Dry Hire Terms and Conditions

Dry Hire Agreement and Terms and Conditions

The parties agree in consideration of, among other things, the mutual promises contained in this Agreement:

1. DEFINITIONS

1.1. “Agreement” means the agreement between the Owner and the Hirer for the hire of the Equipment, constituted by the Hire Form and these Terms and Conditions.

1.2. “Dry Hire” means the hire of Equipment to the Hirer without an operator provided by the Owner.

1.3. “Equipment” means the equipment or machinery listed in Part 2 of the Hire Form and includes but is not limited to any item of plant, machinery or vehicle, and any tools including ground engaging tools, accessories, parts, items of equipment and devices affixed to or supplied with such plant, machinery or vehicle let by the Owner to the Hirer.

1.4. “Float” means the amount stated at Part 3 of the Hire Form as the cost of delivering the Equipment to, and collecting the Equipment from, the Site or any other location where the Equipment is held (with the amount stated in Part 3 of the Hire Form payable for both the delivery and collection of the Equipment).

1.5. “Hire Form” means the Owner’s form with that title signed by or on behalf of the Hirer or the Owner which sets out the details of the Agreement.

1.6. “Hirer” means the person identified in Part 1 of the Hire Form, and includes its successors and assigns.

1.7. “Hire Period” means the hours for which the Hirer must pay the Hire Rates to the Owner, to be determined in accordance with clause 4.

1.8. “Hire Price” means the amount payable by the Hirer to the Owner for the hire of the Equipment under the Agreement, calculated in accordance with clause 3.

1.9. “Hire Rates” means the rates for the hire of the Equipment identified in Part 2 of the Hire Form.

1.10. “Legal Requirement” means any requirement arising out of any law, regulation, ordinance, statutory, regulation, licence or approval, including but without limitation:

(a) any requirement to obtain any licence or approval;

(b) any requirement relating to Workplace Health and Safety or the environment; and

1.11. “Minimum Hire Period” means the minimum hire period identified in Part 4 of the Hire Form and if that Part 4 is left blank then it means four (2) day.

1.12. “Operators” means the employees, agents or subcontractors of the Owner who operate or deliver or retrieve the Equipment under this Agreement.

1.13. “Owner” means Bespoke Engineering Solutions, and includes its successors and assigns.

1.14. “PPSA means the Personal Property Securities Act 2009 (Cth).

1.15. “Site” means the site address or project identified in Part 5 of the Hire Form where the Equipment is to be used by or for the benefit of the Hirer.

1.16. “Terms and Conditions” means these terms and conditions, and any other terms and conditions relating to the Agreement stated on the Hire Form or otherwise conveyed in writing by the Owner to the Hirer.

1.17. “Term of Hire” means the period of time identified in Part 6 of the Hire Form, as adjusted by written agreement of the Owner and the Hirer.

1.18. “Usual Working Hours” means 6:00am to 5:00pm Monday to Friday, excluding public holidays applicable to the Site.

2. HIRE

The Hirer agrees to hire the Equipment from the Owner during the Term of Hire, and pay the Owner the Hire Price for the hire of the Equipment, in accordance with the Terms and Conditions.

3. PRICE AND PAYMENT

3.1. The Hire Price shall be:

(a) the Hire Rates multiplied by the Hire Period; and

(b) the Float for the delivery of the Equipment; and

3.2. Unless otherwise stated, the Hire Rates are exclusive of GST or other applicable taxes or duties, and GST and any other applicable taxes or duties are payable in addition to the Rates.

3.3. The Owner shall be entitled to submit payment claims to the Hirer for the Hire Price, and any other amounts payable in respect of the Agreement, every seven days during the Term of Hire, and thereafter until all amounts payable by the Hirer in respect of the Agreement have been paid in full. To remove all doubt, the Owner’s payment claims shall not be limited to the Hire Price for the seven (7) day period leading up to the submission of the payment claim, and the Owner’s entitlement to submit payment claims on a weekly basis shall not expire at the end of the Term of Hire.

3.4. The Hirer shall pay to the Owner the amount contained in any payment claims within fourteen (14) days of the payment claims being submitted to the Hirer.

3.5. If the Hirer fails to comply with clause 3.4, the Hirer shall be liable to pay interest on any unpaid amounts at the rate of 10% per month, and any debt collection or legal costs incurred by the Owner in recovering any overdue amounts (on an indemnity basis), including a $250.00 administrative fee which shall become immediately payable in respect of any unpaid payment claim.

3.6. No allowance has been made in the Hire Price for the deduction for retentions. If any retentions are withheld, the Hirer shall be deemed to be in breach of clause 3.4.

3.7. Prior to hiring the Equipment to the Hirer, the Owner may require the Hirer to pay the Deposit in an amount which the Owner considers appropriate in which case the Owner shall not be required to hire the Equipment to the Hirer until the Deposit has been paid. The Deposit shall be applied to the first payment claim submitted by the Owner under clause 3.3, or any other amounts payable by the Hirer to the Owner in relation to this Agreement.

3.8. Prior to hiring the Equipment to the Hirer, the Owner may require the Hirer to pay the Bond, which secures performance of the Hirer’s obligations under the Agreement in which case the Owner shall not be required to hire the Equipment to the Hirer until the Bond has been paid. The Bond is to be refunded to the Hirer upon the return of the Equipment to the Owner in a satisfactory condition and the payment in full of all amounts owed by the Hirer to the Owner in relation to the Agreement. The Owner may apply the Bond to any amounts payable by the Hirer to the Owner which remain unpaid for a period of seven (7) days and may require the Hirer to replace the Bond or such part of it as has been applied by the Owner.

4. HIRE PERIOD

4.1. Subject to clauses 4.2 to 4.4, and unless otherwise agreed in writing, the Hire Period shall include:

(a) the number of hours or part thereof during which the Equipment is used by or for the benefit of the Hirer, as recorded by the Operators (which shall be recorded in minimum intervals of 15 minutes); and

(b) any time at which the Equipment is at the Site but is not in use for any reason (including, but without limitation, by reason of inclement weather), provided that the Equipment is not kept at the Site at the election of the Owner; and

(c) any period of time the delivery or collection of the Equipment to or from the Site is delayed by a cause for which the Hirer is responsible.

4.2. If there is a Minimum Hire Period, and the Hirer uses an item of Equipment for less than the Minimum Hire Period on any one day during the Hire Term, the Hire Period for that day shall be the Minimum Hire Period.

4.3. The Hire Period shall not include any time outside of Usual Working Hours, unless the Equipment is actually used by or for the benefit of the Hirer during those hours.

4.4. If the Equipment breaks down or stops working for a reason which is not attributable to the Hirer, and provided the Hirer notifies the Owner immediately, the period during which the Equipment is not working shall not form part of the Hire Period.

5. THE SITE

5.1. The Hirer must give the Owner, and its agents and employees and the Operators, free access to the Site for the purposes of delivering, collecting, operating, protecting, repairing and maintaining the Equipment during the Hire Term and any other time when the Equipment is at the Site. The Hirer authorises the Owner, its employees, agents and Operators to enter the Site as the Hirer’s agent for the purposes of this clause.

5.2. The Hirer must comply with all Legal Requirements in relation to the Site, and must take all reasonable and necessary steps to ensure its employees, superior contractors, and subcontractors do the same.

5.3. The Owner shall not be liable for any loss or damage whatsoever due to failure by the Owner to deliver the Equipment promptly or at all to the Site.

5.4. The Hirer acknowledges that the Owner is relying on the Hirer’s compliance with any Legal Requirements relating to health and safety at the Site, and indemnifies the Owner in respect of any claim, damage or loss arising from or relating to Workplace Health and Safety issues or Legal Requirements at the Site.

6. HIRER’S COVENANTS AND WARRANTIES

6.1. The Hirer covenants and agrees that:

(a) the Hirer must not do or omit to do any act or thing which might in any way invalidate or prejudice any insurance effected by the Owner or Hirer in respect of the Equipment, its operation, the site or anyone or anything on the site;

(b) notwithstanding whether the Owner or Hirer has effected insurance in respect of the risks, the Hirer indemnifies and will keep indemnified the Owner against:

(i) the loss of or damage to the Equipment whether by fire, theft, accident, seizure, confiscation or otherwise; and

(ii) all other losses, damages, claims, penalties, liabilities and expenses, including legal costs, howsoever arising incurred as a result of or in connection with the Equipment or the seizure or the taking of possession of the Equipment by the Owner.

6.2. The Hirer warrants and represents to the Owner that:

(a) the Hirer, being a body corporate, is duly incorporated and validly existing under the Corporations Act, and has full power and authority to enter into and observe and perform the terms of this Agreement, or the Hirer, being an individual, has full power and capacity to enter into and observe and perform the terms of this Agreement;

(b) this Agreement constitutes legal, valid and binding obligations enforceable against the Hirer in accordance with its terms;

(c) all consents and approvals, whether governmental or otherwise, required in order for the Hirer to observe and perform the Hirer’s covenants as set out in the Agreement have been obtained and are in full force and effect;

(d) the Hirer is not insolvent and will be able to pay all of its debts including the Hire Price as and when they fall due; and

(e) to the best of the Hirer’s knowledge, information and belief, no information supplied by the Hirer to the Owner in relation to this Agreement contained any material misstatement of fact or omitted to state a material fact.

7. THE EQUIPMENT

7.1. The Equipment is and will at all times remain the absolute property of the Owner.

7.2. Whilst the Equipment is at the Site, the Hirer bears the risk of any damage to the Equipment caused by whatever reason, unless the damage is caused by the Owner, or its employees or Operators acting outside the instructions of the Hirer. The Hirer must immediately inform the Owner of any damage caused to the Equipment at the Site.

7.3. The Hirer warrants that all Legal Requirements relating to the use of the Equipment shall be complied with, except for those Legal Requirements compliance with which is the exclusive responsibility of the Owner, its Employees or the Operators.

7.4. The Equipment shall only be used at the Site.

7.5. The Hirer is not authorised to offer the Equipment as security for the performance of any obligation, or encumber the Equipment in any manner whatever.

7.6. No warranty is provided by the Owner in respect of the condition of the Equipment or its fitness for any particular purpose. The Hirer acknowledges that it has entered into the Agreement relying solely on the Hirer’s skill and judgment as to the condition or suitability of the Equipment and its fitness for the Hirer’s purposes, and not pursuant to any representation of the Owner.

8. CONDITIONS OF PLANT AND EQUIPMENT – SURVEYS:

8.1. Immediately prior to the commencement of this Agreement, the Plant and Equipment will be inspected by a representative of each party to establish the general condition thereof and a statement of condition of the Plant and Equipment will be prepared (“the On Hire Survey”).

8.2. As soon as practicable following termination of this Agreement, the Plant and Equipment will be inspected by a representative of each party to establish the general condition thereof and a statement of condition of the Plant and Equipment will be prepared (“the Off Hire Survey”).

8.3. The Hirer acknowledges and agrees that it will, at its cost, reinstate the Plant and Equipment to its condition as specified in the On Hire Survey.

8.4. On or before termination of this Agreement, the Hirer shall return the Plant and Equipment to the Site and the Hirer acknowledges and agrees that the Fee is payable:

(a) Until such time the Plant and Equipment is returned to the Hire Site and returned to its condition as specified in the On Hire Survey; and/or

(b) For the entirety of the Term notwithstanding that the Plant and Equipment may be returned to the Owner prior to termination.

9. OPERATION, MAINTENANCE AND STORAGE OF PLANT AND EQUIPMENT

9.1. The Hirer shall at the Hirer’s expense keep and maintain the Equipment in proper working order and good and substantial repair, including but not limited to lift studies and job safety analysis, lubricating, refuelling, daily servicing, running repairs, making mechanical, structural and electrical repairs, and where necessary replacing tyres and other wearing parts.

9.2. The Hirer must, in operating the Equipment, employ only persons who are properly trained and competent, and certified by Workplace Health and Safety Queensland, or any successor organisation if applicable, and holders of any appropriate licence or certification and use recognised standards of operation for the Equipment.

9.3. The Hirer shall operate, maintain and store the Equipment with due care and diligence and in compliance with the instructions and recommendations of the supplier and manufacturer of the Plant and Equipment as to their operation, maintenance and storage or in accordance with any specific instructions of the Owner.

9.4. The Hirer must not, without the prior consent of the Owner, make any alterations, additions or replacements to the Equipment.

9.5. The Hirer must:

(a) comply with all relevant laws, regulations, rules and by-laws governing or relating to the registration or licensing of the Equipment, and to its use and operation;

(b) not do or cause or suffer to be done any act, matter or thing which is likely to endanger the safety or condition of the Equipment;

(c) pay to the Owner on demand all money which the Owner pays or is liable to pay to make good any failure by the Hirer to comply with any obligation under this Agreement and all other costs and expenses, including legal costs and expenses that the Owner may incur in the enforcement or protection or attempted enforcement or protection of the Owner’s rights under this Agreement or in the Equipment, including money paid to the Owner in releasing any lien or other encumbrance claimed on the Equipment and in dismantling and removing the Equipment from any premises or site;

(d) immediately notify the Owner of any accident resulting in injury to persons or damage to property (including damage to the Equipment) involving the Equipment and in any event no later than within one (1) day of the date of the accident;

(e) not remove the Equipment from the State of Queensland without the prior written consent of the Owner; and

(f) to secure the Equipment when not in use and to ensure that all reasonable measures are taken to protect the Equipment against acts of theft and vandalism.

9.6. The Hirer must effect insurance and maintain any such insurance with an insurer approved by the Owner in the names of the Owner and the Hirer for their respective rights and interests whilst the Equipment is at the Site or in transit from or to the Site in respect of the following:

(a) the Equipment for the full insurable value being $70,000.00 against such risk as the Owner may nominate or, in the absence of such nomination, against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of the Hirer excluding liability for claims being the subject of compulsory third party bodily injury insurance on vehicles registered by the Owner;

(b) a policy of employers’ indemnity insurance including workers’ compensation insurance in respect of all employees by the Hirer in respect of damage or loss caused by the use, maintenance, repair or storage of the Equipment; and

(c) public risk liability and product defect liability, and any other such insurance in support of the indemnities contained in this Agreement, and must in respect of any such policy of insurance, deliver to the Owner a copy of the policy and promptly pay all premiums and stamp duty payable in respect of the policy.

(d) a hired in plant extension to cover loss of owner’s income should the machine be stolen/damaged or written off and it cannot be rehired for a period.

9.7. Each of the Owner and the Hirer is entitled to receive payments of money under the insurance policy effected pursuant to this cause according to its interest in the policy. Each party agrees to assist and cooperate with the other in making, pursuing and settling any claim made under the policy.

9.8. Without limiting the generality of clause 9.7 and if the Owner requests, the Hirer will expend all money received by it under the policy in respect to damage to the Equipment in restoring or replacing the Equipment to its condition prior to the commencement of this Agreement subject to reasonable wear and tear, and if such money is insufficient the Hirer will make good the deficiency at its own cost.

10. INDEMNITY

10.1. The Hirer indemnifies, and agrees to keep indemnified, the Owner against:

(a) any loss or damage of whatever nature arising out of the Hirer’s breach of the Terms and Conditions, or any warranty contained therein, including legal costs on a full indemnity basis;

(b) any damage to the Equipment whilst the Equipment is at the Site or any other location where the Equipment caused by whatever reason, unless the damage is caused exclusively by the Owner, or its employees or Operators (which is not the case if an Operator acts on an instruction of the Hirer);

(c) any claims of whatever nature (including, but not limited to, claims related to property damage, personal injury or death) directly or indirectly caused to or contributed by the acts or omissions of the Hirer, its employees, agents or subcontractors, including any instructions given by the Hirer to an Operator;

10.2. The Hirer acknowledges and agrees that the Owner is not liable:

(a) to the Hirer for any loss or damage or delay through breakdown, mechanical defect or accident to or of the Plant and Equipment;

(b) to any person from any loss or damage to any property stolen from the Plant and Equipment or damaged or otherwise lost during the Dry Hire of the Plant and Equipment or left in the Plant and Equipment after the return of the Plant and Equipment to the Hire Site; and

(c) to the Hirer for any form of breakdown whether mechanical, electrical or structural to the Plant and Equipment while on Dry Hire.

11. ACCESS TO PLANT AND EQUIPMENT

The Owner has at all times free access to the Plant and Equipment and may examine and/or test the same at the discretion of the Owner following reasonable notice to the Hirer.

12. ENDING AGREEMENT

12.1. The Agreement ends at the expiration of the Term of Hire, unless ended earlier in accordance with this clause.

12.2. The Owner may end this agreement at its convenience for whatever reason by giving the Hirer seven (7) days written notice of its intention to end the Agreement. The Agreement then ends seven (7) days after that notice is given. If the Agreement is ended under this subclause 12.2, the Hirer shall still be liable for Float for the collection of the Equipment, and the Hire Rates incurred up until the Agreement is ended.

12.3. The Owner may immediately end the Agreement by giving notice to that effect to the Hirer if the Hirer is in breach of the Agreement, or becomes insolvent, or if the Owner considers that the Hirer will be unable to comply with its obligations under the Agreement, or if the Owner considers that the Equipment is at risk of being damaged through the continuance of the Agreement.

12.4. For the purposes of subclause 12.3, the Hirer becomes insolvent if the Hirer is actually insolvent, enters into bankruptcy, liquidation, provisional liquidation, administration, receivership or is deregistered, assigns its estate for the benefit of its creditors, meets with creditors for the purpose of compromising its debts, or makes arrangements to do any one of those things.

12.5. If the Owner is in substantial breach of the Agreement, the Hirer may give the Owner a written notice identifying the Owner’s substantial breaches, requiring the Owner to remedy the substantial breaches within fourteen (14) days, and stating that the Hirer intends to end the Agreement if the breaches are not so remedied.

12.6. The Hirer may end the Agreement if the Owner fails to take reasonable steps to remedy the substantial breaches within the fourteen (14) day period after a notice under clause 12.5 is given by giving the Owner further written notice to that effect.

12.7. If the Agreement is ended under clause 12.6, the Owner shall be liable for the Float for the collection of the Equipment, the Hire Rates incurred up until the Agreement is ended, any Hire Rates for which the Hirer would have been liable had the Agreement not been ended before the end of the Hire Term, and any other losses the Owner suffers as a result of the Agreement ending before the end of the Hire Term.

12.8. Upon the Agreement ending for whatever reason, the Hirer must give the Owner immediate access to the Site or any other location where the Equipment for the purposes of collecting the Equipment. The Hirer authorises the
Owner and its employees to enter the Site or any other location where the Equipment is held as the Hirer’s agent for the purposes of this clause.

12.9. Nothing in this clause limits or prejudices any of the Owner’s rights under the Agreement or at law relating to the Hirer’s breach of any term of the Agreement.

13. SECURITY AND CHARGE

13.1. Where the Hirer is the owner of land, realty or any other asset capable of being charged, the Hirer agrees to mortgage and/or charge all of its joint and/or several interest in the said land, realty or any other asset to the Owner, or the Owner’s nominee, to secure all amounts and other monetary obligations payable under the Agreement.

13.2. The Hirer acknowledges and agrees that the Owner (or the Owner’s nominee) shall be entitled to lodge, where appropriate, a caveat in respect of the charge granted by this clause 13, and agrees to sign any forms and do any things necessary to give its consent to the lodgement of the caveat.

13.3. Should the Owner elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Hirer shall indemnify the Owner from and against all the Owner’s costs and disbursements including legal costs on a solicitor and own client basis.

13.4. The Hirer agrees to irrevocably nominate constitute and appoint the Owner or the Owner’s nominee as the Hirer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13, including the execution of any documents on behalf of the Hirer the Owner deems fit to more satisfactorily secure the payment of any amounts due.

14. PPSA

14.1. Where this agreement is a PPS Lease (as that term is defined under the PPSA):

(a) the Hirer shall do all things necessary to enable it to be registered under the PPSA, and will comply with all requirements of the PPSA;

(b) the Hirer acknowledges that this Agreement is a security agreement for the purposes of the PPSA;

(c) if the Owner seizes or takes possession of the Equipment in accordance with its rights under this Agreement, the PPSA, or at law:

(i) the Owner shall not be required to dispose of or sell the Equipment to satisfy any amounts owed by the Hirer to the Owner, or return the Equipment to the Hirer (or any other party) upon the amounts owed by the Hirer to the Owner being satisfied;

(ii) the Owner will be granted full and unfettered access to the Site or any other location where the Equipment is held for the purposes of the Owner seizing or retaking of possession of the Equipment and the Hirer will do all things necessary to ensure the Owner has access to the Equipment and may seize or retake possession of the Equipment;

(d) the Owner is not required to give any notices to the Hirer or account to the Hirer, under or in relation to the PPSA, unless the requirement to give the notice or the account cannot be excluded under the terms of the PPSA.

15. GENERAL

15.1. The Hirer shall not be entitled to assign the benefit of the Agreement, or its interest in the Equipment under it.

15.2. If any provision of these terms and conditions shall be found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.3. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

15.4. The Owner shall be under no liability whatever to the Hirer for any indirect loss and/or expense (including loss of profit) suffered by the Hirer arising out of a breach by the Owner of these terms and conditions.

15.5. In the event of any breach of the Agreement by the Owner, the Owner’s liability shall be limited to the Hire Price at all times and under no circumstances shall the Owner be liable for any consequential, indirect, exemplary or punitive damage (including, but not limited to, loss of actual or anticipated profits or revenues, loss by reason of any shut down or non-operation, increased costs of borrowing, capital or financing, or loss of use or productivity) whether caused by or in relation to the breach of contract, warranty, tort, product liability, contribution or strict liability.

15.6. The Hirer shall not be entitled to set off against or deduct from the Hire Price (or any other amounts owed by the Hirer to the Owner in respect of the Agreement) any sums owed or claimed to be owed to the Hirer by the Owner.

15.7. The Owner may license or sub-contract all or any part of its rights and obligations without the Hirer’s consent.

15.8. The failure by the Owner to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Owner’s right to subsequently enforce that provision.

15.9. In the event of any inconsistency, any Terms and Conditions stated on the Hire Form or otherwise conveyed in writing by the Owner to the Hirer shall take precedence over the terms and conditions contained herein.

15.10. Service of any notice under or relating to this agreement will be sufficiently served:

(a) if delivered personally to the party to be served;

(b) if left out or sent by prepaid post to the address of the party to be served as set out in the description of that party in the Hire Form and in the case of posting such notice will be deemed to have been duly served on the second day after such notice has been posted; or

(c) was sent by facsimile transmission to the last known facsimile number of the party to be served and will be deemed to have been duly served at the time such facsimile transmission is sent.

15.11. References to days mean calendar days and references to a person include an individual, firm or a body, corporate or incorporate.

15.12. Time for doing any act or thing under the Agreement shall, if it ends on a Saturday, Sunday or public holiday applicable to the Site, be deemed to end on the next day following which is not a Saturday, Sunday or public holiday.

15.13. Clause headings shall not form part of the Terms and Conditions and shall not be used for the interpretation of the Terms and Conditions.

15.14. A term or condition of the Agreement is not to be construed adversely to a party just because that party prepared it.

15.15. The Hirer agrees to assist and co-operate with the Owner in relation to the Owner exercising any and all of its rights in respect to the Equipment, including without limitation the Owner instituting, carrying on and enforcing, compromising or completing any legal proceedings which the Owner thinks desirable to protect its rights in respect of the Equipment.