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MASTER HIRE AGREEMENT
This is an agreement between Comply Civil Pty Ltd ABN: 29 621 753 482 ACN: 621 753 482 (and its affiliated companies, officers, managers, employees, all together known as ‘Comply Civil’) and the Hirer as identified in the Hirer Identification and Master Hire Agreement (also known as Cash Identification) or the Application for Commercial Credit Account and Master Hire Agreement (also known as Credit Application), as the case may be.
You understand and accept that this agreement documents and states the terms on which Comply Civil will hire Plant to the Hirer whether now or in the future.
DEFINITIONS OF TERMS
In this hire agreement, the following terms shall be defined as following:
Plant: This shall be defined as any equipment including without limitation any kind of equipment used for earth moving and construction such as dump trucks, excavators, water trucks, loaders, compactors, tippers, air compressors, and all other tools, consumables, accessories and parts.
Start Date: This shall be defined as the date and time when Hirer takes possession of the Plant.
End Date: This shall mean the date and time when the Hirer must return the Plant to the possession of Comply Civil.
Hire costs: This shall mean the amount shown in the Hire Schedule payable by the Hirer to hire the Plant.
Hire Schedule: This shall be defined as the legal document which Comply Civil may require the Hirer to sign. This may include the particulars of Hirer, Plant and Hire Period and any other information as Comply Civil may decide to require.
Hire Period: This means the period between the Start Date and the End Date.
We or Us: This shall be used interchangeably with Comply Civil.
You/Your: This shall sometimes be used interchangeably with the Hirer.
AGREEMENT TO HIRE AND HIRE PERIOD
All hirers are required to compete and sign a Hire Schedule and any other documents as we may require, as solely decided in our discretion. The agreement between us to hire and you to take the Plant on hire for the Hire Period shall be in strict compliance with the terms of this document and the Hire Schedule. Before any alteration can be applied to the Hire Period, it must be approved by Comply Civil in a written consent prior to the End Date.
Except we otherwise agree so, you may not hire the plant for less than a period of four hours.
You also agree and accept that Comply Civil has rights to the Plant and that your hire of such a plant does not in any way pass its title to you.
Each Hire Schedule shall not be considered a separate contract but as a part of this agreement, together with all other contractual documents. We may decide to refuse any hirer service at any time.
As a Hirer, you are contractually obligated to make payment of the hire of the Plant according to the rates specified in the Hire Schedule. Comply Civil in its sole discretion may charge and require hire costs on a daily, weekly, monthly or other basis.
The standard rates published by Comply Civil, which can be accessed at Comply Civil’s premises have precedence over all other costs, especially in the event that the Hire costs is not completed on the Hire Schedule.
You understand and accept that additional costs may apply, depending on the length of the Hire Period and the frequency of use of the Plant during the Hire Period. Should you hire the plant for a duration of five days or less, and you use the Plant in excess of eight hours on any day, you will be liable for additional costs calculated on a pro rata basis for additional hours or part thereof at the daily rate,
Should you hire the plant for a duration of one month or less, and use the plant in excess of 40 hours in any five day week (Monday to Friday), you will be liable for additional charges calculated on a pro rata basis for all additional days or part thereof at the weekly rate.
Should you hire the plant for a duration greater than one month, and use the Plant on more than 28 different days, then you must pay us additional charges that are calculated on a pro rata basis for all additional weeks or part thereof at the monthly rate.
Unless otherwise stated in the Hire Schedule, we may use meters to determine the time the Plant was in use by the Hirer where meters are mounted on the Plant. In this case, a hire costs based on hourly use shall be calculated for part of an hour. We will estimate the hours used where the meter is found not to be working either during or at the End Date. Should you disagree with our estimate, it will be your responsibility to prove otherwise.
You agree and accept that the Hire costs does not include fuel, cartage, blade wear, tipwear (rippers and cultivators, etc.) as set forth in the current product information that is available on the Comply Civil website, or at Comply Civil’s premises, along with all saleable and consumable items.
Apart from the Hire costs, you will be responsible for any consumables, fuel or trade materials; any replaceable parts of the Plant such as (but not limited to) cutting edges on buckets, ‘teeth’ and chisels on rock breakers (which in our sole discretion has undergone rapid wear as a result of your use); any reasonable costs incurred by Comply Civil to remedy the violation of your obligations including but not limited to cleaning and repairing of the Plant upon return; the Theft and Damage Waiver charge (if so agreed in the Hire Schedule); and/or any applicable levies, penalties, fines, and any other government fees or charges arising out of your use of the Plant during the Hire Period.
Comply Civil may amend the Hire costs or any connected costs and charges payable under a particular Hire Schedule by giving you at least seven (7) days’ notice in writing before we effect such a change. When we give notice about an impending change in hire costs, you may at a cost to you, return the Plant to Comply Civil, or request that it be collected by Comply Civil, before the increase in the Hire costs commences.
You acknowledge and agree that where the Hire Period exceeds a period of two months, then in the event of the Hirer claiming to terminate this agreement before the End Date, you shall pay to Comply Civil liquidated damages calculated in one of the following ways to be decided at the sole discretion of Comply Civil:
(a) 20 per cent of the whole of the Hire costs paid or payable by you to Comply Civil from the Start Date to the date of the said alleged end, it being agreed by both parties that having regard to the duration of the period of hire, such liquidated properly mirror the reasonable losses of Comply Civil in the event of early end; or
(b) Such sum representing the whole of the Hire costs.
If you require the provision of a Comply Civil operator, you must adhere to the hire costs of the operator in accordance with the Hire costs stated in the Hire Schedule and the charge out rate as stated in the Hire Schedule per operator. This is to be charged by the hour.
PAYMENT OF HIRE COSTS
Except in exceptional cases, we will always require hirers to pay a deposit and/or bond as specified in the Hire Schedule by the Start Date.
For Trade Customers, payment of the invoice issued by Comply Civil must be made within 30 days of the date of the statement. Please note that all invoices will be issued on a monthly basis.
For non-trade customers, payment of the invoice issued by Comply Civil must be made prior to the Start Date.
Should you default in the payment of any amount due, you will be liable to pay interest on the gross amount unpaid at the rate of two per cent per month which shall be calculated daily from the date on which payment was due until the date on which we receive payment in full.
As a Trade Customer, you may not extend credit may on overdue accounts at Comply Civil’s discretion.
Where any Supply under this agreement is subject to a tax, an equal amount to the tax payable in respect of that Supply shall be added to the consideration for that supply under this agreement and must be paid at the same time.
Each party agrees to perform all actions, including providing invoices and all other necessary documents to assist the other to claim any credit, refund or set-off of any tax payable under this agreement.
RESPONSIBILITIES OF HIRER
As a hirer under this agreement, here are your contractual responsibilities:
You must prior to entering into this agreement determine, using your sole judgment, the condition, fitness and suitability of the Plant for the purpose for which you desire to hire the Plant;
You are to use the Plant in a skillful and competent manner and only within the capacity and for the purpose for which it was designed;
You must ensure that the Plant is operated by a suitably qualified and licensed operator and used within its rated capacity;
You are required to comply with all local and commonwealth occupational and industrial health and safety laws which may apply to the Plant at your own expense;
Prior to entering into this agreement, you must take out at your own cost and maintain for the entire hire term policies of insurance for third party and public liability, indemnity cover of not less than the total replacement cost of the Plant, and any other policies which may be directed by Comply Civil from time to time;
You are to provide all operators of the Plant with suitable and practical safety clothing and equipment and all written and oral manuals and instructions for the safe operation of the Plant;
You will be required to clean, lubricate, fuel, check oil and water and keep the Plant in good condition;
You are proscribed from undertaking any repair, servicing, modification, alteration, or tampering with the Plant without our prior written consent.
You must replace all flat and/or damaged tyres or tracks;
You are to safely store the Plant and secure and protect it from theft, seizure, damage, or loss;
You are not to in any way alter or make any additions to the Plant, including but not limited to alteration, making any additions to, erasing or defacing any identifying plate, mark or number or any meter or clock.
You accept that Comply Civil may carry out pre-arranged major servicing during normal working hours during the Hire Period;
If it appears that a repair or servicing is necessary to the Plant, you are to immediately cease using the Plant; take all necessary and cautionary steps to prevent injury occurring to any persons or property and to the Plant; and inform Comply Civil immediately, first by telephone and thereafter in writing. You are not to repair or attempt to repair the Plant.
As a hirer, you accept full responsibility for, and indemnify Comply Civil against any and all claims in respect of death or injury to individuals, and/or any loss or damage to property, arising out of the use, delivery, servicing, storage or possession of the Plant during the Hire Period however arising, whether from carelessness of the Hirer or any other individual including but not limited to where the Plant is being operated for any reason whatsoever by Comply Civil, its servants or agents;
You may not without Comply Civil’s prior written consent, in any way assign the benefits of this legal agreement or the use of the Plant to any third party. Rather, you are to retain possession of the Plant at all times;
You are to ensure that the Plant is in the same clean and good working condition at end date as it was at Start Date.
You accept responsibility and will fully reimburse Comply Civil for the cost of freight to retrieve Plant which Comply Civil (in its sole discretion) considers to be abandoned or is not being properly safeguarded; forthwith on request by Comply Civil advise Comply Civil of the whereabouts of the Plant and allow Comply Civil (it’s agents, servants or contractors) to inspect and examine the Plant .and for such purposes you hereby give an irrevocable consent and license to Comply Civil (its servants agents and contractors) to take possession of and to remove the same and as agent of the Hirer, enter upon any premises or location where the Plant or any part of the same may be;
You admit to pay to Comply Civil all or any costs and expenses incurred enforcing Comply Civil’s rights and the Hirer’s obligations hereunder including, but not limited to, any legal fees, any cheque fees and disbursements incurred by Comply Civil for any court proceedings taken against you by Comply Civil.
If you include the hire of an operator to operate the Plant, you acknowledge that the operator will be under your control and direction and will comply with all your reasonable and lawful directions. We will under no circumstances seek to direct or supervise any of the work being undertaken by the operator;
Comply Civil will not be liable for any commissions or omissions of the operator provided that the operator is acting under your direction and control;
Do not permit any other individual to operate the Plant without Comply Civil’s prior consent.
LOSS/DAMAGE TO PLANT
These are the actions you must take in the event that the Plant breaks down or becomes dangerous to use during the Hire Period:
You must immediately notify Comply Civil;
You are to cease using the Plant;
You shall not carry out repair work or attempt to repair the Plant; and
You must ensure that the Plant will not suffer further damage and that no individual or property will be injured or hurt as a result of the impairment to the Plant.
If the Plant is stolen or lost, you must immediately notify us and the police if appropriate.
You accept full responsibility for all losses or damages occurring to the Plant for the Hire Period, other than as a consequence of a negligent act or omission by Comply Civil. The cost of any replacement or repairs resulting from loss or damage will be payable by you. You are to notify Comply Civil immediately if the Plant is lost or damaged and follow any reasonable requests by Comply Civil relating to Comply Civil’s enquiries into the loss and/or damage to the Plant.
You understand and agree that you will be responsible for the total cost of repair works to or the replacement of the Plant in the case where the loss or damage to the plant is caused by any of the following:
Misuse, abuse, or overloading which may include the overloading of motors or any other part of the plant;
Storage of the plant in a place that is not safe;
A breach of the conditions of this contract;
The location, usage, loading, unloading, or transportation of the Plant on or over water, wharves, vessels or bridges of any kind;
The violation of any law, guidelines or regulation;
The consumption of alcohol and/or drugs by you;
Any damage to Plant tyres and tubes whether by punctures or cuts;
Lack of proper lubrication or other normal servicing by you;
Your negligence when you have failed by intent or by lack of proper care to take all responsible safety measures to protect the Plant from loss or damage;
Damage brought about by exposure to any corrosive substance;
Loss or damage to the plant’s tools, hoses electric cords, grease guns, and similar accessories.
THEFT AND DAMAGE WAIVER (‘TD WAIVER’)
If you as a hirer indicate your choice in the Hire Schedule to take the benefit of the TD Waiver; have paid to Comply Civil the Damage Waiver Fee (as listed in the Hire Schedule), and in the event of theft or damage, immediately reports the incident to the police and provides Comply Civil with a copy of the report; and cooperates with us in the above matter, then we agree to waive any claim which we may have against you for the cost of repair or replacement of the Plant exceeding $10,000.
You however understand and accept that you are liable to us for the cost of loss or damage to the Plant for an amount in excess of $10,000. To this end, we recommend that you take out and maintain adequate insurance for the duration of the Hire Period.
Notwithstanding the above, you will be liable to Comply Civil for any excess on any insurance claim made by Comply Civil in respect of any theft or damage.
Please note that this waiver will not under the following circumstances:
If damage or loss is caused by your breach of a clause in this agreement or has been caused by your negligent act or omission;
If damage or loss is caused because you failed to take rational precautions to protect the Plant and guard against any loss or damage to the Plant;
If damage or loss is caused through your exposure of the Plant to corrosive substances, toxic materials or salt water;
If damage or loss is caused to the Plant in your breach of any law or by the misappropriation or wrongful conversion of the Plant by you;
If damage or loss results from your misuse, abuse, overloading, or exceeding the rated capacity or you improper servicing or repairs of the Plant;
If damage or loss occurs while the Plant is being transported over water or otherwise in transit including loading and unloading;
If damage or loss is to accessories such as air conditioning, batteries, hoses, cables and lights and cabin and glass, battery, fork tynes, gas cylinder, and seat;
If damage or loss arises in circumstances where a claim has been made by or against a third party.
EXCLUSION OF WARRANTIES
Comply Civil here expressly disclaims all guarantees, warranties, conditions, terms, undertakings, or representations (be it direct or implied) subject to this agreement and any express provisions contained herein to the maximum degree permitted by law.
You understand and accept that nothing in this agreement shall exclude, modify or limit any right or remedy; any guarantee, term, warranty or condition undertaking inducement or representation implied by any legislation which under law cannot be excluded or restricted.
Where any law implies or imposes a guarantee, condition, undertaking, term, warranty, inducement or representation which cannot be excluded, and Comply Civil may limit your remedy for a breach of the Non-Excludable Provision, then (subject to our discretion) our liability for breach of the Non-Excludable Provision is limited to the repair or replacement of the goods or the supply of substitute goods or the cost of doing so in the case of goods or the supplying of the services again, or the payment of having the services supplied again in the case of services.
We shall under no circumstances be liable for any consequential, secondary or exceptional loss or damage; the loss of actual or expected profits, revenue, business, goodwill; any business interruption or wasted costs incurred by you; or for any amounts that you are to your customers for or any loss suffered by them.
You are liable for and will indemnify Comply Civil against all claims, liability, loss, damage, costs and expenses (which includes but is not limited to attorney and legal fees, and costs disbursements) whether for injury to a person, damage to tangible property, or a claim by a third party, in connection with this agreement. Your liability under this indemnity is reduced to the degree that Comply Civil’s breach of the agreement causes the claims, liability, damage, costs, loss, or expenses.
You understand and accept that each indemnity in this agreement is a continuing obligation, and shall be considered separate and independent from the other obligations of Comply Civil and you and shall survive the end, completion and expiration of this agreement.
Comply Civil shall not be liable to you for any acts or omissions of any person supplied by Comply Civil where that person is acting under your direction and control during the Hire Term. You shall thus indemnify us against all claims, liability, damage, costs, loss, and expenses (which includes but is not limited to attorney and legal fees, and costs disbursements) arising from or incurred in connection with such acts or omissions.
SIGNATORY’S WARRANTY AS TO AGENCY FROM HIRER
In the event that the signatory to this agreement is not the Hirer named in the schedule found on the first page of this legal agreement, but by a person signing on behalf of the Hirer, the signatory to the agreement warrants to Comply Civil that he has the full authority of and license from the Hirer to enter into this agreement; that the signatory to this agreement on the behalf of the Hirer shall bear personal liability hereunder until all obligations of the Hirer have been met fully or any expenses and fees due hereunder by the Hirer to Comply Civil have been paid; and the signatory to this agreement on behalf of the hirer acknowledges that Comply Civil enters into this contract in dependence upon the warranty given in this respect and the acknowledgment of personal liability as set out above.
PERSONAL PROPERTY SECURITIES ACT (‘PPSA’)
This section applies to the extent that Comply Civil’s interest in respect of a hire provided for in this agreement is a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this document encompass references to amended, replacement and successor legislation or provisions.
Comply Civil may register any definite impending or likely security interest. As a Hirer, you are proscribed from making any Claim against Comply Civil in respect of any registration even when it has been determined that Comply Civil should not have registered such a security interest.
You are obligated to obtain consents and sign documents which Comply Civil may require of you for the purposes of: ensuring that Comply Civil’s security interest is enforceable, perfected and otherwise effective under the PPS Law; enabling Comply Civil to gain first priority (or any other priority agreed to by Comply Civil in writing) for its security interest; and enabling us to exercise rights in connection with the security interest.
You understand and accept that Comply Civil’s rights under this document are supplementary to and not in substitution for Comply Civil’s rights under other laws and legislations, including the PPS Law, and that we may choose to or not to exercise rights under this document, and/or under such other law and legislation, as we deem suitable.
For the avoidance of doubt, Comply Civil’s security interest will attach to proceeds.
To the degree that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law are not applicable according to section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied:
Section 95 (notice of removal of accession to the extent it requires Comply Civil to give a notice to the Hirer);
Section 96 (retention of accession);
Section 121(4) (notice of grantor);
Section 125 (obligations to dispose of or retain collateral);
Section 130 (notice of disposal to the extent it requires Comply Civil to give a notice to the Hirer);
Section 129(2) and 129(3); section 132(3) (d) (contents of statement of account after disposal);
Section 132(4) (statement of account if no disposal);
Section 135 (notice of retention);
Section 142 (redemption of collateral);
And section143 (re-instatement of security agreement).
To the extent that they apply, the following provisions of the PPS Law;
Section 123 (seizing collateral);
Section 126 (apparent possession);
Section 128 (secured party may dispose of collateral);
Section 129 (disposal by purchase); and
Section 134(1) (retention of collateral)
confer rights on Comply Civil. You agree that in addition to those rights, Comply Civil shall, if there is default by you, have the right to seize, take possession, purchase, retain, deal with or dispose of any merchandise, not only under those sections but also, as supplementary and independent rights, under this agreement and you agree that Comply Civil may do so in any manner it deems suitable including (as regards dealing and disposal) by private or public sale, lease or license.
You hereby waive your rights to receive a verification statement regarding registration events in respect of commercial property under section 157 of the PPS Law. This waiver shall also cover any verification statement regarding security interests arising or provided for under security agreements before the date of this agreement.
Both parties agree not to disclose information of the kind which may be requested under section 275(1) of the PPS Law. You must do everything necessary on your part to ensure that section 275(6)(a) of the PPS Law remains applicable. The agreement in this sub clause is made exclusively for the purpose of allowing Comply Civil the benefit of section 275(6)(a) and we shall not bear liability or be subject to injunction regarding any actual or threatened breach of this sub-clause.
As a hirer, you are proscribed from disposing or purporting to dispose of, or creating or purporting to create or permitting to be created any ‘security interest’ (as defined in PPS Law) in the Plant other than with the definite written consent of Comply Civil. You may not sub-hire the Plant to anyone else unless Comply Civil (in its absolute discretion) consents in a written permission.
Sub-hires must always be in writing in a form acceptable to Comply Civil and must be expressed to be subject to the rights of Comply Civil under this agreement. You may not vary a sub-hire document without the prior written consent of Comply Civil (which we may withhold in our absolute discretion).
Under the sub hire agreement, you must at all times provide Comply Civil with current information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment status under the sub-hire and the location and condition of the Plant at all times.
You must take all steps including registration under PPS Law as may be required to ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law; enable you to gain (subject always to the rights of Comply Civil) first priority (or any other priority agreed to by Comply Civil in writing) for the security interest; and enables you to exercise your respective rights in connection with the security interest.
To ensure the performance of our obligations under this agreement, you hereby give Comply Civil an irreversible power of attorney to do anything Comply Civil considers you should do under this agreement.
Comply Civil may recover from you the cost of doing anything under this session, including registration fees.
END OF AGREEMENT
This agreement may be terminated/ended by us, without notice to you, if you commit any breach of this agreement, or if you declare bankruptcy, or if your company makes an application or resolution to wind up, enters into administration or a receiver is appointed to any of your assets, or if any distress shall be levied upon the Plant, or if any judgment against you shall remain unsatisfied for 7 or more working days, or if you make a compromise or an assignment for the benefit of your creditors, or if you cease to carry on business.
You understand that we may also terminate this agreement for convenience at any time by giving you 30 days’ notice in writing.
The termination of this agreement shall not affect all accrued rights or liabilities of both parties and shall not affect any provision which expressly or by implication intentioned to continue after termination. In particular (but without a limitation of the generality of the preceding) all or any monies due and payable hereunder by you to Comply Civil shall be paid according to the terms and conditions hereof.
Upon the end of this agreement, Comply Civil (its agents, servants or contractors) shall have the entitlement to take possession of the Plant and for this purpose, you hereby give an irreversible consent and license to Comply Civil (its agents, servants or contractors) to enter upon any of your land or premises, or any other place (as the agent of the Hirer) where the Plant may be physically located. You thus indemnify Comply Civil in respect of any damages, costs, claims, or expenses made against or incurred by us arising out of any action taken under this clause.
This is the only and entire legal agreement between you and Comply Civil, and no modification of these conditions shall be binding upon Comply Civil unless signed by us.
You however understand and accept that the terms in this agreement may be changed by Comply Civil occasionally by us giving notice of the change to you. Notice shall be deemed given (whether or not actually received) when Comply Civil does sends notice of the amendment to you at any address (including without limitation through email) supplied by you; publishes the amended terms on the Comply Civil Website; and/or exhibits the modified/reviewed terms at the premises from which Comply Civil conducts hire operations.
We may give notice to you, transferring this agreement and all duties, rights and obligations under it to any transferee so designated by Comply Civil. This agreement shall be deemed novated and transferred to the transferee upon such notice being given, with effect from the date notified by Comply Civil. You and transferee from that date shall be legally bound to each other under the terms of this Agreement.
You accept that Comply Civil may serve you any document or notice by posting it to or leaving it at the address of the Hirer as specified in the Contract.
If there is arises any conflict between the Hire Schedule and these terms and conditions, then the terms of the Hire Schedule shall prevail to the degree of the inconsistency.
If any portion of this agreement is determined by a relevant Australian court of law to be invalid or unenforceable, then that unenforceable provision will be deemed succeeded by a valid, enforceable provision that most closely reflects the intention of the original provision while the remainder of the agreement shall be valid and continue to be in effect.
These terms and conditions are administrated by the laws of New South
Wales, and you consent to submit totally to the jurisdiction of its courts.