1. HIRE AGREEMENT
“Between You and Perth Hire Shop, or Us or We”
- each Hire Schedule provided to You by Perth Hire Shop, whether signed or not; and
- any Special Conditions specific to the type of Equipment You have hired,
set out the terms of the hire agreement (the “Hire Agreement”) between You and Perth Hire Shop. The provision or acceptance of a Hire Schedule shall not form a separate agreement between You and Perth Hire Shop, but shall constitute part of this Hire Agreement. Any terms contained in any document supplied by You, including any terms in Your purchase order, will not form part of the Hire Agreement.
2. OUR HIRE COMMITMENT TO YOU
We agree to hire the Equipment to You and will:
(a) provide the Equipment to You in good working order; and
(b) allow You to exclusively use the Equipment during the Hire Period.
3. THE HIRE PERIOD
3.1 The Hire Period commences on the earlier of the following:
(a) when You take possession of the Equipment; or
(b) if You request delivery and collection of the Equipment, the time We deliver the Equipment to the address in the Hire Schedule/Checkout form.
3.2 The Hire Period is for an indefinite term and ends when the Equipment is back in Our control or possession.
3.3 The Hire Period includes weekends and public holidays.
3.4 A minimum Hire Period may apply in respect of certain items of Equipment. We will advise you at the time of hiring if a Minimum Hire Period applies. If You return the Equipment to Us before the expiration of the Minimum Hire Period, You are required to pay all Hire Charges in respect of the Minimum Hire Period or the full booking period.
4. HOW WE CALCULATE YOUR HIRE CHARGES
4.1 You will pay Perth Hire Shop for the hire of the Equipment at the Hire Charge set out in the Hire Schedule/Checkout form.
4.2 The Hire Schedule will specify the type of rate which will apply to You and the method of calculation.
4.3 Additional Hire Charges as set out in the Hire Schedule will apply if the Equipment is used for more than 24 hours.
4.4 You will be charged for the hire of Equipment for the full Hire Period. For the avoidance of doubt, You must continue to pay the Hire Charges and other charges after the Expected Off Hire Date if You have not returned the Equipment to Perth Hire Shop by the Expected Off Hire Date. This obligation survives termination of the Hire Agreement.
4.5 Hire Charges will commence from the start of the Hire Period and continue until the end date or until You notify Us that the Equipment will be available for collection (the “Off Hire Date”). At this time, We will give You a number as verification that Your request has been received (“Off-Hire Number”). The Equipment must be available for collection by no later than the time of day at which Your hire commenced (e.g. if Your hire commenced at 10am, then the Equipment must be ready for collection by no later than 10am on the Off Hire Date), otherwise Perth Hire Shop reserves the right to charge additional Hire Charges. For the avoidance of doubt, the Expected Off Hire Date is not considered to be Your notice to Perth Hire Shop that the Equipment is available for collection.
5. OTHER CHARGES
In addition to the Hire Charges, You agree to pay:
(a) for any consumables, fuel, or trade materials Perth Hire Shop supply to You;
(b) if You require Perth Hire Shop to deliver, collect or install the Equipment, the cost of delivery, collection, or installation, as detailed in the Hire Schedule. Such charge may include a waiting fee (charged at cost) in addition to the delivery and collection fee if the nominated time for delivery or collection of the Equipment is delayed by You.
(c) if You do not return the Equipment in clean and good working condition, charges for the cleaning and repair of the Equipment will apply;
(d) a charge for pumping out waste tanks or refilling water or fuel tanks;
(e) any stamp duty or GST arising out of this Hire Agreement;
(f) any other applicable levies, fines, penalties and any other government charges arising out of Your use of the Equipment;
(g) charges for payment made by credit card;
(h) an environmental charge in relation to any item of Equipment, as detailed in the Hire Schedule;
(i) if You request operational guidance or training on the use of the Equipment and Our staff are available to provide this, the cost for the provision of these services at rates agreed with Perth Hire Shop;
(j) charges in connection with the administration of Your Credit Account, as detailed in the Hire Schedule, which may include printing and postage costs;
(k) any reasonable charges incurred by Perth Hire Shop if we are unable to inspect or carry out maintenance on the Equipment during normal working hours;
6. PAYMENT
6.1 You must pay all Hire Charges and other fees, charges, and costs that become due and payable under this Hire Agreement within the terms agreed on the date of invoice.
6.2 If You do not pay the invoice in full by the payment due date, Perth Hire Shop may charge, in addition to any other costs recoverable under this Hire Agreement:
- Perth Hire Shop own all rights, title and interest (including intellectual property rights) in the Data;
- You must obtain our prior written approval for the purposes for which You intend to use the Data and You must not disclose the Data to any third party;
- We do not warrant the accuracy of any Data nor guarantee that such Data will be available to You throughout the Hire Period;
- We are not required to retain any Data and such Data may not be available for retrieval after the Hire Period; and
- We may disclose, from time to time, any Data to a third party who is not a party to this Hire Agreement (for example, location and utilisation data with respect to the Equipment) and we are not required to obtain Your prior permission with respect to such disclosure nor will such disclosure constitute a breach of this Agreement by Perth Hire Shop.
- comply with all Chain of Responsibility legislation and must ensure that any activity relating to the Equipment (including scheduling, load restraint, Transport Movement ) is undertaken in accordance with Your Chain of Responsibility obligations;
- ensure that any of Your subcontractors (where You subcontract any Transport Movement under this Hire Agreement) are contractually bound by similar Chain of Responsibility obligations to those set out in this clause.
7. YOUR OBLIGATIONS TO PERTH HIRE SHOP
7.1 This Hire Agreement is personal to You and You must not allow nor authorise any other person or entity to use, re-hire or have possession of the Equipment at any time, unless expressly agreed by Perth Hire Shop in writing.
7.2 You agree that before taking delivery of the Equipment, You have satisfied Yourself as to the suitability and condition of the Equipment and You will ensure that the Equipment is used only for the purpose for which it was designed by the manufacturer. Subject to clauses 16.2 and 16.3, We make no representations and give no guarantee or warranty that the Equipment is suitable for Your intended purpose.
7.3 You must:
(a) operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s instructions;
(b) ensure persons operating or erecting the Equipment are suitably trained on its safe and proper use, qualified to use the Equipment and where necessary, hold a current licence to perform high risk work;
(c) wear suitable clothing and protective equipment when operating the Equipment as required or recommended by Perth Hire Shop or the manufacturer;
(d) ensure that no persons operating the Equipment are under the influence of drugs or alcohol;
(e) conduct a job safety analysis prior to using the Equipment;
(f) ensure that no persons carry illegal, prohibited or dangerous substances in or on the Equipment; and
(g) display all safety signs and instructions (as required by law) and ensure that all instructions and signs are observed by operators of the Equipment.
7.4 You must:
(a) clean, fuel, lubricate and keep the Equipment in good condition and in accordance with the manufacturer’s and Our instructions at Your own cost;
(b) not in any way alter, modify, tamper with, damage or repair the Equipment without Our prior written consent;
(c) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment;
(d) not remove fuel or oil tank caps, bund plugs or seals from the Equipment and ensure that they are in place when You return the Equipment; and
(e) arrange for the emptying of any waste tanks and water carts.
7.5 At all times during the Hire Period, You must store the Equipment safely and securely.
8.6 You will allow Perth Hire Shop to enter Your premises and inspect and maintain the Equipment from time to time during the Hire Period during normal working hours. If We cannot inspect or maintain the Equipment during normal working hours, then additional charges may apply. You can also request to conduct a joint inspection of the Equipment with Perth Hire Shop at the end of the Hire Period.
7.7 Whenever You are moving the Equipment, You must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturer’s guidelines. You (or any contractor You engage) must observe any safety directions advised by Us and/or the manufacturer of the Equipment to ensure its safe loading and handling.
7.8 You must not remove the Equipment from the State or Territory in which You hired it without Our written consent.
7.9 You must not use the Equipment off-shore, in a mine, in an area where friable asbestos is present, or move the Equipment over water without Our prior written consent, which may be reasonably withheld.
7.10 You warrant that You will comply with all Environmental Laws from time to time and immediately rectify any breach of an Environmental Law caused by the use of the Equipment.
7.11 You must use best endeavours to ensure that the Equipment is not contaminated with any hazardous substances (including asbestos). Subject to clause 8.9, You must advise Us of any risks of hazardous substance contamination to the Equipment as soon as they become apparent. Where Equipment may have been subjected to contamination, You must effectively decontaminate the Equipment, as well as provide Us with written details of decontamination processes applied. If, in Our opinion acting reasonably, the Equipment is not capable of being decontaminated, You will be charged for the replacement cost of the Equipment.
7.12 Any electrical Equipment provided by Us will be tested and tagged before it is hired to You, but during the Hire Period, You are responsible for arranging the re-testing and re-tagging of any electrical Equipment in accordance with the manufacturer’s instructions and the applicable Australian Standard(s) and Regulatory Authority requirements at Your cost. We are able to arrange for such re-testing and re-tagging of the electrical Equipment at Your cost. Except where We arrange for re-testing and re-tagging of the electrical Equipment, You will be liable for any damage caused to the Equipment resulting from incorrect testing.
7.13 If, at Your request, We supply an operator to operate the Equipment (“Operator”):
(a) the Operator will be under Your direction and control during the Hire Period and will comply with Your reasonable directions;
(b) We will not, while the Operator is working under Your direction and control in accordance with clause 8.13(a), seek to direct or supervise any of the work undertaken by Operator;
(c) We will not be liable to You for any acts or omissions of the Operator where they are acting under your direction and control during the Hire Period; and
(d) You will not allow any other person to operate the Equipment without Our prior written consent.
8. OWNERSHIP OF THE EQUIPMENT
8.1 Except as detailed in clause 9.4, You acknowledge that We own the Equipment and in all circumstances We retain title to the Equipment. Your rights to use the Equipment are as a bailee only.
8.2 Except in the circumstances set out in clause 10, You are not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Equipment in any way.
8.3 In no circumstances will the Equipment be deemed to be a fixture.
8.4 You acknowledge that We may hire or lease Equipment from a third party if we cannot provide the Equipment to You (“Third Party Owner”), and if this occurs, title in the Equipment remains with the Third Party Owner.
9. PPSA
9.1 You:
(i) acknowledge that We may register any actual or impending PMSI under the PPSA in respect of all Equipment; and
(ii) consent to Us registering our PMSI under the PPSA and will do all things reasonably necessary to assist Us to register Our security interest.
9.2 We are responsible for:
(i) the preparation and registration of the financing statement or financing change statement; and
(ii) payment of any fees associated with the registration,
and You waive the right to receive from Us verification of the registration pursuant to section 157(3)(b) of the PPSA.
9.3 If You sub-hire the Equipment to Your agent, contractor subcontractor or any third party (“Sub-hire”) and the Sub-hire is a security interest under the PPSA, You agree that You will protect Our interests in the Equipment by:
(a) registering a security interest itself; or
(b) assigning, by this clause, to Us all rights as bailor, to enforce against an agent, contractor or subcontractor.
9.4 You have an obligation to give Us notice if another party with a security interest in the Equipment seizes or otherwise deals with Our PMSI in the Equipment.
9.5 If You grant any security interest in the Equipment to another party, that other party must acknowledge the priority of Our PMSI.
9.6 The parties agree that neither party is required to give notice to the other under the PPSA unless the obligation to give the notice cannot be excluded.
10. RESPONSIBILITY FOR THE EQUIPMENT
You are responsible for any loss, theft or damage to the Equipment from any and every event whatsoever and howsoever and by whosoever caused during the Hire Period except where any such loss, theft or damage was caused by Our actions.
11. RETURN OF EQUIPMENT
11.1 You must return the Equipment to Us in the same clean condition and good working order it was in when You received it, ordinary fair wear and tear excluded. If You do not properly clean the Equipment or in Our view (acting reasonably) the Equipment is not decontaminated, We will charge You a cleaning cost in accordance with clause 6(c) and You will be liable to continue to pay the Hire Charges for that portion of the Hire Period during which the Equipment is being cleaned by Us (and notwithstanding that You may have provided a clearance report that the Equipment is not contaminated).
11.2 Except in the circumstances set out in clause 11.3 below, it is Your responsibility to return the Equipment to the Perth Hire Shop Hire branch You hired it from during normal business hours.
11.3 If We have agreed to collect the Equipment from You, You must ensure it is kept safe and secure until the time of collection
12. WHAT TO DO IF EQUIPMENT IS LOST, STOLEN OR DAMAGED
12.1 If the Equipment has broken down or become unsafe to use as a result of Your acts or omissions, (or the acts or omissions of Your employees or contractors) or if the Equipment is lost, stolen or damaged beyond fair wear and tear during the Hire Period, You will be liable for:
(a) any costs incurred by Perth Hire Shop to recover and repair or replace the Equipment; and
(b) the Hire Charges for that portion of the Hire Period during which the Equipment is being recovered and repaired or replaced,
except where You have paid the Damage Waiver Fee or the Theft Waiver Fee, in which case Your liability is subject to clause 13 below.
12.2 Provided that You pay the costs and charges described in clause 12.1, We will return or replace the Equipment, and You must continue to pay the Hire Charges for the remainder of the Hire Period.
13. DAMAGE WAIVER FEES
13.1 The Damage Waiver Fee is not insurance, is an agreement made with Perth Hire Shop that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess ($2500) .
PLEASE NOTE – Damage Waiver does NOT cover the costs of recovery of the Equipment, which are always payable by the Customer.
13.2 Subject to the provisions of this Section, Damage Waiver is a fee based on the hire fee (12.5%) Limiting the Customer’s liability for theft and damaged equipment to the Damage Waiver Excess & Theft Waiver Excess or the actual repair cost of the Equipment, or 20% of the current replacement cost of the Equipment as reasonably determined by Perth Hire Shop using supplier’s list prices, whichever is the lesser amount.
DAMAGE WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S LIABILITY IN THE FOLLOWING CIRCUMSTANCES;
(a) where the Equipment is lost or stolen;
(b) where the operator is not suitably licensed;
(c) where the operator is affected by drugs and/or alcohol;
(d) where the equipment has been willfully damaged at any time during the Hire Period;
(e) Where the damage is caused by rolling or detachment while the Equipment is being driven or towed;
(f) where the damage is caused while the Equipment is being driven or towed on any road that is unsealed or is not a public road;
(g) where the damage is caused in any way by overloading; (h) where the damage is caused by flash flooding or general water damage;
(i) where the damage is caused by a collision with a bridge, carpark, awning, gutter, tree or any other overhead structure or object whatsoever due to insufficient clearance; or
(j) where the damage is caused to a truck pantech or truck crane;
(k) where the equipment has been tagger or covered with graffiti.
13.3 Perth Hire Shop may ask the Customer to pay the Damage Waiver Fee on the hire of medium and large Equipment, but the Customer may decide to opt out of that payment and be fully liable for any incident, damage and theft of the equipments.
Credit account customers will have Damage Waiver Fee applied to all relevant hires unless the Customer has declined the Waiver on their credit application or opted out by providing notice to Perth Hire Shop in writing.
The Damage Waiver Fee and any relevant Excess which apply to medium and large Equipment when the Damage Waiver Fee is paid will be shown on the Hire Schedule and will vary for different types of machinery
13.5 Theft Waiver is not insurance, but is an agreement made with Perth Hire Shop that the Customer’s liability for theft or loss of the Equipment can be limited in some circumstances only to an amount called the Theft Waiver Excess($5000).
THEFT WAIVER DOES NOT APPLY AND WILL NOT LIMIT THE CUSTOMER’S LIABILITY FOR THEFT in the following circumstances;
(a) where the Customer has failed to keep the Equipment in a securely locked enclosed area; or
(b) where the Customer has failed to submit to Perth Hire Shop a Police Report on the theft within seven days of the theft allegedly occurring. In the event of Theft Waiver applying, hire fees will be charged to the Customer until the Police Report is provided to Perth Hire Shop.
13.6 Damage Waiver Fee, including Theft Waiver, will NOT apply where Perth Hire Shop determines that any applicable exclusion in clauses 6.2(b)-(h) or 6.5(a)-(b) applies.
13.7 A Damage Waiver Excess must be paid by the Customer for each and every separate incident which may occur in any Hire Period, where any Damage Waiver is applicable under this section 6.
13.8 A Theft Waiver Excess must be paid by the Customer for each and every separate incident which may occur in any Hire Period, where any Theft Waiver is applicable under this section 6.
13.9 If any damage is caused by the Customer to any property or goods whatsoever owned by a third party as a result of or during the use of a Perth Hire Shop Equipment, and if the Customer has breached any provision of this Contract or if any of the circumstances described in clauses 6.2(a)-(j) have occurred, the Customer will be liable for the full cost of that third party property damage to the extent caused by the Customer. If the Customer has not breached this Contract and none of the circumstances described in clauses 6.2(a)-(j) have occurred, the Customer will be liable for the full cost of the third party property damage to the extent caused by the Customer, or $2,500, whichever is the lesser amount.
14. BREACH OF HIRE CONTRACT BY CUSTOMER
If the Customer breaches any significant provision of this Contract and does not remedy the breach within a reasonable period of time (having regard to the breach), or becomes bankrupt, insolvent or ceases business then:
14.1 Perth Hire Shop shall be entitled to:
(a) terminate this Contract; and/or
(b) sue for recovery of all monies owing by the Customer; and/or
(c) repossess the Equipment (and is authorised to enter any premises where the
Equipment is located to do so), and any Damage and/or Theft Waiver referred to in clause 6 is immediately invalidated.
14.2 The Customer indemnifies Perth Hire Shoip in respect of any damages, costs or loss, to the extent caused or contributed to by the customer resulting from a breach by the Customer of any provision of this Contract.
15. PRIVACY
Perth Hire Shop will comply with the Australian Privacy Principles in all
dealings with Customers. A copy of the Perth Hire Shop Privacy Statement is available upon request or by visiting www.perthhireshop.com.au/terms/privacy-statement
16.GOVERNING LAW
16.1 The hire contract containing these Hire Contract Conditions is a payment claim under the Construction Con- tracts Act 2004 WA
16.2 Except where Perth Hire Shop in its discretion takes action against the Customer under any of the Building and Construction Industry legislation referred to in this clause, Perth Hire Shop and the Customer agree that this Contract is governed by the law of the state Western Australia, and the parties submit to the jurisdiction of the courts of that State.
Safety Equipment Hire
At Perth Hire Shop we take safety very seriously. As professionally trained service technicians we want to ensure you enjoy a trouble-free rental experience and comprehensively test all of our hire equipment to manufacturers’ specifications prior to being put back into the hire equipment pool. We can also advise on the right equipment for your job and assist with any questions you might have.
Operating Instructions
It’s important to remember that equipment is only safe when it is used for the purpose for which it was intended and in the correct manner. Perth Hire Shop provides starting and operating instructions to enable you to safely and efficiently complete your project.
(A) WAIVER OF PERTH HIRE SHOP LIABILITY FOR DANGERS AND RISKS:
You understand that there are certain dangers, hazards, and risks inherent in using our equipment and tools, which can cause personal injury and property damage. You further understand that Perth Hire Shop cannot and does not assume responsibility for any such personal injury, or property damage. The equipment and tools hired are only safe when they are used for the purpose for which they were intended and in the correct manner.
(B) ASSUMPTION OF RISKS:
Notwithstanding the dangers, hazards, and risks involved, and in consideration of you hiring our equipment and tools, you agree to assume all the risks surrounding the use of the above mentioned; and you release Perth Hire Shop and its employees from any and all liability for any personal injury, damage you can incur at any time while using the equipment and/or tools hired from Perth Hire Shop.
(C) DISCLAIMER OF PERTH HIRE SHOP RESPONSIBILITY:
I understand and agree that Perth Hire Shop is not responsible or liable for any injury, damage, or accident which may be caused while operating the tools, or the negligence or other wrongful act of any party engaged to use the equipment and/or tools hired from Perth Hire Shop.