1. In these conditions:
(a) The ‘Owner’ is Outlook Investments Pty Ltd ABN 94 871 511 793 t/as ‘Poles & Holes’.
(b) The ‘Hirer’ refers to the person, firm or corporation hiring plant from the Owner.
(c) The ‘Plant’ means all equipment, including accessories and parts supplied to the Hirer.
2. Hire is charged for the time the Plant is out of the possession of the Owner at the hirer’s request (inclusive of weekends and public holidays) not only the time the plant is used.
3. Hiring charges shall commence from the time the Plant is delivered by the owner to the hirer until the Plant has been requested to be picked up by the Hirer.
4. The Hirer shall:
(a) Determine the condition and suitability of the Plant hired for the purpose required.
(b) Use the Plant in a skilful and proper manner and only for the purpose and within the capacity for which it was designed, acknowledging the Owner can not warranty as to the said capacity.
(c) At his own expense clean and maintain the Plant in good order and substantial repair and condition.
(d) The Owner will supply temporary power poles with a safety switch test sticker valid for approximately 6 months. The expiry date of the test and tag is noted on the test sticker. The hirer is responsible for the future testing and compliance of the safety switch beyond our test sticker date.
(e) Accept full responsibility for the safe keeping of the Plant, and indemnify the Owner for the loss, theft or damage to the Plant however caused and without limiting the generality of the foregoing whether or not loss, theft or damage is attributable to any negligence, failure or omission of the Hirer. It is the Hirers responsibility for the security and protection of the Plant until collected by the owner or the owner’s agent. The owner will not be responsible for the Plant until it has been collected by the owner or the owner’s agent however long it takes.
(f) Accept full responsibility for, and indemnify the owner against all claims in respect of injury to persons, or damage to property, arising out of the use of the plant during the hire period however arising, whether from negligence of the Hirer or Owner or otherwise without limiting the foregoing whether or not the plant was being operated by a servant of the Owner or any other person for whose acts the Owner might be or is held to responsible in connection with the operation of the Plant.
(g) Not be entitled to place a lien over the Plant, nor without the Owner’s prior written consent part with possession of the Plant or assign the benefit of the hire agreement nor remove the Plant or allow it to be removed from the State.
(h) Not alter, make any additions, deface the Plant or in any other manner interfere with the Plant.
(i) Understand and accept that an additional charge for Damage Cover is included in the hire rate.
(j) Pay to the Owner or Owner’s agent all hire and related charges and other costs. Interest is payable on any amounts outstanding at the rate of 15% per annum.
5. Without prejudice to any other remedies available to the Owner and not withstanding any period of hire specified, the Owner may terminate this hire agreement:
(a) At any time giving the Hirer 24 hours notice of its intention so to terminate, such termination to be effective as of the expiry of the said 24 hours.
(b) Without notice if the Hirer shall commit any breach of the hire agreement or have a winding up petition presented against it or be wound up, or go into voluntary liquidation or commit an act of bankruptcy or if a receiver of its assets or any of them is appointed or if it makes an assignment or compromise for the benefit of its creditors or if its business is placed under official management or if it ceases to carry on business. Upon termination of this hire agreement as aforesaid the Owner shall be entitled to take possession of the Plant and for this purpose the Hirer irrevocably appoints the Owner or its agent and authorizes the Owner to enter on any land or premises owned by or under control of the Hirer upon which the Plant is then situated and agrees to indemnify the Owner in respect of any claims, damages or expenses arising out of any action taken under this condition.
6. The Hirer is responsible for the theft, loss and damage to Plant and its accessories whilst on hire and the cost of replacement or repairs to such will be charged to the Hirer. The Owner will have appropriate insurance cover for all Plant hired. The Hirer must provide a written police report for all loss and damage to the Plant for the owner to waive its right to claim for loss and damage to the Plant from the hirer, providing adequate precautions have been taken to safeguard the Plant and loss and damage was not incurred due to the negligence of the Hirer. Such waiving of rights is subject to payment by the Hirer of an excess of $500. Expressly excluded from the insurance cover is loss or damage as defined below:
(a) Damage caused by misuse, abuse or overloading of the Plant.
(b) Mysterious disappearance or wrongful conversion of the Plant
(c) Loss or damage in contravention of the conditions of this hire agreement.
(d) Loss or damage from use in violation of any statutory laws or regulations.
(e) Loss or damage of accessories.
(f) Damage caused by inherent in the use of the Plant.
(g) Loss or damage caused by overloading or artificial electrical current, including use of under-rated or excessive length of extension leads.
(h) Damage caused by any corrosive substances.
(i) Loss or damage during transport, except where transported by the Owner.
(j) Any loss or damage caused by the negligence of the Hirer.
7. Certain conditions and warranties may be implied into the hire agreement by the Trade Practices Act and State Legislation and these conditions are to be read subject to such legislation. However the Owner and the Hirer agree that in the event of the Hirer suffering any loss, damage or claim howsoever arising as a result of hiring the Plant, the liability of the Owner is limited to the repair or replacement of the Plant and is not to include economic or consequential damages of any nature whatsoever.
8. The Owner reserves the right to revise the schedule of Hire Rates and related charges without notice.
9. The Hirer irrevocably permits us or any person authorized by us in writing, upon our giving reasonable notice to enter your premises or the premises where the goods are reasonably believed by us to be held on your behalf. You also agree to indemnify and hold us harmless for reasonable costs of removal, enforcement, and legal action in respect of the removal of the goods that are the subject of this agreement.
10. The Hirer:
(a) Must sign documents or do anything to perfect our rights under this Agreement or to comply with any obligation under this Agreement.
(b) Appoints us as their attorney to sign any document or do anything that we may reasonably require to comply with an obligation under this Agreement.
11. The Hirer must represent and warrant to us that:
(a) All information and representations that the Hirer, or any person acting on their behalf, give us in connection with this Agreement are true and correct.
(b) You have not failed to disclose to us anything relevant to our decision to have commercial dealings with you.
(c) No litigation, arbitration, adjudication, mediation or dispute is proceeding against you or is threatened against you that may have a material adverse effect on your ability to perform your obligations under this Agreement.
You acknowledge that:
(d) We have accepted to enter into commercial dealings with you based upon the above-referenced representations.
(e) You have not entered into this Agreement in reliance on any representation or warranty from us.
12. If you are a corporation, trust or partnership, all principals may be required to sign a personal guarantee. If you are an individual, your spouse may be required to sign a personal guarantee. Unless all such principals or spouses, as applicable, execute such personal guarantee as required herein, this Agreement shall, at our option, become null and void and confer no rights upon you, notwithstanding performance for any duration under the Agreement. All guarantors shall be jointly and severally liable for performance of all of the terms, covenants and conditions of this Agreement.
13. Guarantors:
(a) You and the guarantor jointly and severally acknowledge and agree that we are authorized to make approaches to a credit reporting agency throughout the term of the Agreement to obtain a report about the creditworthiness of either the Hirer or Guarantor or both.
(b) You and the Guarantor jointly and severally authorize us to engage in the exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the contract and to the ongoing relationship between the parties hereto.
(c) You and the Guarantor jointly and severally acknowledge that the information referred to in the previous paragraph may include information about the creditworthiness, credit standing, credit history, credit capacity, and credit providers of either the Hirer or the Guarantor or both.
(d) You and the Guarantor jointly and severally acknowledge that we will make such approaches as referred to herein as permitted by the various provisions under the Privacy Act 1988 (Cth) including, but not limited to, sections 18E(8)(c) and 18K(1)(h). It is understood and agreed between us that any credit information received shall remain confidential.
14. This Agreement may be executed in several counterparts and when so executed will constitute one agreement binding on us, despite the fact that our signatures may appear at different intervals on original and counterparts.
15. Any provision of this Agreement that is prohibited or unenforceable under any applicable law or any jurisdiction shall as to such jurisdiction be ineffective without affecting any other provisions of this Agreement. To the full extent that the provisions of such applicable law may be waived, both of us hereby waive them to the fullest extent possible so that this Agreement is still valid and binding and is enforceable in accordance with its remaining terms.
16. Non-payment of your account beyond 30 days will accrue interest at a rate per day equivalent to 15% per annum from the end of your standard terms. Overdue accounts will be suspended until the account is brought up to date. Excessively overdue accounts will result in the removal of the Plant, additional administrative charges and costs associated with debt recovery, including and not limited to 20% brokers fees and court costs.
17. Any provision in this agreement that is prohibited or unenforceable under any applicable law, or in any jurisdiction, shall as to such jurisdiction be ineffective without affecting any other provision of this Agreement.
18. By acknowledging the terms of this document the signatories hereby agree to indemnify the Owner as a personal obligation against any loss the owner may suffer as a result of any act or omission of the Hirer.