Surf City Cranes Pty Ltd General Terms and Conditions of Hire

1. Definitions

“Breakdown” means a failure of the Equipment which prevents the Equipment from being used.

“Commencement Date” means the date that this Hire Agreement is executed by each of the Supplier and the Hirer/the Equipment is delivered to the Site.

“Dry Hire” means the hire of Equipment without Supplier Personnel.

“Equipment” means the Equipment described in the Hire Agreement together with such accessories, machinery, tools and associated items, manuals, log books and vehicles as accompanies such Equipment when the Hirer takes possession of such Equipment.

“GST” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999

(Cth).

“Hire Agreement” means an agreement constituted by any document(s) evidencing the consensus of the Hirer and the Supplier for the supply of hire services by the Supplier to the Hirer.

“Hire Charges” means the fees and charges payable by the Hirer as set out in the Hire Agreement.

“Hirer” is the person, firm, company, entity or corporation identified as the Hirer in the Hire Agreement.

“Legal Requirement” means a requirement under any approval, statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, order, rule or subordinate legislation.

“OEM” means the original manufacturer of the Equipment or its representative or equivalent. “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. “PPSR” means the Personal Property Securities Register established under the PPSA.

“Remote Damage” includes loss of use, lost production, lost income or profit, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, claims made against the Hirer by others, losses or costs or expenses associated with identification, investigation, assessment, repair, replacement or servicing of Equipment, and any other economic loss or damage and any other special, indirect or consequential loss or damage, and any punitive damages.

“Services” means the hire of Equipment, with or without Supplier Personnel, by the Hirer from the Supplier, as described in the Hire Agreement.

“Site” means the location identified in the Hire Agreement as the location where the Services are to be provided.

“Supplier” is Surf City Cranes Pty Ltd or Craneshift Pty Ltd as stated in the Hire Agreement.

“Supplier Personnel” means the person or persons employed or engaged by the Supplier to drive, operate, use or transport the Equipment provided to the Hirer as specified in the Hire Agreement (if any) and may include operators, riggers, dogmen, supervisors, drivers and any such other employee or agent of the Supplier.

“Term” means the period for the term of the Services as specified in the Hire Agreement.

“Wet Hire” means the hire of Equipment combined with Supplier Personnel to operate the Equipment.

2. Interpretation

In these terms and conditions, unless the context otherwise states or requires:

  1. (a) any words importing the singular include the plural and vice versa;
  2. (b) capitalised words are defined terms and shall have their defined meaning;
  3. (c) a reference to a “party” or “parties” shall mean a party or parties to the Hire Agreement;
  4. (d) an obligation of two (2) or more parties binds them jointly and severally;
  5. (e) a reference to a person includes the legal representatives, employees, successors, and assignees of that person;
  6. (f) a reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it, consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority;
  7. (g) a reference to $ or dollars means Australian Dollars; and
  8. (h) the Hire Agreement shall constitute the entire agreement between the parties and supersedes all previous agreements, understanding, representations and negotiations.

3. Contract to Hire

  1. (a) These terms and conditions shall apply to any Hire Agreement.
  2. (b) Where a minimum period of hire is specified in the Hire Agreement, the Hirer agrees to pay for such period irrespective of utilisation of the Equipment or the Supplier Personnel.

4. Delivery and Risk

  1. (a) Risk of the Equipment remains with the Hirer until it is returned to the possession of the Supplier.
  2. (b) The Hirer must secure and protect the Equipment while the risk of the Equipment is with the Hirer, and must not part with possession, remove or allow the Equipment to be removed from the Site without the Supplier’s written approval.
  3. (c) The Hirer will allow access to the Supplier to any location the Equipment is located for the purposes of inspecting the Equipment.
  4. (d) The Hirer must return the Equipment to the Supplier at the end of the Term.
  5. (e) The Hirer shall be liable for the cost of repairing any damage suffered to the Equipment while the Equipment is at the Hirer’s risk.

5. Hire Charges

  1. (a) The Hirer will pay the Supplier for the Services in accordance with the Hire Charges.
  2. (b) Unless otherwise stated in the Hire Agreement, if the Term includes weekends or public holidays, the Hire Charges shall apply to those days regardless of whether the Equipment is used on those days.
  3. (c) If a supply under the Hire Agreement is subject to GST, the Hirer must pay to the Supplier at the same time and in the same manner as the Hire Charges are payable, an amount equal to the total amount of the Hire Charges payable multiplied by the applicable GST rate, subject to the supply of a valid tax invoice by the Supplier.
  4. (d) The Supplier may invoice the Hirer at the completion of the Term or at the end of each calendar week, at its discretion. The Supplier reserves the right to not enter into any recipient created tax invoice arrangements with the Hirer.
  5. (e) The Hirer must pay each tax invoice in full within 7 days of the tax invoice date unless otherwise agreed by the Supplier.
  6. (f) The Hirer may not set-off any amounts due under the tax invoice in respect of a request for credit or other disputed amount.
  7. (g) Indemnify or reimburse a part of a cost, expense or liability (“Expense“) incurred by the other, then the Expense shall be reduced by the credit or refund of GST to which the party which first incurred the Expense is entitled to claim in respect of the Expense.
  8. (h) The Supplier may charge interest to the Hirer on amounts which remain unpaid after the due date for payment. Interest will be calculated at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly.
  9. (i) The Hirer must indemnify the Supplier for all costs and expenses (including commissions payable to commercial or mercantile agents and legal costs on a full indemnity basis) incurred by the Supplier in recovering amounts which remain unpaid after the due date.

6. Safety and Operation

6.1 General

  1. (a) The Hirer must ensure that all relevant Legal Requirements and safety standards relating to the safe use and handling of the Equipment are complied with during the Term and that the Equipment during the Term does not place the public, the community or the environment at risk of injury, illness or damage.
  2. (b) The Hirer ensure its employees, the Supplier Personnel and other persons working on or around the Equipment shall: (i) take active steps, including review of operating manuals, to ensure they are familiar with the safe operation and operating parameters of the Equipment;
  3. (ii) be fit for duty and not under the influence of drugs or alcohol;
  4. (iii) be appropriately briefed by the Hirer as to the site, safe work systems, restricted zones and any applicable lift plans or studies; and
  5. (iv) wear suitable protective and high visibility clothing.
  6. (c) The Hirer must obtain and furnish any necessary permits, consents, approvals or notices required for the use or transport of the Equipment during the Term and comply with any relevant Legal Requirements and industry standards or protocols whilst in possession of the Equipment.
  7. (d) The Hirer shall pay all fines and penalties incurred while the Equipment is in the possession of the Hirer or while the risk of the Equipment is with the Hirer.
  8. (e) The Hirer will consult and cooperate with the Supplier in respect of matters relating to the safe use and handling of the Equipment.
  9. (f) The Hirer must immediately notify the Supplier of any incident, near miss, safety breach, fine, penalty or investigation by a regulator during the Term which involves the Supplier Personnel or the Equipment.

6.2 Dry Hire

If the Hire Agreement is for a Dry Hire, the Hirer warrants as follows:

  1. (a) The Equipment will only be used for a proper purpose and for which it has been designed, manufactured and supplied.
    1. (b) Prior to each use of the Equipment, the Hirer will: (i) fully inspect the Equipment and the Site,
    2. (ii) complete pre-start checks required by the Supplier or the OEM;
    3. (iii) review OEM operating manuals, safety alerts and inspection reports and take such other steps required to determine the suitability of the Equipment to undertake the proposed task;
    4. (iv) identify any foreseeable hazards or risks of harm in respect of the planned use of the Equipment and implement appropriate controls to minimise or where possible, to eliminate the risks in accordance with all relevant Legal Requirements.

(v) Hirer will pay prior to start of dry hire agreement an amount of 4 x weekly hire in order to secure the crane and remain 2 weeks in advance before leaving the depot.

  1. (c) The Equipment will only be operated by qualified and trained personnel who possess current licenses to operate the Equipment. The Hirer will provide evidence of such qualifications and licenses to the Supplier on request.
  2. (d) The Equipment will be operated to a standard of skill, knowledge and competence of an experienced and professional operator of the Equipment in compliance with all relevant Legal Requirements.
  3. (e) The Hirer will ensure that all safety information supplied with the Equipment is conveyed to the operator of the Equipment and that any safety related signs, banners, flags or warnings supplied by the Supplier in relation to the Equipment are prominently displayed.
  4. (f) The Hirer will maintain, service, clean, lubricate and fuel the Equipment in accordance with the OEM maintenance manual or as otherwise specified by the Supplier, and record such action in the log book provided.
  5. (g) The Equipment will be returned to the Supplier in the same condition (fair wear and tear excepted) as it was provided by the Supplier at the start of the Term and with a full tank of fuel.
  6. (h) The Hirer shall pay the cost of replacing damaged tyres and rims and any cleaning or painting which the Supplier reasonably requires to return Equipment to pre-hire condition, fair wear and tear excepted.
  7. (i) If the Hirer returns the Equipment in an unclean condition, the Hirer shall be liable to the Supplier for the Supplier’s cost of cleaning the Equipment at a rate of $85+GST per hour.

6.3 Wet Hire

If the Hire Agreement is for a Wet Hire, the Hirer warrants as follows:

  1. (a) The Supplier Personnel shall work under the direction of the Hirer who must consult with and fully brief the Supplier Personnel on the proposed task, the Site, site conditions, matters affecting the health and safety of the personnel in respect of the task to be performed and other relevant matters including information requested by the Supplier Personnel.
  2. (b) The Supplier Personnel may refuse to operate the Equipment if they believe any directions or control requested by the Hirer may affect the safety of people, property or the Equipment.
  3. (c) The Hirer will not allow any person other than the Supplier Personnel to operate the Equipment without the prior written consent of the Supplier.
  4. (d) The Supplier shall not be liable for any claims, costs, damages, losses or expenses arising from any act or omission of the Supplier Personnel.

7. Breakdown of Equipment

  1. (a) In the event of a Breakdown of the Equipment, the Hirer must: (i) immediately notify the Supplier;
  2. (ii) cease using the Equipment;
  3. (iii) secure and safeguard the Equipment;
  4. (iv) take all reasonable steps to prevent injury to any persons or damage to any property as a result of the condition of the Equipment.
  5. (b) The Hirer must bear the cost of complying with clause 7(a).
  6. (c) From the date on which Hirer gives the notice of a Breakdown to the Supplier, and subject to clause 7(d), the Hire Charges shall be suspended in full until the Equipment is replaced or returned (at the Supplier’s election) to operating condition.
  7. (d) If the Hirer, its employees, agents, contractors subcontractors contributed to or caused the Breakdown (including by directions given to the Supplier Personnel) through the misuse of the Equipment, accident, negligence, fraud, misconduct, breach of the Hire Agreement, failure to comply with any Legal Requirement, failure to observe warning signs or directions, or failure to observe safety systems or OEM operational procedures, then the Hirer will continue to pay the Hire Charges until the Equipment is fit for return to service and in addition shall pay the reasonable costs of repair incurred by the Supplier.
  1. (e) The Hirer must not commence any works to repair the Equipment without the written consent of the Supplier.
  2. (f) The Supplier is under no obligation to replace or repair any Equipment which is the subject of a Breakdown, and the Supplier shall not be liable for any Remote Damage suffered by the Hirer or third parties in relation to a Breakdown.

8. Liability and Indemnity

  1. (a) The Supplier is not a common carrier and is not responsible for any loss or damage to the Hirer’s property or goods in transit. Responsibility and risk for insurance of goods in transit rests with the Hirer.
  2. (b) The Hirer assumes liability for and indemnifies and holds harmless the Supplier, its agents and employees from and against all claims, costs, damages, losses or expenses of any kind howsoever arising under tort (including but not limited to negligence), contract, strict liability, statute or otherwise in relation to the use of the Equipment under the Hire Agreement including (without limitation) in relation to the death of or injury to any person, and loss, damage or destruction of any property (including the Equipment and goods in transit), and any claims, costs, damages, losses or expenses arising from the operation of the Equipment by Supplier Personnel.
  3. (c) To the full extent permitted by law, the Supplier makes no express warranty or condition and excludes all implied warranties and conditions of any type to the fullest extent permitted by law, including as to the fitness of the Equipment for any use to which it is employed by the Hirer.
  4. (d) Equipment is provided by description. The Hirer decides what purpose to use the Equipment for and the Hirer alone is responsible for determining the Hirer’s technical requirements.
  5. (e) Any Equipment specifications or performance figures provided by the Supplier are approximations and only for general guidance. The Hirer does not rely on any representation made or implied by the Supplier or arising out of or implied by the Supplier’s conduct, nor upon any description, illustration or specification contained in any document produced by the Supplier.
  6. (f) To the extent permitted by law, the Supplier’s liability under the Hire Agreement is limited to (at its option) resupplying the Equipment or payment of the cost of resupplying the Equipment, and under no circumstances shall the Supplier be liable for Remote Damage.
  7. (g) The liabilities, indemnities, insurances and limitations of liability rights and obligations contained in this clause 8 remain in full force and effect notwithstanding termination of the Hire Agreement.

9. Termination

  1. (a) The Supplier may terminate the Hire Agreement without reason or for its convenience upon 24 hours advance notice to the Hirer.
  2. (b) The Supplier may terminate the Hire Agreement without notice if: (i) the Hirer breaches the Hire Agreement;
  3. (ii) the Hirer permits any act or thing to be done which may prejudice, diminish or alienate the Supplier’s rights to or in the Equipment; or
  4. (iii) the Supplier reasonably believes the Hirer is or may become insolvent.
  5. (c) On termination of the Hire Agreement, the Supplier is entitled to immediate possession of the Equipment and where such possession is not obtained, the Hirer irrevocably appoints the Supplier as its agent and authorised attorney to enter upon any land or premises on behalf of the Hirer to recover the Equipment and agrees to indemnify the Supplier in respect of any claims, damages or expenses arising out of any action taken under this condition.

10. Right to Assignment and to Subcontract

  1. (a) The Supplier may assign or subcontract the performance of all or any of the Supplier’s rights and obligations under the Hire Agreement with any other person or company and such person or company and its servants and agents shall be the beneficiary of the Hire Agreement to the same extent as the Supplier.
  1. (b) The Hirer shall not assign, subcontract, sub-lease or sub-hire the performance of all or any of the Hirer’s rights and obligations under the Hire Agreement unless it has obtained the prior written consent of the Supplier to do so.

11. Title to Equipment

  1. (a) The rights of the Hirer to use and take possession of the Equipment are as bailee only.
  2. (b) If the Hirer returns the Equipment with any additional, new or replacement part, the Hirer warrants that absolute unencumbered ownership of the part passes to the Supplier at that point.
  3. (c) The Hirer shall not offer, sell, assign, sub-let, pledge, mortgage or otherwise deal with or part with possession of the Equipment in any way which is inconsistent with the rights of the Supplier in relation to the Equipment, whether or not the Supplier is owner, lessee, hirer or otherwise of the Equipment. The Hirer shall not deface or cover any name or registration plate on the Equipment.
  4. (d) Where the Supplier has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply.

12. Security Agreement

  1. (a) This Hire Agreement constitutes a Security Agreement. By this Hire Agreement and as security for the performance of its obligations under this Hire Agreement, including payment of all amounts payable hereunder, the Hirer:
  1. i. Grants to the Supplier a security interest in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA);
  1. ii. Charges all of its rights, property and undertaking of whatever kind and wherever situated, whether present or future, including without limitation its capital and any interest in real property (both legal and beneficial), in freehold and leasehold land (other than any personal property to which the PPSA applies). The Hirer acknowledges that the Supplier, by virtue of this Hire Agreement, has a caveatable interest in any real property of the Hirer which is or becomes subject to this charge and/or mortgage and may lodge a caveat over such property;
  1. iii. Agrees to mortgage all of its present and future interests in any real property to the Supplier. (a) The Hirer must not:
  1. i. create any Security Interest over the Equipment;
  1. ii. lease, hire, bail or give possession of the Equipment to another person;
  1. iii. permit the Equipment to become an accession to or commingled with any other asset of the Hirer or any other person; or
  1. iv. change its name without first giving the Supplier 14 days’ notice of the new name or relocate its principal place of business outside Australia or change its place of registration or incorporation.
  2. (b) The Hirer must do anything (such as obtaining consents and signing documents) which the Supplier requires for the purposes of:
  1. i. ensuring that the Supplier’s Security Interest in the Equipment is enforceable, perfected and otherwise effective under the PPSA;
  1. ii. enabling the Supplier to gain first priority (or any other priority agreed to by the Supplier in writing) for its Security Interest in the Equipment, including a PMSI; and,
  1. iii. enabling the Supplier to exercise rights in connection with the Security Interest over the Equipment. (c) The Hirer hereby gives the Supplier an irrevocable power of attorney to do anything the Supplier considers the Hirer should do under this clause 12.
  2. (d) Neither the Supplier nor the Hirer will disclose information of the kind mentioned in section 275(1) of the PPSA and the Hirer will not authorise, and will ensure that no other party authorises, the disclosure of such information. This clause does not prevent disclosure where such disclosure is required under section 275 of the PPSA because of the operation of section 275(7) of the PPSA.
  3. (e) To the extent that Chapter 4 of PPSA applies to any Security Interest under this Agreement, the following provisions of the PPSA do not apply and, for the purposes of section 115 of the PPSA are “contracted out” of under this Hire Agreement:
  1. i. section 95 (notice of removal of accession to the extent it requires the Supplier to give a notice to the Hirer);
  1. ii. section 96 (retention of accession);
  1. iii. section 121(4) (notice to grantor);
  1. iv. section 125 (obligation to dispose of or retain collateral);
  1. v. section 129(2) (notice of disposal by purchase);
  1. vi. section 130 (notice of disposal to the extent it requires the Supplier to give a notice to the Hirer);
  1. vii. section 132(3)(d) (contents of statement of account after disposal);
  1. viii. section 132(4) (statement of account if no disposal);
  1. ix. section 135 (notice of retention);
  1. x. section 142 (redemption of collateral); and
  1. xi. section 143 (re-instatement of security agreement). (f) The Hirer waives its right to receive a verification statement under section 157 of the PPSA.
  2. (g) The Hirer agrees to pay all expenses including (including legal expenses on an indemnity basis) arising from the collection of overdue monies or registration, maintenance, enforcement or discharge of the Supplier’s Security Interest in the Equipment. Such costs and legal expenses may be recovered as a liquidated debt due and owing to the Suppliers.

13. Miscellaneous

  1. (a) The person signing the Hire Agreement for and on behalf of the Hirer hereby covenants with the Supplier that such person has the authority of the Hirer to enter the Hire Agreement.
  2. (b) The parties to the Hire Agreement are independent contractors and nothing shall imply that
  3. they are in partnership, agency or legal representatives of the other except where expressly stated to the contrary.
  4. (c) The Hire Agreement is governed and construed by the laws of the State of Queensland, Australia. All disputes shall be subject to the non-exclusive jurisdiction of the courts of the State of Queensland.

14. Waiver and Severability

  1. (a) If the Supplier fails to or delays in exercising any right, power or remedy which it is entitled to under the Hire Agreement, such failure does not amount to a waiver of that right, power or remedy nor does it preclude any further exercise of such rights, powers or remedies as may be provided under the Hire Agreement.
  2. (b) Any waiver by the Supplier must be in writing signed by the Supplier and is only effective in relation to the particular obligation or breach in which it is given.
  3. (c) If any provision of the Hire Agreement is invalid or unenforceable in accordance with its terms in any jurisdiction, it is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without effecting the remaining provisions of the Hire Agreement or effecting the validity or enforceability of that provision in any other jurisdiction.
  4. (d) All indemnities given under the Hire Contract shall survive the termination of the Hire Contract.