Agreement means the ‘Hire Agreement’ signed by the Customer and the Owner.
Contract means the legally binding contract between the Owner and the Customer comprising the Agreement, the Schedule and these Terms and Conditions.
Customer means the person/legal entity specified as the customer in the Hire Agreement.
Date & Time for Delivery & Set up means the date and time for the Owner to deliver and begin setting up the Hire Equipment as specified in the Schedule.
Date & Time for Dismantling & Collection means the date and time as specified in the Schedule for the Owner to begin dismantling and remove/collect the Hire Equipment.
GST has the same meaning as in A New Tax System (Goods and Services) Tax Act 1999 (Cth).
GST Law has the same meaning as in A New Tax System (Goods and Services) Tax Act 1999 (Cth).
Hire Equipment means the equipment being hired by the Customer from the Owner as specified in the Schedule.
Hire Location means the site or location as specified in the Schedule being the place or location of the Hire Equipment while in possession of the Customer pursuant to the Contract.
Owner means the person/legal entity specified in the Hire Agreement as the owner of West Coast Shade and Stage Hire.
Price means the price $ specified in Schedule for the hire of the Hire Equipment.
Schedule means the ‘Schedule of Hire Equipment and Pricing Details’ attached to the Agreement.
Terms and Conditions means these ‘Standard Terms and Conditions’ which attach to the Agreement.
2. Invoice and Payment
2.1The Customer must pay the Price within seven (7) days from the date of invoice rendered by the Owner.
2.2The Customer must pay GST on the Price of the Hire Equipment and Owner must give the Customer a tax invoice in accordance with GST Law stating the Price and the GST payable.
2.3Should payment not be received in full within eight (8) days from the date of the invoice, then Customer must pay interest on any outstanding amount at the rate of 8% per annum calculated daily until payment is made in full.
2.4The Customer will pay the Owner’s reasonable costs and disbursements incurred in pursuing any recovery action or other claim or remedy against the Customer including collection costs, debt recovery fees and legal costs, in connection with the Customer failing to make due payment of an invoice.
3.1 The Owner will use all reasonable endeavours to deliver and construct or assemble the Hire Equipment on the Date and Time for Delivery & Set up specified in the Schedule. However, delivery time given by the Owner is an estimate only and the Owner will not be liable to the Customer for any late delivery or non-delivery.
3.2 Delivery of the Hire Equipment shall be deemed to have occurred at the date and time the Hire Equipment is delivered and constructed or assembled.
3.3 Upon delivery and construction or assembly of the Hire Equipment to the Customer, acceptance of delivery by the Customer will constitute acceptance by the Customer of all terms and conditions contained in the Contract.
3.4 The Owner will not be responsible to the Customer for any loss, damage or other liability whatsoever (whether in contract, tort or otherwise) arising directly or indirectly out of delays in delivery caused by anything beyond the control of the Owner.
4. Use of Hire Equipment and Return
4.1 The Customer must not make any alterations, modification, addition or replacement to the Hire Equipment without the prior written consent of the Owner.
4.2 The Customer must comply with this Contract, and must:
4.2.1 only use the Hire Equipment for its intended purpose and not for any other reason or illegal purpose;
4.2.2 keep the Hire Equipment in good, neat and clean condition and only use it as it would be used by a careful and prudent owner;
4.2.3 comply with all relevant laws, regulations, rules and by-laws governing the use of the Hire Equipment;
4.2.4 use the Hire Equipment safely;
4.2.5 secure the Hire Equipment when it is not in use and ensure that all reasonable measures are taken to protect the Hire Equipment against acts of theft or vandalism; and
4.2.6 return the Hire Equipment to the Owner in the same condition as it was hired (fair wear and tear excepted).
5. Hire Location
5.1 All Hire Equipment at the Hire Location is subject to a site inspection by the Owner if the Owner considers it necessary.
5.2 All permission and approvals to assemble the Hire Equipment in its entirety at the Hire Location is the sole responsibility of the Customer.
5.3 The Customer must ensure clear truck access to the Hire Location at all times and any additional cartage and/or need for additional cartage equipment including, but not restricted to additional manual labour, any terrain forklifts and/or hiab trucks, will be charged as an additional cost if deemed necessary by the Owner.
5.4 The Customer must keep the Hire Equipment at the Hire Location and not to change this location of the Hire Equipment without giving prior notice to and obtaining the prior written consent of the Owner.
6.1 The Owner is not responsible or liable for any damages and/or loss of services as a result of interference to surrounding buildings, access roads, event site, under & over ground pipes and/or conduit that may be affected during the construction or dismantling of the Hire Equipment or the duration of the period of hire under the Contract.
6.2 The Owner requests, whenever possible, that a site plan of all undergoing amenities is made available to the Owner and its staff. If a site plan is not available and/or the Hire Equipment or any part thereof, is near to or over any sensitive over or under ground amenities, it is the responsibility of the Customer to ensure that a site supervisor is available during the construction and dismantling procedure.
7. Title to Hire Equipment & Risk
7.1 All loss or damage whatsoever of the Hire Equipment will pass to the Customer at the time of delivery calculated pursuant to clause 3.2 above until the Hire Equipment is dismantled and removed/collected from the Hire Location by the Owner.
7.2 Notwithstanding the passage of risk, the Owner at all times retains title to and absolute ownership in the Hire Equipment.
7.3 Until such time as the Hire Equipment is dismantled and removed/collected from the Hire Location by the Owner, the Customer must not sell, encumber or dispose of or claim any lien over the Hire Equipment and must not remove the Hire Equipment from the Hire Location or allow any person other than the Customer to use the Hire Equipment in any way without the written consent of the Owner.
7.4 The Customer authorises the Owner to enter upon the Hire Location or any premises leased, owned or occupied by or under the control of the Customer without liability for trespass or any resulting damage caused to property for the purpose of collecting, taking possession of, claiming or confirming the location and condition of the Hire Equipment at any time during usual business hours and without giving notice. In exercising its rights pursuant to this clause, the Owner must use reasonable endeavours not to unreasonably interfere with the operation of the Customer’s business.
8. Insurance & Indemnity
8.1 The Customer must insure the Owner’s interest in the Hire 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 effect adequate public liability insurance covering any loss, damage or injury to any person or property arising out of the use of the Hire Equipment, including insure the stage component of the Hire Equipment for its full replacement value of $100,000 and the shade components for full replacement value of $50,000 each noting the interest of the Owner as owner on the insurance policy.
8.2 The Customer must not use the Hire Equipment in such manner as would permit an insurer to decline any claim.
8.3 Without limited clause 8.1 above and whether or not the Customer has effected adequate insurance cover, the Customer accepts full responsibility for:
8.3.1 and indemnifies and shall keep the Owner, its agents and employees indemnified against all liability in respect of all actions, proceedings, claims, demands, damages, charges, costs and expenses (including legal) and other liabilities arising in respect of all and any injury to persons or damage to property arising out of the use and/or possession of the Hire Equipment howsoever arising and whether or not arising from any negligence, failure of omission of the Owner or any other person(s);
8.3.2 the safekeeping of the Hire Equipment and indemnifies and shall keep the Owner indemnified against all loss, theft or damage to the Hire Equipment howsoever caused and whether or not such loss theft or damage is attributable to any negligence failure or omission of the Owner;
8.3.3 paying an invoice rendered by the Owner on account of costs of repairing any damage to the Hire Equipment that occurred while in the Customer’s possession;
8.3.4 cancellation of the Contract by the Customer; or
8.3.5 and indemnifies and shall keep the Owner indemnified against all liability in respect of all actions, proceedings, claims, demands, damages, charges, costs and expenses (including legal) and other liabilities arising in respect of breach by the Customer of any provision of the Contract.
9. Limitation of Liability
9.1 The Contract excludes (to the extent to which the same can be lawfully excluded) all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability, fitness for purpose or as to design, assembly, installation, materials, workmanship or otherwise.
9.2 All classes of action against the Owner arising out of or in relation to the Contract or the performance or breach thereof will expire unless brought within 3 months of the time of accrual of the cause of action.
10. Customer’s warranties
10.1 The Customer acknowledges and agrees:
10.1.1 to notify the Owner immediately or as soon as reasonably possible thereafter of any incident or event resulting in injury to person(s) or damage to or loss of property (including the Hire Equipment) involving the Hire Equipment;
10.1.2 not to agree, attempt or offer to sell assign sub-let, lend, pledge, mortgage, let on hire or otherwise part with possession or otherwise deal with the Hire Equipment or any part thereof, nor to create any workman’s or other lien in respect of the Hire Equipment or any part thereof;
10.1.3 to notify any person seizing the Hire Equipment of the Owner of the Hire Equipment and to give immediate notice to the Owner of such seizure;
10.1.4 to assume liability for any breach of the Contract by the Customer, its servants or agents;
10.1.5 not to conceal or alter the Hire Equipment or make any addition or alteration to or repair of the Hire Equipment; and
10.1.6 to make the Hire Equipment available for collection by Owner on the Date & Time for Dismantling & Collection.
10.2 The Customer acknowledges and agrees that:
10.2.1 the Owner holds title to the Hire Equipment at all times and that the right of the Customer to possess the Hire Equipment pursuant to the Contract arises as a mere bailee only;
10.2.2 the Customer has no right to purchase the Hire Equipment from the Owner at any time and that no representation to that effect has been made by or on behalf of the Owner;
10.2.3 any information provided by the Customer to the Owner for the purposes of or in connection with the Contract is true and correct at the time it was given to the Owner;
10.2.4 the Customer has not relied upon any representations or warranties made or given by the Owner regarding the performance, adequacy or suitability of the Hire Equipment;
10.2.5 the Owner does not refund upon termination of this contract and is entitled to keep and apply for its own purposes any Price paid to the Owner in advance; and
10.2.6 the Owner accepts no responsibility or liability whatsoever for loss or damage or injury (including death) to person or property arising out of the use of the Hire Equipment by any person whilst the Hire Equipment is in the possession or control of the Customer other than that applies to the negligence of the Owner.
11. Cancellation Policy
11.1 Cancellation of this Contract by the Customer that occurs:
11.1.1 prior to the date specified in the Schedule under the Date & Time for Dismantling & Collection, will be charged at 50% of the Price;
11.1.2 after the date specified in the Schedule under the Date & Time for Dismantling & Collection, will be charged at 100% of Price.
12. Termination for breach or default
12.1 A party to this Contract may terminate this Contract for breach of contract or default by the other party only if:
12.1.1 In the case of the Owner, if the Owner has given written notice of the breach to the Customer requiring remedy and the Customer has failed to remedy as required in the notice; and
12.1.2 In case of the Customer, if the Customer has given written notice of the breach to the Owner requiring remedy and the Owner has failed to remedy as required in the notice.
13. Force Majeure
13.1 If the Owner is unable at any time to perform any of its obligations whether wholly or partly by reason of any cause beyond its control (including without limitation, acts of god, inclement weather, strikes, lockouts, fires, riots, civil commotion or unrest, interference by civil or military authorities or act of war) the Owner may give written notice to that effect to the Customer, giving full particulars of such force majeure in which case the obligations of the Owner under these terms shall, to the extent that they are affected by the force majeure, be suspended during the term of the force majeure. The Owner shall not be liable for any loss or damage suffered by the Customer as a result of any delays caused by such force majeure events.
14. Governing Law
14.1 The Laws of the State of Western Australia will apply to the Contract and the parties submit to the jurisdiction of the courts in that State.
15.1 These terms and conditions supersede all written or oral, previous or contemporaneous proposals, negotiations, representations, commitments, agreements, conditions or all other communications between the Owner and the Customer and constitute the entire agreement or contract between the Parties unless expressly varied in writing by the Owner
15.2 Without limiting the other clauses in these Terms and Conditions, if the Customer breaches the Contract, the Customer must pay all costs, commissions and expenses (on an indemnity basis) that have been incurred by the Owner in relation to recovery of the Price or enforcement of the Contract, including but not limited to legal (on a solicitor and client basis), accounting and related fees, costs and disbursements
15.3 The Owner may but the Customer must not assign its respective interest in the Contract.
15.4 If any provisions of the Contract is or at any time becomes prohibited by law or otherwise becomes void or unenforceable, it will be severed from the Contract without affecting or diminishing the effect or enforceability of the remaining provisions of the Contract.
15.5 Any person signing the Contract for or on behalf of the Customer warrants that he/she is authorised to enter into the Contract on behalf of the Customer and acknowledges that he/she will be liable to the Owner in damages for all loss and damage suffered by the Owner in the event that such warranty proves false.
15.6 The Owner reserves all of its rights at law and in equity against the Customer arising out of a breach of the Contract by the Customer.
15.7 All obligations of the Customer under the Contract will survive termination of the Contract to the extent required for their observance, performance and enforcement.
15.8 No failure or delay by the Owner to exercise any right, remedy or power under the contract or at law will operate as a waiver of that right, remedy or power.