant acts, regulations and by-laws relating to the equipment and the use thereof.
- Insure and keep the equipment insured against fire, accident and theft and such other risks as the owner may require for an amount equal to the full insurable value of the equipment with a reputable insurer approved by the owner in the names of the owner and the renter for their respective rights and interests. The renter must maintain with the insurers approved by the owner, public risk insurance in respect of the equipment. The renter must not enforce conduct or settle or compromise claims under the policies of insurance required by this clause whether or not a policy also covers other property. The owner is entitled to the proceeds of an insurance policy in connection with the equipment and may apply them in its discretion either towards replacement or reinstatement of the equipment of the equipment or towards satisfaction of the renter’s obligations under the agreement.
- Keep the equipment under the control of the renter at the site address stipulated in the schedule.
- Permit the owner to inspect the equipment at any time during normal business hours
- Notify the owner in writing prior to any change in the renter’s address.
- Indemnify the owner against any claims and demands whatsoever by the renter or any other person or corporation in respect of any loss (including consequential loss) injury or damage arising out of the equipment or out of any defect therein or in any manner relating thereto.
- Deliver up the equipment in good order, repair and condition at the renter’s expense to the owner at its address at the expiration or sooner determination of the agreement.
- If applicable, register the equipment at the renter’s expense.
4. The renter will NOT without the prior written consent of the Owner:
- Alter or make any addition or repair to the equipment.
- After any identifying number or mark on the equipment.
- Assign this agreement or Renter’s hereunder.
- Attempt or purport to sell, dispose of a encumber the equipment in any way
- Change the site address application or environment of the equipment and the renter acknowledges that the owner if it gives consent under any of the above may require an appropriate variation in the rental payments.
- Do or permit or suffer to be done anything which might or could prejudice any insurance under 3(i) above.
- Engage another person or organisation other than the owner or its authorised representative to repair and maintain the equipment.
- The owner discovers the renter has made a false statement to the owner relating to this agreement; or
- The renter fails to pay rental payments within fourteen (14) days of the due date as specified in the schedule together with interest at the rate specified in the schedule; or
- The renter is in breach of any of the terms and conditions contained in this agreement and has failed to rectify that breach within fourteen (14) days after notice by the owner to do so; or
- any order is made or resolution passed for the winding-up or the dissolution without winding-up of the renter, providing always default shall not be deemed to have occurred where the winding-up is for the purpose of reconstruction or amalgamation;
- without the owner’s prior written consent the renter enters into an arrangement, reconstruction or composition with its creditors or any of them;
- of a ‘controller’ as that term is defined in the Corporations Act 2001 is appointed in relation to the property of the renter;
- pursuant to the provisions of the Corporations Act 2001 the affairs of the renter are placed under administration with a view to executing a deed of company management;
- without the owner’s prior written consent the renter assigns, transfers or parts with possession of any material undertaking or assets otherwise than in the ordinary course of business of the renter;
- a sequestration order is made in respect to the estate of the renter or the renter enters into a composition with creditors, a deed of arrangement or a deed of assignment or convenes or causes to be convened a meeting of creditors for the purposes of entering into a composition with them, or entering into a deed of arrangement or deed of assignment;
- default is otherwise made by the renter in the performance or observance of any provision of this agreement, and where such default is capable of remedy, such default is not remedied within seven (7) days after notice in writing specifying such default and requiring the renter to remedy the same has been given by the owner to the renter.
- Execution or distress is levied against the renter
- Any insurance proposal made by the renter in respect of the equipment is declined or any insurance policy in respect of the equipment is cancelled; or
- The renter shall do or cause to be done or permit any act or thing likely to endanger the safe operation of the equipment; or
- The renter is convicted of an indictable offence or is sentenced to imprisonment, than the owner may at any time immediately terminate this agreement, following which termination the renter will immediately;
- return the equipment to the owner to a place specified by the owner and at the renter’s expense;
- pay to the owner all monies then payable under this agreement, including the balance of any unpaid rental calculated by reference to the original term of this agreement and the renter acknowledges that this represents a reasonable pre-estimate of the liquidated damages that the owner will suffer by reason of the breach of this clause.
6. It is expressly agreed as follows:
- This agreement shall not be binding on the owner until it has been executed by the owner notwithstanding any prepayment of monies by the renter.
- No objection shall be made to the owner entering into this agreement as agent for any other person (whether disclosed or otherwise) or to the fact that such person may have or may acquire the property and the equipment.
- This agreement shall bind the renter, its successors and assigns and ensure for the benefit of the owner, it’s successors and assigns.
- Any notice required to be given to the renter hereunder may be sent by email, facsimile or by prepaid post to the renter at its last known place of business and shall be deemed to have been received upon production of the transmission report or on the second business day following such posting.
- If the renter is required to do any matter or thing hereunder or by virtue of any notice served hereunder within a stipulated time, then time shall be of the essence in respect of that stipulated time.
- Any waiver by the owner of any default or breach or repudiation of this agreement shall not affect the rights of the owner in respect of any further or continuing default, breach or repudiation.
- A certificate given by the owner shall be prima facie evidence of the amount of monies due, owing or recoverable from the renter hereunder.
- In the event that any provision or part thereof contained herein is rendered void, invalid or unenforceable, then such provision or part thereof shall be severed from this agreement without affecting the remaining provisions of this agreement.
- Where any act of Parliament implies into this agreement any term, condition or warranty, and that act avoids or prohibits provisions in any contract excluding or modifying the application of or exercise of a liability under such term, condition or warranty, such term condition or warranty shall be deemed to be included in this agreement. The owner’s liability for any breach of such item, condition or warranty shall be limited, however at the owner’s option, to any one or more of the following:
- the replacing of the equipment with the supply of equivalent equipment;
- the repair of the equipment
- the payment of the costs of replacing the equipment or of acquiring equivalent equipment or
- the payment of the costs of having the equipment repaired.
- The owner may exchange the equipment with other equipment of a like or better type at any time during this agreement and the replacement equipment shall be treated as the equipment for the purpose of this agreement.
- The person signing this agreement for the renter is authorised to sign and deliver it on the renter’s behalf; and
- This agreement contains all the terms, conditions, provisions and arrangements that have been agreed between the owner and the renter in respect of this agreement.
7. If the renter fails to return the equipment at the expiration of this agreement, then the period of this agreement shall be deemed extended from month to month at the rental stipulated in the schedule for this holding over period and upon the same terms and conditions as contained herein but so that such extended period maybe determined by the owner demanding possession at any time or by the renter delivering the equipment to the owner.
8. Parties acknowledge that this agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (PPSA)
- The Renter grants a security interest in the equipment to the owner;
- The Owner will register its security interest in the equipment as a purchase money security interest on the PPS register;
- Where PPSA applies to action taken by the Owner in relation to the equipment the renter agrees that:
- sections 116(2), 120,125,142 and 143 of the PPSA will not apply, and
- the Renter waives its rights to receive notices under section 95,118(1)(b), 121(4),123(2),130,135,132(3)(d) and 132(4) and any verification statement;
- the terms ‘security agreement’, ’security interest’, ‘purchase money security’, and ‘PPS register’ in this clause have the same meaning as per the PPSA
9. If the renter requests a variation of the initial term or of the equipment rented hereunder, the owner may agree to such variation and forward an acknowledgement of variation to the renter setting out details of the variations. Upon the signing of the acknowledgement by the renter the variation shall be binding on the renter. The rental payments payable hereunder shall be varied accordingly and in all other respects the terms and conditions of this agreement shall remain unchanged. If the owner does not receive the acknowledgement duly signed by the renter within fourteen (14) days of sending its acknowledgement to the renter , the owner may elect not to be bound by such variation.