STANDARD TERMS AND CONDITIONS OF HIRE
The Hire Agreement constitutes the entire hire agreement between the Supplier, the Customer and the Guarantors referred to in clause 11 (if any).
“Accessories” include but is not limited to air conditioners, refrigerators, microwave oven, and other electrical and cooking appliances and “Accessory” means one of them.
“Building” means all portable buildings and Accessories supplied to the Customer by the Supplier.
“Customer” refers to the person, organisation or corporation hiring a Building from the Supplier.
“CPI” means the All Groups Consumer Price Index for Perth, Western Australia, published by the Australian Bureau of Statistics or if the basis upon which it is determined is substantially altered then it may reasonably be determined to be as near to the CPI previously referred to as possible.
“Damage Waiver” has the meaning specified in clause 6.4.
“Hire Agreement” means the Agreement between the Supplier and the Customer for the hire of the Building with or without accessories and shall include these Standard Terms and Conditions of Hire together with any other Special Conditions contained in either the Hire Agreement or the Hire Quotation or both. A Customer’s purchase order referring to the Customer’s Standard Conditions shall be read down to the extent that they are inconsistent with acknowledgments and declarations of the Customer in the Hire Agreement.
“Hire Location” means the location specified in the Hire Quotation.
“Hire Quotation” means the hire quotation issued to the Customer by the Supplier at the request of the Customer to hire a Building.
“Rent” means the rental amount payable by the Customer as specified in the Hire Quotation.
“Return Location” means the delivery location after the end of the Term as specified in the Hire Quotation or such other location agreed in writing by the Supplier.
“Supplier” of Building(s) is Ascention Assets Pty Ltd of 22 Boydell Road Kenwick Western Australia 6107
“Term” means the rental period of the Building(s) as specified in the Hire Quotation.
3.1. The Supplier shall hire to the Customer and the Customer shall take on hire from the Supplier the Building for the Term at the Rent and on the terms and conditions contained in the Hire Agreement.
3.2. At least 28 days prior to the expiry of the Term, the Customer may make a written request to the Supplier to extend the Term for an unspecified period or until a particular date and on any other terms and conditions proposed.
3.3. The Supplier may within a reasonable period before the end of the Term notify the Customer in writing, whether or not the Supplier agrees to extend the Term on the terms proposed by the Customer (if applicable) or on any other terms.
3.4. If the Term is extended:
(1) the Supplier may issue a further Hire Quotation detailing the terms and conditions of the extension; or
(2) if the Supplier does not issue a further Hire Quotation, the Term is extended on the then terms and conditions of the Hire Agreement.
3.5. Unless otherwise agreed, at the end of the Term, if the Customer continues in possession of the Building, the Hire Agreement automatically extends and all other terms and conditions set out in the Hire Agreement will continue to apply to the hire of the Building (“Holding Over”).
3.6. In any case of Holding Over:
(1) the Hire Agreement may be terminated by either party giving to the other 28 days notice or such other period as agreed from time to time;
(2) the rent is the same as the Rent payable immediately preceding the end of the Term or such other amount as agreed from time to time; and
(3) all the other provisions of the Hire Agreement apply to the Holding Over except any option to extend the Hire Agreement.
4.1. Prior to accepting possession of the Building, the Customer must complete an inspection report on the Building. As a result of this inspection and by accepting possession, the Customer agrees that the Building:
(1) is in good repair, working order and condition and complete in all respects; and
(2) is fit for the Customer’s purpose.
5. Rent and other charges
5.1. The Supplier can refuse to hire a Building to a Customer for any reason without cause.
5.2. Rent will be charged from day of pick up from the Hire Location until the Building is returned to the Supplier at the Return Location and inspected and reported on to the Customer.
5.3. Rent will be charged in arrears on the 26th day of the month. Payment is required within 30 days of the end of the month.
5.4. A minimum of 7 days notification is required to process a Building off hire from the Hire Agreement. In the event that 7 days notice is not provided by the Customer, any expediting charges incurred to collect the Building will be borne by the Customer.
5.5. Upon receipt of notification by the Customer, the Supplier will immediately issue the Customer with an “off hire reference number”. This reference number should be quoted on all subsequent correspondence relating to the relevant Building(s).
5.6. Subject to clause 19.3:
(1) the Rent is non refundable;
(2) if the Customer terminates the Hire Agreement prior to the expiration of the Term, the Customer must immediately pay any outstanding Rent (calculated based on the remaining period of the Term) and will not be entitled to any refund or pro rata refund of the Rent; and
(3) all costs in connection with the use of the Building are to be borne by the Customer and are not part of the Rent. All sums payable by the Customer to the Supplier pursuant to the Hire Agreement are not subject to any defence, set-off, recoupment or counter-claim which the Customer may have and the Customer is not entitled to withhold payment of any sum for any reason whatsoever.
5.7. Cleaning and inspection fees are charged on completion of the Term at the following rates:
(1) final clean upon return $650 per 12x3m floor area;
(2) electrical check and tag upon return $16 per electrical appliance, minimum $175 per floor;
(3) cleaning fee upon return of 6x3m Ablution $950;
(4) service fee upon return for each standard room air conditioner $50.
5.8. At the expiration of the Term or upon termination of the Hire Agreement, the Building will be assessed for damage, including building structural integrity damage and a report shall be issued detailing the damage and the cost to repair. The cost will be charged to and paid by the Customer returning the Building and the Customer shall remain liable to pay ongoing Rent until the Building has been returned or repaired to the Supplier.
5.9. The rates charged in respect of the Rent will be subject to adjustment in line with Western Australia CPI on renewal of the Hire Agreement.
5.10. In addition to the Rent, the Customer agrees to pay:
(1) for any consumables, fuel or trade materials supplied to the Customer;
(2) the cost of delivery, collection or installation of the Building, (if the Supplier is required to deliver, collect or install the Building);
(3) any duty or GST arising out of the Hire Agreement; and
(4) the cost of the provision of training on the use of the Building at agreed rates, should the Customer request and the Supplier provide such training.
(5) Transportation Cancellation Charge (All transport cancellations must be made via a written notification or email). Transportation cancelled less than 72 hours prior to the trucks departing our depot will result in a 15% charge of the transportation fee. Transportation cancelled less than 24 hours prior to the trucks departing our depot will incur a 25% charge of the transportation fee. Transportation cancelled less than 12 hours prior to the trucks departing our depot will incur a 50% charge of the transportation fee. Transportation cancelled after the truck has departed our depot and more than half way will incur a full transportation charge.
6.1. If during the Term there is a failure or defect with respect to an Accessory, which has not been caused or contributed to by the Customer the Supplier will replace the defective Accessory, ex Perth.
6.2. The parties agree that all costs associated with the transport, delivery, removal and installation of an Accessory are the responsibility of the Customer.
6.3. Unless otherwise directed by the Supplier, the Customer must at its cost arrange for the defective Accessory to be returned to the Supplier.
7. Duties of the Customer
The Customer must at all times:
(1) exercise reasonable care in using the Building;
(2) properly keep and maintain the Building in good and serviceable condition and compensate the Supplier for any damage to the Building and for any items stolen, missing or damaged, other than that arising from fair wear and tear;
(3) ensure that all air conditioners are regularly maintained and filters are cleaned at least every two weeks during the course of the Term;
(4) ensure that the Building is secured with Engineered Certified anchor systems applicable to the Hire Location;
(5) keep the Building under its personal control and not remove or allow or cause the Building to be removed from the Hire Location without the prior written consent of the Supplier;
(6) not make modifications or perform minor works in relation to the Building without the prior written consent of the Supplier;
(7) ensure that the Building is used only for the intended purpose and the designated lifting points are used when crane loading and unloading;
(8) immediately notify the Supplier by telephone and subsequently in writing confirm full details of any damage occurring to the Building or any damage arising from the use of the Building;
(9) not assign, sub-lease, attempt to dispose or part with possession of, encumber or create any lien over the Building or any interest in it. The Customer is neither permitted nor authorised to lend or re-hire the Building to any other person, organisation or corporation. The Supplier does not accept any liability for unauthorised lending or re-hire;
(10) not affix the Building to land unless its use so requires or the Supplier consents in writing (but in any event the Building shall as between the Supplier and Customer be considered a chattel and at no times will be a fixture);
(11) upon at least 7 days notice by the Supplier, give the Supplier access to the Building for inspection as required by the Supplier from time to time; and
(12) return the Building in good order and condition to the Supplier at the Return Location nominated by the Supplier or contact the supplier to arrange collection.
8.1. The Customer must insure at all times during the Term against:
(1) Loss or damage to the Building caused by fire, accident or theft vandalism, earthquake or cyclone or otherwise (including during transit) for an amount equal to their full insurable value.
(2) Public liability for bodily injury or damage to property arising in connection with the Building for not less than AUD $10,000,000 for any one occurrence and unlimited in the annual aggregate.
8.2. Such insurance to cover the Supplier as a Named Insured and as loss payee, and include cross-liability and waiver of subrogation extensions in favour of the Supplier.
8.3. The insurances must be in a form and substance and with an insurer which are satisfactory to the Supplier. The Customer must provide to the Supplier certificates of currency or other evidence acceptable to the Supplier (which without limitation may include full copies of the policies of insurance) that the insurance required under clause 8 is in place.
8.4. The Customer must not:
(1) do anything, or fail to do anything, which would allow the insurer to refuse or reduce a claim;
(2) enforce, conduct, settle or compromise any claim without the Supplier’s prior written consent; or
(3) cancel or alter (with respect to coverage affecting the Buildings or liability arising therefrom) the insurance policies in place without the Supplier’s prior written consent.
8.5. Until such time as the Customer supplies evidence of insurance, insuring the Building and liability arising therefrom, which is acceptable by the Supplier’s insurance company the Customer, shall be charged a Damage Waiver at an additional 12.5% of the value of each hire invoice.
8.6. If the Customer’s insurances are subject to the application of any self-insured retention, excess or deductible, the amount of the self-insured retention, excess or deductible must be paid by the Customer in the event of a loss.
9. Accident or Building failure
9.1. Subject to clause 19.3, the Customer will not be entitled to recover from the Supplier any sum for any delay inconvenience or loss of any kind due to any accident, Building failure or defect in the Building or from any other cause whatsoever.
10.1. Title to the Building will always remain with the Supplier even in the circumstances where the Customer goes into liquidation or becomes bankrupt during the Term.
11.1. In this clause 11, Guarantor means each person who has agreed at any time to be a guarantor of the Customer’s obligations to the Supplier.
11.2. In consideration of the Supplier agreeing to supply the Buildings to the Customer at the request of the Guarantor on the terms of the Hire Agreement, the Guarantor unconditionally and irrevocably guarantees (and if more than one, then jointly and severally) to the Supplier:
(1) the payment of the Rent and other money which from time to time may become payable by the Customer to the Supplier under the Hire Agreement (Amount Payable); and
(2) the performance of each of the Customer's obligations under the Hire Agreement.
11.3. If and to the extent that any Amount Payable is not paid when due, the Customer’s Guarantor must immediately on demand from the Supplier pay to the Supplier the amount of the Amount Payable.
11.4. If the Customer fails to perform the Customer’s obligations under the Hire Agreement when they are due, the Guarantor must immediately on demand from the Supplier cause the Customer to perform the Customer’s obligations under the Hire Agreement.
11.5. As a separate and principal obligation the Guarantor indemnifies the Supplier against any loss, cost or liability suffered, paid or incurred by the Supplier in relation to:
(1) any failure of the Customer to perform the Customer’s obligations under the Hire Agreement; or
(2) the failure of the Guarantor to cause the Customer to perform the Customer’s obligations under the Hire Agreement.
11.6. This clause 11 is enforceable against a Guarantor whether or not the Supplier has:
(1) made demand upon the Customer;
(2) given notice to the Customer or any other person in respect of anything; or
(3) taken any other steps against the Customer or any other person,
and whether or not the guarantee given by the Guarantor under this clause 11 is unenforceable for any reason, either in whole or in part.
12. Personal Property Securities Act
12.1. Capitalised terms in this clause 12, that are not otherwise defined elsewhere in the Hire Agreement, have the same meaning as set out in the Personal Property Securities Act 2009 (Cth) (as amended) (“PPSA”) unless the context otherwise requires.
12.2. This agreement constitutes a security agreement pursuant to the PPSA in relation to the Building supplied by the Supplier to the Customer and any Building that will be supplied in the future by the Supplier to the Customer and each Guarantor and the Supplier in respect of such Building supplied to the Customer.
12.3. The Customer and each Guarantor each acknowledges and agrees that a Security Interest (as that term is defined in the PPSA) may be registered by the Supplier in relation to the Building and the proceeds arising in respect of any dealing in the Building in accordance with the PPSA (and in any other manner the Supplier considers appropriate).
12.4. The Customer and each Guarantor each agree to do all such things and sign all such documentation and/or provide any further information (such information to be complete accurate and up-to-date in all respects) as are necessary and reasonably required to enable the Supplier to:
(1) acquire a perfected Security Interest in the Building and its proceeds;
(2) register a Financing Statement or Financing Change Statement;
(3) ensure that the Supplier’s security position, and rights and obligations are not adversely affected by the PPSA.
12.5. The Customer and the Guarantor each waives its rights to receive a copy of any Verification Statement after the registration of a Financing Statement or Financing Change Statement in respect of the Security Interest created by the Hire Agreement.
12.6. The Customer and each Guarantor agrees to not:
(1) register a Financing Change Statement in respect of a Security Interest contemplated or constituted by the Hire Agreement; or
(2) register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Building in favour of a third party
without the Supplier’s prior written consent.
12.7. For the purposes of section 20(2) of the PPSA, the collateral is the Building including any Building which is described in any Hire Quotation provided by the Supplier to the Customer from time to time.
12.8. If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest(s) created under the Hire Agreement, the parties agree that the following provisions of the PPSA will not apply or are waived, as the context requires:
(1) section 95 (notice of removal of accession to the extent that it requires the Supplier to give a notice to the Customer or the Guarantor);
(2) section 96 (retention of accession);
(3) section 121(4) (notice to grantor);
(4) section 125 (obligations to dispose of or retain collateral);
(5) sections 129(2), 129(3) and 130 (notice of disposal to the extent it requires the Supplier to give a notice to the Customer or the Guarantor);
(6) section 132(3)(d) (contents of statement of account after disposal);
(7) section 132(4) (statement of account if no disposal);
(8) section 135 (notice of retention);
(9) section 142 (redemption of collateral); and
(10) section 143 (re-instatement of security agreement).
12.9. The Customer and each Guarantor will not, without the prior written consent of the Supplier change its name, its details or initiate any change to any documentation registered under the PPSA pursuant to the Hire Agreement.
12.10. The Customer and each Guarantor agrees that, until all monies owing to the Supplier are paid in full, it shall not sell or grant any other Security Interest in the Building or its Proceeds, without the prior written consent of the Supplier.
12.11. Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an Interested Person, or any other person requested by an Interested Person. The Customer and each Guarantor waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
12.12. If any provisions of the Hire Agreement are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
13. Urgent protection
13.1. If urgent action is necessary to protect the Building, other property or people, the Supplier may, (but is not obliged to and without prejudice to its other rights), take such necessary action. If the action was action which the Customer should have taken, the cost incurred by the Supplier will be a debt due from the Customer.
14.1. Should the Customer default in its obligations under the Hire Agreement and that breach is not remedied by the Customer within seven days of service of a default notice setting out the nature of the default, the Supplier may, (without prejudice to its other rights), terminate the Hire Agreement by giving notice to the Customer.
14.2. If the Hire Agreement is terminated, the Customer must immediately pay the Supplier (without prejudice to the Supplier’s other rights):
(1) any outstanding Rent (calculated based on the remaining period of the Term) and will not be entitled to any refund or pro rata refund of the Rent in respect of the period from termination up to the end of the Term; and
(2) any other amounts due under the Hire Agreement.
14.3. In the event of any substantial loss or destruction of the Building, the Supplier may by notice in writing to the Customer terminate the Hire Agreement and the Customer must pay to the Supplier within 7 days the replacement value of the Building less any proceeds of salvage received by the Supplier if and when received. In the event that the replacement value cannot be agreed between the parties the value is to be determined by an independent valuer nominated by the Supplier.
15.1. On termination of the Hire Agreement, the Supplier has the right, (without prejudice to the Supplier’s other rights), to repossess the Building at its absolute discretion and without giving notice or any reason to the Customer. For the purpose of repossession the Supplier may subject to 7 days notice thereof and subject to personnel meeting the requisite health and safety conditions applicable to the site enter the Hire Location or any other premises in which the Building is or the Supplier reasonably believes the Building to be held and the Customer agrees to indemnify the Supplier or its agents against any loss or damage suffered by them or any of them whilst exercising or attempting to exercise the rights conferred by this clause.
15.2. If the Building is repossessed under clause 15.1 and it is not in the same good order and repair and condition as the Customer ought to have kept the Building under clause 7, the Customer must pay to the Supplier the cost of restoring the Building to such condition. All costs associated with the repossession, transport, delivery and removal of the Building from the Hire Location to the Return Location are the responsibility of the Customer.
16. Deliver Up
16.1. At the expiration of the Term or upon its earlier termination, the Customer must deliver up the Building to the Supplier to the Return Location, (or such other location agreed in writing by the Supplier), in the same good order and repair and condition as the Customer ought to have kept the Building under clause 7 and pay to the Supplier the cost of restoring the Building to such condition.
16.2. All costs associated with the transport, delivery and removal of the Building from the Hire Location to the Return Location are the responsibility of the Customer.
16.3. Acceptance of the Building by the Supplier and payment of any costs does not constitute a waiver of the Supplier's rights under this clause or confirmation that the Customer has complied with all of its obligations under this clause.
16.4. If the Customer nominates to off hire the building(s) on public holidays then Rent will be charged until the preceding business day.
17.1. If the Customer fails to deliver up the Building to the Supplier on the expiration of the Term, the Customer must pay the Supplier ongoing Rent as set out in the Hire Agreement.
18. Overdue moneys and costs
18.1. The Customer agrees:
(1) to pay interest at the rate equal to the Supplier’s loan interest rate plus 2.5% per annum on any money payable pursuant to the Hire Agreement which may from time to time be overdue and on damages which may be recoverable pursuant to the Hire Agreement; and
(2) to pay to the Supplier on demand by the Supplier the amount of any costs and expenses including legal, collection and storage costs incurred by the Supplier on a full indemnity basis by reason of default by the Customer under the Hire Agreement.
19. Loss and claims
19.1. The Customer must indemnify the Supplier against:
(1) loss or damage to the Building however caused; and
(2) any claims or costs whatsoever, (including any claims from a third party), arising out of the use, operation or keeping of the Building.
19.2. Subject to clause 19.4, and except as expressly provided to the contrary in the Hire Agreement, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to the Hire Agreement or its subject matter are excluded to the maximum extent permitted by law.
19.3. Nothing in the Hire Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Australian Consumer Law, which contains guarantees that protect the purchasers of goods and services in certain circumstances.
19.4. Where permitted by law the Supplier’s obligations resulting from a breach by it of any of those items referred to in clause 19.3 shall be limited to:
(1) in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
(2) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
19.5. Subject to the Supplier’s obligations that cannot be excluded by law, (including the Australian Consumer Law), and to the maximum extent permitted by law, the Supplier’s maximum aggregate liability for all claims under or relating to the Hire Agreement or its subject matter, whether in contract, tort, (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the fees paid by the Customer under the Hire Agreement, (including but not limited to the Rent).
19.6. Subject to clauses 19.4 and 19.5, the Supplier is not liable to the Customer for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs it has incurred, amounts that it is liable to its customers for or any loss suffered by third parties under or relating to the Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
20.1. The Customer and each Guarantor irrevocably appoints the Supplier and each of the Supplier’s authorised officers, jointly and severally, to be its attorney to do any act or thing which it is required to do under the Hire Agreement.
20.2. The Supplier may only exercise the power set out in clause 20.1 where the Customer or Guarantor (as applicable) is in breach of the Hire Agreement. The Supplier may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so.
20.3. A third party may rely on a copy of these terms certified by a solicitor as evidence of the appointment of the Supplier as the attorney of the Customer or Guarantor.
20.4. The Customer and each Guarantor must ratify all acts and things done by the Supplier and its authorised officers in the exercise of the power of attorney granted in accordance with this clause.
21. Time of essence
21.1. Time is to be of the essence insofar as it relates to the Customer’s or a Guarantor’s obligations to the Supplier under the Hire Agreement.
22.1. The Customer must pay all duty, (including all fines, penalties and interest), and other government imposts payable on or in connection with the Hire Agreement, (including without limitation, registration costs in respect of clause 12), and any transaction contemplated by the Hire Agreement, when due if requested in writing by the Supplier.
23.1. Any notices required to be given under the Hire Agreement must be given in writing to the other party at the addresses set out above.
23.2. Subject to clause 12.9, the Customer and each Guarantor must notify the Supplier immediately in writing of any change of the Customer's or each Guarantor’s address. As must the Supplier immediately notify the Customer of any changes in its address.
24.1. Each party must keep confidential the existence and terms of:
(1) the Hire Agreement (and any draft of the Hire Agreement); and
(2) all negotiations in connection with it,
25.1. This agreement is governed by the laws of Western Australia and each party submits to the non-exclusive jurisdiction of the courts having jurisdiction in Western Australia.
26. Variation of Terms
26.1. The Supplier reserves the right to vary the Hire Agreement from time to time. It may give notice of any variation of the Hire Agreement by publishing the revised terms on its website and may (but is not obliged to) notify the Customer and/or the Guarantors that it has done so on an invoice, statement or other written communication. If the Customer continues to deal with and place orders for the supply of Buildings with the Supplier after any such variation of the Hire Agreement, the Customer is taken to have agreed to those terms as varied and to have taken the supply of Buildings on those varied terms.