Hire Agreement Terms and Conditions
1. HIRE AGREEMENT BETWEEN YOU AND US
These Terms of Hire, together with:
(a) each Hire Quote provided to You by Us, whether signed or not; and
(b) 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 Quote 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 on Your purchase order, will not form part of the Hire Agreement.
When We refer to the following terms in this document:
“ACL” means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Consumer” means a consumer as that term is defined in the ACL.
“Consumer Guarantees” means the guarantees relating to the supply of goods and services contained in the ACL.
“Credit Application” means any application for a Credit Account completed by You.
“Credit Account” means any billing arrangement We have extended to You upon Our approval of the Credit Application.
“Environmental Laws” means any statute, regulations or other laws made or issued by a regulatory body or government regulating or otherwise relating to the environment including without limitation the use or protection of the environment.
“Equipment” means any equipment provided by Us to You under the Hire Agreement, including any associated or attached tools, accessories and parts available for hire.
“Expected Off Hire Date” means the date that You expect the Hire Period to end. This date is set out in the Hire Quote.
“Hire Charge” or “Hire Charges” means the rates and charges payable by You for the hire of the Equipment.
“Hire Period” means the period described in clause 4.
“Hire Quote” means the document provided by Us to You which includes details of the Equipment You have hired, the Hire Charge, any other applicable charges, the Expected On and Off Hire Dates and the address for delivery of the Equipment.
“Licence to Perform High Risk Work” means a validly issued licence issued by the relevant workplace health and safety departments of each respective state government required for the operation of Equipment which is considered to be high risk.
“Long Distance Location” is a location in excess of 50km from Our nearest branch.
“Non Excludable Provision” has the meaning set out in clause 15.3.
“Off Hire Number” is the number given by Us to You on the Off Hire Date.
“PPSA” means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it and the following words in clause 9.2, 10 and 28 have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest and verification statement.
“Regulatory Authority” means any public authority or government agency responsible for regulating the performance of electrical works.
“Related Body Corporate” has the same meaning as in the Corporations Act 2001.
“Relevant Documents” means:
(a) the Credit Application; and
(b) any Guarantee, Indemnity & Charge which guarantees all monies owing by You to Us.
“We/Us/Our” means Active Air Conditioning And Refrigeration Pty Ltd (ABN 19 00 104 5021) any Related Body Corporate of Active Air Conditioning And Refrigeration Pty Ltd and their successors and assigns.
“You/Your” refers to the person, 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.
3. OUR HIRE COMMITMENT TO YOU
We agree to hire the Equipment to You and will:
(a) provide the Equipment to You in good working order; and
(b) subject to clause 8.6, allow You to exclusively use the Equipment during the Hire Period.
4. THE HIRE PERIOD
4.1 The Hire Period commences on the earlier of the following:
(a) the time We deliver the Equipment to the address in the Hire Quote; OR
(b) if you request pick up and drop off of the Equipment, the time at which You take possession of the Equipment.
4.2 The Hire Period is for an indefinite term and ends when the Equipment is back in Our control or possession.
4.3 The Hire Period includes weekends and public holidays.
4.4 A minimum Hire Period may apply in respect of certain items of Equipment (“Minimum Hire Period”). We will advise you at the time of hiring if a Minimum Hire Period applies. If You return the Equipment to Us before the expiration of the Minimum Hire Period, You are required to pay all Hire Charges in respect of the Minimum Hire Period.
5. HOW WE CALCULATE YOUR HIRE CHARGES
5.1 You will pay Us for the hire of the Equipment at the Hire Charge set out in the Hire Quote.
5.2 The Hire Schedule will specify the type of rate which will apply to You and the method of calculation.
5.4 You will be charged for the hire of Equipment for the full Hire Period. For the avoidance of doubt, You must continue to pay the Hire Charges and other charges after the Expected Off Hire Date if You have not returned the Equipment to Us by the Expected Off Hire Date. This obligation survives termination of the Hire Agreement.
5.5 Hire Charges will commence from the Hire Period and continue until the date You notify Us that the Equipment will be available for collection (the “Off Hire Date”). At this time, if requested, We will give You a number as verification that Your request has been received (“Off-Hire Number”). The Equipment must be available for collection on the Off Hire Date at the agreed time as per the Hire Quote, otherwise We reserve the right to charge additional Charges. For the avoidance of doubt, if the expected Off-Hire date and time differ from the Hire Quote and / or are outside normal business hours we reserve the right to charge additional Charges.
6. OTHER CHARGES
In addition to the Hire Charges, You agree to pay:
(a) for any consumables, fuel or trade materials We supply to You;
(b) if You require Us to deliver, collect or install the Equipment, the cost of delivery, collection or installation, as detailed in the Hire Quote. 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.
(c) if You do not return the Equipment in clean and good working condition, charges for the cleaning and repair of the Equipment;
(d) a charge for pumping out waste tanks or refilling water or fuel tanks;
(e) any stamp duty or GST arising out of this Hire Agreement;
(f) any other applicable levies, fines, penalties and any other government charges arising out of Your use of the Equipment;
(g) charges for payment made by credit card;
(h) an environmental charge in relation to any item of Equipment, as detailed in the Hire Quote;
(i) if You request operational guidance or training on the use of the Equipment and Our staff are available to provide this, the cost for the provision of these services at rates agreed with Us;
(j) charges in connection with the administration of Your Credit Account, as detailed in the Hire Quote, which may include printing and postage costs;
(k) any reasonable charges incurred by Us if we are unable to inspect or carry out maintenance on the Equipment during normal working hours.
7.1 You must pay all Hire Charges and other fees, charges and costs that become due and payable under this Hire Agreement within 30 days of the date of invoice.
7.2 If You do not pay the invoice in full by the payment due date, We may charge, in addition to any other costs recoverable under this Hire Agreement:
(a) interest, calculated monthly, on the total outstanding balance. The interest rate used to calculate the interest payable for the month is the 90-day Bank Bill Swap Rate published on the first business day of that month plus 2%; and
(b) any costs and expenses (including any commission payable to any commercial or mercantile agents and legal costs) incurred by Us in recovering any unpaid amounts under this Hire Agreement.
7.3 We are entitled to set off against any amount We owe You any amount owed to Us by You or any amount owed to Us by any of Your Related Bodies Corporate.
8. YOUR OBLIGATIONS TO US
8.1 This Hire Agreement is personal to You and You must not allow, nor authorise, any other person or entity to use, re-hire or have possession of the Equipment at any time, unless expressly agreed by Us in writing.
8.2 You agree that before taking delivery of the Equipment, You have satisfied Yourself as to the suitability and condition of the Equipment and You will ensure that the Equipment is used only for the purpose for which it was designed by the manufacturer. Subject to clauses 15.2 and 15.3, We make no representations and give no guarantee or warranty that the Equipment is suitable for Your intended purpose.
8.3 You must:
(a) operate the Equipment safely, strictly in accordance with all laws, only for its intended use and in accordance with the manufacturer’s instructions;
(b) ensure persons operating or installing the Equipment are suitably trained on its safe and proper use, qualified to use the Equipment and where necessary, hold a current licence to perform high risk work;
(c) wear suitable clothing and protective equipment when operating the Equipment as required or recommended by Us or the manufacturer;
(d) ensure that no persons operating the Equipment are under the influence of drugs or alcohol;
(e) conduct a job safety analysis prior to using the Equipment;
(f) display all safety signs and instructions (as required by law), and ensure that all instructions and signs are observed by operators of the Equipment.
8.4 You must:
(a) clean, fuel, lubricate and keep the Equipment in good condition and in accordance with the manufacturer’s and Our instructions at Your own cost; [applicable?]
(b) not in any way alter, modify, tamper with, damage or repair the Equipment without Our prior written consent;
(c) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Equipment; and
(d) not remove fuel or oil tank caps, bund plugs or seals from the Equipment and ensure that they are in place when You return the Equipment;
8.5 At all times during the Hire Period, You must store the Equipment safely and securely.
8.6 You will allow Us to enter Your premises and inspect and maintain the Equipment from time to time during the Hire Period during normal working hours. If We cannot inspect or maintain the Equipment during normal working hours, then additional charges may apply. You can also request to conduct a joint inspection of the Equipment with Us at the end of the Hire Period.
8.7 Whenever You are moving the Equipment, You must ensure the safe loading, securing and transporting of all Equipment in accordance with all laws and manufacturer’s guidelines. You (or any contractor You engage) must observe any safety directions advised by Us and/or the manufacturer of the Equipment to ensure its safe loading and handling.
8.8 You warrant that You will comply with all Environmental Laws and immediately rectify any breach of an Environmental Law caused by the use of the Equipment.
8.9 You must use best endeavours to ensure that the Equipment is not contaminated with any hazardous substances (including asbestos). You must advise Us of any risks of hazardous substance contamination to the Equipment as soon as they become apparent. Where Equipment may have been subjected to contamination, you must effectively decontaminate the Equipment, as well as provide Us with written details of decontamination processes applied. If, in Our opinion acting reasonably, the Equipment is not capable of being decontaminated, You will be charged for the replacement cost of the Equipment.
8.10 Any electrical Equipment provided by Us will be tested and tagged before it is hired to You. We are able to arrange for such re-testing and re-tagging of the electrical Equipment at Your cost. Except where We arrange for re-testing and re-tagging of the electrical Equipment, You will be liable for any damage caused to the Equipment resulting from incorrect testing.
9. OWNERSHIP OF THE EQUIPMENT
9.1 Except as detailed in clause 9.4, You acknowledge that We own the Equipment and in all circumstances We retain title to the Equipment (even if You go into liquidation or become bankrupt during the Hire Period). Your rights to use the Equipment are as a bailee only.
9.2 Except in the circumstances set out in clause 10, 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.
10.1 We may register any actual or impending security interest (in any manner We consider appropriate) in relation to any security interest contemplated or constituted by this Hire Agreement in the Equipment and the proceeds arising in respect of any dealing in the Equipment.
10.2 You undertake to:
(a) do anything that is required by Us (i) so that We acquire and maintain one or more perfected security interests under the PPSA in respect of the Equipment and its proceeds, (ii) to register a financing statement or financing change statement and (iii) to ensure that Our security position, and rights and obligations, are not adversely affected by the PPSA;
(b) not register a financing change statement in respect of a security interest contemplated or constituted by this Hire Agreement without Our prior written consent; and
(c) not create or purport to create any security interest in the Equipment, nor register, or permit to be registered, a financing statement or a financing change statement in relation to the Equipment in favour of a third party without Our prior written consent.
10.3 You :
(a) waive Your right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under the Hire Agreement;
(b) agree that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of : section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(c) agree that the following provisions of the PPSA will not apply and You will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
10.4 Unless otherwise agreed and to the extent permitted by the PPSA, You and We agree not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. You waive any right You may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
10.5 For the purposes of section 20(2) of the PPSA, the collateral is Equipment including any Equipment which is described in any Hire Schedule provided by Us to You from time to time. This Hire Agreement is a security agreement for the purposes of the PPSA.
10.6 You agree to notify Us in writing of any change to Your details set out in the Credit Application, within 5 days from the date of such change.
11. RESPONSIBILITY FOR THE EQUIPMENT
You are responsible for any loss, theft or damage to the Equipment from any and every event whatsoever and howsoever and by whosoever caused during the Hire Period except where any such loss, theft or damage was caused by Our actions.
12. RETURN OF EQUIPMENT
12.1 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.
12.2 Except in the circumstances set out in clause 12.3 below, it is Our responsibility to pick up the Equipment at the agreed time and date as per the Hire Quote.
12.3 If We have agreed for You to deliver the Equipment back to Us, You must ensure it is returned to the Active Air branch you hired it from, at the agreed time and date as per the Hire Quote and within normal business hours.
13. WHAT TO DO IF EQUIPMENT BREAKS DOWN
13.1 In the event that the Equipment breaks down or becomes unsafe to use during the Hire Period You must:
(a) immediately stop using the Equipment and notify Us;
(b) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Equipment;
(c) take all steps necessary to prevent any further damage to the Equipment itself; and
(d) not repair or attempt to repair the Equipment without Our written consent.
13.2 Except if clause 14.1 applies, upon receiving notice from You under clause 13.1, We will:
(a) take all reasonable steps to repair the Equipment or provide suitable substitute Equipment as soon as reasonably possible after being notified by You; and
(b) not impose a Hire Charge for that portion of the Hire Period for which the Equipment was broken down or unsafe, nor the costs associated with any repair or replacement of the Equipment.
14. WHAT TO DO IF EQUIPMENT IS LOST, STOLEN OR DAMAGED
14.1 If the Equipment has broken down or become unsafe to use as a result of Your acts or omissions, (or the acts or omissions of Your employees or contractors) or if the Equipment is lost, stolen or damaged beyond fair wear and tear during the Hire Period, You will be liable for:
(a) any costs incurred by Us to recover and repair or replace the Equipment; and
(b) the Hire Charges for that portion of the Hire Period during which the Equipment is being recovered and repaired or replaced,
14.2 Provided that You pay the costs and charges described in clause 14.1, We will return or replace the Equipment, and You must continue to pay the Hire Charges for the remainder of the Hire Period.
15. INDEMNITIES AND EXCLUSION OF LIABILITIES
15.1 Subject to clause 15.3, and except as expressly provided to the contrary in this Hire Agreement, all guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, relating to this Hire Agreement or its subject matter are excluded to the maximum extent permitted by law.
15.2 Nothing in this Hire Agreement excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the Consumer Guarantees.
15.3 Where We are not able to exclude a guarantee, term, condition, warranty, undertaking, inducement or representation imposed by legislation in relation to this Hire Agreement, (‘Non-Excludable Provision’), and We are able to limit Your remedy for a breach of the Non-Excludable Provision, then Our liability for breach of the Non-Excludable Provision is limited to (at Our election):
(a) in the case of goods, the repair or replacement of the goods or the supply of substitute goods (or the cost of doing so); or
(b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
15.4 Subject to Our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, Our maximum aggregate liability for all claims under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the fees paid by You under this Hire Agreement. In calculating Our aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by Us for a breach of any Non-Excludable Provisions.
15.5 Subject to clauses 15.3 and 15.4, We will not be liable to You for any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, wasted costs You have incurred, amounts that you are liable to Your customers for or any loss suffered by third parties under or relating to this Hire Agreement or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
15.6 You are liable for and indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Us and any environmental loss, cost, damage or expense) in respect of:
(a) personal injury;
(b) damage to property; or
(c) a claim by a third party,
in respect of Your hire or use of the Equipment or Your breach of the Hire Agreement. Your liability under this indemnity is diminished to the extent that Our breach of the Hire Agreement or Our negligence causes the liability, claims, damage, loss, costs or expenses.
15.7 Each indemnity in this Hire Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of this Hire Agreement. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by this Hire Agreement.
15.8 We will not be liable to You for any acts or omissions of any person supplied by Us where that person is acting under Your direction and control during the Hire Period and you indemnify Us against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against Us and any environmental loss, cost, damage or expense) arising from or incurred in connection with such acts or omissions.
16. TERMINATION OF HIRE AGREEMENT
16.1 Either party may terminate this Hire Agreement and any Hire Period immediately by giving notice to the other party, if:
(a) that other party breaches any term of the Hire Agreement and fails to remedy the breach within 7 days of written notification of the breach; or
(b) that other party becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or ceases to carry on business.
16.2 We may terminate the Hire Agreement and any Hire Period for any other reason on 24 hours’ notice.
16.3 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.
16.4 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.
17. RECOVERY OF THE EQUIPMENT
If You are in breach of the Hire Agreement or if the Hire Agreement or a Hire Period has been terminated under clause 15, 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.
18. EQUIPMENT THAT IS COLLECTED OR DELIVERED IN A DAMAGED AND / OR DEFECTIVE CONDITION
If You receive or collect the Equipment and find that it is broken, damaged and/or defective, You must notify Us within 24 hours after You receive or collect the Equipment. If You do not notify Us within this time period, We are entitled to assume that the Equipment You collected or received was in good order and condition.
19. LONG DISTANCE MAINTENANCE
19.1 This clause 19 applies if You hire Equipment for use at a Long Distance Location.
19.2 The PMP for all Equipment located at a Long Distance Location will be subject to a per kilometre charge both to and from the premises nominated by You. There will be no charge for the first 50 km either way.
19.3 The PMP for multiple items of Equipment which are located at the Long Distance Location will only be charged as one call out.
19.4 For the avoidance of doubt, You remain responsible for daily maintenance and care of all Equipment in accordance with clause 8, including but not limited to, checking of all fluids (fuel, oil, water, battery levels, waste tanks etc.), checking of all hoses (hydraulic, fuel and water), general tightening of any loose nuts, bolts, belts or fittings and lubrication of all grease points.
19.5 If the Equipment breaks down at a Long Distance Location, You will also pay Us the costs associated with any attendance to the Long Distance Location in addition to any other costs payable under this Hire Agreement.
20.1 We will comply with the Australian Privacy Principles in all dealings with You.
20.2 We may need to collect personal information about You, including but not limited to, Your full name and address, drivers licence details, credit card details, date of birth, and credit or business history. You consent to Us using Your personal information in order to:
(a) fulfil functions associated with the hire of Equipment to You, including but not limited to assessing Your credit worthiness, or exercising Our rights under clause 10;
(b) provide services to You;
(c) prevent theft of Our Equipment;
(d) enter into contracts with You or third parties, and
(e) to market to You and maintain a client relationship with You.
20.3 You have the right to access the personal information We hold about You.
21. FORCE MAJEURE
21.1 Subject to clause 21.2, neither party will be responsible for any delays in delivery or installation due to causes beyond their control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation.
21.2 Nothing in clause 21.1 will limit or exclude Your responsibility and liability under the Hire Agreement for Equipment that is lost, stolen or damaged beyond fair wear and tear during the Hire Period, or has broken down or become unsafe to use as a result of Your conduct or negligence.
If any part of this Hire Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
23. GOVERNING LAW
The Hire Agreement is governed by the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State in respect of any proceedings arising in connection with the Hire Agreement. Each party waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
24. ENTIRE AGREEMENT
The Hire Agreement comprises the entire agreement between the parties. No additional terms and conditions (including any terms contained in any purchase order supplied by You) apply to the hire of the Equipment unless the Hire Agreement is varied in accordance with clause 25.
From time to time, We may wish to vary this Hire Agreement. If We intend to do so, We will give You 28 days’ written notice of our varied terms. If You have reasonable grounds to believe the change will be detrimental to Your rights, You may terminate this Hire Agreement without penalty within 28 days of receiving Our written notice. Any other variation of the Hire Agreement must be agreed in writing by You and Us.
26. NO WAIVER OF RIGHTS
Subject to clause 17, no delay or omission by a party to exercise any right, power or remedy available to that party as a result of a continuing breach or default under the Hire Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of that party’s rights to take action or make a claim in respect of a continuing breach or default.
27. REVIEW OF YOUR CREDIT APPROVAL
27.1 From time to time We may review any Credit Account We have granted to You without notice.
27.2 We may, at Our discretion, decide to withdraw credit for any reason, including but not limited to if Your circumstances change, You fail to make payments on time or You fail to use the Equipment in accordance with the terms of the Hire Agreement.
27.3 If we withdraw credit you may terminate this Hire Agreement immediately by giving Us written notice. However, if You do so You must:
(a) pay amounts that were subject to credit in accordance with the terms on which that credit was provided; and
(b) pay all amounts due to Us under this Hire Agreement, including hire charges until the Equipment is returned to Us and is in Our possession.
28. SIGNING THIS HIRE AGREEMENT
28.1 The person signing any document which forms part of the Hire Agreement or Relevant Documents for and on behalf of You hereby warrants that he or she has Your authority to enter into the Hire Agreement on Your behalf and grant the security interests in connection with it and is empowered to bind You to the Hire Agreement and each security interest granted in connection with it.
28.2 The person signing this Hire Agreement indemnifies Us against all losses, costs and claims incurred by Us arising out of the person so signing this Hire Agreement not in fact having such power and/or authority.
29. CLAIM FOR PAYMENT
This Hire Agreement is a claim for payment under the Building and Construction Industry Security of Payment Act 1999 (NSW), the Building and Construction Industry Security of Payment Act 2002 (VIC), the Building and Construction Industry Payments Act 2004 (QLD), the Building and Construction Industry Security of Payment Act 2009 (SA), the Construction Contracts Act 2004 (WA), the Building and Construction Industry (Security of Payment) Act 2009 (ACT), the Building and Construction Industry Security of Payment Act 2009 (TAS), and/or the Construction Contracts (Security of Payments) Act 2009 (NT).
(a) We may assign this Hire Agreement to any third party without Your consent (including a Related Body Corporate).
(b) Where You are an individual acquiring goods or services wholly or predominantly for personal, domestic or household use or consumption, then we may assign this Hire Agreement to a Related Body Corporate providing that Related Body Corporate has the financial and operational resources to comply with the terms of the Hire Agreement. If You have reasonable grounds to believe the assignment will be detrimental to Your rights, You may terminate this Hire Agreement without penalty by giving Us 28 days written notice that You wish to terminate the Hire Agreement.
31. PREVIOUS EDITIONS
This edition of the Terms of Hire replaces and supersedes any previous editions of the Terms of Hire We have issued.
Purchase Order Terms and Conditions
These Conditions shall govern and be incorporated into each contract for the purchase of Goods and/or Services by the Active Air-conditioning and Refrigeration Pty Ltd and may only be varied with the written agreement of the Active Air-conditioning and Refrigeration Pty Ltd. No terms or conditions put forward at any time by the Supplier shall form any part of this contract.
In these Terms of Purchase:
“Active Air-conditioning and Refrigeration Pty Ltd” or “Active Air” (ABN 19 001 045 021) of 32 Violet Street, Revesby, NSW 2212, on an order and its contractor’s successors and assigns.
“Agreement” means any agreement for the purchase of Goods and Services by Active Air from the Supplier.
“Date of Delivery” means the date that the Supplier is required to deliver the Goods and Services, and may be noted in the Order.
“Goods and Services” means any goods or services ordered by Active Air from the Supplier.
“GST” means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (“Act”) as amended.
“Head Contract” means the contract that Active Air has with its customer;
“Order” means an official written Active Air order for Goods and Services being received by the Supplier either by post, fax or other electronic means;
“Supplier” means the vendor or subcontracted supplier (which deals directly with Active Air) of the Goods and Services and its permitted successors and assigns.
“Terms” means these terms and conditions of purchase.
2. Basis of Agreement
2.1 All quotations and tenders received by Active Air from the Supplier, whether in writing or not, will be deemed to be offers to sell Goods and Services to Active Air.
2.2 The receipt of an Active Air Order by the Supplier will constitute acceptance by the Supplier to supply the Goods and Services on these Terms.
2.3 In the event that the Order imposes additional terms on the Supplier, unless Active Air hear from the Supplier within seven days of receipt of the Order rejecting the additional terms, it will be deemed that the Supplier has accepted the Order.
2.4 Unless otherwise agreed in writing by Active Air, these Terms apply exclusively to every Agreement and cannot be varied or supplanted by any other terms or conditions.
2.5 To the extent the Supplier’s terms, variations, and conditions are supplied with the Goods or Services, those terms, variations, and conditions will be of no legal effect and will not constitute part of the purchase order.
2.6 The Supplier must not subcontract the whole or any part of their obligations or assign any Agreement to any other party without consent, in writing, from Active Air.
2.7 Active Air has the right to vary or amend Orders to impose additional terms into any Agreement, where those terms are contained in a Head Contract and relate to the Goods and Services required from the Supplier under the Agreement.
2.8 In addition to these Terms, Active Air will also rely on all implied conditions and warranties contained in the sale of goods acts and fair-trading Acts of the States and Building and Construction Industry Security of Payment Act 1999 (NSW); Building and Construction Industry Security of Payment Act 2002 (VIC); Building and Construction Industry Payment Act 2004 (QLD); Construction Contracts Act 2004 (WA).
3.1 Prices quoted by the Supplier are exclusive of GST, which must be shown as a separate component, and other duties and imports, insurance, and transportation and delivery charges.
3.2 Quotations provided by the Supplier to Active Air are valid from the date of the quote until such time as Active Air may place an order, unless written notice of cancellation is provided by the Supplier.
3.3 The Supplier may not increase any quoted prices after the date of an Order.
4.1 Active Air will make payment for Goods and Services, subject to Order compliance and the Goods and Services being delivered on the Delivery Date or such date as Active Air advises in writing, within 45 days from the later of:
a) the end of the month during which a tax invoice is received from the Supplier for the delivery of the Goods and Services; and
b) the end of the month during which the Delivery Date falls
4.2 The Supplier is not entitled to interest on unpaid monies, or for any other costs associated with recovery from Active Air for unpaid monies.
4.3 If partial delivery of the Goods and Services ordered are made by the Supplier, Active Air is not required to pay for any of the Goods and Services until all Goods and Services are received, in accordance with clause 5.1, unless otherwise agreed in writing by Active Air.
4.4 Active Air will not pay the Supplier for any additional Goods, Services, or variations to the Order, unless those additional Goods, Services, or variations were agreed in writing by Active Air.
4.5 The Supplier must provide, by any specified date, all drawings, operating and maintenance manuals, technical data with and as part of the Goods and Services so supplied. Active Air may withhold all or some of the payments until the Supplier has complied with this clause.
4.6 Active Air may offset any sums due to Active Air by the Supplier.
4.7 Active Air has no liability for payment for any Goods or Services if the Supplier cannot produce to Active a delivery receipt, signed by an authorised representative of Active Air. The signing of any delivery receipt on behalf of Active Air will not amount to an acceptance of the quality or quantity of the Goods or Services supplied.
5.1 The Supplier agrees to deliver the Goods and Services to Active Air, to the address specified by Active Air on its Order, or as otherwise directed by Active Air in writing from time to time.
5.2 Goods and Services must be delivered in accordance with the stated Date of Delivery. Time is of the essence.
5.3 Active Air reserves the right to alter the Date of Delivery or suspend the delivery of the Goods and Services, by a period of up to three months, at any time before the Date of Delivery, by way of notice to the Supplier.
5.4 Goods and Services must be contained and packaged to ensure their safety during transport and delivery, and for storage of the Goods and Services.
5.5 Active Air may refuse to accept delivery of Goods and Services that do not comply with an Order or the Terms.
5.6 All goods delivered must be tagged and labelled for ease of identification upon delivery.
6.1 Active Air may cancel an Order, or part thereof, at any time up to seven days before delivery without any liability or penalty.
6.2 Active Air may cancel an Order at any time until delivery without any liability or penalty by notice in writing to the supplier if:
a) the Supplier fails or is unable to comply with the terms of an Agreement;
b) where the Supplier is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
c) where the Supplier is a corporation and it enters into any scheme of arrangement, any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Supplier.
6.3 Cancellation as a result of the failure of the Supplier to fulfil any part of an Agreement will not prejudice any claim that Active Air may have resulting from the Supplier’s failure.
The Supplier is liable for any loss or damage suffered by Active Air or any third party where the Supplier has failed to meet any delivery date, or cancels or suspends the supply of Goods and Services, including, but not limited to, liquidated damages claims, loss of turnovers, profits, business or goodwill or any liability to any other party.
Before providing any Goods and Services, the Supplier must have appropriate current and adequate insurance cover with regards to:
(i) WorkCover; Approved Workers Compensation Insurance
(ii) Public and Product Liability;
(iii) Transport, theft, loss, and damage;
(iv) Legionella in the case of water treatment suppliers; and
(v) Professional indemnity and Contractor’s Risk, if applicable.
The Supplier will be liable for any insurance premium excess payments caused by the Supplier and claimed by Active Air against its insurance policy. You must provide us with proof of your insurance upon request.
8. Property and Risk
Property in the Goods will pass to Active Air on delivery.
The risk in the Goods and Services and all insurance responsibility for theft, damage or otherwise remains with the Supplier until the time of delivery of the Goods or completion of the Services.
9. Intellectual Property
The intellectual property in all materials provided by Active Air to the Supplier being, but not limited to, drawings, specifications, designs, manuals, tenders remains with Active Air, and the Supplier must promptly return all such material to Active Air if requested by Active Air.
The Supplier warrants that it owns or is licensed to sell any Goods or provide any Services that are the subject of any patent, trademark, design, copyright or any other form of intellectual or industrial property.
The Supplier indemnifies Active Air against all liability, loss, damages, and expenses arising out of any claim in respect of infringement or alleged infringement, of any patent, trademark or design, copyright or any other form of intellectual or industrial property whether in Australia or overseas, relating to the Goods and Services.
The Supplier is liable for any direct, indirect or consequential losses or expenses suffered by Active Air or any third party arising from goods or services provided by the supplier.
11. Conformity of Goods and Services
The Supplier must deliver Goods and Services that are of the quantity, quality, and description detailed in an Order.
Goods and Services will not conform with an Order unless they:
a) are fit for the purposes for which Goods and Services of the same description would ordinarily be used:
b) are fit for a purpose expressly or impliedly made known to the Supplier at the time of the Order;
c) possess the qualities of Goods and Services which the Supplier has held out to Active Air by way of a sample or model; and
d) supplied in accordance with and comply with the architect and/or consulting engineer specifications and drawings regarding the project and any Head Contract.
11.1 All Goods and Services provided by the Supplier must comply with the provisions of all applicable occupation health and safety legislation and any other applicable laws or regulations that may apply to the Goods or Services. Services must be performed to a high standard of professional care and skill by appropriately trained and qualified personnel.
11.2 The Supplier must ensure that hazardous Goods have prominent and suitable warnings on all containers, packages and documents, and these warnings must comply with all statutory requirements and as otherwise reasonably required by Active Air.
11.3 Rejected goods may be returned to the Supplier at its risk and cost.
12. Warranty and Indemnity
12.1 The Supplier warrants:
a) the quality of materials and workmanship of the Goods and Services;
b) conformity of the Goods and Services to any Order for a period of 12 months, or such longer period as specified in the Order, or specification or as provided as a statutory requirement, from the date of practical completion of the Head Contract of the Goods and Services to Active Air.
12.2 The Supplier warrants that the Goods are free of any mortgage, lien or encumbrance whatsoever whereby the Purchaser could or might be liable to be dispossessed of the same.
12.3 The Supplier warrants to provide a full cash back guarantee and shall include reimbursement for any damages or costs associated with the failure and re-supply of the Goods and Services to Active Air.
12.4 The Supplier will indemnify and keep indemnified at all times, Active Air, its servants, agents, invitees or licensees against all loss, liability, damage, costs, actions, demands and suits of whatsoever kind or nature arising out of:
a) any claim for injury or death of any person, loss or damage caused in whole or in part by any act or omission whatsoever by the Supplier, its servant’s agents whilst executing an Order or making a delivery hereunder, and the Goods and Services it supplies;
b) any claim with respect to the Goods arising out of any latent or inherent defect in any of the Goods;
c) any litigation or arbitration from any claim referred to above.
13.1 Active Air is bound by the Privacy Act 1988 as amended and takes steps to ensure that all personal information obtained in connection with the Supplier will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principles.
13.2 Active Air requires that the Supplier comply with the National Privacy Principles in connection with any personal information supplied to it by Active Air in connection with any agreement between the Supplier and Active Air.
14. Governing Law
14.1 The laws of NSW from time to time govern these Terms, and the parties agree to the exclusive jurisdiction of the courts and tribunals of NSW, the Federal Court of Australia, and of courts entitled to hear appeals from those courts and tribunals.
14.2 Active Air may elect to bring legal proceedings in any appropriate jurisdiction.
15.1 Waiver by Active Air of any specific default or defaults by the Supplier or failure by Active Air to cancel an Order or any part of it, will not constitute a waiver by Active Air of its rights arising out of any further default by the Supplier.
15.2 If any term or condition is unenforceable it shall be read down to be enforceable or, if it cannot be read down, the term or condition shall be severed from these Terms without affecting the enforceability of the remaining Terms.
15.3 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.
15.4 The National Code of Practice for the Construction Industry (the Code) and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, reissued June 2006 (the Guidelines), apply to this project. By agreeing to undertake the works, you will be taken to have read and to agree to comply with the Code and Guidelines.