1
Definitions
1.1
“Contract”
means the terms and conditions contained herein, together with any Special
Conditions, quotation, Purchase Order, appendix, annexure, invoice or other
document or amendments expressed to be supplemental to this Contract.
1.2
“OHR” means On Hire Rentals Group
Pty Ltd T/A On Hire Rentals, its successors and
assigns
or any person acting on behalf of and with the authority of On Hire Rentals
Group Pty Ltd T/A On Hire Rentals.
1.3
“Customer”
means the person/s, entities or any person acting on behalf of and with the
authority of the Customer requesting OHR to provide the Services as specified
in any proposal, quotation, order, invoice or other documentation, and:
(a)
if there is more than one Customer, is a reference
to each Customer jointly and severally; and
(b)
if the Customer is a partnership, it shall bind
each partner jointly and severally; and
(c)
if the Customer is a part of a trust, shall be
bound in their capacity as a trustee; and
(d)
includes the Customer’s executors, administrators,
successors and permitted assigns.
1.4
“Equipment”
means all Equipment (including any accessories, machinery, tools and associated
items, manuals, log books and vehicles as accompanies such Equipment) supplied
on hire by OHR to the Customer (and where the context so permits shall include
any incidental supply of Services). The Equipment shall be as described on the
invoices, quotation, authority to hire, or any other work authorisation forms
as provided by OHR to the Customer.
1.5
“Minimum
Hire Period” means the minimum Hire Period, as specified in this Contract,
and calculated at the appropriate hourly rate plus travel unless otherwise
specified by OHR prior to commencement of the Hire Period.
1.6
“Hire Period”
means the term of the hire of the Equipment as specified in the Purchase Order
and which may include weekends and/or public holidays, and continues until the
supply of the Services is completed or the Hire Contract is terminated in
accordance with these terms and conditions or such further period as agreed by
the parties in writing.
1.7
“Hire Docket”
means the form issued by OHR at the time an order is submitted to OHR and
includes job details, Equipment and other relevant details.
1.8
“Dry Hire”
means that the Equipment is supplied by OHR without an operator.
1.9
“Wet Hire”
means that the Equipment is supplied by OHR with an operator who shall at all
times remain an employee or representative of OHR.
1.10
“Site”
means the location/s at which the Equipment is to be operated.
1.11
“Damage
Waiver Amount” means that amount set out in the Hire Contract.
1.12
“Damage
Waiver Excess” means an amount equal to fifteen percent (15%) of the cost
to repair or replace the Equipment, capped at one thousand dollars ($1,000.00).
whichever, is greater on all claims.
1.13
“PPSA”
means the Personal Property Securities Act 2009 (Cth) as amended from time to
time.
1.14
“PPSR”
means the Personal Property Securities Register established under the PPSA.
1.15
“Confidential
Information” means information of a confidential nature whether oral,
written or in electronic form including, but not limited to, this Contract,
either party’s intellectual property, operational information, know-how, trade
secrets, financial and commercial affairs, contracts, Customer information
(including but not limited to, “Personal
Information” such as: name, address, D.O.B, occupation, driver’s license
details, electronic contact (email, Facebook or Twitter details), medical
insurance details or next of kin and other contact information (where
applicable), previous credit applications, credit history) and pricing details.
1.16
“Charges”
means the cost of the hire (plus any GST where applicable) of the Equipment as
agreed between OHR and the Customer subject to clause 5 of
this contract.
1.17
“GST”
means Goods and Services Tax as defined within the “A New Tax System (Goods and
Services Tax) Act 1999” (Cth).
2
Acceptance
2.1
The Customer is taken to have exclusively accepted
and is immediately bound, jointly and severally, by this Contract if the Customer
places an order for Equipment, or accepts Delivery.
2.2
This Contract constitutes the entire Contract
between the parties and contains all the representations, warranties, covenants
and agreements of the parties in relation to the subject matter of this Contract.
2.3
The special conditions (if any) set out by OHR in
any quotation, order or other document shall form part of this Contract, unless
otherwise stated. In the event of any inconsistency between the special
conditions and any other term of this Contract, the special conditions shall
prevail to the extent of the inconsistency.
2.4
None of the Equipment shall be sublet or
cross-hired by the Customer. The Customer shall not assign or transfer their
interest in this Contract or part with possession of all or any portion of the
Equipment without the prior written consent of OHR, which consent may be
arbitrarily withheld.
3
Errors and Omissions
(a)
resulting
from an inadvertent mistake made by OHR in the formation and/or administration
of this Contract; and/or
3.2
In
the event such an error and/or omission occurs in accordance with clause 3.1, and is not
attributable to the negligence and/or wilful misconduct of OHR; the Customer
shall not be entitled to treat this Contract as repudiated nor render it
invalid.
4
Change in Control
4.1
The Customer shall give OHR not less than fourteen (14) days prior written notice of
any proposed change of ownership of the Customer and/or any other change in the
Customer’s details (including but not limited to, changes in the Customer’s
name, address and contact phone or fax number/s, change of trustees or business
practice). The Customer shall be liable for any loss incurred by OHR as a
result of the Customer’s failure to comply with this clause.
5.1
The Customer shall pay the Charges to OHR for the
duration of the Hire Period, which (at OHR’s sole discretion) shall be either:
(a)
as indicated on invoices provided by OHR to the Customer
in respect of Equipment supplied on hire;
(b)
OHR’s current Charges as at the date of Delivery,
according to OHR’s current pricelist rates (rates are subject to change upon
written notice to the Customer and shall take effect from the date of
notice. In the event that the Customer
does not accept the revised rates, the Customer has the right to terminate
without prejudice upon the required notice of termination); or
(d)
OHR’s quoted Charges (subject to clauses 5.2), which
will be valid for the period stated in the quotation or otherwise for a period
of thirty (30) days.
5.2
OHR reserves the right to vary the Charges, in the
event that:
(a)
a variation to OHR’s quotation is requested; or
(b)
where OHR is required to mobilisation and
demobilisation Equipment when OHR is required to transport the Equipment to and
from OHR’s depot, unless otherwise agreed; or
(c)
where Equipment is used outside OHR’s standard
working hours (as specified in clause 5.1(c)
above) or on a weekend or public holiday. “Excess”
is more than ten (10) hours per calendar day; or
(d)
rates in respect of OHR’s personnel are subject to
additional Charges for loading, penalties and allowances as applicable to OHR personnel
pursuant to their terms of engagement (including but not limited to, night
shifts, weekends, standby, overtime, public holidays, meals, travel and
accommodation rates); or
(e)
a fuel levy shall be payable where the price of
diesel fuel exceeds the fuel price specified in OHR’s pricelist rates.
5.3
Variations will be charged for on the basis of OHR’s
quotation, and will be detailed in writing, and shown as variations on OHR’s
invoice. The Customer shall be required to respond to any variation submitted
by OHR within ten (10) working days. Failure to do so will entitle OHR to add
the cost of the variation to the Price. Payment for all variations must be made
in full at the time of their completion.
5.4
OHR may, in its sole discretion, require the Customer
to pay a non-refundable deposit.
5.5
Time for payment for the Equipment being of the
essence, the Charges will be payable by the Customer on the date/s determined
by OHR, which may be:
(a)
on, or before Delivery;
(b)
by way of instalments/progress payments in
accordance with OHR’s weekly payment schedule;
(c)
the date specified on any invoice or other form as
being the date for payment; or
(d)
failing any notice to the contrary, the date which
is seven (7) days following the date of any invoice given to the Customer by OHR.
5.6
No allowance has been made in the Charges for the
deduction of retentions. In the event that retentions are made, OHR reserves
the right to treat all retentions as placing the Customer’s account into
default.
5.7
The Customer will make payment to OHR on/by each
due date by cash, electronic/on-line banking, credit card (plus a surcharge per
transaction may apply), or by any other method as agreed to between the Customer
and OHR.
5.8
GST and other taxes and duties that may be
applicable shall be added to the Price except when they are expressly included
in the Charges.
5.9
In addition the Customer must pay any other taxes
and duties (including stamp duty, import duties, bonds or any other charges
which may be levied upon this Contract and/or the use of the Equipment or
Delivery) that may be applicable in addition to the Charges except where they
are expressly included in the Charges.
5.10
Receipt by OHR of any form of payment other than
cash shall not be deemed to be payment until that form of payment has been honoured,
cleared or recognised, and until then OHR’s rights and ownership in relation to
the Equipment, and this Contract, shall continue.
5.11
The Customer shall not be
entitled to set off against, or deduct from the Charges, any sums owed or
claimed to be owed to the Customer by OHR nor to withhold payment of any
invoice because part of that invoice is in dispute, such
dispute must detailed in writing and given to OHR within seven (7) days of the
date of the invoice.
6
Hire Period
(a)
the termination of the Hire Period; or
(b)
the return of the Equipment to OHR’s premises in
good operating condition, reasonable wear and tear excepted; or
(c)
the date which the Equipment is available for Recovery
by OHR, as notified by the Customer (if such Recovery is agreed to by OHR),
provided the Equipment is recovered in good operating condition, reasonable wear
and tear excepted; or
(d)
the expiry of the Minimum Hire Period.
6.2
Notwithstanding clause 6.1, the
Customer shall provide a minimum of one (1) weeks’ notice to OHR of their
intention to return the Equipment, and the date of expiry or cessation of this Contract
shall in all cases be treated as a full day’s hire.
6.3
Notwithstanding anything contained in this Contract
to the contrary, OHR reserves the right to take possession of the Equipment at
any time and without notice to the Customer when, in OHR’s opinion, the
Equipment is endangered or imperilled by any reason or cause whatsoever. The Customer indemnifies OHR in respect of any loss arising from any
act done under or by virtue of this clause 6.3.
Any action taken by either OHR or the Customer as set forth herein shall be
without prejudice to any other rights or remedies that OHR or Customer may have
respectively.
7
Extension of the Hire Period
7.1
If, and only if not later than one (1) month before
the expiry of the Hire Period, the Customer gives notice to OHR requesting an
extension of the Hire Period, such extension is, if any, subject to OHR’s
agreement, the availability of the Equipment and the following conditions:
(a)
the Charges and all other payments due under this Contract
having been received by OHR in full as at the expiry of the Hire Period;
(b)
there is no breach of the Customer’s covenants, the
Hire Period shall be extended for the period specified between the parties, commencing
on the day following the date of expiration of the Hire Period and at the
Charges, as varied, on the same terms and conditions of this Contract, except
for the insertion of the extended term.
8
Delivery and Recovery
8.1
As agreed by OHR and at OHR’s sole discretion:
(a)
delivery of the Equipment (“Delivery”) shall take place when the Customer takes possession of
the Equipment at either OHR’s premises or the Site;
(b)
recovery of the Equipment (“Recovery”) will be completed when the Equipment has been either collected
from the Site and/or returned to OHR’s premises.
8.2
Unless otherwise specified:
(a)
the costs of Delivery and Recovery, including the
supply of additional labour, equipment, materials and transportation expenses
and other requirements are in addition to the Charges.
(b)
Customer is responsible for the supply of all
necessary craneage, labour and other handling equipment to offload, assemble,
erect, dismantle and load the Equipment at the Site.
8.3
In the event the Customer is unable to accept
Delivery and/or Recovery as arranged, or there are any delays due to free and
clear access to the Site not being available, OHR shall be entitled to charge
all additional costs involved with the redelivery and/or storage, or subsequent
attempts at Recovery, as applicable, and all Charges lost as a direct result of
the Equipment being unavailable.
8.4
Any time or date given by OHR to the Customer is an
estimate only. The Customer must still accept Delivery even if late and OHR
will not be liable for any loss or damage incurred by the Customer as a result
of any delay in Delivery and/or Recovery of the Equipment, commencement of work
or interruption to the continuity of work due to reasons beyond the practical
control of OHR (including, but not limited to, any event outlined in clause 26.9, breakdown of plant, transport delays, accidents,
or other labour difficulties, etc.).
9
Insurance
9.2
Damage Waiver is not
insurance, but is an agreement (where applicable under a separate agreement) by
OHR 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. The Customer is not entering into a contract
of insurance with OHR by paying for the Damage Waiver.
9.4
Where clause 9.3 is not affected the Customer
accepts full responsibility for the safekeeping of the Equipment and
must effect insurance (and maintain any such insurance) with an insurer
acceptable to OHR in the name of OHR and the Customer for their respective
rights and interests whilst the Equipment is at the Site, or in transit between
the Site and OHR’s premises in respect of the following:
(a)
the full replacement value of the Equipment against
such risk as OHR may nominate, or in the absence of such nomination, against
loss or damage by theft, fire, accident and such other risks as are insured
against by prudent persons engaged in a similar business to that of the Customer,
excluding liability for claims being the subject of compulsory third party
injury insurance on vehicles registered by OHR;
(b)
a policy of employer’s indemnity insurance and
works compensation insurance in respect of all employees of the Customer in
respect of damage or loss caused by the use, maintenance, repair and storage of
the Equipment;
(c)
public risk liability (at least 20 million) and
product defect liability, and any other such insurance in support of the
indemnities contained in this Contract, and must in respect of any policy of
insurance, deliver to OHR a copy of the policy and promptly pay all premiums
and stamp duty payable in respect of the policy.
9.5
OHR will maintain current insurance policies in
respect of the Equipment to its full insurable value.
9.6
In the event that the Equipment provided by OHR is
the subject of an insurance claim made by OHR, as a result of any action or
inaction of the Customer, then the Customer accepts full liability for the
value of Equipment (or part thereof) that is lost, stolen or damaged in any way
any during the entire rental term, irrespective of whether the insurance claim
is successful.
10
Risk
10.1
The Customer shall assume all risks and liabilities
for and in respect of the Equipment and for injuries to or death of persons and
damage to property howsoever arising from the possession, use, maintenance,
repair or storage of the Equipment.
10.2
The Customer shall be solely responsible for any
loss or damage to the Equipment, including (without limiting the generality of
the foregoing) damage done by corrosion, rust, oxidation, and chemical
reactions of every nature and kind whatsoever.
10.3
The Customer acknowledges and agrees that:
(a)
the Customer has satisfied themselves as to the
condition and suitability of the Equipment, and its fitness for the Customer’s
purposes;
(b)
the Customer has, prior to signing this Contract,
examined the Equipment and satisfied themselves as to its compliance with the
specifications and validity of the warranties of the manufacturer or OHR;
(c)
once satisfied with the condition and suitability
of the Equipment, the Customer must sign OHR’s pre-hire check sheet.
10.4
Unless otherwise agreed
to in writing between the parties, OHR shall not be deemed the principle
contractor and shall not be obligated to maintain any contract works insurance cover
or be responsible with regard to any work cover requirements (including, but
not limited to, compliancy under any relevant legislation or policy, etc.).
11.1
The Equipment is and will at all times remain the
absolute property of OHR, and the Customer must return the Equipment to OHR
upon request to do so.
11.2
The Customer must not, and must not attempt to,
assign, mortgage, pledge, sell, charge, encumber, sublet, part with possession
of, grant any lien, license or other encumbrance over, or otherwise dispose of
or deal with, or permit or suffer to exist any lien or other encumbrance over,
the Equipment or any part thereof, or any of the rights of the Customer to the
Equipment, or any of the rights of the Customer under this Contract, and must
keep the Equipment free from any distress, execution or other legal process.
11.3
Nothing contained in this Contract renders on the Customer
any right or property or interest in the Equipment other than as a hirer.
11.4
The Customer must notify all persons who come in
contact with the Equipment, including those who have an interest in the
Services being undertaken, of the existence on the restriction on the creation
of liens, or similar interests, whether by way of pledge or otherwise, in or
over the Equipment, and will notify any persons seizing the Equipment or any
part thereof of the restrictions contained in this clause 11.
12
Condition of Equipment and Inspections
12.1
The Equipment will be inspected by a representative
of each party to establish the general condition thereof and a statement of
condition of the Equipment will be prepared:
(a)
immediately prior to the commencement of this Contract;
and
(b)
as soon as practicable following termination of
this Contract.
12.2
The Customer acknowledges and agrees that they
will, at their own cost, reinstate the Equipment to its condition as specified
in the pre-hire inspection, normal wear and tear excepted.
13
Wet Hire
13.1
Unless otherwise agreed
to in writing between the parties, OHR shall not be deemed the principal contractor
and shall not be obligated to maintain any contract works insurance cover or be
responsible with regard to any work cover requirements (including, but not
limited to, compliancy under any relevant legislation or policy, etc.).
13.2
The Customer shall:
(a)
be responsible for ensuring that OHR is notified of the location of any underground
services on the Site; and
(b)
provide amenities and first aid services to OHR’s employees in compliance with all applicable
health and safety legislation in operation in the state where the services are
undertaken; and
(c)
should it be necessary for the Equipment to be
towed in, or out of the Site, then the Customer shall be responsible for all
damage and/or salvage costs involving the Equipment, and said costs shall be in
addition to the Charges; and
13.3
Notwithstanding that the operator of the Equipment
is an employee or representative of OHR, the
operator shall operate the Equipment in accordance with the instructions of the
Customer, and accordingly, the Customer shall be liable for all responsibility
and costs incurred as a result of the actions of the operator whilst following
the Customer’s instructions.
13.4
In the event the Customer requires an employee of OHR to undertake a Site induction during working
hours, the Customer will be liable to pay the hourly Charges for that period,
notwithstanding that the Equipment is not being operated during such time. If
any induction is undertaken outside of the Hire Period then the Customer shall
be liable to pay OHR standard (and/or
overtime, if applicable) hourly labour rate.
14
Dry Hire
14.1
The Customer shall
ensure that the Equipment is operated by a properly experienced and qualified
person in accordance with OHR’s and manufacturer’s requirements and/or
recommendations.
15
OHR’s Employees
15.2
The Customer agrees that if clause 15.1 is
contravened OHR will be able to invoice the Customer at its current hourly rate
the hours that the employee has been employed, contracted, subcontracted or
utilised in any way by the Customer and agrees to pay said invoice in
accordance with the standard payment terms contained in this Contract.
16
Hidden Services
16.1
Unless otherwise agreed in writing between the
Customer and OHR it shall be the Customer’s responsibility to advise the
precise location of all underground services on the site and clearly mark the
same. The mains/services the Customer must identify include, but are not
limited to, electrical services, gas services, sewer services, pumping
services, sewer connections, sewer sludge mains, water mains, irrigation pipes,
communication cables, fibre optic cables, oil pumping mains, and any other
services that may be on site.
16.2
If the Customer requests OHR to engage a service
locator then this shall be in addition to the Price and “Dial Before You Dig”
must be consulted and any potential underground services marked on site.
16.3
Whilst OHR will take all care to avoid damage to
any underground services the Customer agrees to indemnify OHR in respect of all
and any liability claims, loss, damage, costs and fines as a result of damage
to services not precisely located and notified and notified as per clause16.1.
17
Compliance with Laws
17.1
The Customer and OHR
shall comply with the provisions of all statutes, regulations and bylaws of
government, local and other public authorities that may be applicable to the
Services, including any SafeWork (QLD) laws relating to building/construction
sites and any other relevant safety standards or legislation, particularly
those in relation to asbestos and/or other hazardous materials (and the safe
removal and disposal of the same). The Customer agrees to indemnify OHR against
all claims arising from health issues related to exposure to asbestos on site.
17.2
The Customer shall obtain (at the expense of the Customer)
all licenses and approvals or notices (including local Government approvals)
that may be required in relation to use or transport of the hire Equipment.
18
Personal Property Securities Act 2009 (“PPSA”)
18.1
In this clause financing
statement, financing change statement, security agreement, and security
interest has the meaning given to it by the PPSA.
18.2
Upon assenting to these terms and conditions in
writing the Customer acknowledges and agrees that these terms and conditions
constitute a security agreement for the purposes of the PPSA and creates a
security interest in all Equipment and/or collateral (account) – being a
monetary obligation of the Customer to OHR for services – that has previously
been supplied and that will be supplied in the future by OHR to the Customer.
18.3
The Customer undertakes to:
(ii)
register any other document required to be
registered by the PPSA; or
(iii)
correct a defect in a statement referred to in
clause 18.3(a)(i) or 18.3(a)(ii);
(b)
indemnify, and upon demand reimburse, OHR for all
expenses incurred in registering a financing statement or financing change
statement on the Personal Property Securities Register established by the PPSA
or releasing any registration made thereby;
(c)
not register a financing change statement in
respect of a security interest without the prior written consent of OHR;
(d)
not register, or permit to be registered, a
financing statement or a financing change statement in relation to the
Equipment and/or collateral (account) in favour of a third party without the
prior written consent of OHR.
18.4
OHR and the Customer agree that sections 96, 115
and 125 of the PPSA do not apply to the security agreement created by these
terms and conditions.
18.6
The Customer waives their rights as a grantor
and/or a debtor under sections 142 and 143 of the PPSA.
18.7
Unless otherwise agreed to in writing by OHR, the Customer
waives their right to receive a verification statement in accordance with
section 157 of the PPSA.
18.8
The Customer must unconditionally ratify any
actions taken by OHR under clauses 18.3 to 18.5.
18.9
Subject to any express provisions to the contrary
nothing in these terms and conditions is intended to have the effect of
contracting out of any of the provisions the PPSA.
18.10
Only to the extent that the hire of the Equipment
exceeds a two (2) year hire period, shall this clause 18
apply
as a security agreement in the form of a PPS Lease in respect of Section 20 of
the PPSA, in all other matters this clause 18 will apply
generally for the purposes of the PPSA.
19.1
In consideration of OHR agreeing to supply
Equipment, the Customer charges all of its rights, title and interest (whether
joint or several) in any land, realty or other assets capable of being charged,
owned by the Customer either now or in the future, to secure the performance by
the Customer of its obligations under these terms and conditions (including,
but not limited to, the payment of any money).
19.2
The Customer indemnifies OHR from and against all OHR’s
costs and disbursements including legal costs on a solicitor and own Customer
basis incurred in exercising OHR’s rights under this clause.
19.3
The Customer irrevocably appoints OHR and each
director of OHR as the Customer’s true and lawful attorney/s to perform all
necessary acts to give effect to the provisions of this clause 19
including, but not limited to, signing any document on the Customer’s behalf.
20
Load Measuring Devices
20.1
If any Equipment has been fitted with a load
measuring device, the Customer hereby acknowledges and agrees that OHR has made
no warranties or representations whatsoever with respect to the ability of said
load measuring device too accurately or consistently measure the weight of the
load being lifted by such Equipment. The Customer further acknowledges and
agrees that it is the responsibility of the Customer to independently determine
the weight of every load to be lifted by any Equipment comprising all or a
portion of the Equipment so as to ensure that any such load to be lifted does
not exceed the rated load as determined by such Equipment’s capacity chart and
that the load measuring device shall be used as an operator-aide only.
20.2
The Customer will be liable for, and shall
indemnify and hold harmless OHR of and from, any and all liabilities, costs,
damages, charges, legal fees and disbursements (including those on a solicitor
and own Customer basis with right of fill indemnity) fines, penalties,
expenses, actions, suits, proceedings and demands, all of whatever kind or nature
which OHR may suffer or incur or be liable for, either directly or indirectly,
by reason of failure of any load measuring device to perform consistently or
accurately, notwithstanding the negligence of OHR directly or indirectly
related thereto. The Customer hereby releases OHR of and from any and all
liabilities, losses, costs, damages, claims and demands which it may have
against OHR, either directly or indirectly, arising by reason of the failure of
any load measuring device to perform consistently or accurately,
notwithstanding the negligence of OHR. Without restricting the generality of
the foregoing, the Customer covenants and agrees that they shall not sue OHR
for any such losses, or costs, damages, claims or demands. Furthermore, the Customer
acknowledges and agrees that if they rely in any way whatsoever on any such
load measuring device that they do so completely at their own risk.
21
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
21.1
All conditions and warranties, express or implied,
whether arising by statute or otherwise, as to the condition, suitability,
quality, fitness for any purpose or safety of or title to the Equipment are
hereby negative and excluded to the full extent permitted by the law, and OHR
gives no such warranty or condition, and the Customer acknowledges that OHR has
not given any such warranty or condition.
(a)
the replacement of the Equipment or the supply of
plant similar to the Equipment; or
(b)
the payment of the cost of having the Equipment
repaired; or
(c)
the repair of the Equipment; and
(d)
Hire Charges will be suspended in full until the
Equipment is replaced (at OHR’s discretion) or returned to operating condition.
21.3
Notwithstanding clauses 21.1 and
21.2,
but subject to the CCA, OHR shall not be liable for any defect or damage which
may be caused or partly caused by, or arise as a result of:
(a)
the Customer failing to properly maintain or store the
Equipment;
(b)
the Customer interfering with the Equipment in any
way without OHR’s written approval to do so;
(c)
the Customer using the Equipment for any purpose
other than that for which it was designed;
(d)
the Customer continuing the use of the Equipment
after any defect became apparent or should have become apparent to a reasonably
prudent operator or user;
(e)
the Customer failing to follow any instructions or
guidelines provided by OHR;
(f)
fair wear and tear, any accident, or act of God.
22
Limitation of Liability
22.1
Subject to clause 21:
(a)
OHR shall be under no liability whatsoever to the Customer
for any indirect and/or consequential loss and/or expense (including loss of
profit or any rectification costs), or any third party claims, suffered by the Customer
in connection with the use of the Equipment and/or the provision of Services by
OHR, or arising out of a breach by OHR of these terms and conditions.
Alternatively, OHR’s liability shall be limited to damages which under no
circumstances shall exceed the Charges;
(b)
the Customer acknowledges and agrees that OHR is
not liable:
(i)
to the Customer for any loss, cost (whether
indirect or consequential) or damage or delay through breakdown, mechanical
defect or accident to or of the Equipment;
(ii)
to any person for any loss or damage to any
property stolen from the Equipment or damaged or otherwise lost during the Hire
Period or left in the Equipment after return of the Equipment to OHR’s depot;
(iii)
to the Customer for any form of breakdown, whether
mechanical electrical or structural to the Equipment whilst on hire to the Customer.
22.2
The Customer assumes liability for an indemnifies
and holds harmless OHR, its agents and employees from and against all claims,
costs, damages, losses or expenses of any kind howsoever, arising under tot
(including but not limited, negligence), contract, strict liability, statue or
otherwise from the arrangements between the Customer and OHR and including
(without limitation) in relation to death of or injury to any person, loss,
damage or destruction of any property including the Equipment and any goods in
transit. This indemnity shall not
include the Equipment.
22.3
To the full extent permitted by law, the Customer
releases, holds harmless and discharges OHR, its agents and employees in
respect of all claims and demands on OHR and any loss or damage caused to the Customer
or its agents.
23
Default and Consequences of Default
23.2
If the Customer owes OHR any money the Customer
shall indemnify OHR from and against all costs and disbursements incurred by OHR
in recovering the debt (including but not limited to internal administration
fees, legal costs on a solicitor and own Customer basis, OHR’s contract default
fee, and bank dishonour fees).
23.3
Further to any other rights or remedies OHR may
have under this Contract, if a Customer has made payment to OHR, and the
transaction is subsequently reversed, the Customer shall be liable for the
amount of the reversed transaction, in addition to any further costs incurred
by OHR under this clause 23
where it can be proven that such reversal is found to be illegal, fraudulent or
in contravention to the Customer’s obligations under this Contract.
23.4
Without prejudice to OHR’s other remedies at law OHR
shall be entitled to cancel all or any part of any order of the Customer which
remains unfulfilled and all amounts owing to OHR shall, whether or not due for
payment, become immediately payable if:
(a)
any money payable to OHR becomes overdue, or in OHR’s
opinion the Customer will be unable to make a payment when it falls due;
(b)
the Customer has exceeded any applicable credit
limit provided by OHR;
(c)
the Customer becomes insolvent, convenes a meeting
with its creditors or proposes or enters into an arrangement with creditors, or
makes an assignment for the benefit of its creditors; or
(d)
a receiver, manager, liquidator (provisional or
otherwise) or similar person is appointed in respect of the Customer or any
asset of the Customer.
24
Cancellation/Termination
24.1
Without prejudice to any other remedies OHR may
have, if at any time the Customer is in breach of any obligation (including
those relating to payment) under these terms and conditions OHR may suspend or
terminate the supply of Services to the Customer. OHR will not be liable to the
Customer for any loss or damage the Customer suffers because OHR has exercised
its rights under this clause.
24.2
OHR may terminate this Contract, or cancel Delivery,
at any time before the Equipment is delivered by giving written notice to the Customer.
On giving such notice OHR shall repay to the Customer any sums paid in respect
of the Charges. OHR shall not be liable for any loss or damage whatsoever
arising from such cancellation.
24.3
In the event that the Customer terminates this Contract,
or otherwise cancels Delivery, the Customer:
(a)
must provide notice of such to OHR at least twenty-four
(24) hours prior to the specified date of Delivery; and
(b)
the Customer shall be liable for any and all loss
incurred (whether direct or indirect) by OHR as a direct result of the
cancellation (including, but not limited to, any loss of profits).
24.4
Except so far as clause 24.1
applies, on termination OHR shall be entitled to:
(a)
retain all monies paid to it under this Contract;
and
(b)
recover from the Customer any other monies due and
owing under this Contract as at the date of termination.
24.5
On termination, the Customer must deliver up to OHR
the Equipment (together with all parts and accessories) in clean and good order
as delivered (with allowance for fair wear and tear).
24.6
Upon termination of this Contract following the
occurrence of an Default Event, the Customer must pay to OHR by way of
liquidated damages, in addition to and without prejudice to any other right or
remedy of OHR, an amount equal to the total of:
(a)
the unpaid balance of the Charges for the Hire
Period which would have been payable until the expiration of the Hire Period
had the Contract not been terminated;
(b)
OHR’s costs and expenses incurred in repossessing
and storing, insuring and registering the Equipment and in entering on and
removing the Equipment from land or premises on which the Equipment was
situated, and make good any injury or damage caused to the land or premises;
(c)
OHR’s costs and expenses of repairs reasonably
necessary to bring the Equipment to an operational/useable condition;
(d)
interest calculated in accordance with clause 23.1 of
this Contract.
24.7
On, or before, termination of this Contract, the Customer
shall return the Equipment to OHR’s premises and the Customer acknowledges and
agrees that the Charges are payable:
(a)
until such time as the Equipment is returned to OHR’s
premises and returned to its condition as specified in the on-hire inspection,
normal wear and tear excepted; and
(b)
for the entirety of the Hire Period,
notwithstanding that the Equipment may be returned to OHR prior to termination.
25
Privacy Policy
25.1
All
emails, documents, images or other recorded information held or used by OHR is
Personal Information, as defined and referred to in clause 25.3, and therefore
considered Confidential Information. OHR acknowledges its obligation in
relation to the handling, use, disclosure and processing of Personal Information pursuant to the
Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy
Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory
requirements, where relevant in a European Economic Area (“EEA”), under the EU
Data Privacy Laws (including the General Data Protection Regulation “GDPR”)
(collectively, “EU Data Privacy Laws”). OHR acknowledges that in the event it
becomes aware of any data breaches and/or disclosure of the Customers Personal
Information, held by OHR that may result in serious harm to the Customer, OHR
will notify the Customer in accordance with the Act and/or the GDPR. Any
release of such Personal Information must be in accordance with the Act and the
GDPR (where relevant) and must be approved by the Customer by written consent,
unless subject to an operation of law.
25.2
Notwithstanding
clause 25.1, privacy
limitations will extend to OHR in respect of Cookies where transactions for
purchases/orders transpire directly from OHR’s website. OHR agrees to display
reference to such Cookies and/or similar tracking technologies, such as pixels
and web beacons (if applicable), such technology allows the collection of
Personal Information such as the Customer’s:
(a)
IP
address, browser, email Customer type and other similar details;
(b)
tracking
website usage and traffic; and
(c)
reports
are available to OHR when OHR sends an email to the Customer, so OHR may
collect and review that information (“collectively Personal Information”)
In
order to enable / disable the collection of Personal Information by way of
Cookies, the Customer shall have the
right to enable / disable the Cookies first by selecting the option to enable /
disable, provided on the website prior to proceeding with a
purchase/order via OHR’s website.
25.4
The Customer agrees that OHR may exchange
information about the Customer with those credit providers and with related body corporates for the following
purposes:
(a)
to assess an application by the Customer; and/or
(b)
to notify other credit providers of a default by
the Customer; and/or
(c)
to exchange information with other credit providers
as to the status of this credit account, where the Customer is in default with
other credit providers; and/or
(d)
to assess the creditworthiness of the Customer
including the Customer’s repayment history in the preceding two (2) years.
25.5
The Customer consents to OHR being given a consumer
credit report to collect overdue payment on commercial credit.
25.6
The Customer agrees that personal credit
information provided may be used and retained by OHR for the following purposes
(and for other agreed purposes or required by):
(a)
the provision of Services/Equipment; and/or
(b)
analysing, verifying and/or checking the Customer’s
credit, payment and/or status in relation to the provision of Equipment; and/or
(c)
processing of any payment instructions, direct
debit facilities and/or credit facilities requested by the Customer; and/or
(d)
enabling the collection of amounts outstanding in
relation to the Equipment.
25.7
OHR may give information about the Customer to a
CRB for the following purposes:
(a)
to obtain a consumer credit report;
(b)
allow the CRB to create or maintain a credit
information file about the Customer including credit history.
25.8
The information given to the CRB may include:
(a)
Personal Information as outlined in 25.3
above;
(b)
name of the credit provider and that OHR is a
current credit provider to the Customer;
(c)
whether the credit provider is a licensee;
(d)
type of consumer credit;
(e)
details concerning the Customer’s application for
credit or commercial credit (e.g. date of commencement/termination of the
credit account and the amount requested);
(f)
advice of consumer credit defaults, overdue
accounts, loan repayments or outstanding monies which are overdue by more than
sixty (60) days and for which written notice for request of payment has been
made and debt recovery action commenced or alternatively that the Customer no
longer has any overdue accounts and OHR has been paid or otherwise discharged
and all details surrounding that discharge(e.g. dates of payments);
(g)
information that, in the opinion of OHR, the Customer
has committed a serious credit infringement;
(h)
advice that the amount of the Customer’s overdue
payment is equal to or more than one hundred and fifty dollars ($150).
25.9
The Customer shall have the right to request (by
e-mail) from OHR:
(a)
a copy of the Personal Information about the Customer
retained by OHR and the right to request that OHR correct any incorrect
Personal Information; and
(b)
that OHR does not disclose any Personal Information
about the Customer for the purpose of direct marketing.
25.10
OHR will destroy Personal
Information upon the Customer’s request (by e-mail) or if it is no longer
required unless it is required in order to fulfil the obligations of this
Contract or is required to be maintained and/or stored in accordance with the
law.
25.11
The Customer can make a privacy complaint by contacting OHR via e-mail. OHR
will respond to that complaint within seven (7) days of receipt and will take
all reasonable steps to make a decision as to the complaint within thirty (30)
days of receipt of the complaint. In the event that the Customer is not
satisfied with the resolution provided, the Customer can make a complaint to
the Information Commissioner at www.oaic.gov.au.
26
General
26.1
Any dispute or difference arising as to the
interpretation of these terms and conditions or as to any matter arising
hereunder, shall be submitted to, and settled by, either arbitration in
accordance with the Commercial Arbitration Act 2013 or its replacement(s) or
the relevant governing agency for the state in which the Services were
performed such as the Queensland Civil and Administrative Tribunal (QCAT).
26.2
The failure by either party to enforce any
provision of these terms and conditions shall not be treated as a waiver of
that provision, nor shall it affect that party’s right to subsequently enforce
that provision. If any provision of these terms and conditions shall be
invalid, void, illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions shall not be affected, prejudiced or
impaired.
26.3
These terms and conditions and any contract to
which they apply shall be governed by the laws of Queensland, the state in
which OHR has its principal place of business, and are subject to the
jurisdiction of the Rockhampton Court in that state.
26.4
The Customer agrees to assist and cooperate with OHR
in relation to OHR exercising any and all of their rights in respect to the
Equipment, including without limitation to, OHR instituting, carrying on or
enforcing, compromising or completing any legal proceedings which OHR thinks
desirable to protect their rights in respect of the Equipment.
26.5
OHR
may licence and/or assign all or any part of its rights and/or obligations
under this Contract without the Customer’s consent.
26.6
The
Customer cannot licence or assign without the written approval of OHR.
26.7
OHR
may elect to subcontract out any part of the Services but shall not be relieved
from any liability or obligation under this Contract by so doing. Furthermore,
the Customer agrees and understands that they have no authority to give any
instruction to any of OHR’s sub-contractors without the authority of OHR.
26.8
The
Customer agrees that OHR may amend their general terms and conditions for
subsequent future Contracts with the Customer by disclosing such to the Customer
in writing. These changes shall be deemed to take effect from the date on which
the Customer accepts such changes, or otherwise at such time as the Customer
makes a further request for OHR to provide Services/Equipment to the Customer.
26.10 Both parties warrant that they have the power to enter into this
Contract and have obtained all necessary authorisations to allow them to do so,
they are not insolvent and that this Contract creates binding and valid legal
obligations on them.