COASTAL TOOL HIRE
ABN: 22 646 005 218
TERMS OF HIRE – TOOL EQUIPMENT
- HIRE AGREEMENT BETWEEN YOU AND US
These Terms of Hire, together with:
- each Hire Schedule provided to You by Us, whether signed or not; and
- any Special Conditions specific to the type of Equipment You have hired,
set out the terms of the hire agreement (the “Hire Agreement”) between You and Us. The provision or acceptance of a Hire Schedule shall not form a separate agreement between You and Us but shall constitute part of this Hire Agreement. Any terms contained in any document supplied by You, including any terms in Your purchase order, will not form part of the Hire Agreement.
When We refer to the following terms in this document:
2.1. In these Conditions:
- a) “Commencement Date” means the date and time when the Hirer takes possession of the Tool Equipment.
- b) “Equipment”means any equipment provided by Us to You under the Hire Agreement, including any associated or attached accessories, Safety Equipment, tools, and parts available for hire.
- c) “Hire Charge” or “Hire Charges” means the rates and charges payable by You for the hire of the Tool Equipment.
- d) “Hire Period” means the period between the Commencement Date and the Expected Off Hire Date.
- e) “Hire Schedule” means a document which CTH may require the Hirer to sign (or accept in a way CTH requires) including particulars of Hirer, Tool Equipment and Hire Period and such other information as CTH may decide to require.
- f) “Expected Off Hire Date”means the date that You expect the Hire Period to end. This date is set out in the Hire Schedule.
- g) Any terms defined in the Credit Application, Cash Identification or the Hire Schedule shall have the same meaning in this Master Hire Agreement.
- h) “New Replacement Cost”means the cost to replace the Equipment with a new item of the same equipment, or if the same equipment is not available, then the cost to replace the Equipment with a new item of equipment of the same quality, function and capacity.
- I) “We/Us/Our” means (CTH) Coastal Tool Hire (ABN 22 646 005 218) any business names relating to Coastal Tool Hire and related entities.
- j) “You/Your”refers to the person, Pty/Ltd, firm, organisation, partnership, corporation, trust or other entity hiring Equipment from Us. The reference to “You/Your” includes any of your employees, agents and contractors.
- k) “Insolvency Event” means bankruptcy and insolvency, administration, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution and assignment for or compromise with creditors, not paying any debt as and when it falls due, and ‘Insolvent’ will be construed accordingly.
- AGREEMENT TO HIRE
3.1. If the Hirer wishes to hire Tool Equipment the Hirer must compete and sign (or otherwise accept in the manner required by CTH) a Hire Schedule and such other documents as CTH may require.
3.2. CTH agrees to rent, and the Hirer agrees to take the Tool Equipment on hire for the Hire Period in accordance with the terms of this document and the Hire Schedule. Any alterations to the Hire Period must be approved by CTH in writing prior to the Termination Date.
3.3. Unless otherwise agreed by CTH, the minimum Hire Charge shall be for a period of 1 X day (8 hours).
3.4. The Hirer acknowledges that CTH has rights to the Tool Equipment and title of the Tool Equipment will remain with CTH. In no circumstances will the Tool Equipment be deemed to be a fixture.
3.5. Each Hire Schedule is not a separate contract but forms a part of this agreement, together with any other contractual documents. CTH may in its absolute discretion decline to hire equipment to the Hirer at any time.
3.6 The Hirer warrants that the information provided in the Schedule is accurate, correct and complete and is supplied for the purposes of CTH hiring the Tool Equipment to the Hirer.
3.7 These Terms shall be deemed to have commenced on the Commencement Date and shall continue until the Off Hire Date or these Terms are terminated in accordance with clause 14.
- HIRE CHARGES
4.1. The Hirer shall make payment of the hire of the Tool Equipment in accordance with the rates specified in the Hire Schedule. CTH in its sole discretion may charge on a daily rate, weekly rate, (or any other basis).
4.2. Additional rental charges will apply if equipment usage exceeds 8 hours per day/ 40 hours in any 1 week.
- a) For any reasonable costs incurred by CTH to remedy the breach of the Hirer’s obligations including but not limited to cleaning and repairing of the Tool Equipment upon return,
- b) Any applicable levies, taxes (i.e. GST), fines penalties and any other government charges arising out of the Hirer’s use of the Tool Equipment during the Hire Period, and
4.3. CTH may amend the Hire Charge or any related charges payable under a particular Hire Schedule by giving the Hirer at least seven (7) days’ notice in writing before the change occurs. In the event, notice is given advising that the Hire Charge will be increased, the Hirer may, at its cost, return the Tool Equipment to CTH, or request that it be collected by CTH, before the increase in the Hire Charge commences.
- HIRE OF EQUIPMENT
5.1 The hire of the Tool Equipment will commence from the Commencement Date and continue for the Hire Period, until the Off Hire date as agreed by both parties.
5.2 The Hirer is entitled to use the Tool Equipment for the Hire Period subject to these Terms. Any extension of the Hire Period must be expressly agreed to by CTH before the expiration of the Hire Period.
5.3 The Hirer agrees to safety store the Tool Equipment:
- At the address identified by the Hirer for the duration of the Hire Period as outlined in the Schedule.
- As noted in the Schedule for Delivery and Drop Off, CTH will arrange to pick-up the Tool Equipment from the Job Site at the noted times in the Schedule and agrees to maintain the responsibility for the Tool Equipment until the Tool Equipment has been picked-up by CTH.
5.4 The Hirer acknowledges that failure to release the Tool Equipment and accessories by the Completion Date may be considered as stolen and can be criminal theft and may be immediately reported to the police.
5.5 The Tool Equipment must be returned to CTH in the same condition as when it was hired, except for fair wear and tear.
- PAYMENT OF THE HIRE CHARGES
6.1 The Hirer agrees to pay the owner the Hire Fee specified in the Schedule for the use of the Tool Equipment for the Hire Period including any applicable GST, stamp duties, fuel, tolls, fines, penalties, levies or freight, cleaning and other charges relevant to this agreement and the hire (“Total Fees”).
The Total Fees must be paid to CTH:
- prior to or on the Commencement Date of the Hire Period.
- when otherwise due and payable periodically under the Schedule.
- as agreed with CTH, or
- within a reasonable time after the Hire Period when such fees and charges are known by CTH.
6.2 The Hirer will be in default where the Hirer does not pay on any terms agreed with the Hirer and recorded in writing. Tool Equipment not released and returned on time and in accordance with these Terms will be subject to a continuance of the agreed Hire Fee in accordance with the Rates Schedule and other charges until returned or picked-up (if agreed) is complete, but this will not constitute an extension of the Hire Period.
6.3 Except where CTH dispenses with this requirement a deposit and/or bond as specified in the Hire Schedule shall be paid by the Hirer to CTH by the Commencement Date.
6.4 “30 day account” Customers must make payment of the invoice issued by CTH within 30 days of the date of the invoice. Invoices will be issued on a monthly basis.
6.5 Hirers that are not “30 day account” Customers (Credit Card account customers) must make payment of the invoice issued by CTH prior to the Commencement Date.
6.6 In the event of default by the Hirer in the payment of any amount due, the Hirer shall be liable to pay interest on the gross amount outstanding at the rate of 20.00% per month calculated daily from the date on which payment was due until the date on which payment is received in full.
6.7 Any contract agreed to with the customer is considered to be a contract in accordance with the Building and Construction Industry Payment Act 2004 (or any subsequent enactment).
6.8 As noted in the Schedule, CTH may agree to deliver the Tool Equipment to the Job Site noted in the Schedule for the fee noted in the Schedule. CTH will use its best endeavours to deliver the Tool Equipment at the requested time but will not be liable to the Hirer for a late delivery, non-delivery or any associated loss or damage due to a late or non-delivery.
- OTHER CHARGES
In addition to the Hire Charges, You agree to pay:
7.1 If You require Us to deliver, collect or install the Equipment, the cost of delivery, collection or installation, as detailed in the Hire Schedule. Such charge may include a waiting fee (charged at cost) in addition to the delivery and collection fee if the nominated time for delivery or collection of the Equipment is delayed by You.
7.2 If You do not return the Equipment in clean and good working condition, charges for the cleaning and repair of the Equipment.
7.3 Any stamp duty or GST arising out of this Hire Agreement, and any other applicable levies, fines, penalties and any other government charges arising out of Your use of the Equipment.
7.5 Charges for payment made by credit card, and any charges in connection with the administration of Your Credit Account, as detailed in the Hire Schedule, which may include printing and postage costs.
7.6 Any reasonable charges incurred by Us if we are unable to inspect or carry out maintenance on the Equipment during normal working hours.
- RESPONSIBILITIES OF THE HIRER
8.1. Risk in the Tool Hire Equipment passes to the Hirer on delivery of the Tool Hire Equipment and remains with the Hirer until the equipment is collected by CTH. Subject to clause 12 below, the Hirer is liable to CTH for any and all loss or damage to, or caused by, the Tool Equipment or its operation and all costs incurred in respect of the Tool Equipment including the cost of repairing or replacing the Tool Equipment at the full new replacement cost, salvage costs and rental charges incurred while the equipment is repaired or replaced.
8.2. The Hirer must:
- a) Prior to entering into this agreement determine, using the Hirer’s sole judgment, the condition, suitability, and fitness of the Tool Equipment for the purpose for which the Hirer requires for the job.
- b) Use the Tool Equipment in a skillful and proper manner and only for the purpose and within the capacity for which it was designed,
- c) Not undertake any repair, servicing, alteration, modification or tampering with the Tool Equipment without the prior written consent of CTH.
- d) Store the Tool Equipment safely and securely and protected from theft, damage, seizure or loss.
- e) In the event that any repair or servicing appears necessary to the Tool Equipment the Hirer shall:
(i) Immediately cease using the Tool Equipment.
(ii) Take all steps necessary to prevent injury occurring to any persons or property as well as to the Tool Equipment.
(iii) Advise CTH immediately, initially by telephone and forthwith thereafter in writing (by facsimile transmission or by email), and
(iv) Not repair or attempt to repair the Tool Equipment.
- f) Accept full responsibility for, and indemnify CTH against all claims in respect of death or injury to persons, and/or loss or damage to property, arising out of the delivery, use, servicing, storage or possession of the Tool Equipment during the Hire Period however arising, whether from negligence of the Hirer or any other person.
- g) Retain possession of the Tool Equipment at all times and shall not, without CTH’s prior written consent, part with the possession of the Tool Equipment or in any way assign the benefits of this agreement or the use of the Tool Equipment to any third party; Tool Equipment must not be removed from original location, as on the Hire Schedule.
- h) On termination of this agreement, ensure that the Tool Equipment is in the same clean condition and good working condition as at Commencement Date.
- I) Pay to CTH all or any costs and expenses incurred enforcing CTH’s rights and the Hirer’s obligations hereunder including, but not limited to, any cheque fees, any legal fees and disbursements incurred by CTH for any court proceedings taken against the Hirer by CTH.
- OWNERSHIP OF TOOL EQUIPMENT
8.1 You acknowledge that We own the Equipment and in all circumstances, We retain title to the Tool Equipment. Your rights to use the Tool Equipment are as a bailee only.
9.2 You are not entitled to offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Equipment in any way.
9.3 In no circumstances will the Equipment be deemed to be a fixture.
9.4 You acknowledge that We may hire or lease Equipment from a third party if we cannot provide the Equipment to You (“Third Party Owner”), and if this occurs, title in the Equipment remains with the Third Party Owner.
- RETURN OF EQUIPMENT
10.1 You must return the Equipment to Us in the same clean condition and good working order it was in when You received it, ordinary fair wear and tear excluded. If You do not properly clean the Equipment or in Our view (acting reasonably) the Equipment is not decontaminated, We will charge You a cleaning cost in accordance with clause 5.1 and You will be liable to continue to pay the Hire Charges for that portion of the Hire Period during which the Equipment is being cleaned by Us.
10.2 When we have agreed to collect the Equipment from You, You must ensure it is kept safe and secure until the time of collection.
- LOSS OF OR DAMAGE TO TOOL EQUIPMENT
11.1. In the event that the Tool Equipment becomes unsafe to use during the Hire Period, the Hirer must immediately notify CTH (including the relevant police report), cease using the Tool Equipment and shall not repair or attempt to repair the Tool Equipment. The Hirer must also ensure that the Tool Equipment will not suffer further damage and that no person or property will be injured as a result of the damage to the Tool Equipment.
11.2. In the event that the Tool Equipment is lost, damaged or stolen, the hirer must immediately notify and provide full details to CTH.
11.3 If the Hirer is required to pay an Excess Amount in accordance with these Terms, the Hirer authorises CTH to debit the payment method of the Hirer with the Excess Amount at the time of loss of, or damage to, the Tool Equipment.
11.4 The Hirer accepts full responsibility for any loss or damage occurring to the Tool Equipment (other than damage arising because of a negligent act or omission by CTH) for the Hire Period. The cost of any replacement or repairs resulting from loss or damage will be payable by the Hirer including the hire incurred while Tool Equipment is repaired to a hireable state. The Hirer shall notify CTH immediately if the Tool Equipment is lost or damaged and shall forthwith follow any reasonable request by CTH relating to CTH’s inquiries into the loss and/or damage to the Tool Equipment.
11.5 Without limiting the generality of clause 8, the Hirer will be liable for the full cost of repairs to or the replacement of the Tool Equipment where the loss or damage has been caused by:
- a) Misuse abuse, or overloading including any other part of the Tool Equipment.
- b) The Equipment not stored in a safe place.
- c) Contravention of the conditions of this contract.
- d) Violation of any law or regulation.
- e) Locating, using, loading, unloading transporting the Tool Equipment on or over water, wharves, bridges, or vessels of any kind.
- f) Damage caused by exposure to any corrosive substance, saltwater, toxic materials, or unsafe electrical currents.
- g) Negligence of the Hirer where the Hirer has failed by intent or lack of due care to take all responsible precautions to protect the Equipment from loss or damage.
- h) Consumption of alcohol and/or drugs.
- I) Circumstances where a claim has been made by or against a third party.
- DAMAGE WAIVER
12.1 Damage Waiver is not insurance but is an agreement by CTH that the Customer’s liability for damage to the Equipment can be limited in some circumstances only, to an amount called the Damage Waiver Excess.
12.2 Damage Waiver applies to all hires, subject to the conditions below, for no additional fee. The Damage Waiver Excess is the actual recovery and repair cost of the Equipment, $1,500 or 20% of the current replacement cost of the Equipment as reasonably determined by CTH using suppliers list prices, whichever is the lesser amount.
12.3 The Damage Waiver, subject to the clause the Hirer’s liability for the loss or damage to Tool Equipment caused by fire, storm, earthquake, collision, accident or theft is limited to $1,500 or 20% of the full new replacement as reasonably determined by CTH using suppliers list prices, cost of the Tool Equipment whichever is the greater. This applies per single incident.
12.4 Loss or damage to the Equipment during Loading/Unloading and during transport is not covered by the damage waiver.
12.5 The Damage Waiver does not apply to loss or damage if in the reasonable opinion of CTH, the loss or damage to the Tool Equipment has arisen from anything referred to in clause 11.
- INDEMNITY AND LIABILITY
13.1 To the full extent permitted by law the Hirer releases, discharges and indemnifies CTH from all claims and demands on CTH arising out of the use or misuse of the Tool Equipment under hire except to the extent arising from the negligence or wilful default of CTH.
13.2 In respect of the hire of Tool Equipment:
- the Hirer will assume to the exclusion of CTH all risks and liabilities for, and in respect of, the Equipment and for all injuries to or deaths of persons and any damage to property howsoever arising from the Hirer’s possession, use, maintenance, repair, storage or transportation of the Tool Equipment, and
- the Hirer is liable for damage to third party property which is caused or contributed to by the Hirer in the operation of the Equipment.
- TERMINATION OF HIRE
14.1 Either party may terminate this Hire Agreement and any Hire Period immediately by giving notice in writing (including by email) to the other party, if:
14.1 That other party breaches any term of the Hire Agreement (including for breach of payment terms pursuant to clause 6.1) and fails to remedy the breach within 7 days of written notification of the breach, or
14.2 That other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business, subject to any rights You may have under the Corporations Act 2001.
14.3 We may terminate the Hire Agreement and any Hire Period for any other reason on 24 hours’ notice.
14.4 We may terminate the Hire Agreement immediately if You or any third party has made a false statement in or breached any provision of the Relevant Documents.
14.5 These rights of termination are in addition to any other rights either party has under the Hire Agreement and does not exclude any right or remedy under law or equity.
- RECOVERY OF EQUIPMENT
15.1 If You are in breach of the Hire Agreement or if the Hire Agreement or a Hire Period has been terminated under clause 14, We may, at Your cost, take all steps necessary (including legal action) to recover the Equipment, including entering Your premises to do so and You expressly consent to Us entering Your premises for the purposes of recovering Our Equipment.
- ACCESS AND INSPECTION
16.1 CTH and its representatives have the right to enter the location at any time upon giving prior reasonable notice to the Hirer to inspect, maintain, repair and/or repossess the Tool Equipment.
- PPS LAW
17.1 This clause applies to the extent that this Contract provides for a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPS Law”). References to PPS Law in this agreement include references to amended, replacement and successor provisions or legislation.
17.2 Coastal Tool Hire may register its security interest. The Customer must do anything (such as obtaining consents and signing documents) which Coastal Tool Hire requires for the purposes of:
- ensuring that Coastal Tool Hire security interest is enforceable, perfected and otherwise effective under the PPS Law,
- enabling Coastal Tool Hire to gain first priority (or any other priority agreed to by Coastal Tool Hire in writing) for its security interest; and
- enabling Coastal Tool Hire to exercise rights in connection with the security interest.
17.3 The rights of Coastal Tool Hire under this document are in addition to and not in substitution for Coastal Tool Hire’s rights under other law (including the PPS Law) and Coastal Tool Hire may choose whether to exercise rights under this document, and/or under such other law, as it sees fit. To avoid any doubt about it Coastal Tool Hire security interest will attach to proceeds.
17.4 To the extent that Chapter 4 of PPSA applies to any security interest under this agreement, the following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are “contracted out” of this agreement in respect of all goods to which that section can be applied: section 95 (notice of removal of accession to the extent it requires Coastal Tool Hire to give a notice to the Customer); section 96 (retention of accession); section121(4) (notice to grantor); section125 (obligations to dispose of or retain collateral); section 130 (notice of disposal to the extent it requires Coastal Tool Hire to give a notice to the Customer); section 129(2) and 129(3); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).
17.5 The following provisions of the PPS Law: section 123 (seizing collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by purchase); and section 134(1) (retention of collateral) confer rights on Coastal Tool Hire. Customer agrees that in addition to those rights, Coastal Tool Hire shall, if there is default by Customer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document and the Customer agrees that Coastal Tool Hire may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
17.6 The Customer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
17.7 Coastal Tool Hire and the Customer agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. The Customer must do everything necessary on its part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this sub-clause is made solely for the purpose of allowing to Coastal Tool Hire the benefit of section 275 (6)(a) and Coastal Tool Hire shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this sub-clause.
17.8 Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any ‘security interest’ (as defined in PPS Law) in the Equipment other than with the express written consent of Coastal Tool Hire.
17.9 Customer must not lease, hire, bail or give possession (‘sub-hire’) of the Equipment to anyone else unless Coastal Tool Hire (in its absolute discretion) first consents in writing. Any such sub-hire must be in writing in a form acceptable to Coastal Tool Hire and must be expressed to be subject to the rights of Coastal Tool Hire under this agreement. Customer may not vary a sub-hire without the prior written consent of Coastal Tool Hire (which may be withheld in its absolute discretion).
17.10 Customer must ensure that Coastal Tool Hire is provided at all times with up-to-date information about the sub-hire including the identity of the sub-hirer, the terms of and state of accounts and payment under the sub-hire and the location and condition of the Equipment.
17.11 Customer must take all steps including registration under PPS Law as may be required to:
- ensure that any security interest arising under or in respect of the sub-hire is enforce-able, perfected and otherwise effective under the PPS Law,
- enabling the Customer to gain (subject always to the rights of Coastal Tool Hire) first priority (or any other priority agreed to by Coastal Tool Hire in writing) for the security interest; and
- enabling Coastal Tool Hire and the Customer to exercise their respective rights in connection with the security interest.
- PRIVACY ACT
18.1 CTH may collect personal information about a Hirer and CTH will treat this information in accordance with the Australian Privacy Principles. The information may be used and disclosed to third parties to provide services to the Hirer, to fulfill administrative functions associated with these services (e.g. Assessment of credit worthiness), to enter into Contracts with the Hirer or third parties and for marketing and client relationship purposes. CTH may disclose the Hirer’s information to CTH’ service providers and contractors from time to time to help provide and market CTH’ services to the Hirer. The Hirer consents to and authorizes CTH to use and disclose the Hirer’s personal information to third parties including any credit provider or credit reporting agency and to CTH’ service providers and contractors and affiliated companies from time to time, for the purposes outlined herein.
- DISPUTE RESOLUTION
19.1 Both CTH and the Hirer agree that any disputes arising from the hire and use of the Tool Equipment (except in regard to payment of fees or charges) shall be negotiated with a view to settlement with the assistance of the Hire and Rental Industry Association before litigation is commenced.
19.2 Governing Law will be the law of Queensland.
20.1 If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 These Terms and any Schedule to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
20.3 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the owner by the hirer.
20.4 CTH may license or sub-contract all or any part of its rights and obligations without the Hirer’s consent.
20.5 The failure by CTH to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect CTH’s right to subsequently enforce that provision.
20.6 The Hirer warrants that it has the power to enter into the Schedule and these Terms and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that the Schedule and these Terms creates binding and valid legal obligations on it.
20.7 The Hirer acknowledges and agrees in the event of the Hirer being a trust:
- that all assets of the trust and the trustee(s) of the trust shall be held personally liable for any sum due to CTH including costs, fees, and interest pursuant to this agreement; and
- that the trustee(s) have a right to be fully indemnified for their obligations under these Terms out of the property the trustee(s) hold on trust,
- that CTH’s rights under these Terms have priority over the interest of the beneficiaries of the trust,
- that the trustee(s) of the trust of the Hirer will exercise or hold for CTH, the trustee(s) right of indemnity from the trust fund and the beneficiaries when CTH asks the trustee(s) to do so, so the Hirer can pay CTH any monies owned under these Terms.
20.8 CTH may at any time assign its rights under these Terms without the consent of the Hirer.
20.9 The Hirer must not assign its rights or obligations under these Terms without the prior written consent of CTH, such consent may be approved or refused with or without reasons in the discretion of CTH.
20.10 The covenants, agreements and obligations contained in this agreement will not merge or terminate upon the termination of this agreement and to the extent that they have not been fulfilled or satisfied or are continuing obligations they will remain in force and effect.