It is agreed:
1. Definitions and interpretation
1.1 Definitions
Unless the context otherwise requires, the following terms shall have the meaning respectively ascribed to them.
“agreement” means these terms and conditions, including any Schedules, if any;
“Claims” means any claim, demand, action, reference to determination, arbitral or legal proceeding or suit which the parties may bring against the other;
“Consequential Loss” means indirect, economic, special, or consequential loss or damage, loss of revenue, loss of time, loss of goodwill, loss of anticipated savings, loss of opportunity, loss of business reputation or future reputation, loss of production and loss of profit;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Equipment” means all or any equipment (including, unless otherwise agreed between RSG and the Hirer, any replacement parts, components and other items used to service and maintain the equipment) which RSG hires to the Hirer in accordance with this agreement;
“Event of Default” has the meaning given to it in clause 9;
“Hirer” means the hirer identified in a Quote;
“Hire Commencement Time” means the time and date:
(a) specified in a Quote;
(b) otherwise agreed by theparties in writing; or
(c ) for a Quote that includes shipping to the Hirer paid for by the Hirer, the time RSG dispatches the Equipment from its facility.
“Hire Expiry Time” means the time and date:
(a) specified in a Quote;
(b) otherwise agreed by the parties in writing; or
(c ) for a Quote that includes shipping from the Hirer back to RSG that has been paid for by the Hirer, the time the equipment is delivered to the relevant RSG facility.
“Hire Fee” means the hire fee specified in a Quote, calculated in accordance with the relevant daily rate, multiplied by the actual number of 24-hour periods (or part thereof) the Equipment is on hire based on the Hire Commencement and Hire Expiry Date;
“Hire Period” means the period for which the Hirer hires the Equipment under this agreement commencing on the Hire Commencement Time and expiring on the Hire Expiry Time;
“MCS-rm” means the hire software solution used by RSG;
“person” includes a firm, body corporate, unincorporated association or an authority;
“PPS Act” means the Personal Property Securities Act 2009 (Cth);
“PPS Law” means the PPS Act and any regulations made from time to time under the PPS Act;
“Quote” means each quote provided by RSG to the Hirer in accordance with clause 2(a) and accepted by the Hirer in accordance with clause 2(b) of this agreement;
“Rate” means the Reserve Bank of Australia cash target rate from time to time plus a margin of 2% per annum;
“Register” has the same meaning as in the PPS Act;
“Repair or Replacement Costs” means any costs or expenses incurred by RSG to:
(a) repair any Equipment damaged during the Hire Period; or
(b) replace any Equipment lost or stolen during the Hire Period.
(c ) Shipping of equipment for assessment and repair.
“RSG” means RSG Assets Pty Ltd ABN 68 638 378 551 of Unit D/10-16 South Street, Rydalmere NSW 2116, and associated offices; and
“Security Interest” means a mortgage, charge, pledge, lien, encumbrance, security interest, title retention, preferential right, trust arrangement, contractual right of set-off, any other security agreement or arrangement in favour of any person or any “security interest” as defined in the PPS Act.
1.2 Interpretation
In this agreement:
(a) a reference to a person includes a reference to that person’s executors, administrators, successors, substitutes (including without limitation, persons taking by novation), assigns and in the case of a trustee, includes any substituted or additional trustee;
(b) references to a gender includes every gender and the singular includes the plural and vice versa;
(c ) references to statutes include any modifications, amendments or replacements of those statutes;
(d) references to schedules or clauses are references to schedules or clauses in this agreement;
(e) a reference to “$” or “dollar” is to Australian currency; and
(f) headings are inserted for convenience only and do not affect the interpretation of this agreement.
2. Commencement and application
(a) Following the Hirer’s request for RSG to hire equipment to it, RSG will deliver to the Hirer a Quote, which may include any of the following details:
(i) a description of the Equipment;
(ii) Hire Commencement Time;
(iii) Hire Period;
(iv) Hire Expiry Time;
(v) Hire Fee; and
(vi) other information as deemed necessary by RSG.
(b) A Quote is valid for 30 days from the date of the Quote. The Hirer must electronically execute a Quote on MCS-rm to accept a Quote.
(c ) RSG is not bound to hire any equipment to the Hirer, including where a Quote is accepted by the Hirer in accordance with clause 2(b) in its absolute discretion.
(d) RSG will hire the Equipment to the Hirer for the Hire Period, and the Hirer will hire the Equipment on the terms and conditions of this agreement.
(e) The obligations of the Hirer will, in respect of the Equipment that is the subject of a Quote, commence from the Hire Commencement Time.
(f) If the Hirer accepts a Quote and at any time thereafter cancels this agreement before the Hire Commencement Time, or delays the Hire Commencement Time, then the Hire Fee (minimum 1 day Hire Fee) shall apply to the Hirer, plus the recovery of the associated forward and return shipping costs, if applicable.
3. Payment and Delivery of Equipment
3.1 Payment
(a) The Hirer must pay RSG the Hire Fee in accordance with the terms and conditions of this agreement.
(b) The Hirer must pay the Hire Fee despite the occurrence of any defect in, or total or partial breakdown of, the Equipment or any damage to or loss of the Equipment.
(c ) Where the Hire Fee or other money payable by the Hirer under this agreement is not paid to RSG before its due date for payment interest will be payable on the outstanding amount. The interest will be calculated on a daily basis at the Rate until the outstanding amount is paid. Payment of which will be payable on demand.
(d) RSG may adjust the Hire Fee in respect of any Equipment at any time by providing a minimum of one month’s written notice to the Hirer.
3.2 Delivery of Equipment
On and from the Hire Commencement Time and at the Hirer’s own cost, the Hirer shall collect the Equipment from RSG, unless otherwise agreed in writing by the parties (where agreed by the parties, RSG will freight the Equipment directly to the Hirer at the Hirer’s cost).
4. Quiet possession, location, and labels
4.1 Quiet possession
The Hirer may use the Equipment for the Hire Period indicated in the relevant Quote without disturbance from RSG subject to the rights of RSG set out in this agreement.
4.2 Location & labels
The Hirer must keep the equipment in its possession, in a suitable place, located within Australia, and not part with possession of any Equipment or allow any of the Equipment to be moved outside Australia. If required by RSG, the Hirer must allow RSG to affix labels, decals, plates and/or other item(s) to the Equipment stating that the Equipment is the property of RSG and the Hirer must not remove such labels, decals, plates and/or other item(s).
5. Hirers obligations
5.1 General obligations
The Hirer must, at its own cost:
(a) keep the Equipment, and any labels, decals, plates and/or other item(s) affixed to the Equipment in good working order and condition and provide RSG with reports on the condition of the Equipment whenever reasonably requested to do so;
(b) ensure that all persons operating the Equipment are instructed in its safe and proper use, where required hold valid proof of training or are fully licenced to use the Equipment, and are not affected by drugs and/or alcohol;
(c ) when using or operating the Equipment, the Hirer must exercise such reasonable care that an experienced and prudent operator of similar equipment to the Equipment would exercise;
(d) protect the Equipment from loss or damage;
(e) promptly notify RSG of loss of, or material damage to, the Equipment;
(f) repair any damage to the Equipment in accordance with good industry practice and the operator’s user manual provided by RSG (unless otherwise directed by RSG);
(g) ensure that RSG (or, at the request of RSG, another party directed by RSG) can, and allow RSG (or another party directed by RSG) to enter at all reasonable times upon land or buildings owned or occupied by the Hirer to inspect the condition of the Equipment;
(h) use the Equipment only for its intended purpose;
(i) not alter or add to the Equipment (except for the purposes of complying with this agreement), place any identifying mark on it without the prior written consent of RSG or allow it to become an accession (as defined for the purposes of the PPSA Act) to any other property;
(j) comply on time with all its obligations in connection with the Equipment, including, without limitation, statutes and requirements and orders of government authorities;
(k) give RSG immediately any notice or order received from any government authority about the use or condition of the Equipment;
(l) not lease, sublease, licence or lend the Equipment to any other person;
(m) not assign its rights or obligations under this agreement, or purport to dispose of, or give any form of Security Interest over, the Equipment;
(n) give to RSG all information RSG, acting reasonably, requests about the Equipment;
(o) promptly notify RSG of any change of address of the Hirer; and
(p) without limiting its obligations under clause 5.1(f), the Hirer must, as a minimum standard, repair and maintain the Equipment in accordance with the maintenance manual provided by RSG or servicing and maintenance manuals provided by the manufacturer. Any and all maintenance of the Equipment must be completed to a professional standard. All replacement parts, components and other items used to service and maintain the Equipment become the property of RSG.
5.2 RSG’x entitlements
RSG may do anything which should have been done by the Hirer under this agreement (including but not limited to under this clause 5) but which RSG reasonably considers has not been done or has not been done properly. The Hirer must reimburse RSG on demand for any reasonable expense which RSG incurs in exercising these rights.
6. Insurance
The Hirer must, at its own cost:
(a) keep the Equipment insured for no less than the market value of the Equipment with reputable insurers, in the names of the Hirer and RSG for their respective rights and interests (and for the avoidance of doubt noting RSG as the owner of the Equipment, against fire, theft and damage and the other usual rights against which a prudent owner or hirer would insure and any other risks specified by RSG, acting reasonably);
(b) maintain with its insurers public risk and third-party property insurance with respect to the Equipment for no less than $20,000,000 in respect of any one occurrence or such greater amount as may be reasonably stipulated by RSG from time to time;
(c ) employers’ liability insurance, or similar insurance in accordance with and not less than any applicable statutory requirements;
(d) provide to RSG on its request a copy of all insurance policies and certificates of insurance held as required by this clause;
(e) not, without the consent of RSG insure the Equipment in the name of the Hirer alone; or vary, cancel or allow to lapse insurance in connection with the Equipment; and
(f) notify RSG immediately when an event occurs which gives rise or might give rise to a claim under a policy of insurance required by this clause.
The Hirer must not, without the consent of RSG, enforce, conduct, settle or compromise claims under any policy of insurance required by this clause in relation to the Equipment. RSG is entitled to the proceeds of each claim under any insurance policy in connection with the Equipment and may apply such proceeds in its discretion either towards replacement or reinstatement of the Equipment or towards satisfaction of the Hirer’s obligations under this agreement (including for the avoidance of doubt under clause 7).
7. Casualty occurrence
If any Equipment is damaged, lost or stolen during the Hire Period, RSG may, in its absolute discretion, direct the Hirer to:
(a) repair the Equipment such that the Equipment is in the same condition as when the Equipment was received by the Hirer and provide proof of the repair to RSG; or
(b) replace the Equipment with new equipment of the same make, model and specifications that is satisfactory to RSG; or
(c ) invoice the Hirer for the Repair or Replacement Costs of the Equipment.
8. Hirers warranties & acknowledgments
The Hirer warrants that:
(a) it has the right, power, and authority to enter into this agreement;
(b) it has the type of qualifications, credentials, licences or whatever the requirement with respect to operating or using the Equipment;
(c ) the Equipment will not be used for any illegal purpose;
(d) in taking delivery of the Equipment, the Hirer agrees that the Equipment complies with its description, is of merchantable quality and is for the Hirer’s purpose;
(e) the Equipment complies with its description in the Quote applicable to that Equipment;
(f) it has relied solely on its own skill and judgment when choosing the Equipment and in particular has not relied on the skill and judgment of RSG; and
(g) to the full extent permitted by law, has not entered into this agreement in reliance on any representation and/or warranty of RSG. Any liability of RSG pursuant to any warranty which cannot be excluded by law, including under the Australian Consumer Law, is limited to the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so).
9. Default
The Hirer commits an Event of Default if:
(a) the Hirer fails to perform or comply with any obligation under this agreement and, in the case of a failure that is capable of remedy, that failure is not remedied to the reasonable satisfaction of RSG within 7 days of the date of notice from RSG requiring the Hirer to do so;
(b) the Hirer does not pay on time any money payable under this agreement unless the non-payment is caused by administrative or technical error beyond the control of the Hirer and the payment is made within 3 days of its due date;
(c ) the Hirer becomes insolvent, goes into receivership or liquidation, or commits any other act of insolvency or bankruptcy;
(d) a representation or warranty made by the Hirer in connection with this agreement is found to be incorrect or misleading;
(e) any writ of execution, garnishee order, mareva injunction or similar order, attachment or other process is made, levied or issued against or in relation to the assets of the Hirer;
(f) any change occurs in the Hirers business or financial position, or the circumstances of any company related or associated with the Hirer which, in the opinion of RSG, adversely affects or is likely to adversely affect the Hirers ability to perform its obligation under this agreement;
(g) any Security Interest created under this agreement does not have the priority that RSG intends it to have; or
(h) any equipment is moved outside of Australia.
10. Acceptance of repudiation
(a) RSG may accept the repudiation of this agreement in respect of the hire of any or all Equipment if the Hirer is taken to have repudiated this agreement under clause 10(b).
(b) If RSG accepts the repudiation of this agreement by the Hirer in respect of the hire of any or all Equipment as contemplated by clause 10(a), the Hirer must immediately:
(i) at its expense, immediately return the relevant Equipment in working condition to RSG to a place specified by RSG or as otherwise agreed by the parties, do everything else necessary to ensure that RSG immediately regains possession of the Equipment and comply with all other requirements of clause 14 in respect of the relevant Equipment on or before the date RSG accepts the repudiation; and
(ii) pay to RSG all money past due but not yet paid under this agreement in respect of the relevant Equipment; and any moneys due and payable by the Hirer to RSG under any other agreement or other arrangement between the Hirer and RSG.
11. Hirers obligations after default
(a) If the Hirer defaults in its obligations under clause 10(b)(i), RSG may retake possession of the relevant Equipment and is authorised by the Hirer to enter on land or premises owned or occupied by the Hirer to do so. The Hirer must reimburse RSG on demand for any reasonable expense which RSG incurs in exercising its rights.
(b) The Hirer indemnifies RSG against liability, loss, costs, charges, or expenses arising because of the repudiation of this agreement in respect of the hire of any or all of the Equipment or because of the occurrence of any event of default, as described in clause 10, including, in each case, without limitation, reasonable legal costs and expenses on a full indemnity basis.
12. Holding over
If the Hirer does not return any Equipment by or on the Hire Expiry Time for that Equipment, then the Hire Period in respect of that Equipment is extended from day to day at the Hire Fee shown in the relevant Quote and otherwise on the same terms and conditions set out in this agreement.
13. Expiry of term
(a) On the Hire Expiry Time for an item of Equipment the Hirer must, at its expense, disassemble and return (including loading and unloading) to RSG that Equipment to the place nominated by RSG (or as otherwise agreed in writing by the parties). The Hirer must also pay directly, or reimburse to RSG within 14 days of demand, all costs incurred by RSG in re-assembling the Equipment following return to RSG.
(b) The Hirer must ensure, at its own cost, that as at the date an item of Equipment is required to be returned to RSG in accordance with clause 13(a) the physical and mechanical condition of the Equipment complies with any “Return Conditions” mandated by RSG.
14. Costs, charges, and expenses
(a) The Hirer must pay or reimburse RSG on demand for:
(i) RSG’s costs, charges, and expenses in enforcing this agreement, including without limitation, reasonable legal costs, and expenses on a full indemnity basis; and
(ii) all stamp duties, fees taxes, GST and any other value added taxes and other government charges which are payable in connection with this agreement, any transaction contemplated by this agreement and any services provided by RSG in accordance with or as contemplated by this agreement.
15. GST
(a) Except where the context suggests otherwise, terms used in this clause have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended from time to time).
(b) Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.
(c ) If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
(d) The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.
(e) If there is an adjustment to a taxable supply made under this agreement, then the Supplier must provide an adjustment note to the Recipient.
(f) The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses, or liabilities.
16. Risk and Ownership
(a) RSG will retain ownership of and title to the Equipment at all times during the Hire Period. The Hirer has rights to use the Equipment as a mere bailee only.
(b) Risk in the Equipment passes to the Hirer upon pickup of the Equipment by the Hirer or delivery of the Equipment from RSG to the Hirer and passes back to RSG upon the Hirer returning the Equipment to the physical possession of RSG.
17. Payments and Default Interest
(a) All payments by the Hirer in connection with this agreement must be free of any set-off or counterclaim and without deduction or withholding, unless required by law. If any deduction or withholding must be made by law, then the Hirer must pay to RSG any additional amounts as are necessary to ensure that RSG receives the full amount of the relevant payment.
(b) The Hirer must make all payments to the address of RSG as notified by RSG from time to time or as otherwise directed by RSG in a manner directed by RSG.
(c ) The Hirer must pay interest on all money which is due and payable under this agreement but remains unpaid during the period that it remains unpaid, both before and after judgment, in accordance with clause 3.1(c ).
18. Notices
All notices given in connection with this agreement shall be given in English and in writing and may be given by personal delivery, certified mail, email, or any other customary means of communication addressed to the party’s business address. Notices given pursuant to this agreement shall be effective on the date on which it is received by the addressee.
19. Waiver and variation
(a) A provision of a right created under this agreement may not be waived or varied except in writing, signed by all parties.
(b) Without limiting the generality of the foregoing, the acceptance by RSG of any amount from the Hirer, after an Event of Default, as described in clause 9, has occurred will not be deemed to be a waiver of any of RSG’s rights or any provision of this agreement. No waiver by RSG of any breach of this agreement by the Hirer will be deemed to be a waiver of any continuing or recurring breach.
20. Remedies cumulative
The rights, powers and remedies provided to RSG in this agreement are cumulative and not exclusive of the rights, powers or remedies provided to RSG by law independently of this agreement.
21. Survival of indemnities
Each indemnity by the Hirer in this agreement is separate and independent from the other obligations of the Hirer and survives termination of this agreement.
22. Indemnities
The Hirer assumes all risks and liabilities for and in respect of the Equipment and for injuries to or death of persons and damage to property, however arising, from the possession, operation, condition, or use of the Equipment. The Hirer indemnifies RSG and its agents and employees from and against all duties, taxes, damages, penalties, claims, actions, losses, liabilities, legal costs, or other expenses arising from any breach by the Hirer of this agreement (including for any loss or damage, howsoever caused, to the Equipment during the Hire Period); or arising out of possession, operation, condition, or use of the Equipment, including but not limited to any claims made by any person under any environmental law.
23. Exclusion of liability
(a) Notwithstanding anything contained in the agreement, RSG has no liability (either on a direct basis or for Consequential Loss) for any Claims, suffered or incurred by the Hirer, including all Claims by third parties, as a result of, or in any way connected with the hire, operation or use of the Equipment by the Hirer, except to the extent such Claims are caused or contributed to by the fraudulent or unlawful act, error or omission of RSG.
24. Governing law
(a) This agreement is governed by the law in force in New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.
(b) Both RSG and the Hirer agree that any disputes arising from the hire and use of the Equipment (except in regard to payment of the Hire Fee) shall be negotiated with a view to settlement before litigation is pursued.
25. Assignment
(a) RSG can assign its interest in this agreement, at any time, to any third party without the consent of the Hirer.
(b) The Hirer must not assign or otherwise transfer any interest in this agreement without the prior written consent of RSG.
26. Set-off
(a) Despite any other provision of this agreement, RSG may, without prior notice and at any time, set off any obligation then due and payable by the Hirer to RSG under or relating to this agreement against any obligation (whether or not due and payable) by RSG to the Hirer.
(b) If RSG exercises any set-off pursuant to clause 26(a) against the Hirer, it will promptly notify the Hirer of details of that set off.
27. Severance
If at any time any provision of this agreement is or becomes illegal, invalid, void, or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair: the legality, validity, or enforceability in that jurisdiction of any other provision of this agreement; or the legality, validity, or enforceability under the law of any other jurisdiction of that or any other provision of this agreement.
28. Entire agreement
To the extent permitted by law, this agreement represents the whole agreement between the Hirer and RSG in respect of the subject matter of this agreement. This agreement supersedes any conditions issued by the Hirer. Any Schedule in this agreement shall prevail in the event of any inconsistency with these terms and conditions.
29. Personal Property Securities
(a) The Hirer agrees, at its own cost, to do anything (such as obtaining consents, signing, and producing receipts and signing documents) which RSG, acting reasonably, requires for the purposes of:
(i) ensuring that each Security Interest created by this agreement is enforceable, perfected and otherwise effective;
(ii) enabling RSG to apply for any registration, or give any notification, in connection with any Security Interest created by this agreement so that the Security Interest has the priority required by RSG;
(iii) enabling RSG to exercise rights in connection with any Security Interest created by this agreement; or
(iv) perfecting the rights and powers afforded, created, or intended to be afforded or created, by this agreement.
(b) Unless otherwise notified by RSG to the Hirer in respect of any or all of the Equipment, the parties agree to exclude from this agreement, to the extent permitted by law, each of the provisions of the PPS Act referred to in section 115(1) or 115(7) of the PPS Act, in each case, to the extent mentioned in the relevant section and the Hirer waives all of its rights under those provisions in respect of or relating in any way to the enforcement or any other exercise of rights under or in respect of any Security Interest created by this agreement.
(c ) The parties agree that RSG need not give any notice to the Hirer or any other person in respect of or relating in anyway ay to this agreement under the PPS Law unless the giving of such notice is mandatory under the PPS Act.
(d) The Hirer consents to RSG effecting a registration on the Register, in any manner considered appropriate by RSG, regarding any Security Interest created or intended to be created under this agreement.