Terms and Conditions of Hire

1. Application of Hire Terms

These Hire Terms govern our hire of Equipment to you, the Customer.
If you wish to negotiate these Hire Terms with us then you should respond to this document, marking up these Hire Terms and drawing those changes to our attention and obtain our agreement in writing.
It is not our practice to otherwise review terms and conditions on documents that you issue to us.
Unless we otherwise agree in writing, we do not accept, and will not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.

2. Quotations

Each quotation that we issue:
1. is an estimate only;
2. is not an offer or obligation to hire any Equipment to you;
3. may include deposit terms;
4. does not include cantilever scaffolds in the price;
5. is based on our standard labour rates for work performed during our normal working day being Monday to Friday and between the hours of 7:00am to 5:00pm;
6. is based on the Equipment being erected prior to installation of formwork, and false work on all lifts with a maximum distance of 225mm from the edge of the building or 600mm from the edge of the building if installing 2-board hop up brackets;
7. does not allow for hoardings, protective gantry, warning lights, waterproofing, roof protection, or any painting of the scaffold as required by the Division of Workplace Health and Safety;
8. doe not allow for wire meshing or shade clothe, or any other materials or labour;
9. is exclusive of GST;
10. does not include the costs of delivering the Equipment or Equipment maintenance; and
11. remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn by us before a hire contract is formed,
  unless the quotation states otherwise.
Quotations provided orally are subject to written confirmation.
Maintenance of the Equipment is not included in the quotation and is chargeable at an hourly rate.

3. Formation of a hire contract

If you request to hire Equipment from us (whether or not we have issued you a quotation), we may issue you a quotation. The quotation contains details of the hire and may include additional terms and conditions which will supplement these Hire Terms.
We are not obliged to hire any Equipment to you until after a hire contract is formed.
A hire contract is formed, and you have accepted these Hire Terms, when:
1. you sign the quotation and return it to us; or alternatively
2. direct us to mobilise or otherwise deliver the Equipment.
If you revoke an Order:
1. prior to the formation of a hire contract then:
2. we will refund you any deposit you have paid in respect of that Order; an
3. you will not be required to pay any fee for the cancellation of the Order; or alternatively
4. after the formation of a hire contract then unless we are in breach of the hire contract:
5. you must pay all our reasonable costs associated with fulfilment of your Order; and
6. we may apply any deposit you have paid towards those costs.

4. Price

The Supplier reserves the right to change the Hire Rate:
1. if a variation to the Equipment which is to be supplied is requested; or
2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
3. where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, any subsidence of ground conditions, availability of machinery, protruding or dismantled formwork, repositioning or adjusting the Equipment, additional site visits required, safety considerations, prerequisite work by any third party not being completed etc.) which are only discovered on commencement of the Services.
We may vary our price or rates by notice to you if you request:
1. different Equipment or Services to be supplied to the contract for supply;
2. that we delay the hire of Equipment or performance of the Services for sixty (60) days or more.
We may vary our price or rates by notice to you if additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, any subsidence of ground conditions, availability of machinery, protruding or dismantled formwork, repositioning or adjusting the Equipment, additional site visits required, safety considerations, prerequisite work by any third party not being completed) which are discovered following commencement of the Services.
Where we vary the price or rates payable for the Equipment or Services pursuant to clause 4 and/or clause 4.3, we will notify you of the new price/rates. Thereafter you may reject the new price/rates within seven (7) days and terminate the contract for supply without any cost or penalty to you, otherwise you agree that the price/rates will apply to the contract.
Variations to the to the contract requested by the Customer that are subject to labour charges, shall be at the Supplier’s current hourly rate and any applicable site allowances, unless otherwise stated at the time of the variation request.

5. Hire Period

Hire charges shall commence from the time the handover certificate is first issued and/or from when the scaffold has started to be used legally and shall continue until the return of the Equipment thereto, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
The minimum terms of hire will be based on the final quotation, and then weekly charges thereafter will apply, after the minimum hire period has past.
Where partial return of the Equipment occurs, the Price may be amended at the Supplier’s sole discretion depending on the type and/or quantities of the Equipment returned.
No allowance whatever can be made for time during which the Equipment is not in use for any reason, unless the Supplier confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Customer notifies the Supplier immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.
Hire rebates will not be given for Equipment dismantled prior to the period stated on the agreement.

6. Authorised representatives

Unless otherwise limited as per clause (2), the Customer agrees that should the Customer introduce any third party to the Supplier as the Customer’s duly authorised representative, that once introduced that person shall have the full authority of the Customer to order any Equipment, and/or to request any variation thereto, on the Customer’s behalf (such authority to continue until all requested Equipment has been returned to the Supplier, or the Customer otherwise notifies the Supplier in writing that said person is no longer the Customer’s duly authorised representative).
In the event that the Customer’s duly authorised representative as per clause (1) is to have only limited authority to act on the Customer’s behalf, then the Customer must specifically and clearly advise the Supplier in writing of the parameters of the limited authority granted to their representative.
The Customer specifically acknowledges and accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Equipment, or variation/s thereto, requested by the Customer’s duly authorised representative (subject always to the limitations imposed under clause (2) (if any)).

7. Delivery and risk

Delivery of the Equipment (“Delivery”) is taken to occur at the time that:
1. the Customer or the Customer’s nominated carrier takes possession of the Equipment at the Supplier’s address; or
2. the Supplier ( or the Supplier’s nominated carrier) delivers and/or installs the Equipment to the Customer’s nominated address, even if the Customer is not present at the address.
At the Supplier’s sole discretion, the cost of Delivery is included in the Price within the metropolitan area and may exclude the use of unloading and/or lifting equipment.
The Customer must take Delivery by receipt or collection of the Equipment whenever it is tendered for Delivery. In the event that the Customer is unable to take Delivery as arranged then the Supplier shall be entitled to charge a reasonable fee for redelivery.
The Supplier may deliver the Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time specified by the Supplier for Delivery is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Equipment to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Equipment as agreed solely due to any action or inaction of the Customer then the Supplier shall be entitled to charge a reasonable fee for re-supplying the Equipment at a later time and date.
The Customer acknowledges and accepts that the Supplier may delay erection of the Equipment where the site is not suitably prepared and cleared of building materials.
The Supplier retains property in the Equipment nonetheless; all risk for the Equipment passes to the Customer on delivery.
The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies the Supplier for all loss theft or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer.
The Customer will insure, or self-insure, the Supplier’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will affect adequate Public Liability Insurance for an amount of not less than five million dollars ($5m) covering any loss, damage or injury to property arising out of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
Any advice, recommendation, information, assistance or service provided by the Supplier in relation to Equipment supplied is given in good faith, is based on the Supplier’s own knowledge and experience and shall be accepted without liability on the part of the Supplier and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Equipment.
The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer for the purposes of estimating quantities and type of Equipment required. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, the Supplier accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
In the event of damage to a building as a result of any action by the Supplier’s employees or contractors, the Supplier must be informed in order that the Supplier may inspect such damage before any agreement to rectification costs can be accepted.

8. Access and Installation

The Customer shall ensure that the Supplier has clear and free access to the nominated delivery address and as near as practicable to the work area to enable the Supplier to install and/or dismantle the Equipment, and the Supplier agrees at the time of completion thereof to carry out in a reasonable way the clean-up of the site where scaffolding was installed. Any additional time associated with carrying the Equipment an unreasonable distance as a result of restricted access or obstructions will be charged as an extra. Furthermore, it is acknowledged that it is unreasonable to expect the clean-up to restore the property to its pre-existing condition, especially in the event where existing grass has died off due to the covering of base blocks to establish foundation support for the Equipment, such damage will remain the Customer’s responsibility.
It shall be the Customer’s responsibility to ensure that where Equipment is installed on concreted areas, patios, driveways, timber decks, lower-level roof areas or other structures that suitable coverings are put in place to help prevent any marking/staining of the finished product. The Supplier shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways, lower-level roofs, and concreted or paved or grassed areas) unless due to the negligence of the Supplier.
The Customer shall ensure that the nominated delivery address is cleared and ready for installation of the Equipment prior to delivery of the Equipment, and that the foundations upon which the Supplier is to install the Equipment is sufficiently firm and otherwise suitable to safely carry the structure and the load to be put on it without subsidence. The Customer will be liable to the Supplier for any loss, costs or damages which the Supplier may suffer or incur by reason of the Customer’s failure to carry out its obligations hereunder if the Supplier is unable or unwilling to install the Equipment due to the site not being cleared and ready as a foresaid. Nevertheless, the Customer shall be liable to pay the costs on the hire of the Equipment on the terms stated herein.
Where the Equipment is not installed or modified by the Supplier, the Customer shall ensure that Equipment is erected, modified and dismantled by qualified persons. A suitable qualified person shall be the holder of any certificate of competency or license that may be required by any legislation or local regulatory authority for the purpose of the erection or the dismantling of the Equipment. The Supplier shall not accept any responsibility for any erection, modification or dismantling performed by anyone other than a scaffolder authorised by the Supplier unless prior arrangements have been with the Supplier.
If during the course of the Customer’s work, the scaffold is modified or removed to the extent the scaffold is no longer compliant with the applicable legislative requirements, and rectification work performed by the Supplier will be at the Customer’s expense.
The Customer acknowledges and agrees that in the event the Supplier require access, in order to erect, alter or dismantle the Equipment, to an adjoining or adjacent property or land to the nominated work site, that is not owned by the Customer, then it is the Customer’s responsibility to gain permission from the landowner to use the above mentioned property throughout the erection, alteration or dismantling of the Equipment. In the event the landowner denies access or use of the land or property, the Customer shall be liable for all costs incurred by the Supplier in gaining permission to access and/or use the property through any legal process that may be deemed necessary.

9. End of Hire Period

Unless the quotation provides, we are to collect the Equipment, you must return the Equipment during Business Hours to the point of hire or to such other location advised by us (acting reasonably):
1. on the Off-Hire Date (or such other date as agreed between the parties); or otherwise
2. as soon as possible if the hire contract is terminated.
Subject to clauses (3) and (4), you may terminate a hire contract early by:
1. returning the Equipment to us at the point of hire (during Business Hours); or
2. notifying us the Equipment is ready for collection.
Where you notify us the Equipment is ready for collection pursuant to clause (2)(b), you must do so prior to 10:00am on the day the Equipment is to be off-hired, failing which we may charge you the applicable Hire Rate for that day.
You must return the Equipment to us in the same state of cleanliness and in substantially similar condition that the Equipment was in when you took possession of it (Fair Wear and Tear excepted).
if:
1. the hire contract expires or is terminated; and
2. you fail to comply with clause (1), then you:
3. permit us to enter upon any premises you occupy (or any premises any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy of yours occupies) as your invitee to repossess the Equipment; and
4. authorise us to disconnect, dismantle, and remove the Equipment (whether or not it is affixed to the Site).
Where the Equipment is not returned to the original point of hire by the Off-Hire Date, we are entitled to charge you, and you agree to pay to us additional hire charges at our then applicable daily rate for each day until the Equipment is back in our custody and possession.

10. Hire Rate and other charges

In consideration of us hiring the Equipment to you, you agree to pay us:
1. the Hire Rate;
2. mobilisation and demobilisation costs;
3. cleanings costs (if the Equipment is returned to us in an unclean state);
4. decontamination costs (if the Equipment is contaminated with any hazardous substance, such as asbestos);
5. charges at our then prevailing rates where you require induction or training in relation to the operation of the Equipment; and
6. any levies, fines, or penalties we incur arising out of or in connection with your use or operation of the Equipment, unless the quotation states otherwise (or where no quotation has been issued, unless otherwise agreed).
The minimum terms of hire will be based on the final quotation. Weekly charges will then apply after the minimum hire period has passed, calculated pro rata by day, and will be charged weekly in advance.
Any excess usage of the Equipment will be calculated and charged on a pro-rated basis of the Hire Rate.
If we incur any cost on your behalf or associated with your failure to perform your obligations under the hire contract such as where:
1. you fail to return the Equipment and we collect the Equipment;
2. you return the equipment in an unclean state; or
3. we incur demurrage costs associated with the delivery or collection of the Equipment, then you agree to pay us those costs plus an uplift of 10% as a management and administration charge.

11. Payment terms

Unless you have a Credit Facility with us which is not in default:
1. deposits we have requested must be paid before we hire any Equipment to you; and
2. you must pay us the Hire Rate, together with any other amounts, fees, and charges, on or before the On-Hire Date.
Payment may be made by cash, cheque, electronic funds transfer, Visa, or Mastercard credit cards. We reserve the right to change the payment methods that we accept at any time.
We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.
You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.
You agree to pay sums due to us free of any set off or counterclaim and without deduction or withholding.

12. Hirer’s obligations

The Customer warrants that any structures to which the Equipment is to be erected on is able to withstand all imposed loadings If for any reason that the Supplier, or employees of the Supplier, reasonably form the opinion that the Customer’s premises is not safe for the erection of the Equipment to proceed then the Supplier shall be entitled to delay erection of the Equipment until the Supplier is satisfied that it is safe for the erection to proceed.
Scaffold decks are to be cleared of all building materials and rubbish before planks are moved or dismantling can commence.
The Customer must:
1. maintain the Equipment as is required by the Supplier
2. ensure scaffolding ties fixed by the Supplier are not removed or tampered with as the safety and stability of the scaffold depends on these ties;
3. cover overhead power lines as may be required by the Office of the Technical Regulator and the Electricity General Regulations 2012;
4. notify the Supplier immediately by telephone of the full circumstances of any mechanical breakdown or accident in connection with the Equipment. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification.
5. satisfy itself prior to taking delivery of the Equipment that the Equipment is suitable for its purposes;
6. use the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction, whether supplied by the Supplier or posted on the Equipment;
7. ensure that all persons erecting or using the Equipment are suitably instructed in its safe and proper use, and where necessary, hold a current certificate of competency and/or are fully licensed;
8. comply with all work health and safety laws relating to the Equipment and its use;
9. keep the Equipment in their own possession and control and shall not assign the benefit of the hire contract nor be entitled to take a lien, or grant any encumbrance over the Equipment;
10. not alter or make any additions to the Equipment including but without limitation defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
11. employ the Equipment solely in its own work and not permit the Equipment of any part thereof to be used by any other party for any other work;
12. ensure all overhead power likely to cause a hazard or adversely affect the installation of Equipment is turned off prior to the installation of the equipment
13. ensure that no digging or excavation work is performed near or under the Equipment during the installation or once the Equipment is installed
14. not exceed the recommended or legal load and capacity limits of the Equipment;
15. not use or carry any illegal, prohibited or dangerous substance on the Equipment;
16. not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
17. on termination of the hire, deliver up the Equipment complete with all parts and accessories clean and in good order as delivered, fair wear and tear accepted, to the Supplier.
Immediately on request by the Supplier the Customer will pay:
1. the new list price of any Equipment, accessories or consumables that are for whatever reason destroyed, written off or not returned to the Supplier;
2. all costs incurred in cleaning the Equipment;
3. all costs of repairing any damage caused by:
  1. the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
  2. wilful or negligent actions of the Customer or the Customer’s employees;
  3. vandalism, or (in the Supplier’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer;
4. the cost of fuels and consumables provided by the Supplier and used by the Customer;
5. any costs incurred by the Supplier in dismantling the Equipment and returning it to the Supplier’s premises if the Customer does not return the Equipment to the Suppliers premises or any pre-agreed pickup location when it was originally agreed that the Customer would do so;
6. any lost hire fees the Supplier would have otherwise been entitled to for the Equipment, under this, or any other hire agreement;
7. any insurance excess payable in relation to a claim made by either the Customer or the Supplier in relation to any damage caused by, or to, the hire Equipment whilst the same is hired by the Customer and irrespective of whether charged by the Customer’s insurers or the Supplier’s.

13. Change of control

The Customer shall give the Supplier 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, contact phone or fax number/s, or business practice).

14. Servicing, maintenance, and repairs

For the purposes of this clause 14 and the quotation:
1. Minor Repair means a repair to the Equipment of the kind described in the quotation as a minor repair; and
2. Major Repair means a repair to the Equipment of the kind described in the quotation as a major repair.
During the Hire Period we will carry out, at our own expense:
1. any repair which is necessary to rectify any damage to, or malfunction of, the Equipment to the extent that such damage or malfunction was caused by any act or omission of ours or that of our Personnel;
2. any Major Repair which is necessary to rectify any damage to, or malfunction of, the Equipment caused by Fair Wear and Tear where the damage or malfunction renders the Equipment unsafe or unsuitable for normal use or operation; and
3. any service, maintenance, or repair items described in the quotation which are noted to be our responsibility.
Where we are responsible for carrying out any repairs to the Equipment:
1. we will do so as soon as possible after being notified by you of the damage or malfunction, and if it is necessary for the Equipment to be returned to our premises for repairs, then we will collect the Equipment from you and will re-deliver the repaired Equipment or a suitable replacement as soon as reasonably practicable; and
2. you must not carry out any repairs on our behalf without our prior written and fully informed consent. If you carry out repairs without first obtaining our consent, we will not be liable for the cost of those repairs.
You acknowledge that we may carry out pre-arranged repairs or servicing during Business Hours.
Notwithstanding clause 14.2 and clause 14.3, you are otherwise responsible for maintaining, servicing, and repairing the Equipment at your own expense and must perform such work in accordance with:
1. the maintenance schedule provided by us; and
2. the servicing and maintenance manuals and/or guidelines provided by the manufacturer of the Equipment; or alternatively
3. customer service documentation pre-approved by us.
To the extent that you are responsible for maintaining and servicing the Equipment, you are also solely responsible for the cost of any replacement parts and consumables that would ordinarily be installed in the Equipment as part of its regular maintenance or servicing.
You acknowledge and agree that all replacements, modifications, alterations, additions, and improvements which you make to the Equipment and which cannot be removed from the Equipment without detriment to it will become our property and the title to those things will vest in us on their incorporation.
In the case of any approved replacements, modifications, alterations, additions, and improvements which you make to the Equipment and which cannot be removed from the Equipment without detriment to it will become our property and the title to those replacements, modifications, alterations, additions, or improvements vest in us on their incorporation.

15. Damage, loss, and theft

You are strictly liable for any damage, loss, or theft to the Equipment that occurs during the Hire Period.
If the Equipment breaks down, is damaged, or otherwise becomes inoperable (for whatever reason, including due to it being deemed unsafe to operate), you must promptly:
1. notify us by telephone and in writing; and
2. take all reasonable steps to secure and safeguard the Equipment from any potential damage or injury to any person or property (including further damage to the Equipment); and
3. not attempt to make any repairs to the Equipment.
Upon receipt of your notice under clause 15.2(a):
1. the Hire Rate will be suspended until such time as the Equipment is repaired or we have provided you with a suitable replacement (unless you or your Personnel have caused the damage); and
2. we will take all reasonable steps to repair the Equipment or provide you with a suitable replacement as soon as reasonably practicable.
If the Equipment breaks down, is damaged, needs to be recovered (due to it being bogged or stuck), or otherwise becomes inoperable due to any act or omission of yours, your Personnel, or any third party, you agree to:
1. pay us any costs we incur to repair or recover the Equipment (as the case may be); and
2. continue to pay us the Hire Rate during the period in which we are recovering or repairing the Equipment or procuring a suitable replacement.
If the Equipment is unable to be returned to us (for example, if it is lost, stolen, damaged beyond economic repair, or if title to the Equipment is lost) then you must pay us the aggregate of the following:
1. all money past due but not yet paid under the hire contract;
2. any salvage costs we incur in salvaging the Equipment; and
3. the replacement cost of the Equipment (calculated in accordance with then prevailing market value of the Equipment).
If the Equipment is stolen during the Hire Period, you must promptly (and in any event within forty-eight (48) hours of the date the Equipment was stolen) provide us with a copy of a police report explaining the circumstances of the theft.

16. Stand downs

Subject to clause 15.3, you acknowledge and agree you are not entitled to any discount or rebate for any period in which the Equipment:
1. is not in use by you; or
2. is stood down by you.
We may (but are not obliged to) grant you a discount or rebate in circumstances where you cannot operate the Equipment (for example, due to adverse weather conditions).

17. Property and title in the Equipment

The Equipment is and will at all time remain the absolute property of the Supplier.
If the Customer fails to return the Equipment to the Supplier then the Supplier or the Supplier’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
The Customer is not authorised to pledge the Supplier’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.

18. Security interest

Unless you have obtained our prior written and fully informed consent, you undertake not to:
1. register a financing change statement in respect of a security interest in our favour; or
2. create, or purport to create, any security interest in the Equipment, nor register, nor permit to be registered, a financing statement or financing change statement in relation to the Equipment in favour of any third party.
You:
1. waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act; and
2. agree that, to the extent permitted by the PPS Act:
  1. sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are hereby contracted out of; and
  2. you waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.
3. We need not disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.
4. Where we have rights in addition to those under Part 4 of the PPS Act, those rights continue to apply.

19. Affixation of Equipment to Land or Buildings

If the Equipment or any part thereof is affixed to any land or buildings pursuant to this agreement, and the land or buildings are or become the subject of a mortgage or charge whether under the PPSA or otherwise at law, then the Customer shall, without first receiving any request from the Supplier, obtain the written acknowledge of the mortgagee, administrator or liquidator (as the case may be) that:
1. the Equipment or any part thereof is not a fixture for the purposes of the mortgage or charge;
2. that the mortgagee, administrator or liquidator will not make any claim in relation to the Equipment or any part therefore; and
3. that the mortgagee, administrator or liquidator will permit the Supplier (whether or not there has been any default under the mortgage or charge) to enter upon the land or buildings and to remove the Equipment or part thereof.

20. Default

Clauses 20(2) to 20(3) apply if you fail to pay sums to us when they fall due.
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
We shall be entitled to suspend or cease the supply of any Equipment to you, cancel all or any part of any orders of which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable if:
1. any money payable to us becomes overdue, or in our reasonable opinion you will be unable to make a payment when it falls due;
2. you have exceeded any applicable credit limit provided by us;
3. you become insolvent or bankrupt, convene a meeting with your creditors or propose or enters into an arrangement with creditors, or you make an assignment for the benefit of creditors; or
4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.

21. Indemnity

If you default in the performance or observance of your obligations under any hire contract of which these Hire Terms form part, then:
1. we will take steps to mitigate our loss and act reasonably in relation to any default by you; and
2. we will give you notice requesting payment for loss and damage occasioned in respect of those events and requesting that you remedy any breach within a reasonable time; and
3. if that demand is not met then you indemnify us in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered arising therefrom.
Your liability to indemnify us will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by us or a breach of our obligations under contract has contributed to the Claim, loss, damage, or cost which is the subject of the indemnity.
Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the termination or performance of any hire contract of which these Hire Terms form part.

22. Limitation of liability

No party is liable to the other party for any Consequential Loss, including under clause 21, however caused arising out of or in connection with any hire contract of which these Hire Terms form part.
While we will take reasonable endeavours to meet any estimated delivery date for Equipment, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.
If the hire contract is not a Consumer Contract or a Small Business Contract then, to the extent permitted by law, our liability is limited to:
1. (in the case of the hire of Equipment):
  1. us repairing the Equipment or providing a suitable replacement; or
  2. us paying you the cost of having the Equipment repaired or procuring a suitable replacement.
2. (in the case of a supply of services):
  1. us supplying the services again; or
  2. us paying you the cost of having equivalent services supplied.

23. Termination

A party may, with immediate effect, terminate any hire contract of which these Hire Terms form part by notice in writing, if the other party:
1. commits a material or persistent breach of these Hire Terms and does not remedy that breach (if capable of remedy) within seven (7) days of the receipt of a notice (or such longer time as specified in the notice) identifying the breach and requiring its remedy; or
2. has failed to pay sums due to the party within seven (7) days; or
3. has indicated that it is, or may become, insolvent; or
4. ceases to carry on business; or
5. comprises an entity which is the subject of the appointment of receivers or managers; or
6. comprises a natural person who:
7. has committed an act of bankruptcy; or
8. has been made bankrupt;
  1. comprises a corporation which:
  2. enters into voluntary administration;
  3. is subject to a deed of company arrangement; or
  4. is subject to the appointment of liquidators or provisional liquidators.

24. Building and Construction Industry Security of Payments Act 2009

At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Equipment hire and/or services then the provisions of the Building and Construction Industry Security of Payments Act 2009 (SA) may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2009 (SA), except to the extent permitted by the Act where applicable.

25. Variation

We may amend these Hire Terms in the future by notifying you in writing. The amended Hire Terms will thereafter apply to each Order you place unless you earlier give us written notice in advance of placing a further Order.

26. Assignment

A party may only assign its rights under the hire contract with the written consent of the other party.

27. Conflicts and Inconsistencies

If there is any conflict or inconsistency between any of the documents which together govern the relationship between the parties, it is agreed the order of precedence will be (highest to lowest):

the quotation (if any);
any terms governing your Credit Facility; and
these Hire Terms.

28. Severance

If any part or term of our agreement with you (including any Credit Facility) is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.

29. Governing law and jurisdiction

Our relationship is governed by and must be construed according to the law applying in the State of South Australia.
The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of South Australia with respect to any proceedings that may be brought at any time relating to our relationship.

30. Definitions

In these Hire Terms, unless the context otherwise requires, the following apply.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.
Business Hours means between 09:00am to 5:00pm on a day that is not a Saturday, Sunday, or gazetted public holiday in the place where the Equipment is to be hired.
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute or otherwise and whether involving a third party or a party to a hire contract.
Customer Change in Control means any change to a party’s business or trading name, majority composition of directors or shareholders, or structure, or changes requiring registration of a new or varied ABN.
Consequential Loss includes any:
1. consequential loss;
2. loss of anticipated or actual profits or revenue;
3. loss of production or use;
4. financial or holding costs;
5. loss or failure to realise any anticipated savings;
6. loss or denial of business or commercial opportunity;
7. loss of or damage to goodwill, business reputation, future reputation, or publicity;
8. loss or corruption of data;
9. downtime costs or wasted overheads; or
10. special, punitive, or exemplary damages.
Consumer Contract has the meaning given to this term in section 23(3) of the Australian Consumer Law.
Credit Facility means an account we have opened for you on which we may, from time to time, extend you with additional time to pay for the hire of Equipment and associated charges.
Customer means you and where the context permits, includes anyone acting on your behalf.
Equipment means all Equipment (including any accessories) supplied on hire by the Supplier to the Customer or any person acting on behalf of and with the authority of the Customer.
Fair Wear and Tear means wear and tear which would be normal for similar Equipment operated under normal operating conditions (and within its design parameters and recommended procedures), but expressly excludes:
1. wear of, or damage to, Wear Items;
2. dents or other impact damage;
3. damage to glass or instrumentation; and
4. panel or structural damage from collision or abuse and damage to the drive system.
GETs means any wear part or tool of the Equipment that engages the ground or comes into contact with specific material and includes all cutting edges, bucket teeth, hardwire, bucket ends, ripper teeth, blade faces, blade push arms, blade mould boards, and roller feet.
Hire Period means the period the Equipment is to be hired by you, as stated in the quotation (or where no quotation has been issued, the period we have agreed to hire the Equipment to you).
Hire Rate means the rate payable by you to hire the Equipment, calculated in accordance with rates stated in the quotation (or where no quotation has been issued, the rate payable by you to hire the Equipment as advised by us).
Hirer, you means the person or other entity hiring Equipment from us.
Insured Value means the value of the Equipment stated in the quotation or otherwise advised by us (or where no quotation has been issued, the value of the Equipment as advised by us).
Minimum Hire Period means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by the Supplier to the Customer.
On-Hire Date means the date stated in the quotation as the on-hire date (or where no quotation has been issued, the on-hire date advised by us).
On-Hire Report means an on-hire inspection report prepared by us.
Order means a written or oral order from you requesting to hire Equipment from us.
Personnel means officers, employees, and agents engaged by each party (but does not include the other party) and, in the case of the Supplier includes its subcontractors (and any employee of those subcontractors).
PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.
Services means all services performed by us (and where the context so permits includes any supply or installation of Equipment but excluding formwork), as described on our quotation, invoice, or any other form issued by us.
Site means the land (including any structure or other facility on the land) upon, over, below, or through where the Equipment will be used, as stated in the quotation (or where no quotation has been issued, the land (including any structure or other facility on the land) upon, over, below, or through where the Equipment will be used advised by you and agreed by us).
Small Business Contract has the meaning given to this term in section 23(4) of the Australian Consumer Law.
Supplier, we, us means Commercial & General Hire Pty Ltd ACN 105 814 408 ATF the Mazomenos Family Trust (trading as ‘CGH Scaffold’) ABN 50 932 480 274.

31. Interpretation

In these Hire Terms, unless the context otherwise requires:

A time is a reference to the time zone of Adelaide, Australia unless otherwise specified.
$, dollar, or AUD is a reference to the lawful currency of Australia.
A party includes a reference to that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and in the case of a trustee, includes any substituted or additional trustee.
A right includes a benefit, remedy, authority, discretion, or power.
The singular includes the plural and vice versa, and a gender includes other genders.
“In writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.