EASTERN GENERATOR HIRE TERMS AND CONDITIONS
“EGH” Eastern Generator Hire PTY LTD
“Conditions” These conditions of hire or rent
“Contract” The Contract for hire or Rent of the Plant by EGH to the Hirer or Renter.
“Day” Eight hours unless otherwise specified.
“Hire Period” The time from when the Plant leaves EGH’s depot or place where last issued until received back at EGH’s depot or delivered to another place named by EGH.
“Hirer” or “Renter” The party taking EGH Plant on hire or rent whether an individual, firm, company or public authority.
“Invoice” The invoice or invoices sent by EGH to the Hirer or Renter in respect of charges incurred by the Hirer or Renter.
“Plant” All plant, generators, equipment, cable, cable drums, trailers, fuel tanks, machinery and accessories of whatever nature hired or rented by the Hirer or Renter from EGH.
“Possession” The plant shall be deemed to be in the possession of the Hirer for all purposes of the contract from the time loading of the Plant begins for transit from EGH’ yard or point of Hire until such time as unloading of the Plant has been completed at EGH’ yard or such other points as EGH shall direct.
“PPSA” The PPS Act and any other legislation and regulations in respect of it and the following words in clause 9.2, 10 and 31 have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement.
“PPS Act” means the Personal Property Securities Act 2009 (Cth) (as amended).
“Site” The site to which the Plant is delivered (or to be delivered) on the Hirer or Renter’s instructions including, without limiting the generality of the foregoing, any ship, truck or other mobile vehicle upon which the Plant is used or intended to be used by the Hirer or Renter.
“Theft & Damage Waiver of EGH’ rights against the Hirer or Renter in Waiver” respect of loss or damage to the plant pursuant to Condition 11.2. DOES NOT CONSTITUTE AN INSURANCE POLICY.
“Week” Seven consecutive days.
“Working Week” 9 a.m. on Monday to 5 p.m. on Friday.
1.1 Except to the extent that the context otherwise requires:
- words importing the singular include the plural and vice versa.
- words importing a gender include other genders and corporations and vice versa.
- words importing individuals include corporations and vice versa.
- the word Hirer shall mean Hirer or Renter
- where the Hirer comprises two or more persons those persons are jointly and severally bound by these Conditions and a reference to the Hirer includes a reference to any one or more of those persons.
- a reference to a party to these conditions includes its successors and permitted assigns.
2. APPLICATION AND VARIATION OF THESE CONDITIONS:
2.1 These Conditions are deemed to be incorporated in every Contract between EGH and the Hirer and apply in place of and prevail over any terms or conditions in relation to the Contract contained in or referred to elsewhere or implied by trade custom, practice or course of dealing.
2.2 These Conditions cannot be varied except in writing signed by each party.
2.3 EGH’ catalogues, price lists and quotations do not constitute offers made by EGH. Hirer’s order will be deemed to be an offer to EGH on these Conditions, notwithstanding that such order contains terms and conditions which may purport to conflict, add to or vary these Conditions.
3.1 Hirer is not, without EGH’ written consent, able to terminate any Contract or materially vary any specifications after issue of any confirmation or order by EGH. Such consent may be made conditional on payment by Hirer of a cancellation charge, being an assessment of damage including lost profits suffered by EGH.
3.2 Changes in the specifications provided by Hirer, or errors or omissions from the specifications which results in extra cost to or work by EGH will be charged to Hirer at EGH’ standard rates for such work. EGH will use its reasonable best endeavors to advise Hirer in advance of the need for any additional work. Where the requested changes, errors or omissions materially affect the specifications, EGH shall have the option to terminate the Contract by written notice within a reasonable time of becoming aware of the extent of the effect on the specifications. EGH shall refund any moneys paid by the Hirer less reasonable costs incurred by EGH to the date of termination.
4. PRICE AND PRICE VARIATION
4.1 Unless otherwise agreed by EGH in writing, prices quoted are net Ex-Works prices ruling at date of quotation. Any levies or taxes, including sales tax or consumption tax, government charges, duties, or excise, insurance and delivery charges are (unless otherwise specified) additional to prices quoted, and shall be borne by Hirer; Quotations given are always subject to availability of plant and quoted prices are firm for thirty (30) days and thereafter shall be subject to immediate variation by EGH in its absolute discretion and without prior notice.
4.2 If between the date of a quotation or initial agreement on price and the date of delivery the price payable by EGH for significant material items included in the Plant shall have increased for whatever reason including currency variation. EGH may increase the price and shall in writing so notify Hirer, who shall accept the Plant at the new price. EGH shall only increase the price by such amount as is necessary to compensate for the increased cost to EGH.
5. INVOICING AND PAYMENT
5.1 Subject to EGH approval of Hirer’s current credit rating, full payment shall be made within credit terms as stated on invoice unless otherwise specified by EGH in writing. Payment by cheque shall not be deemed made until clearance of the cheque.
5.2 EGH reserves the right at its discretion at any time to withdraw or alter any credit terms and substitute cash with order or cash on delivery or any other terms.
5.3 Unless otherwise expressly appropriated by EGH, payments shall be taken to discharge Hirer’s oldest debt, and shall first reduce any interest or costs outstanding, including cost of collection, before reducing the principal debt.
5.4 If the Client fails to make any payment, EGH may charge interest on the outstanding amount/amounts at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) from the due date of payment until the date of full payment. In addition, a twenty (20) percent Recovery Charge will be applied to accounts where collection action is undertaken.
5.5 The property in the Plant sold and delivered pursuant to a Contract shall remain with EGH until full payment is made by the Client to EGH together with all charges for extra materials and / or works.
6. DELIVERY AND TRANSPORT
6.1 In the event that the Plant requires to be transported for the purpose of repair or damage or breakdown, the cost of which is to be met by EGH under these Conditions, then the cost of such transport shall be met by EGH. Similarly, EGH shall pay the cost of transporting replacement Plant to the Site unless the provision of such replacement Plant is rendered necessary by damage or breakdown of the Plant which is the responsibility of the Hirer under these Conditions.
6.2 Any period or date for delivery stated is intended as an estimate only and is not a contractual commitment. The estimate is based on Hirer’s total co-operation, the complete accuracy of Hirer’s specifications, and the absence of Force Majeure, and will be deemed extended at EGH’s option in the event of a variation in any of the foregoing. EGH will use its reasonable endeavors to meet any delivery dates to which it expressly agrees in writing but in no circumstances whatsoever (including when EGH agrees time to be of the essence) shall EGH be liable for any loss or damage suffered by Hirer or any other person, and Hirer shall not be entitled to cancel the Agreement when time is agreed to be of the essence until the expiration of seven (7) days from a given delivery date.
6.3 Hirer shall take any action necessary on its part for timely delivery of the Plant.
7. CONDITIONS RELATING TO OPERATION ETC. OF PLANT
7.1 Loading and Unloading. It is the Hirer’s responsibility for the site of the Plant to be level, safe and accessible to ensure safe delivery of the Plant.
7.2 Condition of Plant on Receipt. Unless notification to the contrary in writing is received by EGH within 3 working days of delivery on Site or completion of construction on Site of the Plant, all Plant will be deemed to have been delivered and/or constructed in good working condition and to the Hirer’s satisfaction.
7.3 Care of Plant. The Hirer shall be absolutely responsible for the safekeeping of the Plant during the Hire Period. The Hirer shall become and remain acquainted with the condition of the plant and shall not operate it after it has become defective, damaged or in a dangerous state or in a state which results in a breach of any applicable law or regulation and if the Hirer or any servant or agent of the Hirer does operate the Plant in such condition the Hirer shall be solely responsible for any damage loss or accidents resulting there from. Should breakdown or damage occur to the Plant due to failure to observe any term of these Conditions or due to negligence of or misuse by the Hirer, its servants or agents or to willful or accidental damage however occurring or due to damage caused by salt water, salt spray and/or salt laden air, the Hirer shall be liable to EGH for:
- the cost of repairs; and
- EGH charges for the Plant while the Plant is idle due to breakdown or damage and while repairs are being carried out (without prejudice to EGH right to receive hire charges in respect of all other periods when the Plant is not off hire).
7.4 Duty to Return. The Hirer shall be absolutely responsible for the return of the Plant to EGH on completion of the Hire Period in good working condition, fair wear and tear excepted and when Plant includes cable. If the Hirer fails to return the Plant for any reason whatsoever whether or not involving any negligence or other fault on the part of the Hirer, its servants or agents, then the Hirer shall be liable to EGH for:
- the whole cost of replacement of the Plant; and
- EGH charges for the Plant until payment of the costs under clause 7.3 above.
7.5 Access. The Hirer shall allow EGH servants, agents and insurers access to the Plant at all reasonable times to inspect, test, adjust, maintain, repair or replace the same. The Hirer shall be responsible for providing safe and proper access for such purposes and for delivery and collection of the Plant and shall be liable for all loss or damage suffered by EGH or by EGH servants or insurers as a result of the Hirer’s failure to provide or delay in providing such safe and proper access.
7.6 Routine Maintenance/Service. The Hirer shall make the Plant available to EGH for the purpose of carrying out routine maintenance or service on any working day in the course of the hire. During normal working hours EGH will make no charge to the Hirer for such routine maintenance or service but if the Hirer can only make the Plant available for this purpose outside the Working Week then EGH reserve the right to charge the Hirer for overtime costs.
7.7 Fuel, Oil, Lubricants and Coolants. Fuel, oil, lubricants and coolants shall only be supplied by EGH.
7.8 Breakdown. Breakdowns or defects in Plant resulting from proper ordinary usage or fair wear and tear or the development of an inherent fault or a fault not ascertainable by reasonable examination prior to commencement of the Hire period may, at EGH option, either be repaired at EGH expense and with the least possible delay. Any breakdown or the unsatisfactory working of any part of the Plant must be notified immediately to EGH and for this purpose no notification shall be effective unless and until it is actually received by EGH. The Hirer shall not attempt to effect repairs himself except with the express authority of EGH. No relief from hire charges or any claims will be accepted by EGH for stoppages due to causes out of EGH’s control including without prejudice to the foregoing generality bad weather or ground conditions.
7.9 Operations of the Plant. The Hirer shall not permit any other person to operate the Plant without EGH’ prior consent in writing.
7.10 Rehiring, Etc. The Plant or any part thereof shall not be rehired, sub-let or lent to any third party without the written consent of EGH and the Hirer shall protect the Plant against diligence, distress, execution or seizure and shall indemnify EGH against all losses, damage, costs, charges and expenses arising as a result of failure to comply with this clause.
7.11 Change of Site. The Plant shall not be removed from the Site without the prior written consent of EGH.
7.12 Compliance with Law. The Hirer shall be responsible for complying with all relevant laws, by-laws and regulations applicable and incidental to the installation, use and operation of the Plant.
7.13 Indefinite Hiring. Where the Hire period is indefinite, that is not being for an agreed period, then:
(a) the Contract may be terminated by either the Hirer or EGH on 5 days written notice to the other (except that in cases where the Plant has been lost or damaged no such notice may be given by the Hirer) and in the event of termination of the Hire period by EGH all EGH’ rights under the Contract will remain and are reserved; and
(b) EGH reserves the right to increase the previously agreed hire charge following the expiration of 6 months of any period of indefinite hire
(c) EGH reserves the right to increase the previously agreed hire charge following the expiration of 6 months of any period of indefinite hire
8. HIRER’S ACKNOWLEDGMENT
The Hirer acknowledges that EGH has provided the Hirer with all information necessary to enable the Hirer to operate the Plant safely without risks to health.
9. LIMITATION AND EXCLUSION
9.1 The Hirer recognises and accepts that in entering into the Contract it has not relied on any advice, statement, representation or warranty given by EGH, its servants or agents, to the Hirer in relation to the Plant or its use whether regarding specification, performance, capability or suitability for any purpose.
9.2 Save as explicitly set out in these Conditions, EGH makes no representations and gives no warranties – statutory, implied or other – as to the Plant itself, nor as to the quality and condition of the Plant, nor as to its suitability for any particular or general purpose.
9.3 EGH shall be under no liability to Hirer for any damages or losses, direct or indirect, or consequential resulting from defects in design, materials or workmanship or failure of the Plant to operate for any reason.
9.4 EGH shall not in any event be liable to the Hirer for consequential loss whether or not arising from breach of contract, negligence or any other fault on the part of EGH, its servants or agents and whether or nor in the contemplation of EGH and/or the Hirer at, or prior to, the commencement of the Contract.
9.5 Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of EGH for death or personal injury resulting from the negligence of EGH, its employees, agents, or sub-contractors.
9.6 If you are a consumer as defined in the Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth) as amended (“ACL”), nothing in these Terms restricts, limits or modifies your rights or remedies against us for failure of a statutory guarantee provided under the ACL.
- The Hirer shall be responsible at its own expense for insuring the Plant to its full replacement value and itself against all risks arising from the possession of the Plant. Any insurance monies recovered by the Hirer in respect of such risks shall, to the extent deemed by EGH, be applied as directed by EGH. If the Plant is involved in any accident resulting in injury to persons or damage to property, immediate notice must be given to EGH by telephone and confirmed in writing to EGH’s office and in respect of any claim not within the Hirer’s agreement for indemnity in clause 12 hereof, no admission, offer, promise or payment or indemnity shall be made by the Hirer without EGH’s consent in
- If the Hirer elects to take up Damage Waiver and pays to EGH the appropriate amount in full then EGH will waive its rights against the Hirer in respect of loss or damage to the Plant caused by fire, storm, collision, accident, theft or burglary provided:
- the Hirer can satisfy EGH or EGH’ insurer that the Hirer has taken adequate precautions to safeguard the Plant from the loss or damage sustained; and
- the Hirer immediately ensures that a written police report is promptly submitted to EGH or its insurers and generally complies with all reasonable requests of EGH or its insurers in relation to the submission of information and the application for and assessment of the relevant insurance claim.
NOTE: Such waiver of rights by EGH is subject to payment by the Hirer of the excess required (if any) payable under EGH policy of insurance.
11. LEGAL EXPENSES
15.1 The Hirer shall pay all costs, charges and expenses including reasonable legal fees incurred in retaking possession of the Plant or in the collection of any such sums which may be due and owing EGH by the Hirer, including the defense of any action brought against EGH for damages caused by the Plant to any person while the Plant is in the possession of the hirer.
12. FORCE MAJEURE
- Neither party shall be liable for breach of the Contract (other than payment) if and to the extent that fulfilment of a term or condition hereof has been prevented, hindered or delayed by force majeure as defined in Condition 15.2 below, and in such event that time for fulfilment of such a term shall be extended for such period as is reasonable in all the circumstances.
- The expression “force majeure” shall mean any event or circumstance beyond the immediate control of either party, including without prejudice to the generality of the foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage of any material, riots, civil commotion, war national or international, emergency, destruction or damage due to nature forces, fire, flood, explosion, and compliance with orders or requests of any national or local
Each party shall keep confidential any trade secrets or other confidential information of the other party including any information, document or item which may not otherwise at law be classified as confidential but which is commercially sensitive and has the word “CONFIDENTIAL” written upon it clearly.
Hirer hereby authorizes EGH to promote, photograph and publicize in a manner which is dignified, truthful, not misleading and not prejudicial to the goodwill or reputation of Hirer EGH involvement with hirer in a general manner, excluding any specific technical details.