ENERGY RENTALS PTY LTD
In these conditions of Hire:
a) “Amendment Demand” has the same meaning as in the PPSA.
b) “Equipment”, unless a contrary intention appears, includes all goods, articles, air conditioning and equipment, supplied by the Owner to the Hirer pursuant to this contract;
c) “ Financial Institution” means a bank or other third party with whom the Owner has entered into an agreement that relates directly or indirectly to the Equipment;
d) “Government Action” means any new cost or charge or any increase to any existing cost of charge payable to or at the direction of any Government, Council, legislative body or other authority.
e) The “Hirer” is the person or company identified on the front hereof;
f) “Interface Issue” means any issue that arises as a result of any plumbers, electricians or tradespeople, engaged or to be engaged by the Hirer delaying in ensuring that the premises in which the Equipment is to be installed is ready for such installation. It also includes any delay caused or contributed to by the Hirer or any servant, agent or employee of the Hirer.
g) “Offhire Number” is the number given to the Hirer when the Hirer notifies the Owner in writing or by phone that the equipment is available for return and the location at which it shall be available;
h) The “Owner” is Energy Rentals Pty Ltd;
i) The “Period of Hire” shall:–
i) subject to (ii) commence
A) at the commencement date and time shown overleaf or as otherwise specified by the Owner; or
B) at the time the Equipment is delivered to the Hirer whichever is the later; and
ii) A) commencement of the “Period of Hire” shall, notwithstanding 1(f)(i) hereof, commence on the date referred to in clause 1(f)(i) A if the delivery or installation of the Equipment is delayed, and such delay is caused or contributed to by any Interface Issue.
iii) the “Period of Hire” shall cease on the first to occur of;
A) when the Owner repossesses the Equipment pursuant to Condition 7 of these Conditions or a Financial Institution repossesses the Equipment.;
B) (i) if the Owner has agreed that the Period of Hire shall be “daily”, the day the Equipment is returned to the Owner; or
(ii) if the Owner has agreed that the Period of Hire shall be “weekly”, the first day of the week after the Equipment is returned to the Owner that corresponds with the day of the week on which the Period of Hire commenced; or
(iii) if the Owner has agreed that the Period of Hire shall be “monthly”, the first day after the Equipment is returned to the Owner that corresponds with the day of the month on which the Period of Hire commenced.
j) “PPSA” means the Personal Properties Security Act 2009, the Personal Properties Regulations 2010, as amended or replaced from time to time.
k) “Security Interest” has the meaning given to it in the PPSA.
l) “Transaction Document” means these terms and conditions, any other agreement between the Owner and the Hirer and any documentation associated with or related to any transaction between the Owner and the Hirer.
2. Use of Equipment
a) i) The Hirer shall at all times use the Equipment in a skilful and proper manner and shall at his own expense service and clean the Equipment and maintain the Equipment in good and substantial repair and condition, reasonable wear and tear excepted;
ii) The whole of the cost incurred by the Owner arising out of any failure by the Hirer to properly clean the Equipment will be added to the invoice total.
b) Before using the Equipment the Hirer shall examine the Equipment and satisfy himself as to the quality and
fitness for the purpose of the Equipment. If in any way the Equipment is defective or unsuitable for the purpose of the Hirer:-
i) it shall be returned immediately to the Owner with the written notice of the defect or unsuitability; or
ii) the Hirer shall notify the Owner who shall exchange the Equipment.
c) The Hirer acknowledges that he is not relying upon any representations made by or on behalf of the Owner in respect of the Equipment, or its performance, fitness for any purpose or quality.
The Hirer shall be responsible for freight and other charges whether incurred by the Owner or the Hirer in respect of the delivery and return of the Equipment PROVIDED THAT the Owner shall be responsible for freight and other charges in respect of the Equipment where it is returned due to a breakdown or failure and not by the Hirer’s negligence or misuse.
4. Damage to Equipment and Loss of Equipment
a) During the Period of Hire the Hirer shall be responsible for any loss or damage to the Equipment whether such loss is caused by the negligence of the Hirer or any person under his control or for any other reason whatsoever except that caused by reasonable wear and tear, PROVIDED THAT where an Offhire Number has been given the Hirer’s responsibility shall continue until the Equipment is picked up by the Owner or for 72 hours from the receipt of the Offhire Number, whichever is the earlier. Notwithstanding any other provision herein, such responsibility shall remain with the Hirer during any period after the Hirer has issued an Offhire Number if the Equipment is not available for collection at the location specified by the Hirer.
b) Where the Hirer is responsible for the damage to or loss of the Equipment the whole the cost of replacement or repair to the Equipment will be added to the invoice total.
c) Where Equipment is not returned to the Owner by the Hirer, within 2 days of the expiration for the Period of Hire the Owner shall be at liberty to immediately notify the police of the circumstances and at the cost and expense of the Hirer recover possession of the Equipment (to which recovery the provisions of clause 7 (b) & (c) shall apply) and may take any civil or criminal action as it deems necessary for the recovery of possession of the Equipment or the current list price of the Equipment at the commencement of the Period of Hire. The Owner shall not be responsible to the Hirer for any loss or damage, injury, fines or costs incurred or sustained by the Hirer in respect of any costs, losses or damages arising from such actions.
d) The Hirer indemnifies the Owner in respect of all actions, claims, suits, demands or expenses arising out of or in connection with the use of the Equipment by the Hirer or any person under his control during the Period of Hire.
5. Hiring Charges
Hiring charges at the rate specified overleaf or otherwise advised by the Owner to the Hirer prior to the commencement of the Period of Hire shall commence from the commencement of Period of Hire and shall continue until the Period of Hire ceases. If there is a rate of payment specified a quotation or document entitled “standard charter of charges” supplied to the Hirer then those rates and charges shall be deemed to constitute the hiring charge for the purpose of this agreement.
6. Breakdown and Damage to Property of and Injury to Third Parties
a) i) In the event of a breakdown or failure of Equipment or defect in the Equipment becoming apparent during the Period of Hire, the Hirer shall return it immediately or notify the Owner.
ii) The Hirer shall not repair or attempt to repair or cause any repair to be made to the Equipment without the prior consent of the Owner.
iii) If the breakdown or failure is caused by reasonable wear and tear or a defect in the Equipment at the commencement of Hire, and was not caused or contributed to by misuse or negligence of the Hirer or any person under his control, the Period of Hire shall cease on return or notification to the Owner.
b) In no event shall the Owner be responsible for any expenditure, damage, sum for delay inconvenience or loss incurred by the Hirer (and including no liability for any consequential losses) arising out of any breakdown or failure or any defect in the Equipment whether caused by fair wear and tear, lack of repair, negligence or any other reason whatsoever.
c) No conditions or warranties as to fitness for purpose, merchantable quality, correspondence with the description or otherwise shall be implied in these Conditions of Hire except to the extent that any condition or warranty may be included or be implied by statute and may not be excluded by agreement. Any condition or provision inconsistent with such implied condition or warranty shall be of no force and effect to the extent of that inconsistency. The liability of the Owner for a breach of a condition or warranty implied in this Agreement by the Trade Practices Act, 1974 (other than pursuant to s.69 thereof) shall be limited to the replacement of the Equipment or the supply of equivalent Equipment.
a) The Owner may notwithstanding the specified Period of Hire or any waiver of some previous default by the Hirer terminate this Agreement and repossess the Equipment:-
i) if the Hirer shall fail to pay any hiring charges within two days of the due date; or
ii) if the Hirer does or permits any act or thing to be done to the Equipment by way of which the Owner’s right in the Equipment may be prejudiced; or
iii) if the Hirer should become or is made insolvent or bankrupt or an administrator is appointed in relation to the Hirer or makes any arrangement or composition with his creditor or should any order be made or resolution passed for its winding up;
iv) if the Hirer commits any breach of these Conditions of Hire.
b) For the purposes of repossessing the Equipment the Owner may enter into or upon any premises where the Equipment may be to recover the Equipment from the Hirer, without prejudice to the rights of the Owner to recover the Equipment from the Hirer in respect of any claims, damages or expenses arising out of any action taken under this Clause.
c) The repossession of the Equipment and the determination of the Period of Hire shall be without prejudice to any claim or demand the Owner may have against the Hirer in respect of any matter or thing arising out of the hire of Equipment AND the Hirer shall pay to the Owner hiring charges at the rate appearing overleaf for the Period of Hire up to the time of repossession.
d) If, a Financial Institution has the right to repossess any of the Equipment, then:
i) If so requested by the Financial Institution or the Owner, the Hirer shall advise the Owner and the Financial Institution of the location of the Equipment;
ii) the owner shall take all steps necessary to make the Equipment available for repossession by the Financial Institution; and
iii) The Hirer shall have no right to make any claim, action, suit, or demand for any costs or expenses arising as a direct or indirect result of the operation of this clause.
The Hirer shall not sell, transfer, assign, part with possession, mortgage, charge, encumber or deal in any other way with the Equipment or any right under these Conditions of Hire without the prior written consent of the Owner.
9. Damage Waiver
a) any sum in excess of 10% of the list price of the Equipment at the commencement of the Period of Hire in respect of any Equipment.
This waiver shall not apply to damage to Equipment in the following circumstances and the Hirer shall
be responsible for and indemnify the Owner without limit against any loss or damage where:
b) in the case of all types of equipment:-
i) damage resulting from overloading, exceeding rated capacity, misuse, abuse or improper servicing of Equipment;
ii) damage caused by misappropriation or wrongful conversion by the Hirer or its employees, servants, independent contractors or agent or by any other person to whom the Equipment is entrusted by the Hirer;
iii) damage caused by the use or operation of Equipment in contravention of any of these Conditions of Hire;
iv) ation of equipment in violation of any statue (Commonwealth or State) or any regulation or by-law thereunder;
v) damage to accessories;
vi) damage to Equipment occurring for any reason whilst located, used, unloaded, transported on, over or adjoining water including, without limiting the generality hereof whilst located, used, loaded or transported over or on wharfs, bridges, barges and vessels of all kinds;
vii) the Equipment is used for a purpose for which it was not designed.
10. Payment of Charges
10.1 The Hirer shall, prior to the commencement of the Period of Hire, pay to the Owner an amount that represents one week’s Hiring Charge and the Owner’s installation and removal costs. The charges referred to in this clause should be based on the “current standard price” applicable at the commencement of the Period of Hire.
10.2 The Hirer shall pay the Owner on determination of the Hiring Period the following:-
i) in the case of all types of Equipment the Hiring charge;
ii) the amount of any loss or damage to the Equipment, subject to these Conditions of Hire;
iii) the amount of levies, charges or like amounts paid or payable by the Owner to any government body in respect of use of the Equipment;
iv) the cost of freight and other charges incurred by the Owner or the Hirer in respect of delivery or return of the Equipment; and
v) any costs incurred by the Owner in repossessing the Equipment in accordance with these Conditions of Hire.
10.3 At any time, the Owner may increase the Hiring Charge by such amount as is reasonably determined by the Owner based on any increased cost as a result of any Government Action.
11. Personal Properties Security Act
i) The terms used in this clause 11 shall have the same meaning as contained in the PPSA.
ii) If the Owner determines that a Transaction Document is or contains a Security Interest, the Hirer agrees to do anything that the Owner reasonably requires (such as obtaining consents, signing and producing documents, having documents completed and signed and supplying information) for the purposes of;
a) Ensuring that the Security Interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective.
b) Enabling the Owner to apply for any registration, or give any notification, in connection with the Security Interest to the effect that the Security Interest has the priority required by the Owner. This includes registration under the PPSA for such collateral class as the Owner shall deem appropriate. The Hirer consents to any such registration or notification and agrees not to make an Amendment Demand.
c) Enabling the Owner to exercise rights in connection with the Security Interest.
iii) The Owner shall not be liable to the Hirer for any failure by the Owner to register a financing statement or for any error or omission in the financing statement.
iv) The Hirer agrees that, despite any other provision in any Transaction Document and to the extent permitted by law, in relation to any Security Interest in the Owner’s favour;
a) The Owner need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and such other sections of the PPSA as are notified to the Hirer by the Owner and the Hirer further acknowledges that sections 142 and 143 of the PPSA are excluded.
b) Neither the Owner nor any receiver in relation to the Owner shall be required to give any notice under any provision of the PPSA.
v) The Hirer warrants to the Owner that it will not perform any act or execute any document or otherwise cause or establish any encumbrance over or in relation to the Equipment.
vi) The Hirer and the Owner agree that, notwithstanding the degree of annexation of the Equipment to any other property, the Equipment shall remain the property of the Owner, and shall not be deemed to form part of the property to which it is annexed. If, notwithstanding the foregoing, the Equipment is deemed to form part of any other property to which it is affixed or annexed, the Hirer shall not have any ownership or similar rights in relation to the Equipment, and shall permit the Owner, at the expense of the Hirer, to remove the Equipment from such property to which it is annexed or affixed.
12. Whole Contract
Any previous negotiations, understandings, written or oral representation, warranties, memorandum or commitments in relation to the Equipment are superseded by these conditions and no amendment to these Conditions shall bind the parties unless in writing and executed by or on behalf of the Owner.
13. New South Wales Law
This Agreement should be governed by and construed in accordance with the laws in force in New South Wales and the parties submit to the jurisdiction of the Courts of that State.
Effective from October 2014